should the constitution be changed essay

History News Network puts current events into historical perspective. Subscribe to our newsletter for new perspectives on the ways history continues to resonate in the present. Explore our archive of thousands of original op-eds and curated stories from around the web. Join us to learn more about the past, now.

Sign up for the HNN Newsletter

How would you change the constitution here's my proposal..

How would you change the constitution if it were up to you? How should we as a nation change the constitution? Even asking the question gets angry and outraged responses. This is so even though parts of it are poorly thought out, anti-democratic, and have done tremendous damage to the nation.

For America’s constitution is a sacred cow. Some cows should not be worshiped. Some should be slaughtered. That is not true of all of the US Constitution, but America would be better off if some parts of it became hamburger. For nothing should be so revered that one cannot question it, change it, or discard it, and blind worship is always to be avoided.

There is, among those on both the political left and right, what can only be called widespread constitution worship. Most on both sides hold up the constitution the way a vampire hunter in the movies holds up a cross to ward off vampires. Everyone from the most stoned pot smokers to gun toting militia groups calls on the constitution as support for causes, beliefs, and attitudes they hold dear.

This constitution worship is every bit as blindly enthusiastic as it is unknowing of the actual history of the constitution, and how and why it was adopted. For this, most people are blameless. People cannot be faulted for what they were not taught, or more often, falsely taught. I made the same argument in Presidents' Body Counts , and others, notably James Loewen in Lies My Teacher Told Me , argue likewise.

For the founders themselves did not think much of the constitution. Jefferson wanted a new constitution every twenty years. Other founders disagreed, largely because they were not sure the constitution would last twenty years. For the founders, it was a pragmatic and even temporary measure, not holy or intended to be permanent. Constitution worship did not become a regular feature of American society until near the start of the twentieth century, in part as a way to assimilate immigrants.

I often tell my students that America is great not because of the constitution, but in spite of it, and especially in spite of the founders. The constitution itself is clearly at the root of many of our worst problems in American society today. If it were up to the American public, the following solutions would have become law many decades, even half a century or more, before today:

1. Abolishing the Electoral College. 2. Ending the buying of elections. 3. Limiting the time campaigning for office, as they do in Great Britain. 4. Ending wars quickly in Vietnam, Iraq, and Afghanistan. Each war continued over half a decade after the American public wanted to get out. 5. Reforming the office of vice president, widely regarded with contempt by most, and producing candidates that even most voters of the same party as the presidential candidate did not want. 6. Ending corporate welfare and other wasteful spending. 7. Ending most foreign military aid, and support for tyrants around the world. 8. Limiting the power of the Supreme Court. 9. Ending the political monopoly of wealthy elites. 10. Guaranteeing privacy from government intrusion.

Each of these proposals have widespread bipartisan support and are hugely popular across the political spectrum by great majorities. But none of these proposals, not too surprisingly, have majority support among elected political elites, economic elites, or the leadership of either party.

The constitution itself is the biggest barrier to solving these problems. Not one of these problems have been, or ever could have been, quickly solved, precisely because the constitution makes it difficult. Most of these problems require a constitutional amendment, something made deliberately long and difficult by the founders. A few of these could be solved temporarily by ordinary laws, which could then be easily overturned next election.

So why not go to the root of these problems? Why not a new constitution?

Constitution worship is the reason. Most Americans have been so heavily propagandized to think of the US Constitution as undeniably great and downright sacred, something you just don’t question without being seen as un-American.

What is pretty comical is to see the most idealistic of leftists, who are deeply cynical of everything else that is elitist and coming from powerful and wealthy institutions, become like a fundamentalist when the constitution is brought up. What is equally comical is to see populist conservatives or libertarians become enamored of government power when it is enshrined in a document written by, after all, Deists and Enlightenment-influenced thinkers who did not trust organized religion or nobility. Both are smitten by constitution worship.

There are two obvious ways to deal with that. One is to challenge the holy stature of the constitution. Write the true history, which most historians and political scientists already know is not a noble one, but one of elitists hijacking a popular revolution.

The other solution is to keep what is best about the old constitution while adding to it. Propose a new constitution and a new constitutional convention, but make one of the first proposals to keep the best of the old document.

For the best of the constitution is not the original document at all. The best part is the amendments. The original document is not about rights and all about power, who has it and how they can wield it, and that it will always remain in the hands of elites. The amendments are what most rightly revere. Keep the amendments, and amend the original document of power to spread the power to the mass of people, and add more amendments to limit the power of elites, for good. That is what proposed new constitutions or new amendments try to do. They add to the best of the document, keeping all the original constitutional amendments.

What of the first solution to ending constitution worship? Tell the true history of the constitution, uncensored, without the heavy doses of patriotic propaganda that leave out its elitist nature. That story has already been told many times in the fields of history and political science. But to help the curious who may not know, let me summarize the history of the adoption of the constitution. To do that, one has to go back to the American Revolution.

The American Revolution was not a real revolution. It was an independence movement. In actual revolutions, elites are overturned, killed off, imprisoned, or forced to flee the country. America's elites, plantation owners like Washington and Jefferson, were actually strengthened. They no longer had to listen to British authorities. Many scholars, the best known being the eminent Charles Beard, argued the real motive for the founders' rebellion was economic. The British Empire was run by mercantilism, which required colonies to trade only with the mother country. The founders wanted primarily more profit from trade much more than political freedom.

But there were many in the working classes who wanted a true class revolution. There had been class warfare in the earlier English Revolution, Roundheads who were middle class and anti-nobility, and the Levelers, primitive versions of communists who wanted to level off the wealth anyone could possess. In the American Revolution, there were anti elite groups like the Sons of Liberty, and populist rabble rousers like Samuel Adams, George Mason, and most of all Thomas Paine.

There was a populist wave of the American Revolution before it was hijacked by the largely elitist founders. The Massachusetts Revolution of 1774 happened a year before the Battles of Lexington and Concord. The public took control of Massachusetts courts, forcing judges and the Governor and Lieutenant Governor to resign. They overthrew every county government in Massachusetts. That is why the British were occupying Boston in the first place at the time of Lexington and Concord.

This was just the start of a populist revolution. There were over 90 Declarations of Independence before Jefferson's , from counties, cities, and states. Most were based on George Mason's in Virginia. Jefferson's was an elite attempt to shape a popular uprising. There were also popular uprisings within the elite-led independence movement. There were mutinies within the US Army, in Connecticut, New Jersey, and Pennsylvania. Congress was forced to use a draft, bounties, even the promise of slaves to gain recruits.

After the war, there were early experiments in anarchism, socialism, and other notions very revolutionary for that time. For a year, Pennsylvania tried shutting down the government entirely. Pennsylvania also tried outlawing the collection of debt, a form of wealth redistribution. Slavery ended in seven northern states. One out of eight slaves in the US were freed. New Jersey even gave women the right to vote. Though first done accidentally in 1776, it stayed on the books until 1807.

