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Why do we have this document? Should it ever be changed, or even rewritten entirely?
Jefferson once wrote about the idea of changing the United States Constitution, and indeed any perpetual body of laws. In this post, we will explore some of these ideas, look at where the Constitution comes from and how it helps us, the People, to control the government.
At the left (or above these paragraphs on a phone) is a photo of the Assembly Room in Independence Hall, Philadelphia. In this room the Declaration was signed and the Constitution was debated, compromised upon and drafted. Take a moment to reflect on what transpired there.
Thomas Jefferson once mulled over the amazing constitutional convention and construct that emerged from it: the Constitution of the United States. As he was pondering its significance, he wrote a letter to his friend, James Madison, and layed out some theories about governance of the people, by the people.
Ever curious, his initial thought was this: “ ‘The earth belongs in usufruct to the living’ that the dead have neither powers nor rights over it”.1 He was saying that the people who are enjoying and using the earth, living souls upon it, have the privileges of stewardship over the earth, not those who had gone before. Jefferson supposes that a previous generation could not actually cause debts to be paid by another generation in the natural world. Instead, we pay any debts of our ancestors because of municipal exigency. In other words, because we, as a society, say it needs to be done.
Then he equated this unnatural payment of a previous, dead, generation’s debts with lawmaking. “But with respect to future debts, would it not be wise and just for that nation to declare, in the constitution they are forming, that neither the legislature, nor the nation itself, can validly contract more debt than they may pay within their own age, or within the term of 19 years?” (he chose 19 years because of a previous calculation he had made in the letter about the age of a generation)
In essence, he stated, “no society can make a perpetual constitution, or even a perpetual law” and that being masters of their own persons and able to govern as they please while alive, it follows that, “Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right” He further postulates that because systems get corrupted over time, factions get started, bribes take place, and other interests lead governance astray. If that is so, then it would be ideal that the laws of governance are renewed every generation.
Including the Constitution.
Thomas Jefferson Presidential Portrait, 1800, Rembrandt PealeA
"The earth belongs in usufruct to the living [and] the dead have neither powers nor rights over it”
Thomas Jefferson said that each generation ought to tear up the previous generation’s constitution and start afresh! Madison’s response will be related later. This anecdote from the papers of one of the founders and framers is presented not as an argument to repeal the current constitution, but rather as a thought process to see if, in fact, We the People actually do as he said: do we create a new set of rules to govern, every generation or so?
This essay is an effort to answer that question, in part. The remaining part is for each to answer for themselves. However, before we get into the weeds about the constitution’s resilience and durability, let’s briefly review what it is and is not.
If you haven’t read it recently, do so, in its entirety. It’s not too long a read. Here’s a good place to read it: https://www.archives.gov/founding-docs/constitution-transcript
The constitution was written as a replacement for the Articles of Confederation. The Articles were the new nation’s first crack at creating a government, but it (the government) was purposefully weak. The founders of the nation had a major distrust in a central and powerful government, just having thrown off the shackles of a monarch whom they considered tyrannical. They recognized that too much power in one place was potentially a bad thing. So they specifically created a very weak central government, retaining most of governmental power to individual states.
But that didn’t work out very well. The government was completely ineffective. No one was getting paid, there were disputes that couldn’t be settled, and we only had a standing army of about four hundred soldiers off in the hinterlands. With no navy to protect American trade and shipping, no State department to negotiate with other nations and no way to raise money to pay off it’s debts, it was a rough time. So congress decided, in effect, to scrap the Articles and create a new form of government unlike anything else before it.
When the convention met, there were two primary modes of thought: make the government strong and powerful or keep it small and weak like it was because governments are generally a bad thing. Does this argument sound familiar?
The framers worked out a compromise. It would be both strong enough to do what needed to be done, but limited in scope, reserving rights to the people and only minorly curbing them so as to make it better for all. In fact, the founders would write a document that specifically told the government how limited it was. That would become the constitution, which governs the government, not the people.
The constitution shows forth the deep distrust the Founders had with the idea of government in general. They knew it was needed, and needed to be strong in order to protect the people who put their trust in it, but it couldn’t become the unrepresentative tyrannical force that was so common among the European states they came from at that time. So in the constitution, right after the preamble, the first thing addressed is how to structure and form the government.
