An evaluation of the Constitution- Is it a successful experiment?
The Constitution is intimately and inextricably bound to the founding of the United States as a new nation. In this sense, to challenge the Constitution as a whole is to challenge the nation itself, and American national identity. Since Americans adhere so tenaciously and intensely to the values contained in the Constitution, to act in an unconstitutional way is to be 'un-American.'.
Longevity. The Constitution is the oldest codified constitution in existence. America's survival through a civil war, rapid industrialization, a major economic depression, world wars, the Cold War, massive waves of immigration and internal convulsions over civil rights and Vietnam has occurred under the auspices of the same document. The Constitution has provided a stable fixture in a changing nation and world. In this sense, the simple fact of continuity has invested the document with a symbolic and substantive importance that is difficult to comprehend for many outside America. With each successive year, the sagacity and foresight of the Founding Fathers is reaffirmed, and the remarkable character of the Constitution - formally 'rigid' yet simultaneously adaptive to new political, social and economic circumstances - is embedded still further in the national American psyche.
Adaptation and changelessness. Part of the apparent genius of the Constitution arises from the paradox of change being combined with fundamental continuity. The document seems, at one level, to comprise a series of fixed and eternal truths about the human condition, political values and government. Yet simultaneously, the ambiguity and vagueness of many of its provisions allow the meaning of its clauses to alter in substance - though not form -over time. The relative lack of formal amendments reinforces the combination of stability in governing arrangements with change in the meaning and practical application of the Constitution's various clauses.
These factors have together made the Constitution the venerated source of American pride that it is today. The British Prime Minister William Gladstone even referred to it as 'the most wonderful work struck off at a given time by the brains and purpose of men'. The genius of the Constitution refers not so much to who authored the document (though it is difficult not to admire the innovative and methodical way that they brought into being an entirely new - and still unique -design of government in 1787), but more in the content of the blueprint that they designed. As Isaac Kramnick put it:
Along with the flag, the Constitution stands alone as a symbol of national unity. America has no royal family, no heritage of timeless and integrative state institutions or symbols, no national church. Add to that America's history of being peopled by diverse religious, national and racial stocks, many of whom came long after the founding, and one can see how the Constitution could become such a focus of national identity and loyalty. There is precious little else to compete with it as an integrative symbol and evocation of America. To this day, in fact, to become an American citizen it is traditional for immigrants to have to pass a test on the Constitution. Unlike the flag, however, which has changed dramatically over the years, with the constantly expanding number of states, the Constitution has endured virtually unchanged for two hundred years. This is, surely, another important source of its status as the focus of American identity, its stability and unchanging quality. (Kramnick, 1987: 12)
CONSTITUTIONAL AMENDMENT AND JUDICIAL ADAPTATION
There are two additional reasons why so few amendments to the document have been passed. One is the difficult amendment mechanism that was established at the time the Constitution was ratified. To achieve this, an amendment must be proposed either by both houses of Congress (two-thirds of the members of each must vote for it) or by a constitutional convention by Congress held at the request of three-quarters of the states. If proposed by either method, the amendment must then be ratified either by three-fourths of state legislatures or by constitutional conventions held in three-fourths of the states. In formal language, this means that the Constitution is 'rigid', not 'flexible': it is difficult to muster sufficient popular• support to get an amendment through, the two-stage conditions for so doing each being very demanding.
Perhaps the best illustration of this occurred in 1972, when Congress proposed an Equal Rights Amendment (ERA), designed to entrench equality for American women. The passage of the amendment through Congress reflected the substantial -but nevertheless partial - success of women's movements for equal rights during the 1960s and the extension of the black civil rights agenda beyond racial and ethnic minorities. But not enough states then endorsed the amendment for it to be successfully ratified. Congress granted an extension to the time available to ratify in 1978 but by the end of that extension - in 1982 - ERA supporters had not obtained the approval of the 38 states required for ratification. Since such broad public backing is fundamental to amendment process, successful formal alterations to the document are few and rare.