Aristocracy and feudalism were ended in the US. Noble titles, primogeniture, and entailment (the wealthy being able to seize public property) all ended. There was enormous confiscation and redistribution of wealth during and after the revolution . (Try telling that to a Tea Party member.) Most British loyalists and many aristocrats, whether they sided with the colonists or with Britain, lost their property. Established state churches in nine of the thirteen colonies were abolished. These were all fairly radical changes, and many Americans wanted to go even further.

American elites’ fear of class warfare created the US Constitution. The most pivotal event was Shays’ Rebellion. Farmers in western Massachusetts tried to stop foreclosures on their farms, so they shut down state courts. Jefferson called this, “liberty run mad.” Washington called it, “anarchy and confusion.” What horrified the founders was not the size of the rebellion. It was minor, with few deaths. The fact that it took so long to break the rebellion worried them. And at the same time, the French Revolution was going on. They feared this minor rebellion might grow into a similar class revolution. All the radical experiments in wealth redistribution added to that fear. The founders called the convention in direct response to Shays' Rebellion.

The constitutional delegates had a low opinion of the public. They believed most people were just one hungry belly short of becoming a howling mob, that the average person was selfish, unreliable, and easily misled. They wanted the nation to be run by “men of quality” and argued the wealthy must be protected from the general public above all else. “Those who own the country ought to govern it,” as John Jay argued.

The Constitutional Convention was secretive. There were no notes taken , except Madison's, done at the end of the day in his room, against the wishes of the convention. The public was barred. So were the press. The delegates , just like Colonial Congresses before them, took oaths of secrecy to keep debates from the public. There was almost no debate on expanding the power of the government. The elite delegates already agreed in advance on most questions.

The US Constitution was and is deliberately anti-democratic, designed to look like a democracy without actually being one. Great power was given to the president. The assumption was Washington would be the first, and the clumsy Electoral College put him in. Electing a president was deliberately made cumbersome to stop anyone not as admired as Washington from being elected. The founders did not want competitive elections, but presidents chosen almost by acclamation.

Ratifying deliberately excluded opponents of the constitution. Special state conventions, not legislatures or the public, ratified the constitution. Even so, as word leaked out, the public turned against this document that most were not allowed to vote on it. Elites at the special state conventions began to get nervous. Votes against the constitution were highest in Massachusetts, New York, Virginia, North Carolina, and Rhode Island. The Massachusetts convention only ratified the document after Governor John Hancock was promised (falsely) that he would be be the first president or vice president.

In Virginia, George Mason and Patrick Henry successfully pushed for the Bill of Rights as a condition for ratifying. The first presidential election was planned without New York, North Carolina, or Rhode Island. New York actually prepared to secede and become its own country. Federalists in New York City then threatened to secede from New York. The New York convention backed down and narrowly ratified.

North Carolina's convention defeated the constitution and held out a year before a new convention ratified. Rhode Island was the only state to hold a “popular” vote. (Not only minorities and women, except in New Jersey, were barred. There were property requirements to vote in every state.) The constitution was defeated in the state by a 10-1 margin, a good indication of what most of the public thought. Washington was actually elected without Rhode Island voting in the presidential election.

Ratification took three years of enormous elite effort against the general public. Ben Franklin owned most newspapers in the US. An economic boycott was used by wealthy elites to shut down many of the other papers opposing the constitution.

The original US Constitution, minus the amendments, has a deliberate anti- democratic structure:

1. The Electoral College means there has never been a direct election of presidents. Originally it was intended to be a veto by elites vs the general public. If they elected the “wrong” person, the electors were there to overrule the public. 2. The US Senate is the most undemocratic part of the system. Wyoming has 75 times greater representation than California. Until the 20th Century, senators were chosen by state legislatures, not voters. (Some Tea Party leaders want to return to that.) 3. The Supreme Court almost always defends wealthy elites. 4. The winner take all/majority rule system is less democratic than parliamentary systems in most other nations. It leaves small groups unrepresented, and cripples newer or smaller parties. 5. There is no mention of rights in in the original constitution whatsoever, except a stricter definition of treason.

And the US Constitution was illegally adopted. The Articles of Confederation's Article 13 states “…Articles of this Confederation…shall be perpetual; nor shall any alteration at any time be made in any of them; unless such alteration agreed to in Congress of the US & confirmed by legislatures of every State.” On both counts, the constitution is illegal. Neither Congress nor state legislatures ever confirmed it, only special state conventions.

Obviously I am not suggesting resistance to the current constitution, or ignoring it. That argument leads to chaos, and only militias and sovereign citizens on the fringe embrace that. There is a legal concept which says even if a law was adopted by faulty means, it remains the law if it has been in force for a good length of time. My point was simply, when one hears that this is a nation of laws, remember that the founders ignored the highest law in the land, the Articles of Confederation. Being elites, and very elitist, they just went ahead and did it.

Imagine a modern parallel to what the founders did. Imagine the wealthiest elites writing a document only they had any say in, and only allowing themselves to vote on it, and then declaring it the highest law in the land. That is what the founders did, and this is precisely why the original constitution deserves no reverence.

Instead, let us resolve to craft a new constitution that preserves the best of the old, the amendments, and adds to it with a far better system of government and drastic limits on elite power.

Unlike the original convention, any new constitution deserves, needs, and requires as much popular input as possible. While the proposals that follow were written by me, many of these proposals have been made in other forms before. Larry Sabato, a political scientist at the University of Virginia, proposed some parts of several of these articles, as have others. Calls for a new constitutional convention are ongoing.

These proposals, and any proposals, need to come from you, the general public. Send in your suggestions, criticisms, counter proposals, and arguments. Spread the word anywhere and everywhere you can. This cannot and should not be done without all of you.

The only real arguments for continuing the current constitution are stability, and a view of the American system based more on romanticism than actual history.

A Proposed New Constitution – Fifteen Articles

Article 1- Continuing and Expanding the Original Constitution and its Amendments

1. All articles and amendments from the previous Constitution of 1787 remain the final law of the land, except as changed by the following articles or later amendments. 2. Each of these following articles must be voted on and approved separately by two thirds or more of those voting to become the law of the land.

Article 2- Insuring Greater Democracy

1. The Electoral College is abolished. The President shall be directly elected, with the winner being the candidate receiving the most votes. 2. The Supreme Court shall never, by any decision including indirectly, decide who shall be President. 3. The Vice President shall be nominated separately by each party and elected separately from the President, and also serves as the Secretary of State. 4. The Senate shall be 100 adult citizens chosen at random each year, representative of the adult American public by age, gender, race and ethnicity, religion or lack of, and income or social class. 5. Redistricting shall only be decided by nonpartisan committee, and gerrymandering to favor one party or dilute minority voting power is forbidden. 6. Congressional representatives' terms are changed to four years, elected in the same elections as the President.

Article 3-Guaranteeing the Right to Vote

1. The right to vote for all citizens of legal adult age is absolute and cannot be denied, limited, barred, blocked, or suppressed, whether by deliberate attempts or unintended outcomes. All current such attempts are ended. Any law with the outcome, even unintended. of making voting more difficult shall be immediately void. 2. Any official who deliberately or unintentionally makes voting more difficult shall be immediately removed and their decisions voided and actions reversed. Deliberately blocking others from voting or blocking voting recounts shall always be prosecuted and punished as a felony. 3. Voting days shall be national holidays, with a paid day off for workers only with proof of voting. 4.The voting age is lowered to sixteen for any US citizen proving their maturity by holding a job or living on their own.

