Is the U.S. Constitution Dead? Follow along to learn more about the constitution and how it is interpreted in modern day times. Happy (or not so happy?) 228th birthday, U.S. Constitution.
This long-enduring document, admired throughout the world is, some say, under attack and fast losing influence. But before we get to that, let’s start at the beginning.
Born in 1787 and largely written by founding father James Madison (with input and editing by Thomas Jefferson), this document, the first single-written constitution still remains a sacred document for most Americans. It lives in large part because it describes the structure of government and the rules for its operation, consistent with the basic human liberties proclaimed in the Declaration of Independence. Soon after the U.S. Constitution was published and talked about, other countries began to copy some of the basic concepts contained within the document. Poland was the first, in 1791. Others followed, en masse.
One of the reasons there are so many constitutions is that most of them do not last very long. Research by Tom Ginsburg, deputy dean, and Leo Spitz professor of international law at the University of Chicago Law School, determined that the average predicted life expectancy of a national constitution is a mere 19 years. And in some countries, they found, the situation is even worse. The Dominican Republic, for example, has had 34 different constitutions since it was founded in 1821. At the other extreme, Australia has had only one constitution since 1901. The United States has had, Ginsburg and Spitz point out, two constitutions — the current document and the preceding Articles of Confederation of 1781.
Now, depending upon your political persuasion, some say the Constitution is under attack like never before. But first, let’s look at the facts. There are two methodologies to legitimately change the Constitution.
One is by passing a bill through both houses of Congress, with a two-thirds majority in each. Once the bill is passed it is sent to the states. This is the process used by all current amendments. Congress usually puts a time limit for the bill to be approved as an amendment. The second method is for a Constitutional Convention to be called by two-thirds of the state legislatures. The convention would propose one or more amendments to the Constitution. This method has never been used, but there has been much discussion as to what kind of changes this process would make to the Constitution.
Through Dec. 16, 2014, there have been 11,623 measures proposed to amend the Constitution. And 27 amendments.
Another, more controversial method of amending the Constitution would be judicial interpretation. Judicial interpretation includes reinterpretation of the Constitution. This has brought about some of the greatest changes in the Constitution, for example when Brown v. Board of Education in 1954 ended racial segregation.
Presidential or Congressional action are other informal methods that may lead to change. Here’s another example: Thomas Jefferson used his authority to purchase the Louisiana Territory, even without clear authorization to do so.
Congressional action was used when Congress passed the War Powers Act in 1973, attempting to restrict the foreign policy vote of the president.
So, given these “informal” workarounds… we begin to wonder: is the Constitution dead, or at least on life support?
In 1987, TIME magazine said of 170 countries that existed in that year, more than 160 had written charters modeled after U.S. Constitution. But a more recent study by U.S. Law professors in 2012 noted the declining influence of the U.S. Constitution.
And even in this country, people all over the political spectrum wonder if the U.S. Constitution alive and well? Or dead?
These alleged violations (and there are more), of course, are in the eyes of the beholder. But what is the truth? In the post 9/11 America of 2015 we may never know. There are no easy answers. And the framers of the Constitution would probably agree with that assessment. We began by asking: Is the Constitution dead, or at least on life support? Answer: We think not. But this grand old document does need defending, so let us all resolve to do so.