The Constitution: Fixed or Flexible?

The Constitution: Fixed or Flexible?

Learning Objectives

After completing this session, you will be able to:

• Describe the contrasting views of the Constitution as timeless and perfect and the belief that it is a living document to be reinterpreted by each generation.
• Describe the procedures for amending the Constitution.
• Explain how the Constitution limits power in our governmental system.
• Describe how the framers resolved the problem of structuring government authority within the national government itself.

Unit 2 covers basic questions regarding the role of the Constitution in American society. This session illustrates the conflicting views of the document and raises the fundamental issue of how we should treat it. A key to understanding American society is the contradictory approaches to the Constitution that we hold. Understanding these views creates a greater appreciation for the role of the Constitution in modern life.

The U.S. Constitution was forged in a time of great political turmoil in America. States were quarreling under our nation’s first constitution, the Articles of Confederation, which went into effect in 1781. The Articles reserved most powers for the states by creating a weak national legislature and not providing for a national executive or court system. States often disregarded laws passed by the legislature, including laws governing taxes and trade between the states, because there was no way to enforce the laws or adjudicate disputes between the states. Shay’s Rebellion and other violent mob actions convinced prominent leaders, including Washington, Madison, and Adams, of the need to create a stronger national government with the ability to enforce its decisions over state resistance.

When the delegates met in Philadelphia in 1787 to revise the Articles of Confederation, they soon voted to discard the Articles altogether in favor of a new charter of government. Although there was agreement over the need for a new constitution, delegates at the Philadelphia Convention disagreed over the role the new constitution should play in American society. James Madison, for instance, thought that the key to effective government was for the people to develop a strong emotional attachment to its basic law-the Constitution. To that end, he urged the use of patriotic events to build veneration for the document. Thomas Jefferson, in contrast, disdained such “sanctimonious reverence,” favoring instead frequent and radical changes in the constitutional system. Americans have accepted both sides of the Madison-Jefferson debate. While they treat the Constitution as “timeless and perfect,” they have often considered it a living document to be reinterpreted by each generation.

Despite including the phrase “We the People” at the beginning of the Constitution, the framers questioned the ability of the people to rule themselves, and thus rejected direct democracy as a form of government. Instead, they created a republic, where decisions are made and filtered through elected or appointed officials who are ultimately accountable to the people. Madison in particular feared the power of self-serving factions, or organized interests (both majority and minority) that put their interests above the interest of the community as a whole. Because the causes of factions are basic to human nature, and thus eliminating them is impossible, government can only control their effects.

In addition to adopting a republic over a direct democracy, the framers sought to curb the self-serving factions by instituting additional safeguards including separation of powers and checks and balances. The Constitution establishes three branches of government-legislative, executive, and judicial-that exercise separate (but sometimes overlapping) powers. The legislature, which is Congress, makes all laws, while the executive (the president) must execute the laws. The Supreme Court, and lower courts created by Congress, interpret the laws.

The principle of checks and balances gives each branch of government the capability to counterbalance the authority of the other branches. In practice this makes the branches interdependent. For example, while Congress makes the laws, the president must sign or veto those laws. In the case of a veto, Congress can try to override it with a two-thirds vote in both houses. Through its appropriations powers, also known as “power of the purse,” Congress can check the president and the executive branch by refusing to fund presidential programs or initiatives, and by exercising oversight of executive agencies. Supreme Court and lower federal judges can be impeached and removed by Congress, while the president and the Senate are responsible for judicial appointments and confirmation.

Through the Constitution, the framers sought to create a foundation of government that would provide a blueprint for generations to come. But they also realized that the Constitution might need modification from time to time to meet new challenges and changing societal values. The Constitution itself stipulates how the changes can be made. Amendments can be proposed by a two-thirds vote of both houses of Congress or by a national convention called by Congress at the request of two-thirds of the states. Once passed, amendments must be ratified by either three-fourths of the state legislatures, or by ratifying conventions in three-fourths of the states.

