University of Wisconsin Law School
This essay considers arguments that the U.S. Constitution is so imperfect — and the constitutional and political system so dysfunctional or otherwise failing — that it is time to rewrite the Constitution through amendment or constitutional convention. I argue that if we adopt and maintain an attitude of fidelity to our imperfect Constitution, it may be unnecessary to formally amend the Constitution unless there is good reason to believe that something better might come out of this process. The better approach is to maintain an attitude of fidelity to the imperfect Constitution and to apply a Constitution-perfecting theory — to interpret the Constitution so as to make it the best it can be. Furthermore, maintaining that attitude, we should recognize the need to “rewrite” the constitutional culture the better to secure constitutional democracy: to cultivate the civic virtues and foster the capacities needed to maintain constitutional self-government.
Is it Time to Rewrite the Constitution? Fidelity to Our Imperfect Constitution,
Wisconsin Law Review Online
Available at: https://scholarship.law.bu.edu/faculty_scholarship/86