Hague and Harrop define a codified constitution, such as the American Constitution, as a single document that ‘sets out the formal structure of the state, specifying the powers and institutions of central government, and its relationship with other levels. The Constitution established itself as ‘the supreme law of the land.’ In addition, constitutions express the rights of citizens and in so doing create limits on government.’ Ratified in 1789, the American Constitution still provides the basic rules and establishes the basic institutional framework for the American political system.
In addition, the Constitution protects the civil rights of citizens. David Barrows regards the ability of the Constitution to survive time as ‘extraordinary’, especially considering the ‘immigration from European countries of extraordinary proportions … from countries of entirely different social and political order’. In addition, the Constitution has endured the most testing of times; the near quadrupling of the original number of states in the union; the issue of slavery; the Civil War and, the Great Depression.
The Constitution’s strength is further emphasised by comparison to the French constitution, which has been replaced twelve times in the same time period.
The Constitution is the oldest living written constitution in the world and has only been formally amended 17 times in last 218 years. This essay will argue that the ‘extraordinary’ achievement of the Constitution to have lasted so long and the words to have changed so little is a result of several interrelated factors. The cumbersome amendment procedure and separation of powers has protected it from political movements.
Its lack of length, breadth and depth has limited the scope of alteration. Furthermore, the Constitution is protected by its highly symbolic nature. Moreover, the Constitution is widely regarded as ‘perfect’ by Americans and as a result, it is unpopular for politicians to tamper with it.
The belief in the strength of the Constitution’s basic institutional framework is supported by key American values (economic prosperity and democracy) and the success of the American nation on the world stage. Additionally, the Constitution derives strength from its vagueness in key areas, allowing for interpretation that has made it a flexible instrument to adapt to changing circumstances.
The Founding Fathers intended for the Constitution to survive time. David McKay argues this ‘was greatly aided by a cumbersome amendment process’, which has protected it from politicians. The formal amendment process is laid out in Article 5 of the Constitution, of which there are two methods of proposal. Regardless of the method, any proposed amendment requires by ratification from three-quarters of the states. The first method is by a two-thirds majority vote of both Houses of Congress, which has been used for every amendment. The Constitution reads specifically ‘whenever two thirds of both Houses shall deem it necessary shall propose amendments to this Constitution.’ For the second method, the Constitution states ‘on the application of the legislature of two-thirds of the several states, shall call for a convention for proposing amendments.’
However, the state convention method has never been successfully used in practice. The difficultly of the amendment process is highlighted by the fact that in the last 218 years there have been over 5,000 suggested amendments, although less than 1% has actually been submitted to the states and merely 17 amendments. Donald Lutz’s study of constitutions shows that the Constitution is the second most difficult to amend in the world. Barrows asserts that ‘it is undeniable that the Constitution of the United States is one of the most difficult, perhaps the most difficult, bodies of law to alter or amend.’ In fact, it was extensively believed by political scientists from 1870 to 1913 that the Constitution was ‘beyond the effective means of nation to alter or enlarge.’
However, the ‘unalterable’ Constitution view was ultimately proved wrong by the 17th amendment. The Constitution is not impossible to amend, but can only be done so when there is overwhelming support. Denenberg writes that the formal amendment process ‘although sparingly used, remains an important piece of auxiliary equipment for modernizing the constitution when there is a clear consensus that change is necessary.’ For example, the 13th (Abolition of Slavery), 14th (Citizenship, Due Process, Equal Protection), 15th (The Right to Vote), 19th (Women’s Rights to Vote), 24th (Poll Tax Abolished) and 26th (Vote for 18-Year-Olds). The Constitution may have been democratic at the time of ratification, but democratic values have amplified. Generally the formal amendments to the Constitution reflect the growth of democratic principles.
Undoubtedly, if the amendment process was less difficult, then the Constitution would read considerably more differently than today, as there have been thousands of proposed amendments and political movements that could not obtain the supermajorities (e.g. Equal Rights Amendment – 1972). The formal amendment procedure only allows for amendments with overwhelming support across the nation. Phyllis Schlafly, of the conservative right and leader of the Eagle Forum/STOP ERA successfully lobbied states to fail this proposed amendment. The cumbersome amendment procedure has protected the position of the Constitution as ‘supreme law’ and at the same time allowed for necessary change.
