Sophie Gadd
Assess the view that the US Constitution is too entrenched and rigid for the needs of the 21st Century.' Provide theory and examples to illustrate.' US-1 Written by Sophie Gadd 2010
The word entrenched is defined as; ‘(of an attitude, habit, or belief) firmly established and difficult or unlikely to change; ingrained: an entrenched resistance to change’ (Oxford Dictionary , 1987)1. The US constitution is referred to as being entrenched because it is enshrined in higher law and very difficult to change. Many suggest that the complex nature of the amendment process makes the US constitution too rigid (i.e. inflexible and unable to change with the times) for the needs of the 21st century. However there are a number of reasons why this argument can be questioned; for example the vague nature of the US constitution means that it is up for interpretation i.e. it is whatever the Supreme Court say it is. The US constitution, although difficult to amend, is not ‘un-­‐amendable’ by any stretch suggesting that perhaps it is not as rigid as it appears. The amendment process The founding fathers set out two ways by which the constitution can be amended. They purposefully made the method quite complex so that the constitution would not be altered too often. With the first method a bill is proposed and then it must pass in both houses of the legislature, where a 2/3 majority is required. The bill then goes on to the states, who must vote ratify it, also by a 2/3 majority. This is the route that has been used for all amendments to date. The second method is for a Constitutional Convention to be called by 2/3 of the legislatures of the States. At that Convention one or more amendments would be proposed, however this has never happened. The Constitution cannot therefore be defined as entirely rigid because there is a defined amendment process. Amendments have been successfully passed in US history showing that the constitution is feeble. The most recent amendment to pass was in 1992 (Bennett, 2009)2, which altered the laws affecting congressional salaries. Although all of the amendments proposed so far in the first decade 21st century have failed, this is not to say no more will ever be passed. The nature of the US constitution The US constitution is not a static document. It can be regarded as a ‘good’ constitution because it recognizes the fact that societies changes with time, and so incorporates provisions for its amendment. It is a common consensus that the Constitution is not designed to be a set of specific principles and guidelines, but more of a general principle, a background on which contemporary vision would build upon (Hall, 1994)3. Consequently much of America’s 1
Oxford Dictionary . (1987). Oxford University Press. 2
Bennett. (2009). A2 US Government and Politics. Phillip Allen. 3
Hall, D. (1994). "Constitutional Law: Cases and Commentary". Delmar Cengage Learning (Digital Copy). Sophie Gadd
Constitution is written in a slightly vague manner, meaning that it is not too specific to become outdated. Indeed in "On Reading the Constitution" by Laurence Tribe, the author suggests that the constitution is different things for different people (Tribe & Dorf, 1991)4. A lot of it is therefore left to interpretation, such as the clause stating that the government ought to ‘provide for the common defense and general welfare of the United States’; it does not specify how this ought to be done. This has a number of advantages in terms of avoiding rigidity. Firstly it promotes cooperation. The non-­‐specific constitution encourages members of the US government to work together to determine policies through negotiation in congressional committees. Another advantage is that the US constitution can adapt to changing circumstances in society. The constitution is not too specific, so it is possible to change it so that it stays up to date with popular beliefs. The 18th Amendment particularly shows an example of the impact of popular opinions at the time; i.e. the views of the dry states and pressure groups such as the Anti-­‐Saloon League outweighed the ideas of pro-­‐
alcohol groups. The constitution is therefore geared to prevent it from becoming too rigid. Malla Pollack, in her article ‘Reframing the constitution from contract to promise’ suggests that the government should approach the written Constitution as a promise which is made to each reader at each reading, and then strongly regulate itself within the constitutional limits and priorities set by the document so read (Pollack, 2005)5. This idea would perhaps make the US constitution more rigid, however it would also make the government seem more accountable to the people. The Supreme Court One of the provisions of the constitution, and part of the checks and balances process is that it is to be interpreted by the Supreme Court. This means that if a bill is passed, and if there is a case against it brought to the court, it can be ruled unconstitutional. This seems to give the Supreme Court considerable power over the government, as well as giving the population to petition against an overbearing government. The fact that the Constitution is interpreted by the Supreme Court, some suggest makes it less rigid. It is, in a sense, whatever the Supreme Court say it says. This means that at times, particularly liberal or right wing rulings have been made because that is the opinion of the Supreme Court at the time. The liberal judge Earl Warren passed a number of liberal Civil Rights rulings that overturned those of previous courts, most famously Brown vs. Board of Education of Topeka (1954) (U.S. Supreme Court )6. This repealed the separate but equal ruling passed in 1896 after the 4
Tribe, L., & Dorf, M. (1991). "On Reading the Constitution". University of Utah Press (digital copy).
