modest proposal/patriotism thread
SLevinson at law.utexas.edu
Sat Jan 28 09:25:40 PST 2006
Dan asks an interesting question. I think it is literally inconceivable that a new constitutional convention starting from scratch--let's say, for sake of the thought experiment, that everyone took a "forgetfulness drug" at the start so that even if they were made aware of the US constitutional system, along with all others in the world today, they would have no reason to identify is as "our own," with whatever emotional valence might be atached to it--would end up with anything very close to our present Constitution. Even if we retained a federal system, which I strongly suspect we would, would we really give the small states the extraordinary representation they enjoy in the Senate and the electoral college, for starters. As I've asked repeatedly, would we really want a rigidly fixed-term presidency impervious to genuine (and, by stipulation, merited) "loss of confidence). And I could go on (and will, in the forthcoming book). If a "patriot" is one attached to the full embodiment of the Constitution, as against its inspirirng principles set out in the Preamble, count me out. But is ANY rational person attached to the Constitution in toto?
There is also, of course, the matter of which rights we would choose to protect today, and how we would choose to phrase the rights-protecting clauses. Would every one of them include a "compelling interest" exception or a "so long as it doesn't threaten national security" clause. And so on.
From: conlawprof-bounces at lists.ucla.edu on behalf of guayiya
Sent: Sat 1/28/2006 9:50 AM
To: Miguel Schor
Cc: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: Re: modest proposal/patriotism thread
The discussion has indeed veered far from what I aimed at: exploring the
scope and extent of today's constitutional consensus. Let's try a
different speculative tack.
Suppose that a new constitutional convention were to be held. (Recall
that in recent years almost 38 states have called for one.) Suppose,
unrealistically, that the delegates were today's 100 senators, and that
they decided to start from scratch.
Would there be an agreement at all? If so, would it really look much
like the current text? I submit that the concerns and disputes would be
vastly unlike those of 1787, and that most of us would find this
prospect very alarming.
Daniel Hoffman, a/k/a rootless cosmopolitan intellectual
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