The Founding Fathers designed the Constitution to establish a government structure that avoided an over-powerful government. In addition to separation of federal and state government, they created a separation of powers between the Executive (Presidency), Legislative (Congress) and Judicial (Supreme Court) branches of the federal government, whereby no person can belong to more than one branch. Furthermore, there is an extensive system of checks and balances between each of the branches of the federal government, mostly written into the Constitution. The separation of powers, with checks and balances make it is very difficult for a single group can dominate, which has protected the Constitution from attack.
Madison was very wary of the inevitability of factions, writing in the 10th Federalist Paper that the ‘causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.’ The dispersal of power between federal and state level and across the federal level, in addition to the cumbersome amendment process requiring supermajorities has protected the original document. Denenberg comments that Madison was correct in finding the balance between too much and too little change. The balance is a key factor contributing to the longevity of the Constitution.
A further factor that has enhanced the ability of the Constitution to survive time is that it lacks depth, breadth and length. The Constitution does not specify the minute details of the political structure; rather it ‘lays down general principles.’ Mckay notes that the Constitution says ‘remarkably little about the precise powers of the main institutions’ and does not specify how power sharing between the federal and state governments should specifically function. Originally, the Constitution was only 4,300 words and its amended length stands a mere 7,400 words, which is incredibly short for constitutional standards. By comparison, the Indian constitution has 95,000 words. Donald Lutz’s study of constitutions shows that shorter Constitutions, which specify less government functions are the least likely to be amended and vice-versa.
The reasons for this are that a long and detailed constitution has ‘more targets’ for amendment, because ‘it deals with too many details that are subject to change.’ Lutz compares the relationship between the length of a constitution and its amendment rate for the American state constitutions, concluding that the relationship is ‘consistent’ with his theory. The cross national data supports an ‘even stronger’ conclusion about the relationship between the length of a constitution and its amendment rate. These characteristics of the American Constitution are proven strengths in constitutions generally, aiding its ability to survive time.
The manner in which the Constitution is viewed by American’s has protected its status and deterred politicians from attempting to tamper with the holy text. Max Lerner famously wrote that the Constitution is our ‘totem and fetish’ which possess ‘supernatural powers’. Clement Vose concurs that ‘American society became a veneration for the Constitution’. Vose likened the relationship between an American and the Constitution to a religious one, like a Christian and his Bible. William Hard spoke of ‘the Constitution’s spirit.’ The Constitution is a highly regarded national symbol for Americans, enhanced by the fact that America is a particularly patriotic nation. The ‘pledge of allegiance’ is recited in school classrooms and public events throughout the country. In addition to its symbolic nature, Mark Graber writes that ‘there is one matter about all Americans seem to agree … our Constitution is perfect.’ Graber coins the term ‘perfect constitutionalism’ to describe the widespread feeling that the Constitution is ‘flawless’, which underlies the belief of most Americans.
It is inconceivable for many American’s to think that the Constitution has flaws. One only has to look at the level of furore caused by Beard’s ‘An Economic Interpretation of the Constitution of the United States’. Brogan writes that Beard’s ‘critical investigation of how this beneficent and almost divinely inspired document was not encouraged.’ Moreover, there was a belief that Beard’s thesis cost him his job at Columbia. Kronman and Bickel assert that the authority of the Constitution is grounded on ‘history and traditions’.
The Constitution is the political inheritance of American society. Bickel likened perfect constitutionalism to the conservative and traditionalist theory of Burke. Clearly, the Constitution is more than just a textual document to Americans. Furthermore, Larry Bass has done several studies on the Constitution as a symbol and concluded that it does ‘take on a personal meaning to the individual.’ This factor is enhanced by the few amendments, which have fuelled the belief that the Constitution is perfect and enshrined it as ‘supreme law’.