It starts with Congress. A representation of the will of the people in the House and a representation of the various states and their interests in the Senate. By balancing these two sometimes competing interests, the Congress would have the ultimate authority to deal with internal and external affairs. The executive branch came second, in Article 2, a small detail, perhaps, but showing the distrust of the framers in a strong executive branch.
Because the constitution sets up checks and balances for each of the branches and for both houses of the Congress, it was understood that the government had more power and authority, but it would be challenging for any one area to exceed their power and authority. So, Congress passes a law. But the President must approve it. However, a well-motivated Congress can override a veto, if they wish. Of course, any approved law, no matter how it was finally passed, is subject to review by the Courts.
The Constitution made the government powerful enough to get business done, and it laid forth a lot of ideals that the new nation would aspire to. The people retained most of the power (who chooses a president*, a senator* or representative? The people. Where do these representatives come from? The people.) But the government was there to promote a better union, justice, peace, defense and general welfare so that liberty would be maintained and expanded in the land. For everyone. That’s the ideal, we as a nation haven’t always lived up to it, it’s true, but we’ve been consistently working toward it.
The genius of the constitution is hardly debated, except upon 2 points: the difficulty of changing it (could you imagine ¾ of the Senate, ¾ of the House and ¾ of the states all agreeing on any change today?) and a second frustration for some is that it has embarrassing, missing, or outdated tenets—such as the statements about slavery, lack of protections for minority groups, and the electoral college.
Some have suggested we follow Jefferson’s idea and scrap the constitution we have and create a whole new one that better represents the constituency of the modern United States in all its beliefs, colors and genders. Others zealously reject that idea and hold onto the document and its written ideas, that they should never be changed and understood only as the original 55 framers understood them.
Answering this critique is beyond the scope of this article, but we invite you to consider deeply the pros and cons of such an action
*Electors (in the electoral college) actually choose the president. However, they must currently vote according to the popular vote in each state according to each states’ rules. Senators were originally chosen by the legislatures of each state, however, after the 17th amendment, as addressed in the footnotes, this was changed to a popular election.
The constitution of the United States was written by the representatives of the citizenry then living. “We the People” may have simply been referring to the 55 men that wrote the document, but probably not. In his reply to Jefferson, Madison wrote that some “debts” made by the current generation are necessary for another to assist in “paying off.”2 He specifically mentions the revolution and founding of the United States as being one such debt: it is necessary for the current generation, sure, but it also benefits future generations.
It follows, then, that the Framers were thinking of how this document would affect future generations and the changes which would take place. True, they didn’t know how much would change, only that it would. For the most part, they even believed that the despicable practice of slavery would eventually end, though they disagreed on how, when and why. 3 They wrote the Constitution to “secure the Blessings of Liberty to ourselves and our Posterity”. The document never says who is a citizen or who can and cannot vote, those issues were left to the states to decide. Typically, the Constitution uses the word “Person” when describing a holder of an office. Occasionally a pronoun “he” is used, but that is a generic term and primarily influenced by the culture of the time. Today we tend to use “they” as a more generic term.
Abigail Adams while entreating her husband, John, to write more and more often (some things never change!), implored him to “remember the ladies” in the new laws he’d help draft for the country. 4 She wanted them to be kinder to women in respect to laws than their ancestors had been. Likely, she was not the only wife, sister or mother who implored these Framers to be better than their forebears.
True, the right to vote for minorities and women wasn’t enshrined in the document, but neither was it excluded. Thus women in general voted in the West5 decades before the 19th amendment and black voters even in the early years of the nation were recorded.6 This didn’t mean that there was always a right to vote for everyone, of course, only that the federal government didn’t prohibit it. The states wrote their own laws about these issues. In fact, most of the amendments to the constitution were to force states into changing their laws about whatever topic, altogether, so that the law would be uniform throughout the nation.