Article 4-Ending the Buying of Elections

1. All elections shall be publicly funded only. Private contributions or donations to or on behalf of a candidate or party, except for unpaid volunteer work, are outlawed. Corporate donations of any kind are forbidden, and business and corporate owners and management are forbidden from intimidating, pressuring, or influencing in any way their employees, punishable by long prison sentences. 2. Campaigning and advertising for all general elections are limited to the period of six weeks before election day. Campaigning and advertising for all primary elections are limited to the six weeks before the general election period. 3. No election, whether federal, state, county, city, special district, American Indian tribe, or of unions, civic groups, lobbying groups, or private clubs, is valid unless more than half of its citizens or members vote. If less than half of the citizens or members vote, there must be immediate new elections within 30 days with different candidates.

Article 5-Voting Guarantees Benefits

1. All eligible voters must vote. Failure to vote results in inability to receive all government benefits until the next election, including licenses, grants, subsidies, tax refunds, eligibility for public assistance, student or business loans or credit. 2. Those with strong and longstanding religious, philosophical, or political beliefs against voting are not required to vote if they declare said beliefs.

Article 6- Limiting Corporate Power

1. All rights in this and the previous constitution, as well as under all American laws, are limited to human beings only. A person under US law is defined as a living human being only. Corporation rights and powers may be severely limited by any and all governments, whether federal, state, city, country, special district, or American Indian tribe. 2. A corporation must serve the public interest and its life span shall be limited. Any corporation shall be permanently dissolved if they break the law more than five times. No business, corporation, or individual can escape fines, punishments, or legal judgments by declaring bankruptcy, or by the use of holding companies, shell companies, or any other diversion, evasion, or tactic. 3. The right to collective bargaining by unions or other workers shall not be limited more than other civic or lobbying groups, nor subject to government recognition.

Article 7-Ending Colonialism

1. The United States recognizes the great wrongs done by genocide against American Indians, apologizes fully, and shall always strive to make amends. All federally recognized American Indian tribes are forever sovereign, defined by their treaty or other legal relationship to the United States, with rights to decide their own government and laws, and to enforce those laws on all residents and visitors within their territory. 2. All American Indian tribes have permanent and absolute rights to their current reservation lands, forever. All federal lands, or lands reacquired by American Indian tribes, that are within these tribes’ historically recognized boundaries, or protected by treaty, will be part of their reservations. All sacred sites of federally recognized American Indian tribes shall be returned immediately, or protected by federal partnership if requested by tribes. 3. Native Hawaiians are recognized as a tribe by the US government and shall have a reservation with a sovereign government with relations with the US government and rights equal to an American Indian tribe. Nothing in this article shall be construed as denying or abridging Native Hawaiians' right to pursue the return to being an independent nation as they were before the illegal overthrow and seizure of their nation. 4. US citizens and nationals of American Samoa, Guam, Puerto Rico, the US Virgin Islands, and Washington DC have full local self rule, and shall vote in federal elections and have voting federal congressional districts.

Article 8-Renouncing War

1. The United States shall not go to war except in self defense, and permanently renounces wars or acts of military aggression. 2. The United States, its government, agencies, or agents shall never try to overthrow another nation's government again unless directly attacked by said government. 3. Unless under direct and immediate attack, the United States shall not go to war, and the President cannot deploy troops for combat without an official declaration of war by Congress. Unless under direct and immediate attack, the declaration of war by Congress must then be approved by a vote of the American public within 30 days. Failure to get approval by the American public overturns the declaration of war. 4. The US President can deploy troops to rescue US or other citizens and must prevent genocide, other large scale atrocities, or humanitarian disasters. The President must report to Congress on such action within 7 days and Congress must approve the deployment of troops within 30 days. 4. The US government is forbidden to go to war or use war as an opportunity to enrich in any way any American businesses, corporations, or individuals. Family members of government officials shall not be exempt from military draft, nor sheltered in special units, or in any other way.

Article 9- Referendums and Recalls

1. Members of the public may propose referendums to pass new laws, recalls to remove for illegal or corrupt actions the President, Vice President, member of Congress, Supreme Court Justice, or any appointed official, or bring an end to wars or operations involving US troops. 2. A referendum or recall begins 30 days after the certified collection of valid signatures of ten percent of all voters. 3. No referendum may overturn, contradict, or limit anything in either constitution, and such efforts must be done instead by constitutional amendment. Nor shall referendums or recalls be funded by corporations or private contributions, except for individual unpaid volunteer work. Referendum advertising must be equally funded both pro and con, must be publicly funded only, and subject to reasonable limits.

Article 10- Nonprofits for the Public Interest

1. National defense industries, healthcare, prisons, education, and news media must be nonprofit. No business, corporation, or individual can profit unfairly from the federal government or public resources and must pay fair market value for all current and previous resources, subsidies, and research. 2. No journalist, commentator, or others presenting themselves as experts in politics, history, law, society, health, medicine, or science can make more than five times the median national income, and any excess income must be donated to charity or it will be seized by the federal government. 3. All journalists, commentators, and others presenting themselves as experts for mass news media will be fined every time they lie in their articles, broadcasts, or public statements. No person or media outlet can profit from lies or falsehoods and fine shall at least equal all profit, money, or benefits made from lies or falsehoods. 4. The agency in charge of judging lies and falsehoods by journalists, commentators, or experts for the mass media must be entirely of respected historians for matters of history and politics, respected legal scholars for matters of law, and respected scientists or doctors for matters of science, medicine, and health, and shall be entirely nonpartisan, with no member affiliated with any party.

Article 11- Ending Institutional Support for Hatred

1. No government body, law, or regulation will sanction or reward racism or ethnic hatred, religious bigotry, sexism, or other hatreds based on linguicism (hatred or discrimination based on language) or national or regional origin. 2. Nor shall any government fail to provide redress for longstanding discrimination based on the previous. 3. Any person or institution taking part in or promoting discrimination or hatred based on the previous results in that person or institution's permanent inability to receive government jobs or benefits, including licenses, grants, subsidies, retirement including pensions and Social Security, tax refunds, eligibility for public assistance, student or business loans or credit.

Article 12-Ending Class Bias in the Law

1. All crimes must be punished. No president may pardon or give clemency to any in their own administration, or the administration of other presidents of their party, or to anyone who has given them campaign contributions. All such previous pardons are overturned. The guilty shall never be allowed to profit from their crimes. The guilty must pay back all wealth from their crimes and pay for all damage done to others. 2. All fees, fines, and taxes must be progressive, based on ability to pay. Regressive taxes, where the wealthy pay a proportionately smaller amount, are expressly forbidden and must be immediately made progressive.

Article 13-No Special Treatment for Wealthy Elites

1. Government assistance only goes to those in need and corporate welfare is forbidden. No person or corporation, nor any trust or legal entity used by a person or corporation, shall receive government assistance or funding unless they make less than double the median national income and possess less than double the median national wealth. 2. All government loans or tax deferrals or holidays or other benefits to corporations or business must be repaid, with interest at market rates. All facilities built even partly to benefit or profit private businesses or individuals must be paid for by those businesses or individuals equal to the benefits or profits received.

