Assessing the Constitution

As it has not been substantially revised since it was introduced well over 200 years ago, the Constitution appears to have served the American people well through all the changes that have happened during that time. However, many Americans are critical of aspects of the Constitution and would like to see it reformed. The nature of these criticisms and the preferred reforms vary across the US political spectrum.

Conservatives and the Constitution

In many ways, modern conservatives share the objections made by anti-federalists when the Constitution was created. Both groups share the view that the growth of government over the past two centuries has eroded liberty. They have been especially alarmed at the way I which the federal government has come to share, or take over, responsibilities that once belonged exclusively to the states.

In addition, conservatives disapprove of how, since the 1960s, the Supreme Court has interpreted the Fourth, Fifth, Sixth and Eighth amendments to strengthen the rights of suspects and convicted criminals. In their view, this has weakened the law-enforcement authorities and hence also the protection offered to law-abiding citizens.

Conservatives would like to see the Constitution amended in ways that more effectively limit the size and scope of the federal government;

• They would like to see a ‘balanced budget amendment’ passed which would prohibit the federal government from operating at a deficit. This would have the effect of forcing the government either to raise taxes to fund its programmes (especially welfare programmes) or to leave responsibility for welfare to the states.
• They would also like to see appointed to the Supreme Court judges who will reinterpret the Bill of Rights in ways that protect the law-abiding citizens and not the law breakers.
• One conservative faction – social conservatives, who would like to see the political system used to promote moral behaviour – favours additional constitutional amendments that would prohibit abortion and same-sex marriage.

Campaigns led by conservatives to change the Constitution have enjoyed limited success. Between 1975 and 1991, a proposal to set up a constitutional convention (the method of amending the Constitution that has not yet been used) in order to pass a balanced-budget amendment won the support of 32 state legislatures – just one state short of the number needed for the convention to take place. In 2006, a proposed amendment to make same-sex marriage unconstitutional received a majority of the votes in the House of Representatives, although it did not meet the two-thirds majority needed in both Houses of Congress.

On the other hand, there are some aspects of the Constitution that enjoy strong support among conservatives;

• Conservatives are fierce defenders of the Second Amendment, which they see as providing people with the final resort of defending themselves if the government should ever become tyrannical.
• Although many Americans find it frustrating when the elected branches are controlled by different parties and fail to cooperate with each other, conservatives often welcome this situation. It serves to limit federal government activity, of which, in their view, there is too much.
• In recent years there have been some signs of the Supreme Court tending to interpret the Constitution in ways that meet with the approval of conservatives.

Liberals and the Constitution

Just as modern conservatives share the concerns of the anti-federalists among the Founding Fathers, modern liberals can be seen as the heirs to the federalists of the 1780s. In common with this faction, liberals place great emphasis on the beneficial role of government. Whereas the anti-federalists and contemporary conservatives see government power leading directly to a loss of freedom, associating increasing government power with decreasing liberty, liberals have welcomed government intervention that has improved people’s quality of life (especially the poor and vulnerable in society). At times, therefore, the greatest concern for liberals has not been the growth of government power but rather the constitutional restrictions on the government’s ability to do more to help those in need of support.

For example, during the first term of President F. D. Roosevelt, implementation of the New Deal programmes was hampered by the Supreme Court upholding challenges by conservatives that federalism was being undermined, and the Great Society programme would have had a greater chance of success if it had not been seen as contrary to the spirit of the Constitution.

Liberals take credit for a number of reforms to the Constitution, and the way it operates, that have enabled the federal government to help those on the margins of society;

• Liberals have always been strong advocates of extending the right to vote to all Americans and were in the forefront of the campaigns that led to the 19^th amendment (extending the franchise to women), the 23^rd amendment (giving the mainly black residents of Washington DC – a separate district, not a part of the 50 states – the right to vote in presidential elections) and the 24^th amendment (abolishing all ‘poll taxes’ that required people to pay a fee if they wanted to register to vote – a practice used in southern states to limit the black participation in elections).
• Similarly, it was liberal judges on the Supreme Court in the 196s who ruled that the provisions in the Bill of Rights intended to protect criminal suspects had to be applied in ways that were meaningful, for example, telling people that they had the right not to testify against themselves (the right to remain silent) when they were arrested.