The constitution, as written, has been very resilient, yet flexible. Other countries regularly change their constitutions according to the times. South Africa is on it’s fourth since 1909, The United Kingdom doesn’t even have a single codified constitution, rather many sets of laws that define parliamentary power and limits, such as their Bill of Rights in 1689 or the Magna Carta from 1215 which codified rights for parliament agreed to by King John of England. France is on its 15th separate constitution, most recently rewritten in 1958. And the Dominican Republic has had a whopping 32 constitutions since 1844! 7
The US Constitution, on the other hand, is the world’s oldest currently used written constitution. It’s been around since 1787, thus it is 237 years old this year! It has guided the laws of the nation, both national and even states’ laws, ever since. Sometimes, we get the laws “wrong” according to our 21st century sensibilities—could you imagine requiring people to own land to vote? Or be a specific color or gender? Or any of the other crazy things states have thought up to try and keep certain groups of citizens from voting?—yet the Constitution has consistently provided a way to be flexible across the nation for localities as well as provide a way to change it and establish a law of the land that cures a fault that the Framers might never have considered. (How long should a president serve? Thank you 22nd Amendment)
The Constitution remains sturdy and challenging to change. In order to do so, you need to build consensus. That means that three-quarters of each chamber of Congress, plus 75% of the states (currently, that would be 34 states) would need to sign off on the change. Consensus is challenging to get, even in the best of times, which ensures that the simple majority in power doesn’t get to change the law of the land at whim.
Of course, the way the law of the land does change, in several different ways. Four ways we “change” the constitution without amending it are discussed later. The point is that by making it challenging to change, the Framers ensured that People only change what really matters.
Some things do need changing. Especially in Washington. The 2-party system, incivility, the way power is claimed by the President and congress lets it happen. But these are cultural deficiencies to be addressed and a lack of following the law of the constitution more strictly.
Nevertheless, a regular study of the history of the United States finds that constitutional law is changed, as a matter of course or fact, in various ways. And an amendment doesn’t necessarily mandate that change. There are four primary ways that the law of the land evolves and is established, without formally amending the Constitution.
First, the states, or the people, make a change that ultimately gets enshrined in an amendment. The most famous, perhaps, of these is when the 17th amendment was ratified. It changed the way we voted for senators, but many states had already made this change in effect through their own constitutions and electoral practices. More states were in the process of updating their electoral processes. The17th amendment just made it official for the whole of the USA.8
If we look at the electoral college, it functions much the same: the people in the state ultimately make their choice and the electors follow it. An amendment declaring that the electors must follow the popular vote wouldn’t really change anything. Although an amendment that states that the president would be chosen by popular vote alone, could make for some interesting changes. A few small states would lose power in congregate during a national election, but each vote would matter more, everywhere. It depends on if you’re more interested in State’s rights or individual rights here. Plus, political parties could be less powerful since we’d be seeking a consensus of the People.
Second, changes happen without a formal amendment, sometimes even after an amendment is actually rejected. For instance, the Equal Rights Amendment has been proposed to protect equal rights for women. Although it has never been ratified, there are many other laws that have been enacted, as well as a general cultural shift, that ensure these protections exist.
A third way we interpret the constitution is by enacting laws that take the place of a proposed amendment.The Congressional Rules define how congress acts, not the constitution. Working around other laws through executive orders enables the President powers not delineated in the constitution9 (the Vietnam conflict is a major example of this, only Congress has the authority to declare war. In reality, the Presidents escalated the war through the use of various war powers and executive orders, but the United States was never formally at war). Even the general power of the Federal Government and the diminishment of States powers was never codified, they have just evolved over time (thanks primarily to war presidents Abraham Lincoln, Woodrow Wilson and FDR).
Fourth: Unfortunately, even an amendment doesn’t necessarily change the way the law is enforced. It takes time for the country to change in other ways for an amendment to be effective. For instance, the 14th and 15th amendments promised that black people would not be forbidden the vote and would have equal protection under the law. In reality, the country as a whole didn’t really start making those changes effective until the 1960s. No law made will ever be effective until the culture as a whole changes to accept the law.
Since he never brought it up publicly, and since his term as president ended over a year after the 19 years would have been up, Jefferson probably moderated his curious philosophy. The constitution we have is a beautiful thing. One of our Charters of Freedom, it has proven to be a strong resilient code of laws while remaining flexible enough to actually work, every day, over 200 years later.