Article 14-Limiting Idle Wealth

1. Large concentrations of idle wealth are inherently dangerous and inhumane. All income from any and all sources greater than 100 times the median national income and all wealth of an individual greater than 100 times the median national wealth shall be seized, unless it is reinvested or donated to charity. 2.All attempts to conceal wealth to avoid taxes shall result in prosecution as grand larceny, full seizure of not just concealed wealth but all their wealth, and long prison sentences which may not be suspended. Separate white collar prisons, or other prisons that are less arduous or harsh, are forbidden, and all white collar criminals must be punished and imprisoned with all other prisoners.

Article 15- The Right to Privacy

1. The right to privacy, unless it can be shown to directly and obviously harm others or affect national security, shall not be abridged in any way. Private individuals shall not have their private lives divulged in any form without their consent unless they commit felonies, or failure to divulge such information can be shown to affect or harm others in a direct and obvious way. 2. Libel, slander, or defamation of public figures is subject to the same punishments and standards as for private individuals. 3. Private information on public figures cannot be divulged without their consent unless it can be shown to serve the public interest.

Articles and Amendments Not Proposed

Balanced Budget-This would be disastrous in times of depression, recession, or war.

Equal Rights Amendment- This is already covered by Article 11.

“Right to Life”/Anti-Abortion Amendment- Most of the public supports keeping abortion legal. Article 15 would guarantee that continues.

Flag Burning Amendment- This contradicts the First Amendment.

Prayer in Public Schools Amendment- This also contradicts the First Amendment.

English as the Official Language- This is barred by Article 11, since it creates institutional discrimination based on hatred of other language speakers.

Term Limits- There is no need. The average congressman serves only ten years.

Altering the Second Amendment- Too controversial. The convention would spend its time on nothing else. The crime rate, including firearm deaths, has been dropping for over 30 years.

These are my proposals. Larry Sabato of the Center for Politics has his own, some that I agree with and incorporated. What are yours?

Assistant Professor of History

Northern Virginia Community College

http://proposednewconstitution.blogspot.com/

http://alcarroll.com

Search form

• Free Newsletter
• Health Care
• Social Security

9 Changes to the Constitution – How Would You Change It?

We last amended the Constitution a generation ago.

So much has changed since then. 

The viral-like spread of the Internet was two years away. Pagers were still gaining in popularity. Arugula was rare in grocery store aisles.

The economy was starting to recover from a recession, gliding its way into a tech boom. We had a mix of confidence and healthy skepticism in our government, after having crushed Saddam Hussein’s Iraq in war. At the southern tip of Manhattan, the World Trade Center towers stood as two exclamation points on a magnificent skyline.

The 27th Amendment passed back in 1992 now seems like a historical footnote, rather than a prophetic statement of values. It stopped Congress from hiking its salaries mid-session , a symbolic act that did little to improve the public’s opinion of Capitol Hill.

For the July 4th holiday, The Fiscal Times reached out to leading experts, lawmakers and academics with a simple question: How would you amend the Constitution?

Their answers, edited for space, are below:

IMMIGRANTS CAN BE PRESIDENT It bothers me that our Constitution excludes from the presidency all Americans who lack a U.S. citizen parent, the so-called “natural born citizen” clause.

I’d like to change Section 1, Article 2 to simply read, “No person except a citizen of the United States shall be eligible for the office of President.” Think of all the remarkable Americans who have held high public office but have been constitutionally barred from seeking the presidency, such as Madeleine Albright (born in Czechoslovakia), Elaine Chao (Taiwan), Jennifer Granholm (Canada), and Arnold Schwarzenegger (Austria).   – Stephen H. Hess , presidential scholar and senior fellow emeritus, Brookings Institution

REMIND D.C.: STATES ARE IN CHARGE If I were able to amend the Constitution by a wave of a wand, I'd try to find some way to make the 10th Amendment more effective.

The rights of states have gradually been so eroded that it's creating a congestion of taxes and regulations and paper work. I would like to have a 10th Amendment on steroids – which would somehow cause our country and our jurisprudence to remember our federal structure, and realize that the central government is limited and that powers are reserved to the states.

For example, the Marketplace Fairness Act  that we just passed in the Senate was all about whether Washington will allow states to set their own tax policy. That shouldn't even be an issue in my opinion under the 10th Amendment. – Sen. Lamar Alexander (R-TN)

GUARANTEE A FEDERAL RIGHT TO VOTE (WE DON’T HAVE ONE) Americans often talk about their “right” to vote. The reality – noted in cases like Bush v. Gore – is that no affirmative federal right to vote exists. Instead, courts often defer to state-based voting laws and administration. Although Americans vote for one president, one U.S. representative, and usually one U.S. senator, every one of the greater than 3,000 counties in the United States can administer federal elections in a unique (and often inefficient) way.   While it wouldn’t be an instant cure-all, a constitutional amendment conferring a right to vote and empowering Congress to enforce that right would provide voters with heightened legal protections and set the stage for standards that enhance the voting experience for all Americans, regardless of where they live.  – Joshua Field , deputy director, Legal Progress at the Center for American Progress

BALANCE THE BUDGET I would like to see an amendment requiring a balanced “primary” budget , which means that the cost of servicing the national debt would be excluded.

It should contain a provision that Congress must reduce spending proportionately across areas of the federal budget and that tax increases must maintain the present progressivity of the tax code, phased in within ten years of the amendment’s passage.

Without a constitutional mandate, politicians and other citizens simply will not have the will to make the changes necessary to address our looming fiscal crisis.  – Steve Bell , senior director at the Bipartisan Policy Center

NO LIFETIME JOBS FOR SUPREME COURT JUSTICES If I could amend the Constitution, I would add a provision ending lifetime tenure for federal courts, especially the Supreme Court. I would replace it with a long, nonrenewable term of no more than 20 years. Furthermore, I believe the Chief Justice should not hold this position for life, but for a four-year term that would be renewable.

This reform would reduce the intensity of debate on court nominations because the stakes wouldn’t be so high; it would reduce pressure to appoint young judges who will spend the maximum amount of time on the court; it would reduce pressure on federal judges to avoid retirement lest a member of the opposite party appoint their replacement; and it would bring fresh blood and thinking into the judicial system.

A June 7, 2012 CBS News/New York Times poll found 60 percent of people agreeing that lifetime appointments gives judges too much power versus 33 percent who said it is a good thing because it makes judges independent. –  Bruce Bartlett , former deputy assistant Treasury secretary for economic policy; columnist for The Fiscal Times

DON’T CHANGE A THING Several major conservative thinkers suggested that the Constitution does not need to be changed, but rather to have its principle of limited government guide both Congress and the president.

Michael Cannon at the Cato Institute noted that the Fourth Amendment protects against warrantless searches, “yet the National Security Agency tracks everybody with Congress' tacit if not explicit consent.”