The second explanation for the lack of amendments is that despite its 'rigidity' the Constitution can be updated and adapted in another way: through the interpretations of federal and state courts. To describe this as an 'informal' amendment mechanism is a little misleading. Judicial interpretation of the Constitution's clauses is crucial, as is the way that judges reconcile laws with particular constitutional provisions. Law - inherently a matter of form and procedure - is central to this process. Nonetheless, decisions handed down by an independent judiciary - what Supreme Court Chief Justice William Rehnquist termed 'the crown jewel of the Constitution' - can change the practical meaning of the document without altering the actual words. In this way, the rulings that courts give have a profound effect on everyday American life.
Take the Bill of Rights, for example. The first ten amendments of the Constitution were designed to protect individual citizens from the government. But when they were ratified in 1791, the government in question was the federal /national government. The Bill of Rights said nothing about protections for individuals against the governments of the individual states. Over time, however, the Supreme Court 'incorporated' several of the provisions through the 'due process' and 'equal protection' clauses of the Fourteenth Amendment and applied them to the states. For example, the Court ‘found’ the right of privacy which is not explicitly stated in the Constitution, in the case of Grswold v Connecticut.
In a sense, then, the fact that so few formal amendments have occurred gives a misleading impression of the extent to which the 'living Constitution' (the practical meaning rather than its formal facade) has altered dramatically since 1787. The Constitution is not a self-executing document and judicial interpretations have changed its meaning and the reality of American life in profound ways. For its defenders, the Constitution's vagueness is a supreme virtue, allowing it to be adapted over time to apply to new and changing conditions. The deliberate ambiguity of its words and phrases ('due process', 'equal protection') lends itself to versatility inapplication to a changing real world.
But for its detractors, the essence of law is procedure and process. Sticking to the letter of the law and not creatively reading into the law is what judges should be doing in a liberal democracy whose key principle is electoral accountability. To change the real world meaning without formally amending the document is a licence for unelected judges to place their own values and views ahead of the people who wrote the Constitution. This amounts to judicial legislating or 'raw judicial power' or legislating from the bench.’ (One reason why this is perceived as problematic is because a definitive judgment by the US Supreme Court on a constitutional issue requires a formal amendment of the Constitution to be overturned. Only five amendments to the Constitution have been ratified that overturned a judicial ruling by the Supreme Court.) e.g the Sixteeth Amendment overturn their ruling against federal income tax.
Short, ambiguous and imprecise, the Constitution's apparent weaknesses turn out to be its enduring strengths, the 'efficient secret' of its lasting claim to universal American respect. The oldest. in the world, with every passing year the genius of its designers seems only more potent to those Americans contemplating the Founding Fathers in 1787 constructing a new and novel constitutional order that still operates in the twenty-first century. And while no other nation has sought to emulate the Constitution in its entirety (in particular, remarkably few have sought to emulate the fragmented system of government set up by the Constitution), the document has proven to be a model from which selective features (the Bill of Rights, especially) have emerged over time as some of America's more successful and important exports.
INTERPRETING THE CONSTITUTION
Since the document is so ambiguous, how should judges go about interpreting it in concrete cases? What, if any, principles should guide their deliberations? These questions are far from abstract or arcane since the answers condition the real world results for millions of Americans. From whether Americans have a right to own firearms, through whether government can prohibit a woman from procuring an abortion, to whether states can allow physician-assisted suicide, all hinge on how one interprets the document. What the document means is literally a matter of life and death for millions of Americans today.
Two basic questions inform the interpretation problem:
· Should courts defer to the will of elected representatives or assert their independence in striking laws down as unconstitutional?
· Should judges read the clauses of the Constitution narrowly or broadly?
The more courts are willing to strike laws down and read the Constitution's provisions broadly '(whether for liberal or conservative ends), the more 'activist' courts appear. This can be problematic since, as unelected bodies, to deny elected legislators the fruits of their victories is controversial in a democracy. But the less willing courts are to strike laws down and the ,more they read constitutional clauses narrowly, the more the decisions of elected bodies will dominate. If this occurs, the rights of individuals and minorities may be abused and 'civilized' values go unprotected.
