One discussion that comes around near elections is the U.S. Constitution and whether it is a living document that bends to the will of the people, or the people should work to preserve its original meaning. Although we Americans claim the document is living as it can be amended, in over 200 years, only 27 amendments have passed.
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. Finally, the 16th through 19th in the first ten years of the 20th century – all about 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 not based on text, such as the values of today’s society, should have an influence.”
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, but that 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 guns 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 so freely.
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.”
An originalist has a different point of view, believing 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 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. Some say Founding Father and the third U.S. President Thomas Jefferson was a 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.”
In the 21st century, Americans are divided on whether the Constitution is to be taken verbatim or if now is the time to update the words and possible intentions that the Founding Fathers had when creating the document. Will the next few months or years produce similar dramatic changes to the U.S. Constitution, or will it stand as it is?
Where do you stand on these two different viewpoints on the American Constitution?