Consider the following scenario: You’ve come down with a fever and a sore throat, so you go to your doctor. He examines you and then, without warning, he pulls out a box of leeches and comes towards you. Shocked, you ask for an explanation. He declares that this is the way it has been done for over 200 years in this country and to change his methods would be un-American.
Would you continue seeing this doctor? Of course not. You would realize that relying on tradition in regard to your health is naive and foolish.
Now consider our government. For over 200 years, we have relied on the Constitution to guide us. Legal arguments almost always come down to what we believe the Founding Fathers intended. Ironically, this approach is not what the framers intended. They imagined the Constitution as a living document that would grow along with the country. In the words of Thomas Jefferson: “Every 30 years, we should hold a new Constitutional Convention and work out the things that do not function properly in our political arrangements. Because as we grow older, as a republic, you cannot expect a man to wear a boy’s jacket.”
It was clear to Jefferson and the other Founding Fathers that they could not predict the future and that they must provide some method for succeeding generations to adapt the Constitution to present times.
Some argue that the Constitution is intentionally vague; their understanding of a living document is one that can be reinterpreted over the years without changing the wording. However, this understanding places an inordinate amount of power in the hands of the Supreme Court. The Court operates by way of simple majority, which means that just five justices can change the law. This leads to partisan outcomes like those of Citizens United v. Federal Election Committee and Bush v. Gore.
The other issue with the reinterpretation theory is that there is no mention of it in the Constitution. Instead, the Constitution includes the amendment process, which requires two-thirds of both houses to propose an amendment and three-fourths of state legislatures to ratify it. These steep requirements insure that a large majority support amendments.
But time and time again we have used the first method rather than the latter. We have reinterpreted the Constitution so many times that terms such as interstate commerce have lost all meaning. And we have ignored the amendment process as a viable means of updating our founding document. Since the Bill of Rights was enacted 221 years ago, we have amended the Constitution only 17 times. We haven’t had a meaningful amendment since 1964, when poll taxes were banned.
Today, corporations are people, gay people are denied civil rights and the president murders American citizens without trial. As silly as it is to consult a 200-year-old medical textbook on how to fight AIDS, it is just as silly to rely on a 200-year-old founding document to govern the internet, drone warfare and any of the countless other inventions that did not exist when the document was written.
A version of this article appeared in the Wednesday, Nov. 7 print edition. Ian Mark is a staff columnist. Email him at [email protected].