Although distinctions within the approaches to matters of constitutional interpretation are many and complex, two broad schools of thought have developed on this matter:
Interpretivism. Adherents to interpretivism hold that the only manner in which justices can decide cases of constitutionality is with reference to the Constitution itself. If the words of the document cannot reasonably be read to apply to a case, judges must not intervene. The stricter version of this is sometimes termed 'historical originalism' or 'textualism' - these mean, respectively, that either the original understanding at the time clauses were written or the 'plain meaning' of the text must guide interpretation.
· Non-interpretivism. Upholders of noninterpretivism believe in a 'living Constitution'. They see interpretivists as too narrow. Political values inform the Constitution - civil rights, democracy, liberty, minority rights - and need to be defended and promoted. Too zealous an adherence to the Constitution's original or plain meaning would yield policy results that are repugnant to civilized values in today's world. On this view, the appropriate question is not so much how to interpret the Constitution but whether to do so at all through originalist methods.
The issues raised by constitutional interpretation are complex and important ones. This is not only a matter of the individual laws or policies that they affect but also the entire design of constitutional government. The Bill of Rights was intended to protect the individual against the government and minorities against the majority - including, the rights of criminal defendants.(Miranda v Arizona) If its meaning becomes dependent on what judges believe either they or a majority of the public desire, then this will reverse the entire purpose of the document: what should be a restraint on majoritarianism instead becomes an expression thereof. The debate over how to interpret the Constitution's provisions, then, goes to the very heart of the design of American democracy and the character of contemporary life.
AN AID TO SOCIAL CHANGE OR A BARRIER?
If Americans disagree over whether and how to interpret the Constitution, one of the relatively few features of the document about which most concur is that its provisions are vague and ambiguous. That ambiguity has permitted the Constitution to 'evolve' through interpretation over time but critics disagree over whether that ambiguity has either helped to hinder necessary social change or assisted in bringing it about. It is partly because American history has been replete with instances of illiberalism (slavery,segregation, anti-Semitism, Japanese internment during the Second World War, repression, McCarthyism) that the issue of social change is so important. And, despite their supposed role as protectors of minorities against majority tyranny, even Supreme Court decisions have upheld (only later to strike down) some of these practices - such as slavery, segregation, and Japanese internment - on the basis of the US Constitution.
Three main lines of criticism have been particularly prominent in both academic and popular writings on the Constitution.
The Constitution is elitist
The Founding Fathers had many differences in their political views but shared a common status as white, propertied men (many of whom owned slaves). The document they wrote protected their own economic interests through the governmental structures it established and excluded both women and blacks from American citizenship. Slaves - though not mentioned by that term - were specifically included in Article I, Section 2, to count as 'three fifths of all other Persons' for purposes of calculating state representation in Congress and taxation levels. It was not until the ratification of the Nineteenth Amendment in 1920 that women were granted the right to vote. As Thurgood Marshall, the first of only two black Supreme Court justices, caustically observed on its bicentennial, the Constitution was 'defective from the start'.
But while the document of 1787 clearly did not yield a democratic regime and slavery and segregation are indictments on American history, the difficulty here is assessing the Constitution in today's terms. No constitution written in the eighteenth century was likely to be fully democratic and representative in the terms familiar to the democratic world of today (the American one was remarkably enlightened for its particular time in many respects). Moreover, the fact that women and blacks have been able to use its provisions to achieve political and civil equality has demonstrated its political utility. In the case of women, the use of the term 'persons' rather than men suggested that the Constitution was intended to be inclusive. While the absence of equality for blacks meant America could only be considered a full democracy from 1965, African Americans appealed to the Constitution's own provisions to achieve social change. Most nations have experienced internal and violent upheavals, and several regime changes and constitutions. Not only does America owe its relative political stability to the Constitution, but the Constitution has been remarkably successful in allowing for its own democratization, encouraging its transformation while preserving its core values and government structures.
