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The Modern Constitution

in Contemporary Politics/Political Issues by

Imagine a roomful of politicians with disparate beliefs, tasked with creating a document to govern an entirely new country. In 1787, America’s founding fathers faced this seemingly impossible challenge. Countless debates, numerous committees, and five months later, the newly formed United States of America had the Constitution, the guiding document for our nation and the supreme law of the land. In the process of creating the Constitution, every word was deliberately calculated—the founders sought to create a document that protected America from humanity’s worst impulses. Yet, when reading the Constitution, perhaps the most notable aspect of its prose is its lack of specificity in many places. The preamble includes phrases such as “general welfare,”  an assertion of “establish[ing] justice,” and a declaration of “secur[ing] the Blessings of Liberty for ourselves and our Posterity,”   Furthermore, the Bill of Rights enumerated a list of rights without specifying the extent (or lack thereof) of those rights. Many cite this vagueness as a flaw. Counterintuitively, the ambiguity of the Constitution actually serves as its greatest strength—allowing for each generation to adapt it to its needs, as the Founders intended. Thus, the Founders effectively created a “living” Constitution through their use of ambiguous diction.

Nearly a quarter of a millennium later, our Constitution feels as if it’s being stretched nearly to its limits. On the left, many call for radical changes to our political system—including “abolishing the Senate” and electoral college. Meanwhile, on the right, the so-called “Constitutional Conservatives” are seeking to exploit Article V of the Constitution to trigger a Constitutional Convention, which would theoretically allow the quick implementation of “an amendment to the Constitution requiring Congress to balance its budget” and potentially other new amendments. As a matter of fact, 28 out of the needed 34 states have already called for a convention. Some, such as The Atlantic’s Jeremi Suri, suggest scaling-back the role of the Presidency to adapt to today’s multifaceted challenges. In this age of uncertainty for the viability and sustainability of our Constitution, Americans should not forget that the United States has been built upon the premise of our Constitution—and impulsively abandoning it to find quick fixes to a few of today’s political issues would be unthinkably short-sighted.

First, the Constitution must be established as deliberately written vaguely in order to ensure that the Constitution would be able to fit the needs of each generation. Second, historical rulings and evolving interpretations of the Constitution must be shown to support a living Constitution. Third, the US must identify how the Constitution can be interpreted today to address the challenges of the 21st Century.

The first aspect I will examine is the Constitution’s intentional ambiguity. The first—and perhaps most compelling—piece of evidence supporting the Constitution’s deliberate vagueness is the ongoing lively debate concerning its meaning. From Supreme Court Justices to politicians to lawyer to citizens, nearly every person has some way of interpreting the Constitution—and the range of interpretations are a testament to its ambiguity. For instance, Ruth Bader Ginsburg practices a philosophy that embraces the Constitution as a “living” document—one which adapts with the needs of the society. Others, most prominently the late Justice Scalia, practice textualism or originalism—which interpret the Constitution in modern-day as it would have been interpreted in the 1700s. In fact, Scalia called the Constitution is “dead, dead, dead” — refuting the notion of a living Constitution. Beyond just the disparity in philosophies, word choices like “general,” “well-regulated,” “liberty,” and “justice” are intentionally not clearly defined—leaving its meaning up to interpretation.  

However, to evaluate Scalia’s philosophy on his own terms, perhaps the best people to consult would be the Founders themselves. Thomas Jefferson proposed that the Constitution be redrafted with each generation to ensure that it suited the needs of the changing society. Moreover, Alexander Hamilton, Jefferson’s famous rival, also argued when referencing the Constitution that he never expects to see “perfect work from imperfect man.” That being said, other Founders argued for a more “dead” Constitution; James Madison, for instance, claimed, “The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country.” Evidently, even the Founders struggled with how the Constitution should be interpreted. Yet, the unavoidable fact that the Constitution was written in such abstract terms—“well-regulated,” “general welfare,” and “establish justice” (to name a few)—implies that the Founders did indeed intend for the Constitution’s meaning to evolve to face the issues facing each generation.  

