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August 13, 2018


Professor Sheila S. Kennedy in her blog today writes that we need a constitutional convention to give us a new document more in tune with the times but worries that the people who would be entrusted with such a momentous task would be the very people who should not be within a mile of the process. She asked for comment and here, slightly edited, was my response.

I have been aware of the need to redo or heavily amend the organic law of the land since taking Constitutional Law courses in law school, but I greatly fear the motives of present day politicians who are gung ho for a constitutional convention. These are the same people who treat the Constitution or any reasonable interpretation of it as though it were designed by Madison to fatten their wallets or fortify their present-day political position, or both.

Using yesterday’s blueprints for solution of today’s and tomorrow’s problems is not working well, and even a redo of our organic law may not solve the problems we have today (and probably tomorrow) unless done correctly, but Professor Kennedy is right in calling the basic document outmoded and in need of updating, and since there seems to be no alternative with such atrocities as Citizens United, Hobby Lobby and their ilk of corporate and religious corruption and since I note further that we are following interpretations of the Constitution rather than what Madison had in mind when crafting it (which may itself be outdated), I fearfully and reluctantly agree that we need to have a convening of (I hope) politically neutral constitutional scholars who hew to the underlying Enlightenment ideas set forth by our forefathers but updated in clear and understandable language to suit the times rather than one harboring the views of narrow interest groups who wish to enshrine their greed and power in such new document.

Perhaps we should feel sorry for a Supreme Court burdened with Marbury v. Madison in trying to determine constitutionality in cases brought before their justices in a Jaguar age with Model T instructions. With interpretation built upon interpretation stare decisis can become the enemy as the justices come up with seemingly irrational holdings such as “corporations are people” and other inane findings. Perhaps they need a new set of guidelines that are clear and timely, and ideally, that’s what a new Constitution would be. Yes to that and no to a convention called to enshrine greed, religious views and economic systems.         GERALD         E


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