The Constitution is outmoded and inappropriate
Is the Constitution simply outmoded and ill-suited to today's America? Exactly why current generations of Americans should be bound in the Internet age to the quill-written views of their ancestors is unclear. Take two examples: much of the debate about gun control today still revolves around what the Second Amendment to the Constitution means -does it give an individual citizenship right of gun ownership, or is this a right limited to service in a state militia? For many advocates of gun control, the notion that a primary barrier to rational firearms laws is a provision written in 1791 is ludicrous. Similarly, on abortion, much of the debate has focused on whether the Supreme Court was correct to create a constitutional right to legalized abortion, in 1973, on the basis of a woman's 'right to privacy'. Some argue that because the term 'right to privacy' does not explicitly exist anywhere in the document, the Court was wrong to invent it. Again, for many Americans, to debate the rights and wrongs of important social policies - whether guns, abortion, capital punishment or gay rights -in terms of an eighteenth-century document of 7,000 words seems absurd
But this is arguably a misplaced criticism. The 'problem' about firearms or abortion or capital punishment is not so much the Constitution as the society. That is, Americans possess different beliefs about, for example, the importance of private legal access to guns. Many Americans are also strongly divided over these issues (though less so than often imagined). If Americans in a particular state, or all states, want to outlaw the death penalty, they can, and 12 states have done so. The Constitution does not require Americans to impose capital punishment or to use guns. It simply allows this to occur if sufficient numbers so wish. On this interpretation, then, the Constitution has not locked Americans into some eighteenth-century time warp. Rather, the evolving preferences of the public have led to policies and practices sanctioned by the Constitution, some of which non-Americans may dislike but many of which receive substantial support in the United States.
The Constitution is inefficient
Far from facilitating adaptation to a changed America, some critics, such as Lazare (1996) and Putley (1997), see the Constitution as a barrier to social change and a force for governmental inefficiency. They note that no other modern democracies have modelled their designs for government on that of America, the reason being that the American design appears a recipe for 'gridlock'. With so many veto points and checks and balances, it is tremendously difficult to achieve policy changes, especially at the federal level. For some, this means that government simply fails to deliver needed policy solutions to pressing problems that were not envisaged in the eighteenth century: environmental decay, industrial failure or health care provision. For others, the main deficiency of government is that the laws it produces are invariably compromises - lowest common denominator deals that partially satisfy multiple American constituencies (sufficient to muster legislative majorities) but fully satisfy none and fail to resolve policy problems.
For many Americans, the Constitution has prevented, or at least slowed down, the likelihood of far-reaching social, economic and political change. On this interpretation, the Constitution is a fundamentally conservative force. This is partly due to the fragmented system of government it established, which makes it easier to stop than start innovative policies. It is also because some constitutional provisions suggest powerful entrenched barriers to change, for example with regard to gun control. And the courts' ability to strike down laws as unconstitutional means that even if Congress passes an innovative bill that the president signs into law, this is not the last word in whether or not it is implemented. Compromise is the watchword of American politics but this is rarely easy to achieve and typically requires a lengthy process. As a result, for example, black Americans had to endure decades of devastating deprivation and unequal treatment before gaining even formally equal political and civil rights to whites, while even today women - to some feminists - remain denied in practice the constitutionally guaranteed equality rights to which they are entitled in theory.
From an alternative perspective, however, a constitution that did not succeed in providing a substantial measure of political stability would be an odd and ineffective document. Constitutions are invariably designed, at least in part, to be conservative devices, ensuring that change can occur but only within an overall framework of fundamental continuity of political arrangements. In many cases, the reason for an absence of change has not been so much the constitutional design of American institutions, as it has been the policy priorities and preferences of the American people. That is, Americans have either been opposed, divided or indifferent to change.
Most Americans, for example, consistently favour stronger federal gun controls, but they tend not to mobilize in sufficient numbers, or vote on this basis, to overcome the intense minority opposition that exists to tougher federal gun control. To attribute weak firearms regulation to the Second Amendment is, on this interpretation, misplaced. Similarly, while the constitutional design allows for Americans to vote for tax-cutting presidents and members of Congress intent on raising social spending, it does not require them to do so. Apportioning the blame for the trillion dollar budget deficits of the 1980s on the Constitution, rather than on the conflicting preferences of the people as expressed in the elections returning divided party control of the federal government, again seems mistaken.
