No other country seems to take its Constitution more seriously than America, an assertion that undoubtedly has affected the development and survival of one of the world’s most powerful nations. However, many are concerned the rigidity of a document written in 1787 has hindered America’s ability to progress in the present day.
One of the most frequently touted criticisms of the Constitution is its excessively cumbersome amendment process. Since its existence, only 27 have passed, including the initial ten in the Bill of Rights, while there are typically over 150 amendments proposed by Representatives and Senators collectively each term. This has led to condemnation of the Constitution as too rigid; bounded both within the Articles themselves, as well as in public opinion. Many have even likened the reverence with which American citizens often appear to hold for it to a ‘quasi-religious acceptance’.
The formal process for passing a Constitutional amendment is, undeniably, no mean feat. While there are theoretically four methods to do so – two routes for proposing and two for ratifying, taken in any combination – with a sole exception, only one method is used in practise. The amendment can be proposed either by two-thirds of Congress or by a convention of two-thirds of States. The latter has never been used, and many argue that it would be impossible to determine its practicalities. Following this, it can be ratified either by the legislatures, or by the conventions, of three-quarters of the States. Given the sheer complexity of the system, it is unsurprising that Congress began imposing a seven-year deadline to transmit the proposed amendment to the legislatures. To date, the longest pending proposed amendment that was ratified successfully took over two centuries! The fundamental issue lies with Article V’s insistence for a majoritarian vote in all branches of governance; essentially, this has the effect of dragging all decision-making processes into a slow negotiation.
With such an arduous process required, it would appear the critics hold a valid argument. However, what this critique fails to mention is, I counter, the very way in which the Constitution has succeeded. It is not through formal altercations that the Constitution has primarily adapted, but rather through the power of popular culture and the judicial system. The paradoxical notion that the framers of the Constitution potentially never intended to provide such a power to the judicial system form the ornament atop this argument: it is through “informal” adaptation that this branch has been able to take and assert such power. Additionally, the framers themselves may not have anticipated or intended the longevity of the Constitution, as some feared this could condemn the document to irrelevancy; Thomas Jefferson himself believed that it would expire after 19 years. The achievement of the Constitution to do precisely the opposite and survive almost unaltered – in fifty states where there used to be thirteen, surviving civil rights movements, multiple wars and exponential globalisation – lies with its allowance for interpretation and responsiveness to present-day concerns. America was able to progress with universal suffrage as the vote was gradually given to an increasing proportion of the population. The status quo became law, and then incorporated into the Constitution. The ability to progress into the era of civil rights was first entrenched in the 1964 Civil Rights Act, which took root from the judicial Brown versus Board of Education case ten years earlier. Until the Privacy Acts, such as the famous 1973 Roe versus Wade, it was perfectly constitutional for states to forbid interracial marriage, the use of contraceptives and abortion. In this way, both common practise and Supreme Court cases have the ability to refine the definition of Articles and allow America to move forwards in significant ways.
Saying this, there are several ways in which the vagueness and vulnerability to interpretation have worked to its detriment. Many accuse the Bush Junior administration of committing constitutional abuses after he launched a War on Terror following 9/11 without the consent of Congress. The framers put their faith into the checks and balances that would work damage control, if not prevent entirely, the exercise of concentrated power, yet this was circumvented by a single administration’s perception of progress. If such actions are possible under the Constitution, arguing that it is too rigid seems invalid, but arguing it has hindered progress could be reasonable.
One example in which progress is undeniably hindered can be seen in the political gridlock arising through the intersecting powers of executive, legislative and, increasingly, judicial branches of government. Whether this is an argument against the rigidity of Constitution is contentious. The idea of the framers was to create a system whereby tyranny of the of the majority or minority was impossible. As such, the Madisonian system of checks and balances whereby Congress passes laws, the President approves them and the courts interpret them was adopted. While this does allow for change, it also causes tensions in and amongst all branches. The first term of the Obama administration reflects this, and has certainly demonstrated the difficulties involved when one party dominates the House of Representatives and the other the Senate. While many flaunt this as an example of the Constitution’s failure, it is questionable as to whether anything would, or could, be done to rectify the clash of two majorities even if the Constitution had never codified it. It is this clash between Democrats and Republicans that has caused such gridlock, yet despite the fact the party system was never codified, the Constitution nonetheless has effectively prevented a single political party from dominating government. The framers had attempted to find a solution that lay between a centralised and unrepresentative Federal government with a decentralised and disunited State model. The resulting intermediate may not be an entirely comfortable fit at times, but it does allow for progression through informal as well as formal change, as long as bipartisan politics will allow.
The difficulties in adapting the Constitution seem to prove both its fundamental strength and flaw. Political gridlock is a serious issue, one that undoubtedly has hindered progress, but is arguably an example of the Constitution’s value in limiting the power a single group can exercise. The petty one-upmanship that has marked political discourse is no fault of the rigidity of Constitution, but rather its interpretation in relation to a system never intended. The Constitution undoubtedly has its faults, but the overall benefits from this perspective tend to outweigh the negatives. Change is, indeed, possible, but until bipartisan cooperation is embraced, America will continue to use its greatest achievement to strangle its progress.