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Rewriting the Constitution to Perpetuate It:

A Plan for Periodic Constitutional Revisions

G. Stolyarov II

Issue CLXXVII - November 11, 2008

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This essay is part of a series of papers by Mr. Stolyarov discussing an improved constitutional blueprint for a free society. Such a constitution is now publicly available and is called the Freecharter. This essay discusses Article X of the Freecharter.  

During the twentieth and early twenty-first centuries, Western governments have grown colossally and engaged in unprecedented limitations on individual freedoms. This trend renders imperative an examination of what is necessary in order to preserve a constitutional government of limited powers and a substantial sphere of individual freedom under such a government. Here, a case will be made for the necessity of  implementing periodic constitutional revisions, mandated by the constitution itself. A distinction will be established between the protections a constitution is meant to uphold and the mechanisms by which it endeavors to secure these protections. The proposal made here entails establishing an extra-governmental body to revise the constitution’s mechanisms, but not its protections, every 300 years, in order to align the mechanisms with the objects they are meant to preserve.

Writing to Samuel Kercheval in 1816, Thomas Jefferson noted that “Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment.” The tendency Jefferson observed in his time prevails in ours as well; the U. S. Constitution is seen as sacrosanct and beyond revision, even though it has clearly shown to be insufficient in protecting individual liberty against accelerating growth of government power. The past 232 years of American political history raise the question of whether and how one might design a constitution under which the government does not degenerate into the Hobbesian Leviathan. The least that can be asked of a constitution is that if the government does so degenerate, constitutional mechanisms would revert it to a less oppressive condition.

Murray Rothbard does not believe that such a constitution is possible. Rothbard makes three principal arguments against the viability of a constitution. First, he claims that

“no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme   Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government.” (48)

Rothbard is right as far as the U. S. Constitution and virtually all hitherto existing constitutions are concerned. However, if a constitution can be so designed that its interpretation and periodic revision is delegated to a body outside the government, then this objection will not apply to it.

Rothbard’s second argument against lasting constitutionalism is that “the highly touted ‘checks and balances’ and ‘separation of pow­ers’ in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers” (48). Rothbard is correct in suggesting that checks and balances can be truly viable only if some significant checks exist outside the government and the ruling elite. But this does not imply that constitutionalism per se needs to be rejected, but rather that various extra-governmental bodies need to be given power to curtail exercises of power by government officials both in the short term and in the long term. Here, a proposal will be made for one such extra-governmental body to act within a timeframe of centuries to correct abuses of the constitution.

Rothbard’s third challenge to constitutionalism is that

“the State has been able to transform judicial review itself from a limiting device into a powerful instrument for gaining legitimacy for its actions… If a judicial decree of ‘unconstitutional’ is a mighty check on governmental power, so too a verdict of  ‘constitutional’ is an equally mighty weapon for fostering public acceptance of ever greater governmental power.” (66)

Rothbard’s account of the dangers of judicial review is valid and suggests the need of an alternative body issuing constitutional interpretations that may diverge from those of the Supreme Court. Moreover, if the constitution has been so designed as to render expansive judicial interpretations of government power possible, then this extra-governmental body needs to have the power to occasionally, though not frequently, implement constitutional revisions to make such undesirable interpretations more difficult.

There has long existed an implicit recognition that constitutions contain two fundamentally different kinds of provisions. Some provisions stipulate the principles and protections that a constitution must secure – such as certain individual rights or restraints on government functions. Other provisions describe the mechanisms of the government’s operation – such as the composition, selection, and positive powers of the executive, legislative, and judicial branches. Nothing guarantees, however, that the mechanisms of a constitution will effectively secure the protections that are the constitution’s ultimate object. In his Discourses Concerning Government, Algernon Sidney wrote that “All human constitutions are subject to corruption and must perish unless they are timely renewed and reduced to their first principles.” (Sidney 1698, II:13:117). Sidney suggests that over time, the constitutional mechanisms increasingly depart from the first principles they were supposed to enforce, and only an act of deliberate revision can realign the mechanisms with the principles.