The Constitution does not prevent change from occurring - quite the contrary. Its design provides for many different possible agents of change: the presidency, Congress and the Supreme Court at the federal level, the various branches of the 50 individual states (governors, state legislatures, state courts, mayors, city councils) and provisions for state-wide referendums on measures from same-sex marriage to legalizing cannabis. What the Constitution most emphatically does do is to make change dependent on broad-based public support. Where that is lacking, change is unlikely to occur. But to indict a constitutional order on these grounds is, if not perverse, at least demonstrably lacking sensitivity to the imperative of majority support. Measures in the UK that are passed by a party with a majority of seats at the Westminster parliament elected on a minority of the popular vote - as was invariably the case with the Thatcher and Blair governments - simply cannot get through so easily in the American system. As Morris Fiorina (1992) has argued, this may prevent society from gaining through government action, but it also prevents society from losing through government action.
This is not to suggest that Americans may sometimes press for changes that they later come to view as mistaken. The exemplar of this was Prohibition. From the nineteenth century, a diverse coalition of interests
(religious groups, feminists, and labour unions) sought a formal constitutional amendment to prohibit the sale or distribution of alcohol, a drive finally realized in 1919 with ratification of the Eighteenth Amendment. The result was disastrous, fuelling corruption and crime while simply driving up the cost of booze on the vast black market. In 1933, the ratification of the Twenty-First Amendment, to reverse its predecessor, ended the fiction of America as a 'dry' nation after 24 years of social upheaval and political turmoil.
Ultimately, as the Declaration of Independence and the Constitution make clear, the right of the government to govern rests on the consent of the people. But what the government does or does not do also hinges on what the people support or oppose. To attribute America's ills to the Constitution is, on this view, to miss the point about the system of democratic and limited government that it established.
Moreover, while America has clearly failed to live up to its constitutional guarantees fully at points in its history, the existence of those guarantees remains important. In October 1999, for example, when Chinese President Jiang Zemin paid a state visit to the UK, British police invoked a long-dormant law against protesting in 'royal parks' to stop people in London protesting (defined as unfurling flags and banners) against Jiang's visit. The notion that the freedoms of speech, association and expression could be so easily quashed is one entirely alien to America, where even the right of neo-Nazis to stage marches through Jewish communities and white supremacists to burn crosses has been defended under the First Amendment. However imperfect America's history, the record of extending democratic rights under the Constitution has been remarkable. Even groups which one might imagine would be least enamoured of the document, such as African Americans, have been among its most dedicated defenders.
At one level, then, the Constitution inhibits American political life by requiring those seeking political change to muster not only majority endorsement but also constitutional legitimacy. The desirability of change or new laws is secondary to whether or not they are constitutional. That can be a lengthy, frustrating, and even troubling requirement. But simultaneously, the need to achieve constitutional legitimacy subjects all citizens, decision-makers and government to a higher law - it holds government to account for its actions. Thereby, it shapes and stabilizes the context in which political conflict occurs and establishes settled, routinized mechanisms by which disputes can be resolved. The dangers of arbitrary rule that have plagued most of the world are thereby minimized, if not eliminated.
Tenacious adherence to a document designed by eighteenth-century gentlemen for an entirely different type of society might seem ludicrous, but the Constitution has endured through adapting to immense changes in American life while retaining its fundamental structure essentially intact. The readiness of many outside America to criticize the Constitution frequently co-exists with a reluctance to acknowledge its achievements. The mere fact of age need not, of necessity, make particular claims or protections any less relevant today, or particular values less worthy of special protection, than when they were first pronounced.
American identity is built centrally upon political values and the Constitution is the real fount of those values. In a sense, the Constitution - far more than the president or any public official, legislative assembly or court - is America. Precisely because it has proven to be the unshakable foundation of American democracy, challenging - much less violating - its cherished wisdom is sacrosanct. The Constitution guarantees the consistent rule of law, not the arbitrary whim of individuals, and promises fairness in place of arbitrary decisions. All citizens are subject to its provisions, and none are above the law (one reason why the allegations of perjury and obstruction of justice against President Clinton proved so serious in 1998-99).
This common frame of reference has ensured that Americans may not always agree on the substance of political or policy debates, but they know how to disagree. In so doing, citizens can affirm their common bond as Americans and assert their, participation in the continuing dialogue that is America. Even one the key Framers of the document, James Madison, was not fully satisfied with the Constitution and held it to be flawed. But to the extent that no constitution is perfect, the US Constitution has nonetheless provided a powerful basis for continuity as well as change in America.