If America believed it could create a superior system of government, outside the restraint of the Constitution, then the Constitution would be replaced. Barber writes that in order the make sense of the Constitution as the supreme law, it ‘must constitute our best conception of the good society.’ In addition, the American belief in the ‘perfect’ Constitution is not ungrounded. The basic system it established (separation of powers, federalism, the independence of the judiciary and civil liberties) has been incredibly yielded incredible results. It has provided the basis for the world’s dominant economic and military superpower, since the Second World War. Hodder-Williams argues that ‘American politicians are content that the Constitution does set out appropriate principles for the governance of their country.’
Moreover, the Constitution has upheld the American values of democracy, capitalism, individualism, property and work ethic. Revisionist Charles Beard has disputed the motives of the framers and argued that ‘fundamental theory of political economy thus stated by Madison was the basis … of the balance of powers.’ Furthermore, that the reasoning against a majority was to prevent the minority property owning class from attack. However, Beard revision has been systematically decimated by critique. The vast majority of American’s believe the classical account, that their political and moral heritage from Montesquieu and Locke; protecting individual liberty and upholding democracy, rather than defending the rich. These Constitutional values are still held dear.
A key factor behind the longevity of the Constitution is the flexibility factor, by means of expansive interpretation. Although the document itself is highly inflexible and rigid (the ‘cumbersome’ the amendment process within a separation of powers) it is a highly vague document. The structure of government is rigidly expressed, but there are several vague or ambiguous phrases. Beard argues that ‘important clauses … are not unequivocal commands of law.’ Denenberg concurs that ‘the constitution usually managed to be vague in the right places.’ For example, phrases such as ‘interstate commerce’, ‘general welfare’, ‘equal protection’, and ‘due process.’ Importantly, the meaning of the Constitution can and has been changed to evolve with society, outside of the formal amendment process and without defacing the holy document.
Taking into consideration the difficulty of the amendment process, symbolic importance of the Constitution to America and the need to adapt with time, this factor is highly important. Had the all the moral and political values of the Founding Fathers been entrenched in the Constitution to the last letter, then it would have ‘probably been shattered long ago.’ It has already been noted that increasing levels of democracy have been incorporated by means of the formal amendment process, but interpretation has allowed developed outside of and preserved the words of holy document.
Congress has played a role in the interpretive expansion of the Constitution. Clause 18 in Section 8 of Constitution authorised Congress ‘to make all which shall be necessary and proper for carrying into execution of foregoing powers.’ Denenberg remarks that ‘never has so much been said in so few words.’ This vague clause has authorised Congress’ expansive and flexible interpretive power, passing many important statues that would otherwise have had to be formal amendments. These include but are not limited to; the Executive Reorganisation Act 1939; The Civil Rights Act 1964; The War Powers Act 1973 and, the Patriot Act 2001.
In addition, there have been extra-constitutional developments in the form of Conventions, including political parties, the cabinet and congressional committees. However, the controversial role the Judiciary in the interpretation of the Constitution has been more important. Chief Justice Charles Evan Hughes famously said that “we are under a Constitution, but the Constitution is what the judges say it is.”
The principle of judicial review is not mentioned explicitly in the Constitution, rather it is inferred. Kramer notes that ‘some of the Founders embraced it, a few rejected it’ and ‘most had not even heard of it or did not give it much thought.’ Judicial review was established in the Marbury v Madison case 1803. It gives the Supreme Court the power to examine the constitutionality of legislation and explain various sections of the Constitution in regards of court cases. The importance of judicial review has been magnified by number of ambiguous and vague phrases in the Constitution. Graber notes that for the purposes of interpretation ‘the text of Constitution has any meaning at all’. This is illustrated by several cases where the Supreme Court has overruled its own previous decisions.
The most famous example is Brown v Board of Education, Topeka 1954, which overruled the ‘separate but equal’ judgement that was previously justified under the 14th amendment in Plessy v Fergusson 1896. Justice Thurgood Marshall shows the Supreme Court’s shifting treatment of black Americans: ‘they were enslaved by the law, emancipated by law, disenfranchised by law; and, finally they have begun to win equality by law’.’ Other important examples include; Baker v Carr; USA v Richard Nixon 1974 and, Bush v Gore 2000.
