The American Constitution is by far the oldest written Constitution in modern history. Why has it proved so effective and so enduring?
To begin with, the framers of the Constitution were wise enough to avoid too great specificity in drafting key provisions of the document. Their general intent was to stick to the fundamentals and leave the implementations to subsequent legislative decisions. There are gaps in the Constitution which are sufficiently wide so that political institutions can grow up within them largely free of Constitutional restrictions. The American Constitution has developed in part by custom and convention, just like the English Constitution, but there are two essential devices providing for adaptation of the Constitution to changing conditions: amendments and constitutional interpretation.
1. Amendments [E1][E2][F][Es][I]
The most formal method of keeping a written Constitution abreast of the times is by amendment. Since 1789, the American Constitution has been amended twenty-seven times, under procedures authorized by Article V. Nevertheless, only 26 of the amendments are currently used, because the Twenty-first amendment [E1] [E2] supersedes the Eighteenth [E1] [E2] [F] [Es] [I]. The first ten amendments were ratified simultaneously in 1791.
A second group of amendments - the Thirteenth (1865)[E1] [E2][F][Es][I], the Fourteenth (1868)[E1] [E2][F][Es][I], and the Fifteenth (1870) [E1] [E2][F][Es]– were adopted after the Civil War to abolish slavery and protect the rights of the newly freed African-Americans.
The remaining amendments have had a variety of purposes.
In two cases they were adopted to reverse decisions of the Supreme Court. The Eleventh Amendment [E](1795) overrode a 1793 Court decision allowing states to be sued in federal Courts by citizens of other states. The Sixteenth Amendment [E] (1913) authorized the federal government to levy an income tax, which the Court had held uncontitutional in 1895.
Four amendments have dealt with presidential elections and terms of office. When the originial language on presidential election proved faulty, the Twelfth Amendment [E](1804) made some necessary corrections. The Twentieth [E1] [E2] (1933) changed the beginnng of presidential terms from March 4 to January 20, and the Twenty–second [E1] [E2] (1951) limited the President to two terms. The Twenty-fifth Amendment (1967) provided improved arrangements for presidential disability and succession.
The Nineteenth Amendment [E] [F][Es][I] (1920) gave women the vote, the Twenty-third [E1] [E2](1961) allowed residents of the District Columbia to vote in presidential elections, and the Twenty-fourth [E1] [E2] (1964) forbade the poll tax as a prerequisite for voting in federal elections.
Finally, the Twenty-sixth Amendment [E1] [E2](1971) prohibits the Federal Government and the states from forbidding any citizen of age 18 or greater to vote simply because of their age, and the Twenty-seventh (1992) established limits to Congressional pay raises.
The Amending process
Article V provides two methods for proposing amendments:
a. by a two thirds majority of each House of Congress;
b. by ratifying conventions in three-fourths of the states.
In only one of the amendments thus far adopted, the Twenty-first, did Congress specify the use of conventions. On several occasions, state legislatures have petitioned Congress to call a Constitutional convention under Article V, but never successfully. Many uncertainties surround the convention method: if a convention is called, how are the delegates to be chosen, and what are the voting rules in the convention? How can conventions be prevented from going beyond the subject for which it was convened, as the Constitutional Convention did? It is widely thought that the national interest in the amending process is to be protected by leaving the responsibility for proposing amendments in the hands of Congress, where necessity of securing a two-thirds vote in each House lessens the possibility of ill-considered action.
2. Constitutional interpretation
Almost as important as the amending process in adapting the Constitution to changing conditions is the device of Constitutional interpretation. It has been the possibility of modifying Constitutional meanings gradually over the years to meet the new times and new necessities, that has accounted for the relative infrequency of formal amendments.
Interpretation by Congress and the President
In a way, Congress interprets its powers under the Constitution every time it passes a law or holds a hearing. Whenever a new legislative program is being considered, much of the Congressional debate will be concerned with the Constitutional justification for it.
In the same way, the President interprets the Constitution whenever he makes a decision, issues and executive order, or signs a bill to law. When the President has any doubt about the sufficiency of his Constitutional authority, or when he wishes to provide the firmest possible basis for his action, he will ask the Attorney General for a legal opinion covering his proposed action.
The most highly rationalized type of Constitutional interpretation, however, is that engaged by judges, and particularly those on the Supreme Court [E1][E2][F][Es][I]. There is a general assumption that until the Supreme Court has spoken, the Constitution has not been officially interpreted.
The Constitution contains many broad phrases such as “due process of law” or “freedom of speech”. How does the Supreme Court decide what these words mean? One test that is often suggested is the intention of the framers. It does seem logical that where the language of the Constitution is vague or subject to diverse interpretations, the Court should try to resolve the uncertainties by seeking guidance from the understandings of the men who wrote the document. However, what was said in the convention is known almost entirely through Madison’s incomplete notes. Besides, on no issues did all members speak, and many decisions must have been compromise that fully pleased no one. In spite of these complications, there are some areas where the purpose of the drafters may seem reasonably clear and where legitimate use can be made of historical data in discovering these purposes.
Another major issue for the Curt is what degree of responsibility it can assume in modifying previous Constitutional interpretations to meet new situations and new needs. The Supreme Court has generally rejected the view according to which nothing can be changed in the Constitution but through the amendatory process, as some would claim. This rigid view would in fact make the nation a prisoner of its past and deny the legitimacy of amendment by consensus and usage. It is precisely because the Constitution permits change that is has persisted.