In his second response to Sandy Levinson’s call for a new constitutional convention, Michael Greve cast doubt upon the efficacy of such a project given the mess of our fiscal circumstances. Under present conditions, how could we ever simply focus on the structural challenges unencumbered by current political expediencies? In essence, it’s far too late to hope for the degree of detachment and deliberation that would be necessary from any mere collection of mortals. There is another side to this, though, that links, interestingly, to the whole debate about the nature of history and originalism.
I would like to suggest that the Constitution we have, has taken its place alongside other key documents in the western legal tradition, not because it has preserved inviolate a coherent legal and institutional order, but rather because it has served as a cultural Polaris in favor of the presumption of liberty. In this sense, James Stoner’s contention that we are still within the confines of a constitutional system as originally understood, seems altogether too optimistic. Rather, we have returned to something more like the earlier English constitution. Sandy Levinson’s post affords a nice way to conceptualize that issue.