5
Pollack, M. (2005). 3.“Dampening the Illegitimacy of the United States’ Government: Reframing the Constitution from Contract to Promise”,. Idaho Law Review . 6
U.S. Supreme Court . (n.d.). Retrieved from Find Law: http://caselaw.lp.findlaw.com/cgi-­‐
bin/getcase.pl?court=US&vol=347&invol=483 Sophie Gadd
case of Plessey vs. Ferguson (Zimmerman, 1997)7, declaring it to be unconstitutional. Therefore, the constitution can demonstrate flexibility because it is in essence, whatever the Supreme Court at the time decides. Is the US constitution too rigid for modern America? The U.S. Constitution has been amended 27 times since its ratification in 1787. This seems like very few when compared to the UK where 27 Public Acts of Parliament were passed in 2009 alone (UK Public General Acts, 2009)8. Yet the UK is far smaller than the USA; it would fit entirely into the state of Oregon, making the lack of amendments seem concerning. However the US government has far more barriers put in place; i.e. the laws it passes are not the highest form of law such as in the UK parliament. This restriction is made up for by the fact that bills are passed far more frequently in state congresses; the US is simply too large to have a national government that is constantly amending the constitution. However, as mentioned before the constitution is amendable. This has allowed Americans to adapt their structure of government to changing morals, beliefs, and practices. The 17th Amendment made it that senators should be elected by their state legislatures whereas before they had been appointed (United States Senate, 2007)9. This shows a clear example of an adaptation to the US government that ensured it remained up to date as it led to better democracy and greater accountability in the Senate. The Thirteenth Amendment, made slavery illegal in 1865, and the Nineteenth Amendment, gave women the right to vote in 1920, showing that the Amendment process has allowed the US government to adapt to changing circumstances. The constitution is clearly amendable, and has been amended over 200 years under a number of different leaderships suggesting that was not too rigid or too entrenched in the past. Some may suggest in argument to this that it is too rigid for the 21st century because it was written 200 years ago. However, rigidity is also a good thing. It would seem strange if the US system of government had been altered a great deal every year, as well as being dangerous to the stability of the country. The UK government, for instance, apart from some reforms to the House of Lords and Judicial Appointments Committee has remained almost the same for 100’s of years. To suggest that the US constitution is not suitable for the 21st Century implies that either a specific part of the constitution of in fact the whole thing is outdated. The fact that sections such as the ‘3/5ths clause’ have been amended proves that the constitution is not too rigid, because they have been adapted for the times. It would be difficult to argue that say, the 7
Zimmerman, T. (1997, Spring). Plessy vs. Ferguson. Retrieved 2011, from 1890s America: A Chronology:
8
UK Public General Acts. (2009). Retrieved from UK Legislation: http://www.legislation.gov.uk/ukpga?page=3 9
United States Senate. (2007). Retrieved 2010, from Direct Election of Senators: http://www.senate.gov/artandhistory/history/common/briefing/Direct_Election_Senators.h
tm Sophie Gadd
freedom of speech and religion, right to a fair trial, voting for the president or representatives and the limits of government power are too outdated for the 21st century. Rights do not become outdated. As Patrick Henry observed, "The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government (The Constitutionality Crisis, 2008)10", so perhaps the rigidity of the US constitution ought to be judged by able the people are to petition the government. To conclude, we cannot be certain whether the US constitution is too rigid for 21st Century Americans, because there have only been 10 years so far in this century, which in the 200 year span of US history is not in fact a great deal of time. Although there are factors pointing to rigidity in the US constitution, such as the fact that it has only been amended 27 times in the last 200 years, this is not necessarily a problem. America’s constitution has an organic nature which has allowed it to develop and evolve efficiently with the times. This has worked well for the last 200 or so years, through two world wars and a technological revolution; something the founding fathers would never have predicted. There is little to suggest therefore that America’s constitution will not continue to evolve for 200 more years. Bibliography Bennett. (2009). A2 US Government and Politics. Phillip Allen. Bennett, A. (2010). A2 US Government and Politics: Exam Revision Notes . Letts. Hall, D. (1994). "Constitutional Law: Cases and Commentary" . Delmar Cengage Learning (Digital Copy). Oxford Dictionary . (1987). Oxford University Press. Pollack, M. (2005). 3.“Dampening the Illegitimacy of the United States’ Government: Reframing the Constitution from Contract to Promise”,. Idaho Law Review . The Constitutionality Crisis. (2008). Retrieved from The Purpose of the Constitution : http://constitutionality.us/TheConstitution.html Tribe, L., & Dorf, M. (1991). "On Reading the Constitution". University of Utah Press (digital copy). U.S. Supreme Court . (n.d.). Retrieved from Find Law: http://caselaw.lp.findlaw.com/cgi-­‐
bin/getcase.pl?court=US&vol=347&invol=483 UK Public General Acts. (2009). Retrieved from UK Legislation: http://www.legislation.gov.uk/ukpga?page=3 United States Senate. (2007). Retrieved 2010, from Direct Election of Senators: http://www.senate.gov/artandhistory/history/common/briefing/Direct_Election_Senators.h
tm Zimmerman, T. (1997, Spring). Plessy vs. Ferguson. Retrieved 2011, from 1890s America: A Chronology: http://www.bgsu.edu/departments/acs/1890s/plessy/plessy.html 10
The Constitutionality Crisis. (2008). Retrieved from The Purpose of the Constitution : http://constitutionality.us/TheConstitution.html Sophie Gadd