Our Living (That Is, Amendable) Constitution
Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics of originalism say. Judges must be allowed to augment or update the Constitution to keep it “relevant.”
But the Framers themselves anticipated the need for periodic revision of our national charter, providing, in Article V, a mechanism for its amendment. That mechanism has been invoked 27 times, so far.
In other words, the Constitution is a living document even without fanciful judicial lawmaking. It can, with a sufficient consensus (a two-step process culminating with ratification by three-quarters of the states), be altered to suit the requirements of an evolving polity. Some of the constitutional amendments now seem so elemental that we cannot imagine the document without them, such as the Bill of Rights, the abolition of slavery, full suffrage, and equality before the law for all citizens. Others—such as the federal income tax and direct election of senators—have altered the national government in ways that are subtle but profound. Some, such as the ill-fated experiment with Prohibition, seem foolish in hindsight.
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