One discussion that comes around near elections is the U.S. Constitution and whether it should be updated to reflect a more modern time or if it is, in fact, a living document that bends to the will of the people through the legislative process. Although we Americans claim the document is living as it is amendable, in over 200 years, only 27 amendments have been ratified.
Those amendments came in groups in different periods of America’s growth. The original ten amendments that made up the Bill of Rights were added in 1791 – and you may notice the trend was in personal freedoms. The 13th, 14th, and 15th Amendments came on the heels of the U.S. Civil War, and finally, the 16th through 19th in the first ten years of the 20th century – all defining equality.
LNGenZ’s Legal Affairs Director Scott Cosenza, Esq., explains:
“Two major schools of constitutional analysis, which are often at odds, are those who champion ‘originalism’ versus those who favor a ‘living constitution.’ Broadly speaking, those in favor of originalism think the plain meaning of the words of the Constitution should control challenges. The people who favor a living constitution believe that other factors that are not based on text, including the values of society as they interpret them, should be included in any constitutional legal analysis.”
The Wish List For Each Side
Proponents of a living constitution believe the balance of power between the U.S. Congress and the Executive Branch is frozen in time – in the 1700s: A time when the greatest struggle was gaining control over tyranny. But some say this fails to deal with today’s issues.
A common wish of living constitutionalists involves allowing Congress to control the sale, possession, and regulation of firearms. They claim that firearms and weaponry have gotten much deadlier since the Constitution was written, and that it no longer makes sense to grant Americans the right to own them.
Mr. Cosenza further explains: “Regarding the death penalty, for instance, those who favor a living constitution claim that the 8th Amendment, prohibition on cruel and unusual punishment, forbids capital punishment. They argue that our society views such punishments as cruel and so they can be called unconstitutional.”
A decidedly different point of view than an Originalist, who believes that when the 8th Amendment was ratified everyone understood it allowed for the death penalty, which was the standard punishment at the time.
Originalists want the Constitution to stand as it is currently, including the right to freedom of speech without redefining speech, as well as privacy and the right to “keep and bear arms,” at the very least.
Is America Heading For Drastic Constitutional Changes?
Upon a glance through American history, it appears that amendments to the Constitution come around 80 years apart: When the colonists chose independence in 1776. When the Union was preserved and thrived, and slavery abolished in the 1860s. And again, when the government greatly expanded economic and social welfare between 1910 and 1930s.
Some say Founding Father and the third U.S. President Thomas Jefferson was a great believer in updating the very document he created – but with caution. In a letter to a friend, Samuel Kercheval, dated July 12, 1816, Jefferson wrote:
“I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them and find practical means of correcting their ill effects. But, I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”
Where do you stand on these two different viewpoints on the American Constitution?