We at United We Pledge feel it is a profoundly important, inspired framework of government for, by and of the People of the United States, It deserves to be commemorated, celebrated and has been emulated dozens of times throughout the world and, indeed, most other constitutions around the (democratic) world can trace their origins to this document.10
1 – Jefferson to Madison Letter, 6 September 1789, https://www.colorado.edu/herbst/sites/default/files/attached-files/nov_2_-_constitution.pdf
“Usufruct” means “the right to enjoy the use and advantages of another’s property short of the destruction or waste of its substance” in other words to rent, but not necessarily with money.
2 – Madison’s response, in part: “However applicable in Theory the doctrine may be to the Constitution, it seems liable in practice to some very powerful objections. Would not a Government so often revised become too mutable to retain those prejudices in its favor which antiquity aspires, and which are perhaps a salutory aid to the most rational Government in the most enlightened age? Would not such a periodical revision engender pernicious factions that might not otherwise come into existence? Would not, in fine, a Government depending for its existence beyond a fixed date, on some positive and authentic intervention of the Society itself be too subject to the casualty and consequences of an actual interregnum?” https://www.colorado.edu/herbst/sites/default/files/attached-files/nov_2_-_constitution.pdf
3 – https://www.britannica.com/topic/The-Founding-Fathers-and-Slavery-1269536
4- Abigail adams, Letter to John Adams March 31, 1776, https://www.masshist.org/digitaladams/archive/doc?id=L17760331aa
5- Women had explicit suffrage in Wyoming in 1869, Utah in 1870 and Colorado in 1893. The reasons were varied: Wyoming needed a better balance of men and women, Utah had a public image crisis and Colorado wrote it into their constitution through activism.
6- See, for instance: https://www.amrevmuseum.org/virtualexhibits/when-women-lost-the-vote-a-revolutionary-story/pages/no-racial-requirement-2
7- These facts are found all over the web. Here are a few links: https://comparativeconstitutionsproject.org/chronology/
https://en.wikipedia.org/wiki/Magna_Carta
https://www.ucl.ac.uk/constitution-unit/explainers/what-uk-constitution
8- What happens when Congress needs changing, you say? Well, the Constitution provides a way for the States to call for a convention to redraft the entire constitution should the need arise. You’d have to get a good ¾ of the states on your side, but it could be done. In fact, it was nearly done once before.
Up until 1913, the state legislatures chose the senators from their state. Not the people of the state. The Senate was viewed as a body representing State’s interests and thus the Framers expected a more deliberative body and so proposed their way of electing the senators. By the 20th century, there were problems with this system. Sometimes there were seats that were bought or awarded for various political favors, occasionally, deadlocks happened in the choosing of senators. In fact, Delaware had only one senator from 1899 til 1903. That’s half the term of a senator!
There had been several amendments proposed to remedy this. They revolved around popularly electing senators, the same as the House got elected. Every time a resolution for amendment came up, the Senate blocked it.
By 1912, the States had had enough of this ballyhoo. They needed 31 states to call for convention and 27 had called for one, two were discussing it and 2 states were going to be made, Arizona and New Mexico, and they were expected to support the notion. Because of this de facto call for a constitutional convention, Congress, including the Senate, submitted a proposal to the States for ratification: an amendment to the Constitution. Thus the 17th amendment was ratified in April 1913.
9- The four presidents that have given the most executive orders? FDR 3721, TDR 1081, Wilson 1803, Coolidge 1203. The four most recent presidents: Biden 130, Trump 220, Obama 276, Bush 291. The first four: Washington 8, Adams 1, Jefferson 4, Madison 1. Here a good link: https://www.statista.com/statistics/1125024/us-presidents-executive-orders/
10- Recently, other constitutions have been gaining more influence, including the Canadian Charter of Rights and Freedoms. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/ However, even that document gets many of its fundamental rights from things such as the Bill of Rights, a duly recognized part of the Constitution of the United States, though it is more explicit on how those rights are promoted and defended and the limits thereof.
A – By Rembrandt Peale – https://www.whitehousehistory.org/galleries/presidential-portraits, Public Domain, https://commons.wikimedia.org/w/index.php?curid=72792044