Donald Lutz’s study supports this argument, as it shows that there is a cross-national trend between a low amendment rate and constitutional longevity when there is ‘the use of some alternate means of revision to supplement the formal amendment process’, including ‘judicial review.’ Furthermore, Hodder-Williams argues with merit that ‘despite the minimal number of amendments’, due to interpretation the Constitution is an ‘astonishingly flexible instrument to deal with changing problems and changing values.’ The vagueness of the Constitution in key places has given it a timeless applicability and made it able to adapt to changing historical circumstances.
In conclusion, there are several interrelated factors for why the Constitution has lasted so long. Its lack of length, breadth and depth has kept limited the possibilities for attack. The difficult amendment process, in addition to a dispersal of powers and widespread belief in the perfect document has limited politicians from tampering with it. However, the Constitution can and has been formally amended when its needs to be. Moreover, key vague and ambiguous phrases, which have allowed for expansive interpretation.
Judicial review has been vitally important in evolving the meaning of the Constitution to meet the demands of a changing society. Congressional acts and Conventions have developed next to the Constitution, without having to be incorporated as formal amendments. The basic structure of the political system and protection of civil liberties have kept in tune with key values and brought tremendous economic success. The Founding Fathers have conceived a timeless masterpiece that has survived and will continue to survive the most testing of circumstances.
Barrows, David Prescott (1936) ‘The Constitution as an Element of Stability in American Life’, Annals of the American Academy of Political and Social Science, Vol. 185, pp 1-10.
Bass, Larry (1979) ‘The Constitution as Symbol: The Interpersonal Sources of Meaning of a Secondary Symbol’, American Journal of Political Science, Vol. 23, No. 1, pp. 101-120.
Beard, Charles (1965) An Economic Interpretation of the Constitution of the United States, London: Collier-MacMillan Limited.
Beard, Charles (1936) ‘The Living Constitution’, Annals of the American Academy of Political and Social Science, Vol. 185, pp. 29-34.
Brogan, D. W. (1965) ‘The Quarrel over Charles Austin Beard and the American Constitution’, The Economic History Review, Vol. 18, No. 2, pp.199-223.
Denenberg, R. V. (1976) Understanding American Politics, Glasgow: William
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Hard, William (1936) ‘The Spirit of the Constitution’, Annals of the American Academy of Political and Social Science, Vol. 185, pp. 11-15.
Hodder-Williams, Richard (2003) ‘The US Constitution’, in Singh, Robert, Governing America: the politics of a divided democracy, Oxford: Oxford University Press, pp. 53 – 74.
Hodder-Williams, Richard (2003) ‘The federal judiciary’, in Singh, Robert, Governing America: the politics of a divided democracy, Oxford: Oxford University Press, pp. 147-168.
Kramer, Larry (2004) ‘Understanding Marbury v. Madison’, Proceedings of the American Philosophical Society, Vol. 148, No. 1, pp. 14-26.
Lineberry, Robert, Edwards III, George and Wattenberg, Martin (1991) Government in America: People, Politics and Policy, 5th Edition, New York: Harper Collins.
Lutz, Donald (1994) ‘Towards a Theory of Constitutional Amendment’, The American Political Science Review, Vol. 88, No. 2, pp. 355-370.
Madison, James (1787) ‘The 10thst Federalist Paper’, http://www.constitution.org/fed/federa10.htm
McKay, David (2005) American Politics and Society, 6th edition, Oxford: Blackwell Publishing.
[ 2 ]. Hague, Rod and Harrop, Martin (2007), Comparative Government and Politics: An Introduction, 7th edition, Basingstoke: Palgrave, p. 260. [ 3 ]. Ibid.
[ 4 ]. Hodder-Williams, Richard (2003) ‘The US Constitution’, in Singh, Robert, Governing America: the politics of a divided democracy, Oxford: Oxford University Press, p. 53. [ 5 ]. Barrows, David Prescott (1936) ‘The Constitution as an Element of Stability in American Life’, Annals of the American Academy of Political and Social Science, Vol. 185, p. 1. [ 6 ]. Lineberry, Robert, Edwards III, George and Wattenberg, Martin (1991) Government in America: People, Politics and Policy, 5th Edition, New York: Harper Collins, p. 78. [ 7 ]. McKay, David (2005) American Politics and Society, 6th edition, Oxford: Blackwell Publishing, p. 48. [ 8 ]. Ibid, p. 380.