Sometimes a comment just requires that its subject needs its own post. A discussion on whether or not the Constitution is a working or living document and on the infallibility of the Constitution are certainly subjects that bear more thought and consideration than a simple comment reply. I admit a significant amount of self-satisfaction in the results of my writing this article as the research and subsequent analysis took longer than I envisioned but was enjoyable in producing many thought-provoking hours of conversation and reflection before I came to the following narrative. I’m in hopes that this article provides fodder for reflection to those who read it – and in return, they will post their answers to the posed questions and submit their own analysis for the two questions posed: Is the Constitution a working or living document and is the Constitution infallible?
Is the Constitution a working or living document?
As always, the best place to start is with definitions: my definition of a working document is one that is a work in progress – a preliminary to a final version, a draft; and my definition of a living document is a document that is continually changed and edited by either a limited or unrestricted group that has no intention of having a “final” version.
The inclusion of Article 5, which provides for a structure to change to the Constitution, pretty clearly indicates that the Founding Fathers had enough foresight to understand that some changes might be needed as a consequence of the natural course of human events. But I’m not sure I would categorize the Constitution as either a working or living document. I don’t completely believe that the Constitution is either a preliminary, unfinished document or one that must be continually changed and have no expectation of a final document. The phrases “preliminary”, “draft”, and “continually changed” cause me some angst.
However, I would define it as a document that outlines the system of fundamental principles according to which a nation, state, corporation, or the like, is governed. Documents such as these are invariably changed as needs arise and I think an assertion that the Constitution as one or the other largely depends on what one might consider a need for change and the frequency such changes are assessed and propagated. This initiates a discussion on when a need for change is identified – and what constitutes a need great enough that the Constitution itself must be changed. To suggest that the Constitution must be changed suggests that the Constitution is fallible – creating a nice segway to the second question: Is the Constitution infallible?
Is the Constitution infallible?
This is an excellent question. In order to discuss any infallibility the Constitution may have, I think you first need to identify and discuss what is fallible about the Constitution? Where has it failed? What language in it fails to be as relevant today as it was when it was first written? Do we believe that we do NOT have the right to pursue happiness? That we do not have a right to religious freedom? No more right to free speech? Do we no longer believe in freedom of choice?
The Constitution, to me, defines two separate things: The basic freedoms and rights that all citizens of the United States are born with, and a system of united government under which the mutual interests of the States in the union is administered. So to discern any fallibility in the Constitution, we must challenge our beliefs concerning these two topics.
Basic Rights: This principle question here is: As a citizenry, have our ideals on the basic rights a person is born with changed? If so, how has it changed and to what extent is the new ideal prevalent among the citizenry?
- Do we believe that we do NOT have the right to free speech and assembly? Do we believe that because a particular person or group’s ideas are not popular or prevalent, that popular and prevalent speech should be restricted in the name of “equality of opportunity”?
- Do we believe that we no longer have the right to bear arms, either as an organized military or as an individual? Do we no longer have a need or a right to protect that which is ours from those who would take it from us? Are there no countries that would seek to control our land and our resources if we were unable to protect ourselves? Are there no thieves who would seek to acquire our personal possessions if we had no means to prevent them from doing so? Does the right to bear arms include the right to topple the governments of other countries in the name of greater security to U.S. Citizenry? Does the right to bear arms include the right to force our beliefs on other countries by creating governments in our own image? Do we have a right to use arms to force a conclusion to another country’s internal struggle for majority ideal actualization in the name of human rights?
- Do we still believe that the military does not have a right to take our land property to house the military during war or peace?
- Do we still believe that we have an inherent right to privacy and protection from unprovoked and unnecessary invasion of that privacy?
- Do we still believe that soldiers should be protected from conviction of crimes, inherent to and conducted during the business of war and under orders, which would normally be punishable when not in military service? Do we believe that a person can only be convicted once of a crime, that no one has the right to take our personal property without due process, and that personal property cannot be taken under the pretext of imminent domain?
- Do we still believe that we have a right to confront our accusers, have a speedy trial, and a right to counsel? Do we have a right to protect ourselves from laws enacted that are not in our best personal interests and that inhibit our individual pursuit of happiness?
- Do we still believe we have a right to a trial by jury of our peers?
- Do we still believe we have a right to protection from excessive bail and cruel and unusual punishment?
- Do we still believe that non-inclusion of rights in the Constitution preclude us from having those rights?
- Do we still believe that the government does not have a right to assume responsibility and control over any powers and responsibilities not explicitly outlined in the Constitution, including the power to force laws, regulations, and actions upon individual states and/or persons?
I think also, an appropriate question would be: Do we believe that there are other rights that should be outlined in the Bill of Rights in the Constitution and what is the rationale for inclusion?
