Is Randy Barnett's Repeal Amendment un-conservative?

Glenn Reynolds over at Instapundit has a round-up of links addressing Randy Barnett's Repeal Amendment, something that I wrote about recently over at the American Creation blog. As Reynolds notes, one of the prime objections to Barnett's proposal has some from some of the left-side of the blogosphere who are proposing that there is something un-conservative about amending the Constitution.  While it there is no question that a conservative approach to amending the Constitution would stress a prudential restraint in changing our fundamental charter for light reasons, the simple fact is that the Founders themselves thought that the document should be open to amendment -- that's why they put the Amendment Clause in the Constitution to begin with. Article V of the Constitution reads as follows:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

And not only did the Founders think that the Constitution should be open to Amendment theoretically, they thought that it should be amended in actuality.  Let's take a took at statements from the two American Founders most commonly revered on the American Right currently, George Washington and Thomas Jefferson.

George Washington, writing to anti-federalist Patrick Henry after the Constitution had been proposed, argued that the Constitution was imperfect and that the Amendment Clause should be viewed as the imperfect document's saving grace, meriting its adoption:

I wish the Constitution which is offered, had been made more perfect, but I sincerely believe it is the best that could be obtained at this time.  And, as a constitutional door is opened for amendment hereafter, the adoption of it, under the present circumstances of the Union, is in my opinion desirable.

George Washington, Letter to Patrick Henry, September 24, 1787, quoted in The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi (Fall River Press:  2009), pg. 33.

Washington's statement clearly asserts that the Constitution could be improved upon, and that the Amendment Clause was included to provide a mechanism for correcting its less than perfect elements.  And, critically, that the Amendment Clause is what made the imperfect Constitution worthy of adoption.  The nation would not be stuck with an imperfect charter, but could, over time, correct its errors.

Thomas Jefferson voiced a strong concern that the Constitution as originally drafted lacked fundamental protections against intrusive federal power.  As he wrote to his protege James Madison in 1787, Jefferson objected to the Constitution's lack of critical protections, most notably the following:

[O]mission of a bill of rights, providing clearly, and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury, in all matters of fact triable by the law of the land, and not by the laws of nations.  

Thomas Jefferson, Letter to James Madison, 1787, quoted in The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi (Fall River Press:  2009), pg. 47.

Jefferson's remedy for these omissions was a Bill of Rights:

I have a right to nothing which another has a right to take away.  And Congress will have a right to take away trial by jury in all civil cases.  Let me add that a bill of rights is what the people are entitled to against every government one earth, general or particular, and what no just government should refuse or rest on inference.

Indeed, Jefferson's belief in the malleability of the Constitution via amendment was one of the lodestars of his constitutional philosophy.  While strongly opposed to open-ended judicial construction of the Constitution, Jefferson derided those who thought that the Constitution should not be amended.  As he wrote to Samuel Kercheval in 1816,

Some men look to Constitutions with sanctimonious reverence and deem them like the Ark of the Covenant -- to sacred to be touched.

Thomas Jefferson, Letter to James Samuel Kercheval, July 12, 1816, quoted in The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi (Fall River Press:  2009), pg. 47.

I think that a good case can be made for skepticism regarding Barnett's Repeal Amendment, but the idea that conservatives should oppose it because of some mythical conservative belief in the sacred and hallowed nature of the Constitution is just silly.  The Constitution itself contains a mechanism for its Amendment, and the Founders most currently looked to by conservatives explicitly endorsed the idea that the Constitution not only could be amended, it should be amended.

[Cross-posted at American Creation.]