However, they would have liked to have gone further. In the 1970s, liberals led a movement for an ‘equal rights amendment’ to the Constitution that would have make sex discrimination unconstitutional. Also, just as the conservatives have welcomed recent Supreme Court judgements, liberals have been alarmed by them.

Centrists and the Constitution

For Americans not on the right of left of the political spectrum, the Constitution is often seen as having shaped the identity and development of their country. To the extent that the USA can be said to be the most powerful nation in the world in economic and military terms and providing the greatest amount of freedom to its inhabitants, it is often the Constitution rather than American politicians that is given the credit. As a result, the Founding Fathers are regarded almost as prophets, and the document they created is treated in ways that religious texts are treated in other societies. As one commentator put it “the fact that a constitution was originally a political document is all but forgotten”.

This is not to say that centrists do not see any flaws in the Constitution:

• The lack of political progress that can result from the separation of powers, combined with the system of checks and balances, causes frustration. This was the case between 2006 and 2008, when the Republicans controlled the executive branch and the Democrats had a majority in both houses of Congress.
• Conversely, at other times the system of checks and balances does not appear to work effectively enough, as when Congress failed to forcefully press the administration of President George W Bush about the claimed evidence of weapons of mass destruction in Iraq that was used as justification for massive armed force.
• There are times when the constitutional protections of freedom appear not to work, as when terrorist suspects were detained for years without trial after the attacks of September 11, 2001.

However, there is an abiding faith among centrists that the US political system, operating within the framework of the Constitution, will invariably find the right balance over time:

• To resolve the lack of political direction in the period 2006-08, the public places the blame on the Republican and came down firmly on the side of the Democrats in the 2008 elections.
• When the president was able to advance his military plans and attack Iraq, costing the lives of over 4,000 US soldiers and tens of thousands or Iraqis, he paid the price with levels of approval at a record low.
• The detention without trial of ‘enemy combatants’ was forcefully challenged by the Supreme Court in a series of rulings between 2004 and 2008.

Challenging the Constitution

There is one other viewpoint on the Constitution that is held by a significant minority of Americans. This is the view that when the Founding Fathers forged the ‘three-fifths compromise’ that allowed slavery to continue, even though the opening words of the Constitution claim that it was created to ‘secure the Blessings of Liberty’, they gave rise to a political system that permitted people to be treated as inferior on the grounds of race. Furthermore, they believe that the system has continued in this manner ever since – through the era of legalised segregation in the South to the present, with many laws, in practice, discriminating against racial minorities.

According to this view, the Constitution is deeply flawed. It cannot be said to have secured justice and promoted the general welfare, as is claimed in its Preamble, and will not be able to do so for as long as it restricts government from taking large-scale measures (of the kind planned in the Great Society programme) to support those communities on the margins of society.

NB:

The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were responses to the Great Depression, and focused on what historians call the “3 Rs”: Relief, Recovery, and Reform. That is, Relief for the unemployed and poor; Recovery of the economy to normal levels; and Reform of the financial system to prevent a repeat depression. The New Deal produced a political realignment, making the Democratic Party the majority (as well as the party which held the White House for seven out of nine Presidential terms from 1933 to 1969), with its base in liberal ideas, big city machines, and newly empowered labor unions, ethnic minorities, and the white South.

The Great Society was a set of domestic programs in the United States promoted by President Lyndon B. Johnson and fellow Democrats in Congress in the 1960s. Two main goals of the Great Society social reforms were the elimination of poverty and racial injustice. New major spending programs that addressed education, medical care, urban problems, and transportation were launched during this period. The Great Society in scope and sweep resembled the New Deal domestic agenda of Franklin D. Roosevelt, but differed sharply in types of programs enacted.