Before viewing the video, discuss the following questions:

• Discuss how the Constitution should be read-a document to be read literally and applied without regard to changed circumstances or as a living document subject to reinterpretation as the times demand.
• How does the Constitution guard against the concentration of power?
• Who ordained and established the Constitution?
• Is the original Constitution democratic?

Pre-Viewing Activity and Discussion (30 minutes)

The video includes three segments:

1. The Death Penalty: Is It Constitutional?

Throughout U.S. history, judges have had to interpret constitutional principles in the light of unique cases and social contexts. A basic question facing judges is how much weight should they assign to changing societal norms and public opinion in their decisions. Should the Constitution be interpreted as a fixed set of principles that endure even though society changes, or should it be reinterpreted and reapplied as society changes? This is not a new question. In fact, the Constitution’s framers themselves disagreed over the answer. The death penalty and the vague language of the Eighth Amendment offer excellent examples of the difficulties in applying the Constitution to specific societal problems.

Discussion Questions

• How should judges interpret vaguely worded phrases in the Constitution?
• Should public opinion dictate how the Constitution is interpreted?
• Should public opinion be ignored?
• If public opinion is relevant to the interpretation of the Constitution, how are we to know what the public wants?

2. When Congress Says Yes, and the President Says No…And Congress Says Yes

Following years of wartime freezes on workers’ wages and labor strikes, organized labor began a series of labor strikes in 1946. At their height, the strikes placed over 2 million workers on the picket lines. Although he was a Democrat and generally supported organized labor, President Harry S. Truman tried to stop the steel strikes first by negotiating with union heads and then by placing the coal mines under government control. Republicans had recently gained a majority in both houses of Congress, and they were determined to act through legislation. They passed the Taft-Hartley Act of 1947, which permitted states to legislate right-to-work laws that prohibited “closed shop” contracts that excluded non-union workers from unionized plants. It also authorized federal injunctions against strikes that “jeopardized the public health or safety.” Truman’s veto of the Taft-Hartley act set up a clash between Congress and the President and illustrated the Constitution’s principles of separation of powers and checks and balances.

Discussion Questions

• Why does the president have the veto power?
• Since Truman favored some portions of the Taft-Hartley Act, would the nation have been better served if he had possessed a line-item veto?
• How does the battle over the Taft-Hartley Act demonstrate the Constitution’s version of checks and balances?

3. Seventy-Two Years to Success: Women Gain the Right To Vote

The story of the struggle over women’s suffrage illustrates the difficulties involved in passing a constitutional amendment. At the end of the Civil War, Congress passed the Fifteenth Amendment to the U.S. Constitution that granted the right to vote to former male slaves. Many abolitionists, including Susan B. Anthony and Elizabeth Cady Stanton, argued unsuccessfully that the amendment should also grant women the right to vote. Supporters of women’s suffrage continued to press the issue by introducing a constitutional amendment into every Congress after that. By the early 1890s, the profound changes in women’s lives fueled the suffrage movement; but as the movement grew stronger, so did the opposition. In the final analysis, the suffragettes won, but the battle was long and hard, demonstrating that amending the Constitution is seldom easy.

Discussion Questions

• Why were women originally excluded from voting?
• Why was it so difficult to secure the right to vote for women?
• Has it always been this difficult to amend the Constitution?
• The Nineteenth Amendment is one of only 27 amendments. Have any of the others changed the principles under which our constitutional system operates?

1. Are Additional Constitutional Amendments Needed? (10 minutes)

After researching the current amendments, develop and present a proposal for a new amendment. Possible changes might include new rights (e.g., a right to education or health care), altered governmental powers (e.g., presidential declaration of war), or changes in procedures (e.g., term limits for Congress or the Supreme Court, direct popular election for presidents). Discuss why the amendment is needed and strategies for gaining ratification.

Read the following Readings from Unit 3 to prepare for next week’s session.

• Introduction-Federalism: U.S. v. the States
• Tocqueville, Democracy in America: “In What Respects the Federal Constitution Is Superior to That of the States”
• Federalist Papers: “Federalist No. 46”
• McCulloch v. Maryland
• Dred Scott v. Sandford

Read next week’s Topic Overview.

