The Constitution: Shackles to Progress?

by Dr. Watson Scott Swail, President & Senior Research Scientist

Throughout the 350+ years since the Revolutionary War and the establishment of the United States of America, the Constitution, drafted a decade later, established a map for the values and principles upon which this nation was founded. In the intervening years, only 27 amendments have been made to the Constitution, although more than 11,000 amendments have been introduced in Congress. Perhaps surprisingly, only two amendments have been made in the past 50 years. Ten were made between 1870 and 1970. The last amendment, number 27 (or, for aficionados, XXVII), simply provided clarifying language on how members of Congress would be compensated (1992). The second last amendment, in 1971, decreased the voting age to 18 from 21, largely due to the Vietnam War and the draft, where the saying was “old enough to fight, old enough to vote.”

I raise this issue because the Constitution has become, arguably, the great impasse at which this country is unable to change to reflect technological and societal changes. Past amendments were added primarily to revise language or thoughts that are anachronisms from a different time, so as to update the Constitution to more closely reflect the attitude and perspective of the people. Not so much, now.

Comedian Steve Hofstetter jokes about how people know the first two amendments and maybe the fifth (I argue that most don’t really know all that is entailed in the fifth), but really don’t know the others but still argue for them. We get the first (freedom of speech and religion) and the 2nd (the right to bear arms), and, in fact, we argue the second continuously, even though the thought of an organized militia in 1987 was a very different thing than today. Perhaps that one could be amended. Right. Probably not.

Many of the amendments are “business” amendments. The 4th to 8th are primarily legal protections. The 12th, 20th, and 22nd set terms for presidents, etc., and the 25th provides clarity on what happens if the President dies in office or is unable to “discharge the powers and duties of office” (1967, in the shadow of JFK’s death). And we know of some of the other important amendments, although may have forgotten them or their numbers. The 13th eliminated slavery (1965); the 15th gave the vote to non-Whites (1970); the 16th the right to collect taxes (1913); the 19th finally gave the vote to women after the suffragette movement (1920). The fun one, the 18th amendment, prohibited alcohol (1919); by 1933, Congress needed a drink and repealed that one via the 21st amendment.

The term “amendment” is critical in our understanding of the Constitution. A constitution, or any legal terms of how an organization is “organized” is meant to change over time as certain things play out. Non-profit organizations alter their by-laws every once in a while, because they may find language either too restricting or not restrictive enough. A process and vote by the Board of Directors can alter the by-laws, similar to the members of Congress and states being able to “amend” the constitution.

But over the past 50 years, we have placed a badge on the Constitution that almost declares it untouchable. It is good as is. All we do now is look to the Supreme Court to tell us what “they” think the Constitution says or means. As we know, that depends in large part on the political perspective of the justices. What the Constitution means to one set of court justices is often quite different to another. Try getting Justice Kagan to agree on many definitions by Justice Thomas, for instance, and vice versa.

The inability of Congress and the states to provide further amendments over the past half century tells a very critical tail about where this country has been heading. When law becomes sacrosanct in that we feel that the Constitution is pristine and non-malleable, we have defeated the expectations of the framers. They knew what they were doing wasn’t perfect. They could barely agree on what they produced in Philadelphia. So they created a way to amend their words for different times and different perspectives.

I am not saying that there are many things to amend at this time. That isn’t my point. Although I would quickly point out that perhaps the second amendment could be clarified so people stop using it to protect their AK-47s. I mean, the new world didn’t even have a Gatling Gun back in 1787, let alone a gun that can automatically fire off 600 rounds in a minute. But I digress.

The Constitution was written to empower us. In hindsight, perhaps it has shackled us to a schema from over three centuries ago, and is, to a degree, a barrier to our future. Our world is so vastly different, as are our people and our sensibilities of right and wrong, as is our indifference. But our Constitution, standing at 7,591 words (including the amendments), has become a political dividing line rather than something we can all get behind. If we get so mired in revisionist history and forget that things need to evolve, the future becomes problematic.

Just something to think about. When was the last time you read the constitution?

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