Instead of an amendment, Tom Miller of the American Enterprise Institute said the Constitution needs “a better glossary to define and restrain the many open-ended words and phrases in the Constitution’s actual text that provide wide latitude for judicial reinterpretation and expansion far beyond their original meaning.”

Here is the rationale from Matt Kibbe , president and CEO of FreedomWorks: The Constitution and the Bill of Rights don’t need any additions or changes – they just need to be applied consistently throughout government in order to actually work. The responsibility lies with “We the People” to hold our elected officials accountable to defending those rights at every turn. 

A truly constitutionally-limited government would not be almost $17 trillion in debt because there would be no unconstitutional bailouts, health care takeovers or farm subsidies. Energy plants would not be closing their doors, because pollution would be managed through private property rights and not arbitrary regulations.

The IRS would not have the discretionary power required to discriminate against Americans based on their political beliefs, and innocent civilians would be protected from unreasonable searches and seizures by Homeland Security and the NSA.

The Federal Reserve would not devalue the dollar, because the Fed wouldn’t exist – there would be no government-induced boom and bust. The president would not issue so many executive orders, because only Congress would have the power to legislate.

NO PRESIDENTIAL TERM LIMITS The essence of the American Constitution was the creation of a document of non governance. It says what government cannot do – not what it can do. The government cannot regulate speech, association, religion, press, and gun ownership.\

The 22nd Amendment does regulate what the people can do, namely elect a president as often as they like. It was passed by Republicans as soon as they could, not wanting to put up with another FDR. Of course, it backfired as ill-considered things often do, as they could not elect Ike or Reagan to a 3rd term.

As long as representatives can be elected and re-elected with impunity, then so, too, should presidents.  – Craig Shirley , historian and Ronald Reagan biographer

WORST-CASE-SCENARIO CONGRESS I hate amending the Constitution as a general matter.

But we have no plan in place to get the House of Representatives and Senate up and running quickly if there is a terrorist attack that kills or disables enough people that you fall below a quorum. The only effective way to deal with this is to have a constitutional amendment that would enable emergency interim appointments.  – Norman Ornstein , resident scholar at the American Enterprise Institute 

MAKE PUBLIC SERVICE MANDATORY I'd propose a Universal National Service amendment – a constitutional requirement that all able-bodied Americans ages 18 to 26 devote at least two years to the service of their nation. They could select a service activity from among a wide variety of U.S. military branches, civilian government (national, state, and local), and qualifying non-profit options. The details are in my book, A More Perfect Constitution .

In essence, it would be a Bill of Responsibilities to accompany the Bill of Rights. Everyone should contribute something of themselves, not just taxes, to the nation that has long been a beacon of hope and the envy of the world.  – Larry Sabato , University of Virginia political scientist

PUBLIC FINANCING FOR CAMPAIGNS To get elected and to stay elected, politicians now have to spend much of their time raising money and, thereby, becoming beholden to donors. The current system is, by its very nature, corrupt and those who campaign are almost inescapably corrupted.

The amendment should authorize Congress to regulate and finance primary and general elections for the presidency, the House, and the Senate. It should require that all private contributors be listed by name within a matter of days. The wording should allow direct funding for campaigns, public funds to match private contributions, caps on total campaign spending, bars on campaign spending by outside groups.  – Henry Aaron , senior fellow at the Brookings Institution

Brianna Ehley, David Francis, Maureen Mackey and Eric Pianin of The Fiscal Times contributed reporting .

TOP READS FROM THE FISCAL TIMES

The 12 Greatest Founding Fathers, Ranked!

The Black Conservative Who Could Save the GOP

The United States’ Unamendable Constitution

How our inability to change America’s most important document is deforming our politics and government.

Illustrations by Ben Hickey

W hen the U.S. Constitution was written, in 1787, it was a startling political novelty, even in an age of constitution-making . Before the Constitutional Convention, James Madison made a study of “ ancient and modern confederacies ,” but written constitutions were so new that he had hardly any to read. Also, no one had any real idea how long a written constitution would last, or could, or should. Thomas Jefferson thought that nineteen years might be about right. He wasn’t far wrong: around the world, written constitutions turn out to have lasted, on average, only seventeen years before being scrapped. Not the U.S. Constitution. It’s lasted more than two hundred years and hasn’t been amended in any meaningful way since 1971, more than half a century ago.

Laws govern people; constitutions govern governments. Lately, American democracy has begun to wobble, leaning on a constitution that’s grown brittle. How far can a constitution bend before it breaks? The study of written constitutions has become a lot more sophisticated since Madison’s day. A project called Constitute has collected and analyzed every national constitution ever enacted. “Constitutions are designed to stabilize and facilitate politics,” the project’s founders write. “But, there is certainly the possibility that constitutions can outlive their utility and create pathologies in the political process that distort democracy.” Could that be happening in the United States?

The question is urgent, the answer elusive. There are a few different ways to tackle it. One is to investigate the history of efforts to amend the Constitution, a subject that’s been surprisingly little studied. Working closely with Constitute, I head a project called Amend —an attempt to assemble a comprehensive archive of every effort to amend the U.S. Constitution.

Another approach is to query the public. In July, 2022, the nonprofit organizations More in Common and YouGov collaborated with Constitute and Amend to conduct a national survey. It asked a sample of two thousand Americans questions about whether the Constitution is still working, and, if it’s not, how to fix it.

In this piece, The New Yorker will be asking you some of the same questions. More than two centuries on, does the U.S. Constitution need mending?

Which statement comes closest to your view of the U.S. Constitution?

Public-opinion surveys have been asking Americans this question for a long time, as the political scientist Zachary Elkins has demonstrated. In 1937, when asked “Should the Constitution be easier to amend?,” twenty-eight per cent of those surveyed said yes, and sixty per cent said no. A half century later, in 1987, another survey asked more or less the same question, and got more or less the same answer: twenty per cent of respondents said that the Constitution was too hard to amend, and sixty per cent said that amending it was about as hard as it ought to be.

This era of contentment appears to have come to an end. In 2022, forty-one per cent of respondents said that the Constitution should be more frequently reviewed and amended, and another seven per cent that it should be entirely rewritten and replaced. Those are the over-all numbers. But the results are strikingly polarized. Seventy-two per cent of Republicans think that the Constitution is basically fine as is; seventy-two per cent of Democrats disagree.

In 1787, the men who wrote the Constitution added a provision for amendment—Article V—knowing that changing circumstances would demand revision. To amend meant, at the time, to correct, to repair, and to remedy; it especially implied moral progress, of the sort that you indicate when you say you’re making amends or mending your ways. The idea for an amendment clause, a constitutional fail-safe, came from the states, where people demanded that their constitutions be revisable, “to rectify the errors that will creep in through lapse of time, or alteration of situation,” as one town meeting put it. No single article of the Constitution is more important, the Framers believed, because, if you couldn’t revise a constitution, you’d have no way to change the government except by revolution.

