Counterpoint: The Constitution Should Change with the Times
Thesis: One of the reasons the United States has enjoyed stability under the same Constitution for more than 200 years is the built-in
flexibility of the Constitution, enabling its interpretation to subtly change as the society changes.
Summary: The strength of the US Constitution is its inherent ability to change as society does. The Constitution is applied as it is
interpreted by judges, most importantly the nine justices of the United States Supreme Court, and altered by amendment. One of the
first acts of its creators was to change it, by appending a Bill of Rights. Cases like Plessy v. Ferguson and Brown V. Board of
Education show how the document can alter with the times.
The Issue
The ink had hardly dried on the Constitution of the United States (signed by most members of the constitutional convention on Sep. 12,
1787, coming into force after New Hampshire ratified it on June 21, 1788) when the first amendments were proposed. Indeed, a Bill of
Rights had been debated during the drafting, and the document always had provisions for adding amendments. Twelve amendments
were proposed at the end of September 1789; ten of them, the Bill of Rights, became part of the Constitution when Virginia ratified them
on Dec. 15, 1791.
The Founding Fathers fully realized that in order to last, the Constitution needed to have provisions for change. It is one of the reasons
that the US Constitution is the oldest written constitution in effect today (with the possible exception of the constitution of San Marino,
on the Italian peninsula; Britain's form of government depends on an unwritten constitution). In addition to the 27 formal amendments,
the meaning of the Constitution is always up for review as the Supreme Court hears arguments that help to reshape the interpretation
of the document.
One of the earliest and most important of these interpretations was the case of Marbury v. Madison in 1803. In that case, the Court
created for itself the power of judicial review, establishing the right for the Court to declare acts of Congress, and by implication, acts of
the president, unconstitutional. Nowhere in the Constitution is there a specific power of judicial review; its establishment greatly
expanded the power of the Court, perhaps beyond what the Framers had intended. The power that Chief Justice John Marshall (17551835) gave to the Court was not used again until 1857 and has been used relatively rarely, though with greater frequency in the 20th
century.
Flexible vs. Textual
There is a school of thought, today often associated with Supreme Court Justice Antonin Scalia, that the Constitution means what the
words say it means. This thinking is sometimes called "textualist" or "originalist"--meaning that whatever the intentions of the authors of
the Constitution or of Congress may have been, all we have to go on is the written words that must be taken, well, at their word.
But this thinking is derailed when confronted with certain realities of change in the surrounding society. Two examples illustrate the
point:
Example One: The Fourth Amendment states that it is the "right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches." This amendment was adopted about 85 years before Alexander Graham Bell invented the
telephone in 1876 and about 160 years before development of the Internet (starting in the mid-1950s). Does a telephone "tap" situated
outside a person's house--either on a phone company's network or even in a satellite receiver at the National Security Agency--violate
this amendment? Or does the phrase "secure in their ... papers" also imply secure in their email, or in their cell phone conversations,
two forms of communications not mentioned in the words of the Constitution? For the record, the Supreme Court has taken two views
of this issue: first deciding, in Olmstead v. US in 1928 that telephone taps placed outside the house did not violate the Fourth
Amendment; later, in Nardone v. United States (1939) the Court upheld a law that banned wiretaps without a warrant. Subsequently,
the equivalent of wiretaps without a warrant became an issue when it was disclosed that the Bush administration had authorized the
National Security Agency to conduct such eavesdropping in connection with anti-terrorism investigations. In February 2008, the
Supreme Court refused to hear a case challenging President Bush's secret order to the National Security Agency to intercept calls and
emails coming in and out of the country, without first going to a special court for approval, as required by the Foreign Intelligence
Surveillance Act of 1978.
Changing Culture
Example Two: In 1890 the state of Louisiana passed the "Separate Car Act," requiring "all railway companies carrying passengers in
their coaches in this state, shall provide equal but separate accommodations for the white, and colored races." Homer Plessey of New
Orleans, LA, a black man, filed suit against John Howard Ferguson, a judge who ruled that the law was constitutional in cases where it
applied to transportation within a single state. In Plessy v. Ferguson (1896) the Court refused to stop his trial by declaring the law
unconstitutional. They found that laws requiring separation of the races did not imply inequality of either, and that so long as rail service
for both races was equal, the 14th Amendment had not been violated. About 60 years later, the Court overturned that decision in the
case of Brown v. Board of Education of Topeka, ruling that segregated schools, even if equal in all tangible ways, still implied the
inferiority of the black race, and thus were not equal. This principle was later extended to outlaw all official segregation.
In neither instance cited above was the Constitution amended. What did change was the society in which the law was interpreted. As
technology evolves, so does the understanding of the Fourth Amendment. As culture evolves, sometimes it is only the Court that has
the political freedom to make the momentous changes that come with decisions such as Brown v. Board of Education, introducing the
new interpretation of the Constitution into the law of the land.. Often opponents of the "living document" theory are the same ones who
rail against "judicial activism"--the idea that judges should play a role in advancing social change through their interpretations of the law,
especially the Constitution. Yet these same opponents are willing to embrace decisions that show an equal degree of activism when
their political ends are served. No case better illustrates this point than Bush v Gore (2000). This case ended the 2000 election,
effectively allowing the Supreme Court to dictate the election process in a state; no decision by the court has ever been seen as more
blatantly political, with the five conservative justices putting the conservative candidate into the office of the presidency.
In the 1930s Chief Justice Charles Evans Hughes put it bluntly: "We are under a Constitution, but the Constitution is what the judges
say it is."
Ponder This
1. Do the two examples used by the author make a persuasive case for the principle at stake: that judges are (or are not) intended to
impose new interpretations on the text of the Constitution?
 2. In one example cited (wiretapping) Congress had acted to ban wiretaps without a warrant; in the case of school desegregation,
the Supreme Court acted without a legislative background. Consider the differences between these two examples cited to support
the same argument.
 3. If, as Justice Hughes said, "the Constitution is what judges say it is," how can anyone rely on the law for protection from one year
(or decade) to the next?