Reappraisal of the US Constitution

Has the US Constitution stood the test of time? How well does it work in the twenty-first century?

Anthony Bennett offers answers to these questions in his reappraisal of the 200-year-old constitution

Politics Review, September 2004

The privatisation of Britain’s rail network is having to be ‘reappraised’ after just l0 years, while House of Lords reform is being ‘reappraised’ (again) less than 60 years after the Parliament Act of 1949. The US Constitution is still going strong 217 years after its initial construction in 1787. To be sure, it has had a few amendments made to it–27 of them to be exact–but the essence of what was written by the Founding Fathers in Philadelphia in the summer of 1787 still remains largely intact and unchanged.

Does a constitution devised for the eighteenth century still work well in the twenty first century? After all, US government and politics have changed significantly from the days of one George W. (George Washington) to another George W. The first George W. knew nothing of modern political parties, presidential primaries or interest groups, to name but three differences. The country has grown hugely and so have the responsibilities of the federal government. How does the Constitution score on its 217th birthday?

Merits

To its credit, the Constitution has proved amazingly robust and adaptive. Few nation states have written constitutions that have lasted as long with so little fundamental reform. This is largely due to the ingenious blend of specificity and vagueness of the Constitution. Its prescriptions have proved enduring; its elasticity has proved ingenious.

What does that mean? It means that ‘the executive power shall be vested in a President of the United States’ (Article II) has survived the test of time, while Congress’s power to provide for the ‘common defence and general welfare of the United States’ has enabled the document to be adapted to a changing society. In this sense, the Constitution is a living, growing document, rather than just a document that sits in the National Archives in Washington DC, gazed at by reverential American tourists.

The amendment proceeds

A second factor to be added to the credit side of the balance sheet is the amendment process devised by the Founding Fathers. On most occasions, it has proved to contain that artful balance between being not too easy and not too difficult to fulfil. When Americans have felt an over whelming desire to make some amendment to the Constitution–extending the franchise, for example–this has proved possible. Look how comparatively easily the US Senate became a directly elected body in 1914 as a consequence of the 17th Amendment (1915), compared with the tortuous path of second chamber reform in the UK, begun in 1911 and still incomplete 93 years later.

Countless attempts at constitutional reform in the USA have fallen foul of the amendment process, however, and probably rightly so. In the last decade, these include tailed attempts at amendments about a balanced federal budget, flag desecration, school prayers and congressional term limits.

Judicial review

A third credit can be traced back to the Supreme Court’s ingenious decision in 1803 (Marbury v Madison) to grant to itself the power of judicial review–in effect to alter the meaning of the words while the eighteenth-century words themselves remain largely unchanged. Thus, the words of the 8th Amendment, still unchanged from 1791–‘cruel and unusual punishments shall not be inflicted’, have been modified in their meaning as the Supreme Court has announced what constitutes a ‘cruel and unusual punishment’ in the USA today.

‘Our Constitution works’

Many commentators would also want to credit the US Constitution with the simple fact that it has both survived and worked. It has survived some significant upheavals–a civil war, two world wars (perhaps only one from America’s perspective), the impeachment of two presidents and the resignation of a third, riots and civil disorder as well as a good deal of apathy (witness the low turn-outs in American elections).

‘Our Constitution works,’ claimed President Gerald Ford as he was sworn into office on 9 August 1974, following one of the most extraordinary constitutional upheavals the country had ever witnessed, summarised in the single word ‘Watergate’. ‘Ours is a government of laws and not of men,’ continued President Ford as he tried to help Americans come to terms with the fact that his predecessor, Richard Nixon, had been swept from office by the combined force of the Congress, the Supreme Court and the people.

Demerits

But all is not sweetness and light. One insightful commentator of British politics in the late 1980s observed that Prime Minister Thatcher–known to all as the Iran Lady–was ‘beginning to show signs of rust’. Some think they see the same corrosive signs on the US Constitution–and some of them think that what is needed is more than a hit of a respray.

One demerit often cited by commentators is that the eighteenth-century document has not proved sufficiently adaptable to the needs and wishes of modern US society and government. First, some see the Electoral College as a method of electing the president as outdated and potentially dangerous–witness the election of George W. Bush in the 2000 election despite his failure to win the popular vote. There is a school of thought that thinks the Constitution should be radically changed to provide for a proper direct election of the president. Others don’t want to go that far but argue for some significant reforms of the Electoral College, largely aimed at preventing a repetition of the events of 2000.

Divided government

Second, some see the likelihood of ‘divided government’–executive and legislative branches controlled by different political parties–as being the root cause of that scourge of modern US politics: ‘gridlock’. Reforms have been suggested to make the terms of the president and Congress coincide: for example, all members of Congress should serve a 4 year term, to coincide with the presidential term. Some wish to go further and recommend a parliamentary system of government with an executive drawn directly from the legislature, as in the UK. They see this as enhancing ‘responsible party government’, where it is easier for voters to hold one party responsible for the actions of the government every 4 years. In 2000, for example, Democrats could blame the Republican Congress while Republicans could blame the Democratic administration of Bill Clinton and Al Gore.