W ithout Article V, the Constitution would not have been ratified. But, from the start, most amendments failed, and were meant to. Amending the Constitution requires a double supermajority: an amendment introduced in Congress has to pass both houses by a two-thirds vote, and then must be approved by the legislatures of three-quarters of the states. Also, a lot of proposed amendments are horrible. In March, 1861, weeks before shots were fired at Fort Sumter, Congress passed a doomed amendment intended to stop the secession of Southern states: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.” Others have been silly, like the amendment, proposed in 1893, that would have renamed the country the United States of the Earth. And plenty have been perfectly reasonable but turned out to be unnecessary. The Child Labor Amendment proposed to give Congress the “power to limit, regulate, and prohibit the labor of persons under eighteen years of age.” It passed Congress in 1924 and went to the states for ratification, where it failed; later, child labor was abolished under the terms of the Fair Labor Standards Act of 1938.

More than ten thousand amendments have been introduced into Congress. Many more never made it that far. Only twenty-seven have ever been ratified and become part of the Constitution. Looking at them all at once, straight off, you can see patterns. Most successful amendments involve a constitutional settlement in the aftermath of a political revolution. Ratifications have come, mostly, in flurries: first during the struggle over the Constitution itself, when its critics secured ratification of amendments one through ten, the Bill of Rights; then during the Civil War and Reconstruction, a second founding, marked by the ratification of amendments thirteen through fifteen; and, finally, during the Progressive Era, when reformers achieved amendments sixteen through nineteen. Scattered amendments have been ratified since, notably the Twenty-fifth, which established a procedure in the event of Presidential debility, and the Twenty-sixth, which lowered the voting age to eighteen. The Twenty-seventh Amendment, concerning congressional salaries, was ratified in 1992, but it was first proposed in 1789. All of these have been one-offs, rather than part of efforts to constitutionalize political revolutions.

Amending the Constitution

Since 1789, members of Congress have introduced more than ten thousand proposals to amend the Constitution. Nonetheless, only twenty-seven amendments have ever been ratified, giving the United States one of the lowest amendment rates in the world. The rest are “discards,” amendments that failed. In this time line, amendment proposals are grouped by congressional session and ordered by the year they were introduced as bills.

It’s always been hard to amend the Constitution. But, in the past half century, it’s become much harder—so hard that people barely bother trying anymore. Between 1789 and 1804—fifteen years—the Constitution was amended twelve times. Between 1805 and 2022—two hundred and seventeen years—it’s been amended only fifteen times, and since 1971 only once. The Framers did not anticipate two developments that have made the double supermajority required of Article V almost impossible to achieve: the emergence of the first political parties, which happened in the seventeen-nineties, and the establishment of a stable two-party system, in place by the eighteen-twenties. As John Adams complained, in 1808, “the Principle Seems to be established on both Sides that the Nation is never to be governed by the Nation: but the whole is to be exclusively governed by a Party.” This state of affairs raised the bar for amending the Constitution. The current era of party polarization, which began in the early nineteen-seventies, has raised the bar much, much higher.

How high? Political scientists talk about the “amendment rate”—the number of amendments to any given constitution, per year. Divide twenty-seven ratified amendments by two hundred and thirty-three years and you get 0.12, the U.S. amendment rate. It is one of the lowest rates in the world.

What effect is that having on American politics and government? Consider the Electoral College . Proposals to reform or abolish the Electoral College have been introduced in Congress more than seven hundred times since 1800, and electing the President by popular vote has enjoyed a great deal of popular support for the past half century or so. In 1967, sixty-five per cent of Americans were in favor of it. And support has remained at about the same level ever since—with the exception of a notable dip in 2016.

What do you think?

As you may know, Presidents are chosen not by direct popular vote but by the Electoral College system, in which each state receives electoral votes based on its population. In the 2016 election, for example, Hillary Clinton won the popular vote, and Donald Trump won the Electoral College vote. Would you favor passing a constitutional amendment that would determine the winner of future Presidential elections by popular vote, or would you rather continue the current system, which determines the winner by Electoral College votes?

The More in Common/YouGov 2022 survey suggests that, if a constitutional amendment to abolish the Electoral College were a matter of public opinion, it would win, forty-seven per cent to thirty-five. Support, however, varies by party: seventy-three per cent of Democrats want to abolish the Electoral College, and sixty-three per cent of Republicans want to keep it. Such an amendment doesn’t seem to lie in the realm of the possible. Accordingly, most people interested in this reform have sought instead to increase the size of the House of Representatives, and to admit Puerto Rico, the District of Columbia , and Guam to statehood—both measures that would alter the number of delegates to the Electoral College. Meanwhile, domestic tranquillity remains elusive. In two of the past six Presidential elections, 2000 and 2016, the winner of the popular vote has lost the Presidency; in the aftermath of the 2020 election, supporters of the loser staged an armed insurrection at the Capitol.

A n unamendable constitution is not an American tradition. U.S. state constitutions are much easier to amend than the federal Constitution. The average amendment rate of a U.S. state is 1.23; Alabama’s constitution has an amendment rate of 8.07. A high amendment rate is generally not a sign of political well-being, though, since it comes at the cost of stability. Also, it can be disastrous in states where constitutions can be amended by a popular referendum: research suggests that the language of ballot initiatives is so mealy-mouthed that many voters, confused or misled, end up casting votes that go against their actual preferences. It’s a Goldilocks problem. You don’t want your constitution to be too hard to amend, but you don’t want it to be too easy, either.

Making the Constitution easier to amend would itself require a constitutional amendment, which means it’s not going to happen. But what if it could? The most radical way to make amending easier would be to drop the supermajority requirements, allowing Congress to pass proposed amendments by a simple majority, and then sending them not to state legislatures for ratification but to the whole of the people, by way of a national popular referendum. I’m not proposing this. No one is, not even the far-right movement—a descendant of the Tea Party—that calls for a second Constitutional Convention. Still, it’s a worthwhile thought experiment. Would the eighty-five per cent of liberals who would like to make the Constitution easier to amend be happy with the results?

Consider, for instance, the hot-button issue of immigration. Amendments to repeal birthright citizenship—a guarantee of the Fourteenth Amendment—have been introduced into Congress at least twenty times since 1991. Red states whose governors have taken strong anti-immigration positions—including Greg Abbott of Texas and Ron DeSantis of Florida—might well support amendments to their state constitutions limiting the rights of immigrants. And it’s easy to imagine a national initiative.

Would you favor or oppose the following? A constitutional amendment that would deny the children of undocumented immigrants, tourists, and temporary residents automatic U.S. citizenship?

Terrifyingly, using a referendum-based system, a federal constitutional amendment ending birthright citizenship would be only very narrowly defeated, forty-nine per cent to fifty-one, according to the poll conducted by More in Common and YouGov.

You could ask the same question of abortion. This summer, Kansas voters struck down a proposed state constitutional amendment banning all abortions. This November, voters in California, Michigan, and Vermont will vote on amendments to their state constitutions guaranteeing a right to abortion. What would be the result if abortion were put to a national popular referendum?

Would you favor or oppose the following? A constitutional amendment guaranteeing the right to access abortion.

Surveys aren’t binding. They’re not even especially reliable. But this 2022 survey offers at least a glimpse of what might happen if a slate of constitutional amendments were voted on in a nationwide referendum this year. A constitutional amendment to restrict abortion would likely be ratified, fifty-one to forty-nine—and yet, paradoxically, a constitutional amendment to guarantee a right to abortion would also be ratified, fifty-seven to forty-three.

