Richard Kay

Document Type



Constitutional Law


The proposition that the Constitution needs to be rewritten begs a critical question-namely what the Constitution is. If we posit that by Constitution we mean the rules drafted by the Philadelphia Convention of 1787 as amended in accordance with Article V of those rules, the argument that many of those rules are out of date and need to be replaced is a powerful one. This inadequacy appears in the powers they grant, the powers they do not grant, some of the limitations they impose on public decisions, and some limitations they ought to impose but do not. No matter how sensible they were for the eighteenth century, changes with respect, at least, to geography, demographics, technology, and prevailing values make current problems of governance substantially different from those confronting the original enactors. And, notwithstanding the regular invocation of the Constitution as expressing the authentic will of "We the People,"' every passing decade makes the existence of such a popular endorsement increasingly rhetorical. I also assume, for the sake of this Essay, that the original Constitution's own procedures for rewriting in Article V are practically unavailable to make the changes necessary to correct these deficiencies.

If we accept that the Constitution (as defined) needs to be rewritten, we must then ask how it should be rewritten. I discuss two methods in the balance of this Essay. The first is to write and adopt a new text from scratch. The second is to maintain the existing text but to reinterpret its rules so as to make it better fit with modem realities. Each of these methods, however, suffers from serious problems.