The dangers of not reforming a constitution that has shown to be defective in fulfilling its original purpose are substantial. In his 1824 letter to Robert J. Garnett, Jefferson observed that the “European governments have resisted reformation until the people, seeing no other resource, undertake it themselves by force, their only weapon, and work it out through blood, desolation and long-continued anarchy.” Jefferson’s analysis suggests that de facto constitutional change will happen, irrespective of how the constitution is treated officially. But if the constitution is not periodically revised to guard against expansive interpretations, loopholes, and outright violations, then the government will eventually become so tyrannical that the people can only curtail its power by violent and bloody revolution. In order to prevent revolution, the constitution must contain a formal mechanism for periodic revision.

Opponents of periodic wholesale constitutional revision may argue that the amendment process provides a way to gradually improve the constitution and reduce the risk of revolution without completely overhauling the constitution at any time. The amendment process is a desirable constitutional feature. However, in his 1816 letter to John Taylor, Jefferson persuasively argues that the amendment process may be an insufficient defense against the systematic tendency of governments to usurp power: “The functionaries of public power rarely strengthen in their dispositions to abridge it, and an unorganized call for timely amendment is not likely to prevail against an organized opposition to it.” Most proposed amendments attempting to further curtail government power are likely to be defeated by well-organized interests supporting government expansion. But if the constitution mandates its own overhaul at fixed times, no matter what happens in day-to-day political proceedings, then occasional realignments of mechanisms with principles will be inevitable.

Jefferson himself proposed that a new constitution be written every 19 to 20 years, because an examination of mortality tables suggested to him that “of the adults living at any one moment of time, a majority will be dead in about nineteen years” (Jefferson 1816). The present proposal suggests 300 years as a more reasonable interval between revisions, drawing on James Madison’s recognition in “The Federalist No. 49” (1788) that

“as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.“

As the American experience demonstrates, three centuries is plenty of time for governments to firmly establish themselves, acquire popular veneration, and depart in their functions from their original constraints and purposes. Three centuries of experience are certain to reveal major defects in constitutionally specified mechanisms of government, and constitutional revisions of such infrequency would not be vulnerable to Madison’s criticism.

I propose that the constitution ordain a non-governmental body, the Institute for Constitutional Revision (ICR), whose membership will consist of liberty-minded thinkers who will be forbidden to hold political office, receive political contributions, or express support for any candidates or political parties. Rather, the members of the ICR will be devoted solely to observing and analyzing the interplay between constitutional mechanisms and protections; they will monitor how, over the years, the former depart from the latter. ICR members will be able to issue and publicize their own statements about the constitutionality of legislative acts, executive orders, and judicial decisions. These statements will not be legally binding, but they will be able to address Rothbard’s concern regarding judicial decisions establishing legitimacy for government usurpations in the minds of the public. If the Supreme Court declares an act constitutional but the ICR issues a statement expressing a contrary opinion, then most intelligent observers will think twice about taking the Supreme Court at its word.

Every 300 years, the ICR will be authorized to completely rewrite the constitution’s mechanisms, but not its principles and protections. For instance, the ICR will be able to alter the composition and mode of election of the legislative branch, but not the Bill of Rights or the Restrictive Clauses pertaining to activities the government may not engage in. The ICR will have a mandate to align the constitution’s mechanisms with its principles, but not to alter the principles themselves.

Membership in the ICR will be entirely independent of the political process or of public opinion. The constitution may specify an objective test for admission of all future members to the ICR, which will be stringent but fair and as independent of current members’ subjective assessments as possible. For instance, the test might require a knowledge of the constitution from memory. Moreover, a part of the test might entail writing a dissertation which must devote a specified number of words to analyzing each of some specified number of texts in constitutional thought from each fifty-year period from 1600 to the time of the member’s application. The applicant could not be judged on what texts he analyzes – provided that they are about constitutions and government – or what his opinion of those texts is – provided that it actually pertains to the texts. Requiring a selection of texts from every fifty-year period since 1600 would prevent any applicant from being admitted who is only familiar with the fashionable political thought of his own time.