You may want to have your students do the post-viewing activities: Ongoing Disputes Over the Meaning and Application of Constitutional Principles and Are Additional Constitutional Amendments Needed? They are provided for you as blackline masters in the Appendix of the print guide.

The Readings for Democracy in America unit 2 are available here for download as a PDF file. You’ll need a copy of Adobe Acrobat Reader to read the files. Acrobat Reader is available free for download from adobe.com.

Download Unit 2 Readings, The Constitution: Fixed or Flexible

• Introduction—The Constitution: Fixed or Flexible?
• Tocqueville, Democracy in America: “History of the Federal Constitution”
• The Declaration of Independence (Jefferson’s Draft)
• The United States Constitution and the Amendments to the U.S. Constitution
• Federalist Papers: “Federalist No. 51”

Questions

1. What two opposing tendencies arose in the United States after the revolution, according to Tocqueville?
2. What truth did Jefferson assert as self-evident?
3. Who ordained and established the United States Constitution?
4. Fully explain what “Federalist No. 51” says is “the great security against a gradual concentration of the several powers in the same department.”

Introduction—The Constitution: Fixed or Flexible?

Imagining that government should be a creature of the law and obedient to law was one of the significant intellectual accomplishments of the British colonists in North America; this accomplishment went a long way toward turning them into Americans. The development of a sophisticated understanding of American democracy, politics, and citizenship requires attention to the importance of the Constitution, the law superior to the government, as a template for debate within the United States—virtually all political issues in America resound with constitutional import. “In America,” wrote Tocqueville, “the Constitution may therefore vary; but as long as it exists, it is the origin of all authority, and the sole vehicle of the predominating force.”

The Constitution was widely perceived—eventually—as a protection against government expansion (though by some it was perceived as a tool for government expansion) and was the product of American disagreement with the British conception of limited government. Britain greatly angered the British citizens in America when Parliament taxed them to help fund the French and Indian War. They responded, as all American school children know, with the slogan, “No Taxation Without Representation.” When Parliament refused to relent on what appeared to the British in Britain to be a fair sharing of the burden and expense of protecting the colonists during the war, the British colonials eventually decided to secede. The colonists argued that it was illegal for Parliament to tax them—that is, they argued that it was a violation of the British Constitution. It was unconstitutional, they said, for Britain to tax them since they had no representation in the British Parliament. For the British, the Parliament was an essential part of the Constitution, so that it made no sense to imagine that the Constitution could violate the Constitution. Around this struggle the colonists began to conceive of a government created and limited by law, especially by a written law. The belief that the government itself is created by law means that government is ostensibly limited and controlled by law. It also means that many political issues in the United States become constitutional issues in which Americans look to the Constitution for answers and directions.

Understanding the life of the Constitution and of conceptions of constitutionalism requires some fairly common readings: the Declaration of Independence, the Constitution, and “Federalist No. 51.” The Declaration of Independence and the Constitution are quite different documents, but they function as “founding” texts for the American Revolution and government. The Federalist Papers, for their part, explained parts of the Constitution as the supporters of the text wanted them explained, and have become very important to the contemporary debates over what the Constitution meant and means.

To understand what the framers were trying to accomplish, one can do worse than to examine the institutional arrangement the Constitution attempted to replace. Furthermore, the voices of critics should be given their due. Contemporary readers of the Anti-Federalists are often surprised to find early versions of complaints they themselves have made about the government; particularly that it is too powerful.

http://www.constitutioncenter.org–The National Constitution Center’s Web site was established by Congress to help raise understanding of the U.S. Constitution. The site includes resources for classroom instruction and activities and a Kids’ Corner.

http://www.house.gov–The U.S. House of Representatives hosts the official government website on the Constitution. Teachers and students can utilize several useful research tools, including the text of the six amendments to the Constitution that passed both houses of Congress but failed to gain the necessary three-fourths of the states for ratification.