Is the constitution too rigid?

• Advantages and Disadvantages of the Amendment Process

•  Unentrenched / Uncodified - UK constitution

• How flexible is the US Constitution? 

• Is the constitution too rigid?

• Arguments for and against a codified constitution

In order to promote political stability and to avoid the potential for tyranny, the Founding Fathers deliberately made amending the US Constitution very difficult Article V of the Constitution states that constitutional amendments must be proposed by either a two-thirds majority in each of the Houses of Congress, or by a special Constitutional Convention that is called by at least two-thirds of the states (this has never actually happened). A proposed amendment must then be ratified by three-quarters of states. The procedure has subsequently been rendered even more difficult by the necessity of ratifying an amendment within 7 years

Although 10,000 amendments have been suggested only 33 have ever been approved by Congress for submission to the states, and of these only 27 have been ratified. The first ten amendments are collectively known as the Bill of Rights, passed in 1791 they are commonly viewed as part of the original Constitution.

Since then, only 17 amendments have successfully passed in over 200 years — and two of those, the 18th and 21st (introducing and then abandoning prohibition), effectively cancelled each other out.

But there are other ways it can be changed.

Apart from the process of formal amendment, there are ways in which the constitution has effectively changed over time. The Supreme Court has the power of judicial review, which allows adjustment of constitutional practice without going through the lengthy process of formal amendment. The very difficulty of amending the constitution greatly increases the importance of Supreme Court decisions interpreting the constitution, because reversal of the court's decision by amendment is unlikely unless there is an unusually high degree of public disagreement with it. An example would be the court's judgment in Brown v Board of Education in 1954, which declared that segregation in schools was unconstitutional. Even unpopular court decisions (such as the court's protection of flag burning) are likely to stand unless the court itself changes its mind.

The ‘silences’= thing which are not in the constitution therefore can be described by the executive or legislature.

The ‘elastic’ clauses are open to interpretation.

Executive and legislative practice has also changed almost out of all recognition since 1790. The following are important features of the modern American system of government but none is mentioned in the constitution: parties, primary elections, Executive Orders, signing statements, Independent Executive Agencies. This demonstrates that the US Constitution is in practice more flexible than it might appear on paper.

On the other hand you could argue that the rapid adoption of the 18th Amendment and it later repeal show that the amendment process is not immune to waves of popular feeling and is therefore not difficult enough.

On the ‘other’ other hand, it would be equally possible to argue that prohibition is the unique exception in 200+ years, and that the framers made a misjudgement in creating such a demanding process. It makes the addition of even widely supported amendments almost impossible, as seen with the failure of the Equal Rights Amendment, despite its approval by the House by 354 votes to 24 and the Senate 84-8, and its ratification by 35 states. The constitution can become 'fossilised': parts that have become obsolete, like the 3rd Amendment, survive, while, more importantly, rights and values that may no longer have majority support are sustained. The gun rights of the 2nd Amendment may now be moving into this category — after years of declining support for stricter gun control, Gallup found in April 2013, post-Newtown, that 58% of Americans were now in favour. The difficulty of passing constitutional amendments has the effect that the principal means of amending the constitution is through the Supreme Court's power of judicial review, and it is arguable how far this is desirable or democratic.

Only 17 amendments have been ratified in the more than 200 years that have passed since the Bill of Rights was enacted, and 'only 12 during the twentieth century. Most have been concerned with advancing equal rights and, secondarily, reforming government structures. Only two have been concerned with the content of pub­lic policy, namely, the establishment and repeal of Prohibition of alcohol. The relative lack of formal amendments has reinforced the conception of the Constitution as an espe­cially sacred and far-sighted work of genius among successive generations of Americans.