Do We Need a New Constitutional Convention?


Richard Kreitner and Sanford Levinson in Boston Review:

When the country’s most prominent critic of the Constitution writes a commentary on the most famous defense of that Constitution, it is an event. When the publication of that commentary comes at a time when the system of government that Constitution provides is, by all accounts, under serious strain, it is an event very much worth noting.

Sanford Levinson’s An Argument Open To All: Reading The Federalist in the 21st Century is an engaging interpretation of the eighty-five original Federalist essays written in 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay in support of the ratification of the new Constitution. For several decades now, in books such as Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (2005) and Framed: America’s 51 Constitutions and the Crisis of Governance (2012), Levinson has argued that nothing less than a second Constitutional Convention is sufficient to fix the original charter’s problems. In his new book, Levinson offers a close reading of each of the original Federalist essays in order to see what that classic tract can tell us about how government works more than two centuries later—or why, often, it does not.

In the following conversation, which has been condensed and edited for clarity, Levinson talks about what’s wrong with Elizabeth Warren’s claim that “the system is rigged,” the continuing centrality of fear to American politics and constitutionalism, and what Publius—the pen name Hamilton, Madison, and Jay used in The Federalist—would think of the 2016 presidential aspirants.
—Richard Kreitner

Kreitner: Why this book? And why now?

Levinson: The Federalist plays a curious role not only in the intellectual canon of American thought, but also the popular canon. We have tickets to Hamilton in December and I was listening to the soundtrack last night; part of Hamilton is his participation in TheFederalist.

But one of the things I’ve discovered, as I teach a course this semester at Harvard Law School, is that very few people have actually read The Federalist in toto. In that sense it may be like the Bible or other canonical documents that are much more often cited or evoked than actually read. Moreover, when I ask my students what they have read of TheFederalist, only one person in my class had read the book in its entirely.

Another reason is that my previous book, Framed: America’s 51 Constitutions and the Crisis of Governance, reflected my growing belief that the Constitution, as is true of most constitutions, is really more important because of the structures that it establishes than the rights it professes to protect. Over the years I’ve become more analytically sympathetic to Madison’s argument that rights protections tend to be what he called “parchment barriers,” rather than truly effective levies against the desires of politically established majorities to suppress rights.

More here.