Secondly, I will consider the changing historical interpretations of the Constitution within our body politic. History—quite irrefutably—seems to support the interpretation of a living Constitution. For, in the original draft of the Constitution, African-Americans were considered “”three fifths of” white people. From an Originalist perspective, the Constitution supports the degradation of non-white people. However, through the lens of a living Constitution, Americans can recognize—and work to account for—the dark chapters of its history without remaining inextricably connected to overtly racist policies. A recent Pew Research poll found that 50% of Americans believe that the Supreme Court should interpret the Constitution’s meaning in light of its current meaning, while only 45% argued that it should be interpreted as it was originally written. For our Constitution to remain non-racist and viable, we must consider it in the context of modern society and contemporary issues.

Simultaneously, we must accredit the Constitution—identified in The Atlantic’s “How American Politics Went Insane” as the “DNA” of our country—with the success of America. The US is the wealthiest country in the history of the world, in no small part due to our Constitution.  As Ruth Bader Ginsburg recognizes, America has “the oldest written constitution still in force in the world.” The Constitution has immortalized America’s central values—forcing Americans to compromise to compromise so that “the few could not oppress the many, and the many could not oppress the few.” The Atlantic’s “How American Politics Went Insane” also supports this interpretation, arguing that the vagueness of the Constitution catalyzed the creation of vessels such as “state and national party committees, county party chairs, congressional subcommittees, leadership pacs, convention delegates, bundlers, and countless more” in order to execute the vision of the Constitution. To continue the scientific analogy, these “middlemen” were “RNA” to the Constitution’s DNA. Certainly, as arguably the oldest democracy in the world, America has its Constitution to thank for its comparatively unwavering adherence to democratic principles. Yet, the Constitution was designed to create gridlock if politicians “refuse to compromise.” In President George Washington’s farewell address, he warned against such partisanship, well-aware of the risk of devastating political gridlock as a result of such partisanship. Today, the tribalism that plagues contemporary politics—combined with attempts to subvert democratic processes to maintain power—threaten the sanctity of the Constitution. Essentially, these middlemen have began subverting—not supporting—the Constitution. In other words, the “RNA” that once helped realize the Constitution’s vision has grown defective—largely from this notion of Originalism. Textualists—both legislators and judges—often use the antiquated meanings of the Constitution to prevent progressive policies from passing. Even in seminal cases such as Brown v. Board of Education, court precedent was less emphasized in the decision than social science revelations. Decisions like that one underscore the vitality of using a living Constitution to account for the flaws of—as Hamilton famously said—“imperfect men.”           Finally, I will consider how the Constitution’s values have shaped the success of the US. Our Constitution has guided the US to a position of great power and wealth; coupled with a shrewd interpretation of the Constitution, that power and wealth can help lead the world towards solutions to challenges of the 21st Century. However, rather than just discarding the Constitution that has guided our nation for almost 250 years, we must put to rest the notion that the Constitution must be interpreted as the Founders intended—their intent was to ensure wealthy white men exclusively controlled the government.  If you believe that our government should function that way, then you absolutely can preach the necessity of Originalism. However, if you do not believe that only white men should control the government, then you—to some degree—believe in a living Constitution. Interpreting the Constitution as living certainly offers solutions to today’s most pressing issues: promoting the general welfare for “our Posterity” likely means ensuring the general survival of our species—mandating immediate action against climate change (a recent IPCC report suggests we have 12 years to act on climate change before it threatens millions of lives). Establishing justice probably implies executing a criminal justice system that does not disproportionately attack one race, as ours currently does (for instance, African-Americans represented just over 10% of illicit drug use, yet also represented over a third of all drug arrests).  Through a living interpretation of our Constitution—built on its deliberate vagueness—it certainly is equipped to face the challenges of the 21st Century.

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