The Founders Never Knew: Assessing the Written U.S. Constitution

In a world dominated by countries with systems based on constitutions, the U.S. Constitution does not seem unique. However, the revered document happens to be “the world's longest-surviving written charter of government” (United States Senate). It continues to provide a source of continued legitimacy and prestige for the Federal Government. The only country which provides a comparable opposite is the United Kingdom, which famously has an unwritten constitution. Many foreign critics blame the American Constitution as the source of the US's current political ills. In order to assess the validity of this claim, I will assess the format of the U.S.’s written constitution. . Often, many people are quick to point out deficiencies of the system in question, but few are also willing to offer solutions. Naturally, the citizens of one country, having grown used to and adapted preferences towards its form of government, are inclined to think that other nations should do well to become like theirs. I will lay out first the benefits of the written American Constitution, second, its consequences for the republic, and finally, the potential difficulties of replacing or removing it.

In short, the United States of America has relied on the same piece of parchment for over two hundred years because the Founding Fathers wanted it that way. The Anglo-American colonists were firmly still in English cultural tradition at the time of the nation’s formation. First and foremost in the founders’ minds was the memory of the English Civil War. For them, the cause of the conflict was the ambiguity of the unwritten English Constitution. Each man could interpret or twist it as they thought fit, as so much of it relied on unwritten precedents. The Founders viewed the oppression of King Charles I as avoidable if only they had written the rights of Englishmen for all to see. These ‘lessons’ encouraged them to propose and pass a new written constitution to replace its weak predecessor, the Articles of Confederation. The constitution’s  physical and tangible nature ensured it spread widely via the printing press. The list of protected rights of citizens and the rules for political procedures were now easily accessible to both members of government and its citizens. It is difficult to invent or ignore its ascribed rights and procedures when the Contents of the Constitution are well known. In this way, it serves as a roadblock for legislation or policy which infringes upon the liberal beliefs which are enshrined within it.

Following  a landmark national case (1803 Marbury v. Madison), the Supreme Court, the head of the Judicial branch, has developed the authority to interpret the constitutionality of any proposed legislation or salient issue brought to its doorstep. If they deem any law or view as unconstitutional, then it is set to rest and a precedent is established. The Constitution did not initially  allocate the Supreme Court this power. However, that didn’t matter. As the years progressed, the highest court in the land came to be seen as a higher source of authority than the people’s elected representatives. If the political debates of representatives in the state and national legislatures could not resolve a controversial issue, they would send them up to the Supreme Court Justices. They  would then call upon the authority of the Constitution to finally put the issue to rest. Unfortunately, the Founders could only fit so much into one source and could not have foreseen the questions that later plagued the Union. The document combined an unintentional ambiguity with an intentional one. The Fathers wanted to keep the Constitution open so that it could be adapted to face new problems. Despite their best efforts, ambiguity is more of a hindrance to reform than something to facilitate it.

The Supreme Court now wields the Constitution, steering the country to go wherever it desires. Its authority is checked only by the power of the President to appoint justices. If a president were to stock up the court with their supporters, they could significantly augment their power. The American public has, in recent years, become increasingly disillusioned with the political establishment. They have begun to entrust more and more issues to the arbitration of the judicial branch, which only exacerbates these systemic problems. A desire for a thorough resolution and fear of debating salient issues have encouraged the citizenry to act this way. However, their hopes can not lead them to their desired panacea. Supreme Court decisions can only temporarily ‘solve’ problems for a short time, setting a precedent but not passing any new legislation to close the matter. As soon as a new set of justices is appointed, they can quickly overturn precedents set by past members, as happened to the Roe v. Wade decision. The limits of the Constitution also invite justices to rely on their personal beliefs to make decisions on particular cases. This situation leads to a country led by an unelected assembly with different generational concerns, who can be as biased as the average politician. 

The Constitution has also created another problematic structure, the Electoral College. That assembly has enabled countless presidential candidates to win despite losing the popular vote. Former President Trump’s presidential immunity appeal to the Supreme Court represents a topical example of the judicial branch’s sizeable power and the ability of an executive to aggrandise themselves using it.

Ultimately, the consequences of the U.S. written Constitution invite questions of how to change or reform it. Unfortunately, the Founding Fathers ensured that it would be difficult. Two-thirds of both legislatures or two-thirds of all the states must vote to propose amendments. Then, three-fourths of each state legislature must approve to pass the amendment. To prove the point, the last amendment successfully passed was in 1992 (Amendment XXVII) and was minor.

Some may be dissatisfied with mere reform, instead wishing to remove and replace it. However, this is easier to contemplate than to act upon. A culture of revering the ancient document has grown across the American political spectrum, especially among the centre-right. All U.S. military service branches swear allegiance to the Constitution. Many Americans would be afraid of its removal since there would no longer be any formal protection from their elected representatives or the decisions of the executive and legislative branches.

The American Republic is due to keep its yellowed Constitution, with all its benefits and consequences. Americans should continue to revere the Constitution and feel grateful for its historical existence. However, like an overprotective parent, perhaps they have finally outgrown it.

Bibliography:

Editorial Board. (2024). The US Supreme Court has helped Donald Trump. Financial Times. [Online]. 29 February 2024. Available at: https://www.ft.com/content/9e13c9c6-7e8a-4d2a-a9e7-7c6d6a58e3e6. [Accessed 3 March 2024].

Fukuyama, F. (2024). It’s not too late to reverse America’s political decay. Financial Times. [Online]. 1 March 2024. Available at: https://www.ft.com/content/2b204c19-4050-4316-852c-9b0dbfdf23a1. [Accessed 3 March 2024].

National Archives. Founding Documents in the Rotunda for the Charters of Freedom. [Online]. National Archives Museum. Available at: https://museum.archives.gov/founding-documents. [Accessed 3 March 2024].

Sumption, J. (2019) “Human Rights and Wrongs.” The Reith Lectures. June 2019. Podcast. Available at: https://open.spotify.com/episode/0YJGNUpevaiATN2nIKWsxa?si=1dc71b4a66a444d7. [Accessed 3 March 2024].

Sumption, J. (2019) “In Praise of Politics.” The Reith Lectures. May 2019. Podcast. Available at: https://open.spotify.com/episode/7jkFHMOV2cKYCAOnsGxSwq?si=ef583398e4234096. [Accessed 3 March 2024].

Sumption, J. (2019) “Law’s Expanding Empire.” The Reith Lectures. 21 May 2019. Podcast. Available at: https://open.spotify.com/episode/2bFty4oUUsniaGFrjTLYxC?si=dba4f6a4414740b9. [Accessed 3 March 2024].

Sumption, J. (2019) “Rights and the Ideal Constitution.” The Reith Lectures. June 2019. Podcast. Available at: https://open.spotify.com/episode/4wiWVFtrt3yxid1eU7gIzQ?si=6270606fdc1744c8. [Accessed 3 March 2024].

Sumption, J. (2019) “Shifting the Foundations.” The Reith Lectures. June 2019. Podcast. Available at: https://open.spotify.com/episode/0w5KaAnpw9i6BcCuPHUohk?si=3277a68dea49406b. [Accessed 3 March 2024].

The White House. The Constitution. [Online]. The White House. Available at: 

https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/#:~:text=An%20amendment%20may%20be%20proposed,in%20each%20State%20for%20ratification. [Accessed 3 March 2024].

United States Senate. Constitution of the United States. [Online]. United States Senate. Available at: https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm. [Accessed 3 March 2024].