Under the current rules, no federal abortion amendment could possibly be ratified. No proposal, in either direction, is going to earn a two-thirds majority in both houses. But that doesn’t mean that the Constitution isn’t being changed on this question. Instead, it’s undergoing a massive change by way of constitutional interpretation, in the hands of the Supreme Court.

“N othing new can be put into the Constitution except through the amendatory process,” Justice Felix Frankfurter declared, in 1956, and “nothing old can be taken out without the same process.” That’s not strictly true. The Constitution has become unamendable, but it has not become unchangeable. Its meaning can be altered by the nine people who serve on the Supreme Court. They can’t rewrite it, but they can reread it.

The Framers did not design or even anticipate this method of altering the Constitution. They didn’t plan for judicial review (the power exercised by the Supreme Court to review the constitutionality of legislation), and they thought they’d protected against the possibility of judicial supremacy (the inability of any other branch of government to check the Court’s power).

As with the filibuster, whether you like judicial supremacy generally depends on whether your party’s in power or out. The Court is the least democratic branch of government. But it also has the ability to protect the rights of minorities against a majority. In the nineteen-fifties, because Jim Crow laws meant that Blacks in the South could not vote, it proved impossible to end segregation through electoral politics or a constitutional amendment; instead, the N.A.A.C.P. sought to end it by bringing Brown v. Board of Education to the Supreme Court. Since then, the Court has implemented all sorts of constitutional changes: it has secured the rights of criminal defendants; established rights to contraception, abortion, and same-sex marriage; declared corporate campaign donations to be free speech; and interpreted the Second Amendment as restricting the government’s ability to regulate firearms. Which of these you believe to be bad decisions and which good depends on your position on all manner of things. But, unlike a constitutional amendment, every decision the Court makes it can reverse, the way that, this year, in Dobbs v. Jackson Women’s Health Organization , it overturned Roe v. Wade, from 1973. (You can reverse a constitutional amendment, but only with another one: that’s how Prohibition ended.)

In 2002, Congress considered a proposed amendment that read, “Marriage in the United States shall consist only of the union of a man and a woman.” Introduced again and again in subsequent congressional sessions, it went nowhere. Instead, in 2015, in Obergefell v. Hodges , the Supreme Court determined that same-sex marriage is constitutionally guaranteed under the equal-protection clause of the Fourteenth Amendment. Given the direction the Court is headed , will that ruling be enough to protect that right? Alternatively, if this question, too, were submitted to a national popular vote, how would Americans lean?

Would you favor or oppose the following? A constitutional amendment guaranteeing the right to marry of any two adult citizens, regardless of sex or gender.

Much depends on how survey questions are phrased. But the survey data suggest that, in a referendum, a constitutional amendment banning same-sex marriage would be defeated, thirty-five per cent to sixty-five, while a constitutional amendment guaranteeing same-sex marriage would be ratified, sixty-two to thirty-eight.

Reversing Roe v. Wade did not require a constitutional amendment (even though many were proposed). Instead, it required something even more extraordinary: a wholly new mode of constitutional interpretation. Roe built on a 1965 case, Griswold v. Connecticut, which protected access to contraception under a right to privacy. After Griswold, conservative critics of the Court began to devise an approach to constitutional interpretation custom-built to defeat it: the jurisprudence of originalism. Robert Bork first proposed its framework in 1971, in an essay in which he argued against Griswold. Originalism undergirds one of the most radical constitutional reversals in recent American history: the reinterpretation of the Second Amendment as protecting an individual right to bear arms, as opposed to the right of the people to form militias. (Bork himself disagreed with this reinterpretation, which has been advanced by the N.R.A.) This spring, in the Bruen case , the Court reinforced its N.R.A.-informed interpretation of the Second Amendment. What would happen if the Second Amendment were put to a referendum?

The Second Amendment currently reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Which revised version, if any, would be closest to your preference?

There’s a good reason that American constitutional amendments are not decided through national referendums. (Consider, after all, that Brexit was decided by a national popular referendum.) “A nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato,” Madison wrote, in Federalist No. 49. “The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society.” If the question of whether the government can regulate the possession of firearms were put to the people, and the people were evenly divided, what would be the consequence? Madison worried that putting constitutional matters to the people directly was an experiment “of too ticklish a nature to be unnecessarily multiplied.” Then again, plainly the people ought to have a greater role than they have when no amendments are any longer even sent to the states.

All sorts of ideas are floating around for how to shake things loose. Constitutional populists—Tea Partiers, Trumpists, and other conservatives, from Rick Santorum to Greg Abbott—have rallied around a proposal to revise the Constitution by way of a provision in Article V that’s never been used, and which holds that the country, “on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” Nineteen state legislatures have made some version of that application; thirty-four are required. Since 2013, this effort has been headed by the Convention of States project, funded in part by the Koch brothers. A new book, “ The Constitution in Jeopardy ,” co-authored by the former Democratic senator Russ Feingold, warns that, if Republicans win a few more state legislatures in this year’s midterms, a convention that could gut the Constitution, or at least the federal government, is around the corner.

If you could fix Article V, how would you do it? In 2020, the National Constitution Center asked three teams of experts—constitutional lawyers, mostly, divided into teams of libertarians, conservatives, and progressives—to draft a new constitution. The libertarians, who joked that “all we needed to do was to add ‘and we mean it’ at the end of every clause,” left Article V alone. The conservatives decided to make their constitution easier to amend (“but not too much easier”) by lowering the voting requirement in Congress from two-thirds to three-fifths, and in the states from three-fourths to two-thirds. And the progressives came up with a plan under which amendments could be proposed “not just by two-thirds of members of each House (or two thirds of states) but by Members of each House (or states, for constitutional conventions) representing two-thirds of the U.S population.” Think of it as an amendment caucus; if an amendment succeeded in Congress, it could then be ratified either by three-quarters of the states (the way things are now) or “by states representing three-fourths of the population.” No one is calling for constitutional amendment by national referendum.

A mericans aren’t going to amend Article V anytime soon because we’re not going to amend any part of the Constitution anytime soon. In the end, the really interesting question isn’t what would happen if the people could amend the Constitution by popular vote but what actually happened, in the first place, to cripple Article V, and give the Supreme Court superpowers.

The Constitution became effectively unamendable in the early nineteen-seventies, just when originalism began its slow, steady rise. The Twenty-sixth Amendment, which was ratified in 1971 and lowered the voting age from twenty-one to eighteen, an antiwar-movement objective, turned out to be the only amendment that constitutionalized an aim of one of the political revolutions of the sixties—the women’s movement, the civil-rights movement, the gay-rights movement, and the environmental-rights movement. People did not see that coming: they expected those movements to result in amendments.

In 1970, the civil-rights activist, constitutional theorist, and Episcopal priest Pauli Murray told the Senate Judiciary Committee that the passage of the proposed Equal Rights Amendment, barring discrimination on the basis of sex, was essential to ending what Murray referred to as Jane Crow, and to inaugurating a new and better era in the history of the nation’s constitutional democracy:

The adoption of the Equal Rights Amendment and its ratification by the several States could well usher in an unprecedented Golden Age of human relations in our national life and help our country to become an example of the practical ideal that the sole purpose of governments is to create the conditions under which the uniqueness of each individual is cherished and is encouraged to fulfill his or her highest creative potential.