Establishing the ICR and periodic constitutional revisions will effectively address Rothbard’s three challenges to constitutionalism. Regarding Rothbard’s first argument, since the ICR is outside the government and is forbidden to have institutional connections to it, it does not have the same incentives as the Supreme Court to approve of growth in government power. The ICR is also immune to Rothbard’s second challenge, because it is a check on government from outside the government and not from within it. The ICR overcomes Rothbard’s third argument because it will be an alternative formal institution issuing non-binding rulings regarding the constitutionality of acts of government.

Further research into periodic constitutional revisions and institutions such as the ICR would need to examine methods by which the ICR could be financially independent of all societal institutions that might influence its analyses and decisions. It may be fruitful to examine ways by which the ICR could fund itself through the sale of books or its members’ delivery of public lectures while at the same time not falling prey to the temptation to only discuss “popular” ideas and thereby hope to attract larger audiences. Moreover, it will be important to analyze the incentives facing political actors immediately prior to a constitutional overhaul. What will be the motivation of political actors to adhere to the old constitution a few months before they know that it will expire and a radically new system will take its place? How much discoordination might be caused by uncertainty regarding what the new constitution will be? Would these costs be reduced by having the revised constitution publicly known several years prior to its implementation so that both government functionaries and the people have time to gradually shift their institutions and behavior patterns to adjust to the new constitution before it becomes the law of the land?

Ensuring that the ICR stays independent from the government and at the same time secure from government persecution is a foremost priority if the constitutional revisions the ICR proposes are to be uninfluenced by pressures exerted on its members by those in power. Research into how certain intellectual dissenters throughout history managed to stay financially independent and remain largely free from government persecution may help achieve an understanding of how the ICR might do the same. Examining the lives of Voltaire, Thomas Paine, and Ludwig von Mises, among other thinkers, may help develop a set of strategies for ICR members to follow to maintain their independence. These exceptional individuals were unpopular and politically persecuted during some phases of their lives, but managed to withstand that persecution and persevere in promoting their ideas. Their examples can shed light on how it may be possible for the ICR to survive during times when it is needed most.

Find out more about the Freecharter.

Works Cited

Jefferson, Thomas. (1816) Letter to John Taylor. University of Virginia Library. Available at http://etext.virginia.edu/jefferson/quotations/jeff1000.htm. Accessed 11 Oct. 2008.

Jefferson, Thomas. (1816) Letter to Samuel Kercheval. University of Virginia Library. Available at http://etext.virginia.edu/jefferson/quotations/jeff1000.htm. Accessed 11 Oct. 2008.

Jefferson, Thomas. (1824) Letter to Robert J. Garnett. University of Virginia Library. Available at http://etext.virginia.edu/jefferson/quotations/jeff1000.htm. Accessed 11 Oct. 2008.

Madison, James. (1788). “The Federalist No. 49.” Independent Journal. Constitution.org. Available at http://www.constitution.org/fed/federa49.htm. Accessed 11 Oct. 2008.

Rothbard, Murray N. (1978). For a New Liberty: The Libertarian Manifesto. The Ludwig von Mises Institute. Available at http://mises.org/rothbard/foranewlb.pdf. Accessed 11 Oct. 2008.

Sidney, Algernon. (1698). Discourses Concerning Government. Constitution.org. Available at http://www.constitution.org/as/dcg_000.htm. Accessed 11 Oct. 2008.

­­___________

G. Stolyarov II is a science fiction novelist, independent philosophical essayist, poet, amateur mathematician, composer, contributor to Enter Stage Right, Le Quebecois Libre, Rebirth of Reason, and the Ludwig von Mises Institute, Senior Writer for The Liberal Institute, former weekly columnist for GrasstopsUSA.com, and Editor-in-Chief of The Rational Argumentator, a magazine championing the principles of reason, rights, and progress. Mr. Stolyarov also publishes his articles on Helium.com and Associated Content to assist the spread of rational ideas. His newest science fiction novel is Eden against the Colossus. His latest non-fiction treatise is A Rational Cosmology. His most recent play is Implied Consent. You can also view his YouTube Videos. Mr. Stolyarov can be contacted at gennadystolyarovii@yahoo.com.

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