Richard Epstein responds to Levinson's Jeffersonian Proposal

I have been asked for my response to Sanford Levinson’s plea for a Jeffersonian approach to constitutionalism that refuses to treat the document as the Ark of the Covenant and treats it as a social arrangement that should be subject to intelligent revision that take into account its failures, which become ever clearer with over time.

I would fight against this general approach with every fiber of my being.  It is not because I think that the current state of affairs is ideal, when manifestly it is not.  It is rather that I think that any revision of the document will move us dangerously along a path of greater and more powerful government at the national and state levels that will only make matters worse.

This assessment derives in large measure from Levinson’s implicit subtext that he is in favor of a more expansive government, which is at direct odds with my own view that the previous expansions of federal power have put burdens upon taxpayers that have greatly constricted their liberty.

The overall message is this.  The convocation of new conventions will introduce a new degree of uncertainty that is likely to make matters worse not better.  It is commonly said of taxes that old taxes are better than new ones, because people can adapt to them.  That is true of constitutions as well.


A Jeffersonian Proposal for the Constitution

In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?