Government Structure: The governance structure of the United States set forth in the Constitution is Representation of the masses by a few. The Constitution is explicit in its description of this representation, particularly in how it is to be achieved and the responsibilities of those representatives. The Constitution also outlines a structure of checks and balances: the Executive branch (the Presidency), the Legislative branch (Congress: House and Senate), and the Judicial (Court system). Each branch has limited powers to act on its own, has some power to regulate the other two branches, and is subject to regulation from the other two branches. So the principle question here is: Does that structure work effectively today?
- Does representation still work? Are the ideals and wishes of the masses actually represented, or is governance tainted by self-preservation, power, control, and wealth obtainment?
- Is elected representation the most effective means of assessing citizen views and driving majority venues?
- Does the government structure require that representation act in accordance with popular demand?
- Does government only conduct those activities outlined in the Constitution, or more?
- Does the government structure support State’s Rights?
- Does government act in accordance with the State majority wishes or do States respond to government wishes? Does this align with the original intent of the Constitution regarding State’s Rights?
- Does the government structure support or restrict individual freedoms? Is the support/ restriction applicable to all persons?
- What does “promote the general welfare” mean? How does this differ from what it meant when the Constitution was first written?
- Should the government structure have the ability to change our basic rights or definition of those rights?
- Is the role of government to take care of individual people?
- Is it the role of government to alleviate social ills and inequities?
- Should the structure and role of our government be different now than was originally set up? If so, what should that look like?
I would be very interested in feedback on these questions.
So, given these questions, my answer to the question “Is the Constitution infallible”, I find myself yet again in a yes/no situation.
Yes, because the Constitution binds us to a political system of election of representatives, regardless of the effectiveness of that system.
No, because if the representatives acted in the manner intended by the Constitution, the system set forth would be working perfectly.
Yes, because the Constitution does not provide adequate surety that the representatives are acting in accordance with citizen majority wishes. The representatives are supposed to represent the idealism of the majority of the population, but they do not (certainly healthcare reform has proven this assertion). A political system born of necessity as a result of the conditions of communication that existed in the 1700’s (and perhaps trying to fix the choices of government structures occurring in older, established countries) has evolved into a system of career politicians whose only agendas are power, wealth, and control and who take very little interest in the ideals of the masses except during election time. Therefore, I concede that while the governance structure as set forth by Constitution is sound in theory (and was, long ago, in practice) the continuing performance of the structure has been corrupted to the point where a new structure may be necessary to reinstitute acceptable representation of the majority and to hinder the efforts of special interests and populations to force special privileges for the minority on the majority.
No, because its outline of the basic principles of behavior and belief upon which decisions for this country are supposed to be made continues to remain meaningful and valuable to the majority of citizens of the United States as well to those seeking citizenship (legally or illegally).
Yes, because it fails to adequately secure those basic beliefs, behaviors, and rights by allowing the possibility that the wants of a few will outweigh the beliefs and rights of the many.
Yes, because it allows for changes to it without surety of adequate representation of the wishes of the majority, except through election, which is in itself a fallible process.
So, is the Constitution a working or living document? If we now have a given that there is a potential for fallibility in the Constitution, then I can concede that it is, and should be, a living document. The root of the debate however, is not ‘can it be changed’ – the real debate lies in ‘should it be changed’ and if so, ‘what should be changed’, ‘how should it be changed’ and ‘by whom’.
On one thing I will remain very firm. I believe in the basic rights set forth in the U.S. Constitution, even though I have of late been toying with the idea that a change in government structure may be required to reinstitute true representation, because I don’t think that a 3rd party or voting someone new in is going to fix the problem. I believe I have an individual right to define my own ideas of success and failure, to achieve success or failure within those definitions, to chart my own course towards that success or failure, and the responsibility to accept the consequences of my actions. I have a right to share my successes if I so chose, but no one has a right to force me to do so. I have a right to fail, but have no right to impose the consequences of my failures on others. I have a right to offend you, you have a right to be offended, I have a right to not do anything about it unless I so chose; you do not have the right to force me to take any action to alleviate your offense. You have the same rights. I have a right to follow your belief system or chose my own. You do not have the right to force your beliefs on me. You have a right to incorporate my traditions into your everyday life, as I also have a right to do so with yours. I have a right to protect my possessions from you, but not the right to force you to protect your own.
I do not believe that our Founding Fathers ever seriously considered that the citizenry would decide that they didn’t want freedom of choice or that the Constitution itself would be used as support for taking away those freedoms. They understood the human condition enough to know that societal values would erode in the face of power and prestige, and that attempts to infringe upon individual rights would be constant. So, as far as the basic principles are concerned, I don’t believe the Constitution is fallible, a working document, or a living document. It is an unshakeable ideal from which my entire life is based.
