Alternatives to the “Living Constitution”

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5 Responses

  1. Brett Bellmore says:

    “And it is unrealistic to demand that they amend the Constitution through Article V before taking their desired action, because the Constitution is just too darned difficult to amend!””

    Well, it’s difficult to amend in ways that aren’t widely popular. This is not at all the same thing as being difficult to amend.

    I think a lot of people misunderstand the effect of Article V’s supermajority requirements. A supermajority of representatives in a representative democracy does not require a supermajority level of support among the public. It only requires that the support be widely distributed. If 51% of the public in every district support a measure, every representative will be elected from a district supporting it, and it will easily garner a supermajority of representatives.

    The supermajority test imposes a requirement that amendments have widespread support. And, for the government of a federation, this is a perfectly appropriate requirement. You don’t have domestic peace in a federation if you are constantly making changes to the law which are supported very strongly in one area, and strongly opposed in another.

    The problem here, I think, is that people have concluded, or perhaps “asserted” would be a better term, that amending the Constitution is difficult, because certain amendments supported by elite opinion, but otherwise widely opposed, can’t make it past Article V.

    On the other hand, there is a serious problem, in that a number of amendments which undeniably have widespread support, and would be ratified in a heartbeat, can’t get through Congress, because Congress is unrepresentative of public opinion on those subjects. (Think term limits, for instance.) This is why Article V has provision for originating amendments via convention, too, and should we have a convention, I think it will swiftly be demonstrated that, no, the Constitution isn’t difficult to amend. It’s just difficult to amend in unpopular ways.

  2. David Lang says:

    the problem with a convention is that the people who have time to attend a convention aren’t neccessarily the people that we want to have making changes.

    • Brett Bellmore says:

      Even less ideal for making changes, though, are people who are driven to do whatever it takes to achieve and hold onto the highest offices they can find. I’d trust a totally random selection of Americans to originate constitutional amendments, before I would the House and Senate. Current evidence suggests they are the worst among us, not the best.

      • Joe says:

        Anarchism, your stated philosophy, tends not to work well in practice.

        Your belief in the common person here is touching, but in my practice, they are not so special. They also repeatedly support their public officials, not the least by voting them in, even when they have alternatives. If the officials are such reprobates, the average individual’s judgment seem to be somewhat lacking.

  3. Joe says:

    A constitution is a framework of government and the text of the Constitution was quite intentionally chosen to provide flexibility.

    Let’s say we have a bar against depriving people “equal protection of the laws.” What does that mean? Are we supposed to belief that over a span of around 150 years that the specific understandings of it won’t change in some fashion as knowledge and experience change our understanding of its basic terms?

    And, for those who like to cite such things, I can give you a quote from Madison on how meanings of the text will only be clear from experience and that over time understandings can be accepted in such a way to override what Madison himself might have thought it meant on such and such a matter (such as the constitutionality of the bank).

    If we want some very specific that isn’t open to such development, we can write very specific text (e.g., four year terms for a President, not “due” terms or something) or perhaps (though it would be tricky) provide clear textual commands that we are supposed to only use “original understanding” or something. That isn’t what was done though.

    The term “living constitution” is used as an epithet by some, others recognize that is what our Constitution sets in place and that is part of its value. The text has limits but within those limits, there is a range for development. As to the alternative terms, they rather hard on the ear and don’t really address the concerns anyway. “Originalism,” e.g., is quite “capacious.” Anyway, living constitutionalism is how it has been actually operated since the beginning. It isn’t something invented by liberals some time in the last fifty years of something.