Commentary on the open-ended nature and flexibility of America's most important founding document.
One of the most important aspects of the U.S. Constitution, and one of its biggest controversies, is the open-endedness of many of its passages. Many rights Americans take for granted are only implied in the Constitution. For example, the right to privacy is not explicitly defined. However, privacy rights have been repeatedly defended under implications of the Fourth Amendment which protects against search and seizure. So, how are such defenses reached?
This is why the judicial branch exists in American government, to creatively interpret the Constitution in lieu of an amendment. The highest of all American courts, the Supreme Court, creatively interpreted the Constitution in cases that reached the Supreme Court regarding privacy rights. In light of this, judicial review would seem to be a wonderful thing that the Supreme Court can do. However, federal judges have sometimes ruled against the legislature on very controversial issues. At times, it can be argued that their rulings have done more to confuse the situation rather than help it.
While the judicial branch has sometimes set good precedents for the government to follow, there are times it is absolutely necessary for some things to be spelled out in the Constitution. Since interpretations may eventually be overruled, if something has become quite necessary and is considering in the spirit of the Constitution, an amendment is the best way to go. Also, an amendment needs to be something absolutely necessary to be spelled out that is not expressly spelled out. There is great debate over what things are worthy to be considered for this arduous revision process.
It would appear at first that the amendment process is too rigid. But, there is plenty of argument to support that it is sufficiently difficult for the purpose that America's founders intended. If the process were much easier, you would have a far greater number of amendments tacked onto the end of the Constitution. To this date there are but twenty-seven amendments; six more have passed through Congress but have never been ratified. That number is such a small fraction of the over eleven thousand amendments proposals made since 1789.
The idea of the Constitution was to make it so it was not too irrevocably explicit. Much was intentionally left as vague so that later generations could work out some of the issues that would inevitably arise. Otherwise, it may have been necessary to rewrite the entire thing at a later date. Being the imperfect, and at times very vague, document that it is, many folks wish that the Founders were still alive today to tell us exactly what they were thinking when they wrote this document!
As Linda Monk says in her book, The Words We Live By, for a constitution old as America’s, it has relatively few amendments. Monk says that it is a good thing. She writes, “For a constitution to have staying power, it must be above ordinary law, and therefore beyond the reach of mere majorities.” But the flexibility of a constitution is also essential, Monk says, so that it can “adapt to crises without becoming obsolete.” Needless to say, this is a very difficult balance to maintain. The Supreme Court helps out in this regard, by providing guidance on how to go about certain things without having to change the document our country stands on just to get something done.
The benefits of the Supreme Court creatively interpreting the constitution in lieu of an amendment have certainly been made clear already. It can also be said, however, that their power has plenty of drawbacks. They are unelected judges, selected by the president to remain to lifetime terms. Also, judicial review is an implied judicial branch power – it is not explicitly defined in Article III of the Constitution, where the Judicial Branch is created.
America has a judicial branch that exists to help interpret the laws so that amendments are not always necessary – but was it meant to have such power? This is debatable, because though Alexander Hamilton believed that the judicial branch was the least powerful of the three, the fact that unelected judges have the power to overturn decisions made by elected officials makes some people uneasy. So was Hamilton correct that “even though unelected, the judiciary [is] the true guardian of the ultimate will of the people: the Constitution” or was he not?
Besides the Supreme Court, there are many contemporary issues that many believe merit amendments. One of the most important issues is education. There has been a question of a right to an education amendment, but is an amendment guaranteeing every citizen really viable? If education is given out for free, it is true that not everyone will take full advantage of it. Perhaps the best way to deal with the issue of school funding – indeed, a very pressing one – is the issue that should be dealt with in the amendment.
Also, on the college level, tuition is definitely a major issue. Should everyone be able to go to college? Or more specifically, should it be possible for anyone to truly afford secondary education whether it is at university or vocational school? A “free and adequate” education amendment, proposed once before, would seem a very important step in giving the best possible education to American citizens.
Also, does throwing out the Electoral College, a source of great controversy due to the unpopular elections of George W. Bush to the Presidency in 2000 and Donald Trump in 2017, require the need for an actual amendment? It does, indeed, because it changes the way the executive is elected. In fact, an “Every Vote Counts” amendment was proposed in the 109th Congress. There are many who believe that the Electoral College system is just no longer necessary, and as we have seen in recent elections, it is more of a hassle than anything else.
The Electoral College exists in the Constitution for reasons that no longer apply. Americans live today in a mass media culture. Americans know full well who the president is, and who is running for the office. In the days of the Founders, it was believed that voting for electors to then vote for the president was the better idea. But that is clearly no longer necessary with the way the system is set up since the Twelfth Amendment.
Then again, the question will arise: without the Electoral College, George W. Bush may never have become President, would he? Probably neither would have Trump. But “Dubya” and “the Donald” aside, such a significant change would certainly change presidential campaign strategies. Indeed, it may bring more people out to vote. The whole idea of “every vote counts” is a very appealing one for voters all over America, especially those that feel their vote doesn’t count much in a presidential election.
The concept of red, blue, and purple states will no longer be quite as important. A simple majority carrying a state one way or another in today’s political culture just will not do. If every individual vote counted in the election of the highest elected office, no doubt you would see voter participation numbers explode.
The most controversial of all possible amendments is standardizing English as the official language of the United States. This amendment doesn’t mean other languages can’t be used; it just means it’s the language of our educational system and official language of business and commerce. The amendment would have to be worded in such a way that using other languages is not prohibited entirely, but that knowing English fluently is a requirement for everyday live.
Essentially, such an amendment would bring back immersion and eliminate English as Second Language (ESL) programs. It's important to note that other countries don’t accommodate nearly as much as America does when it comes to languages. However, having to define an official language in the Constitution may be an unworthy cause. After all, Spanish speakers are soon going to be the majority in the United States. So, this amendment seems unnecessary.
The Constitution is the supreme law of the land and changing it is not an easy task for a very good reason – it cannot be changed on the whims of popular opinion. If a change is to be made, it must be one that will be for the benefit of the document as a whole, to ensure that the Constitution works as well in practice as it should in theory. The amendments proposed in this paper are but a minute percentage of all that has been thought of it terms of adding to the document on which this country is based, but they are things that certainly do merit amendments. A full-blown debate of just a few plausible possible amendments would be a book in itself. It must be said, however, that America has reached a point where a few amendments appear to be necessary.
Monk, Linda R. The Words We Live By. New York: Hyperion, 2001.
Mount, Steve. "Some Proposed Amendments.” USConstitution.net. 29 Sep 2006. https://www.usconstitution.net/constamprop.html (2018 Feb 8)