Is the US Constitution a ‘Living Document’ or Should It Be Taken Literally?

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Courtesy of angela n. (Flickr CC0)

The United States of America is just over 245 years old. Its laws and system of government are only 230 years old. I join with many others who have far more experience and education involved in American history and consider the Constitution the greatest document ever written.

However, I am a progressive, and I believe that the Constitution is a “living document” that must be applied to changes over decades, not the norms and conditions in the 18th century. On the other hand, many “conservatives” believe that it must be taken literally and remain a document based on the past. Still, other Republicans recognize a need to update the document and make it relevant today.

In a recent interview on Fox, Mary Anne Franks from the University of Miami School of Law suggested a rewrite of the First and Second Amendments in the Bill of Rights. She believes that both favor certain (unnamed) individuals, and the interpretation are ambiguous. Franks proposed that both amendments should explicitly state “individual rights within the framework of “domestic tranquility” and the “general welfare” set out in the Constitution’s preamble.” This prompted me to see what others might believe about such an idea. I found an intriguing article in the Atlantic from 2020.

The editors of the Atlantic challenged three groups of law professors, conservative, progressive, and libertarian, to create a new Constitution which applies to America in the 21st century.

As expected, the conservative group stressed “Madisonian” policy; progressives — democracy and equality; and libertarians — liberty. However, all three groups shared several beliefs that would significantly alter how government works today.

The Atlantic was surprised, and so was I, when all three groups agreed that critical parts of the Law of the Land should be altered to align closer with the 21st century.

Courtesy of Angela (Flickr CC0)

All three teams agree on the need to limit presidential power, explicitly allow presidential impeachments for non-criminal behavior, and strengthen Congress’s oversight powers of the president. And, more specifically, the progressive and conservative teams converge on the need to elect the president by a national popular vote (the libertarians keep the Electoral College); to resurrect Congress’s ability to veto executive actions by majority vote, and to adopt 18-year term limits for Supreme Court justices.

I have attached the suggestions for all three proposals. I think you will find them very interesting.

Personally, I find no disagreement with the ideas offered by progressives and conservatives, the majority parties, but I would add term limits for Congress to the suggestions.

Most Americans will agree that the terminology could be more “modern,” allowing average Americans to fully understand its meaning and applications to life in America today. In addition, we should know how it would affect each man, woman, and child in the United States. This would eliminate much of the division within the Supreme Court related to interpretation.

This is an interesting idea, but that is all it could ever be today. Right-wing politicians would refuse any rewording of the Second Amendment, and Democrats would respond the same to changes in the First and Fourth. Their most avid supporters and donors would scream bloody murder at the very idea.

Op-Ed by James Turnage


FOX News: Law prof suggests rewrites of First and Second Amendments that do not mention free press or bearing arms; by Stephen Sorace
National Constitution Center: Constitution Drafting Project
The Atlantic: What If We Wrote the Constitution Today? By Jeffrey Rosen

Featured and Top Image Courtesy of angela n’s Flickr Page – Creative Commons License
Inset Image Courtesy of Angela’s Flickr Page – Creative Commons License

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