Repenting at leisure

Third, others point to the failure of the Constitution to be sufficiently adaptive. Many Americans see themselves as being ‘lumbered’ with a 2nd Amendment, passed in 1791, which talks of the people forming a ‘well-regulated militia’ and that therefore their right ‘to keep and bear arms shall not be infringed’. They argue that, while this might have been appropriate for the new nation in the late eighteenth and early nineteenth centuries and for the spirit of the frontier and westward expansion, it is entirely inappropriate for today’s largely urban and suburban America.

Too adaptive

Fourth, others criticise the Constitution for having, at times, been too adaptive, as in the adoption of the 18th Amendment to prohibit alcohol in 1919. This amendment was repealed just 14 years later by the 21st Amendment. This proved to be an educative experience for many Americans regarding constitutional amendment. It made them more cautious about agreeing to further constitutional amendments, especially those which seem to relate to policy rather than institutions. Some regard the passage of the 22nd Amendment, which limits presidents to two terms in office, as being another knee-jerk reaction that fell into the category of ‘marrying at haste, but repenting at leisure’.

Over-expansion of powers

Fifth, others–especially Republicans–point to what they see as the over-expansion of the powers and scope of the federal government during the past seven decades. They consider that too much power has been grabbed by Washington at the expense of the states.

Who has power?

In a similar criticism, the three branches of government are seen as out of synch when compared with the balance of power foreseen by the Founding Fathers. First, the office of the president has become too powerful. This argument was first put forward by Arthur Schlesinger in the 1970s under the title of ‘the imperial presidency’–a presidency characterised by power, secrecy and illegality and personified for some by the presidencies of Lyndon Johnson and Richard Nixon.

Second, Congress has become too powerful, too investigative, too interfering. Gerald Ford once remarked: ‘Our forefathers knew that you could not have 535 commanders-in-chief and secretaries of state: it just wouldn’t work.’ This was his way of protesting over what he saw as congressional interference in foreign policy in the mid 1970s.

Third, the Supreme Court is overly powerful and ‘imperial’, making decisions on everything from abortions to school prayers, from affirmative action programmes to who occupies the Oval Office.

However, if critics can be found for all three branches of the federal government, maybe the system is in balance after all.

Some parts don’t work

Some critics think there are parts of the Constitution that simply don’t work. Congress’s powers to declare war, impeach and try presidents and confirm judicial appointments (the latter performed only by the Senate) are three cases in point. Congress has not declared war since December 1941, yet US forces have been involved in numerous ‘wars’ during the past 63 years. Congress’s attempts to impeach and try Presidents Andrew Johnson (1868) and Bill Clinton (1998-99) were both turned into something resembling political farce. The Senate’s politicisation of the confirmation process for federal judges in the last two decades has attracted criticism. And both political parties have been equally guilty of the distortion of this process.

Where do we go from here?

George Washington stated that the US Constitution was ‘an imperfect product, made more perfect by the ability to amend it’, belt, due to a combination of factors, including caution, reverence and process, constitutional amendment is unlikely. President George W. Bush’s backing of a constitutional amendment regarding the ‘protection of marriage’ is almost certain to prove illusory.

We have, nonetheless, identified within this article certain areas of the US Constitution which might be in need of reform: the Electoral College; control of foreign policy; impeachment; the confirmation process of federal judges. None of these is a policy issue but all deal with matters that constitutions should be concerned about–the relationships between the government and the governed, and the safeguarding of a balance of power between the different branches of government. A good case could be made for addressing such issues by constitutional amendment.

Why, then, is action in any–let alone all of these areas unlikely? These are not the issues which ordinary Americans are talking about. Not even the malfunction of the Electoral College in 2000 was enough to generate a lasting debate among ordinary Americans for constitutional reform. The two major parties will see all these areas as, potentially, too dangerous and unpredictable. Throwing their weight behind reform of any of these issues could cause them unpopularity with powerful groups in US politics, whether interest groups or within Congress.

Why tamper with a system which has benefited them in the past and might benefit them in the future? Why would Congress vote to tie its hands in impeachments or the Senate vote to limit its powers in the confirmation of appointments? Why would turkeys vote for an early Thanksgiving?

Source Citation

Bennett, Anthony J. “The US Constitution: a reappraisal: has the US Constitution stood the test of time? How well does it work in the twenty-first century? Anthony Bennett offers answers to these questions in his reappraisal of the 200-year-old constitution.” Politics Review, Sept. 2004, p. 24+. Student Resources in Context. Accessed 14 July 2017.