That, of course, did not come to pass. No golden age ever does. In 1972, Congress passed the Equal Rights Amendment and sent it to the states, where most observers expected that it would secure quick ratification. But, in 1973, the Supreme Court issued its opinion in Roe v. Wade. And conservatives began a decades-long campaign to advance originalism, reverse Roe, and defeat the E.R.A. by arguing, as Phyllis Schlafly did, that “the E.R.A. means abortion.” Every significant amendment attempted since has failed. And, although efforts are ongoing to revive the E.R.A., so far they haven’t succeeded, either.

Polarization weakened Article V. But the Constitution really snapped when it became too brittle to guarantee equal rights to women. Liberals gave up on constitutional amendment; conservatives abandoned it in favor of advancing originalism. Still, nothing’s broken that can’t be mended. It’s a question, now, of how. ♦

Funding for Amend has been provided by the National Endowment for the Humanities, the Harvard Data Science Initiative, and the Inequality in America Initiative. Special thanks to Zachary Elkins and Constitute and to the Comparative Constitutions Project and More in Common . Research assistance has been provided by Mia Hazra, Henry Haimo, Samuel Lowry, Imaan Mirza, Tobias Resch, Fawwaz Shoukfeh, Jonathan Schneiderman, and Meimei Xu.

By signing up, you agree to our User Agreement and Privacy Policy & Cookie Statement . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

By Dhruv Khullar

By Brendan Loper

By Christopher Weyant

By Allison Keeley

If you're seeing this message, it means we're having trouble loading external resources on our website.

If you're behind a web filter, please make sure that the domains *.kastatic.org and *.kasandbox.org are unblocked.

To log in and use all the features of Khan Academy, please enable JavaScript in your browser.

US government and civics

Course: us government and civics   >   unit 1.

• The Constitutional Convention
• Constitutional compromises: The Electoral College
• Constitutional compromises: The Three-Fifths Compromise
• The impact of constitutional compromises on us today
• The Constitution of the United States
• Article V and the Amendment Process
• Article V of the Constitution: Amendment Process
• Article VI of the Constitution: Debts, Supremacy, Oaths, Religious Tests
• Article VII of the Constitution: Ratification

Ratification of the US Constitution: lesson overview

• Ratification of the US Constitution

Key documents to know

The amendment process, important takeaways, review questions, want to join the conversation.

• Upvote Button navigates to signup page
• Downvote Button navigates to signup page
• Flag Button navigates to signup page

Faculty Scholarship

‘our original constitution was both brilliant and highly flawed’.

Harvard Law Professor of Practice Alan Jenkins on the U.S. Constitution and its treatment of race, how to guarantee fundamental rights, and why lawyers should be better communicators

On September 17, 1787, delegates at the Philadelphia Convention signed what became the U.S. Constitution, replacing the previous organizing document, the Articles of Confederation, which many had come to see as too weak and inadequate for the nascent nation. At once offering Americans the promise of freedom, and excluding Black and indigenous people, women, and other marginalized groups, the new Constitution has nonetheless endured — and evolved — over the last 234 years.

In fact, despite the charter’s inherent contradictions, says Harvard Law School Professor of Practice Alan Jenkins ’89 , it “beautifully articulated the notion that government’s power flows from the people” — people including African Americans and many others who have continued to fight to realize its guarantee of liberty and equal justice for all.

This Constitution Day, Jenkins spoke with Harvard Law Today about his thoughts on the document’s genius and cruelty, the Supreme Court’s important role, and how we can best harness the Constitution’s power to “afford full equality and opportunity for everyone.”

Harvard Law Today: What did the Constitution say about race when it was first adopted, and how has that conception changed over time?

Alan Jenkins: Our original Constitution was both brilliant and highly flawed. It brilliantly articulated the idea of fundamental equality — human equality. It beautifully articulated the notion that government’s power flows from the people, and that government serves the people. But it was fundamentally flawed in preserving and propping up slavery, that ultimate form of inequality. And for excluding women, non-white people, indigenous people, non-property owners, from the definition of “the people.” From a racial justice standpoint, it was highly flawed, moreover, because it explicitly provided for the return of people who had escaped from slavery.

The Constitution has been amended, and in my view, improved over time through those amendments, but we are still living with some of those fundamental contradictions of our original Constitution.

HLT: In a prior interview , you mentioned that, in contrast to ours, South Africa’s constitution explicitly allows for laws aimed at advancing equity for historically disadvantaged groups. In your opinion, assuming that that amendment of the U.S. Constitution was politically possible, is that provision something you think we could benefit from? What other changes do you think would be beneficial?

Jenkins: The South African constitution is a remarkable document, in part because it draws from the wisdom of the world’s experiences as well as its own national experience with extreme racial discrimination and ways of overcoming it. It explicitly provides that race can be considered for the narrow purpose of addressing racial discrimination and its aftermath of inequity. It provides for an explicit right to housing, a right to education, a right to basic economic survival — things that our Constitution does not explicitly provide for.

In the U.S., during the Warren Court period, we saw the Supreme Court moving towards recognizing that an absolute deprivation of resources in a nation of plenty might, when it comes at the hands of the government, actually violate our own Constitution.

I do think that our Constitution would benefit from a more explicit articulation of fundamental economic rights. But I also think that there are other ways of accomplishing that. President Roosevelt, in his Four Freedoms speech, talked about “freedom from want” as a fundamental freedom. The international human rights system, which the United States helped to craft at the end of World War II and after the horrors of the Holocaust and depravation of the Great Depression, also provides explicitly for basic economic rights. We actually have the fundamental principles in place to recognize some of those economic, social, and cultural rights that the South African constitution recognizes explicitly. It’s just a question of political will and of implementation.

HLT: Do you think it should be easier to amend the U.S. Constitution, or do you think that would create a slippery slope problem?

Jenkins: I agree with the framers’ decision to make it difficult to change our Constitution. Our Constitution should not be changed based on political whim. It should be changed only when there is a broad societal agreement that an improvement or a change is needed. However, I also think that in moments like today, where society is seeing a mismatch between how the Constitution is interpreted and the real challenges we are facing as a nation, that this may be a time when a constitutional amendment is warranted.

HLT: You have also previously made the point that, in the recent past, the Supreme Court has very narrowly interpreted existing provisions in the Constitution to overturn laws like the Voting Rights Act. Can you say more about the ways in which you believe SCOTUS’s interpretation of the Constitution has had an impact?

Jenkins: Our Constitution, as it exists now, provides us with the tools and resources and principles to afford full equality and opportunity for everyone in our country. Yet there has been a trend for at least 40 years of presidents appointing justices specifically because of their restrictive interpretation of the Constitution and their likelihood of resisting full and equal justice and opportunity through our laws.

In my opinion, that is a much bigger barrier than the Constitution itself. I think our Constitution gives us most of what we need to enjoy equal justice and opportunity and the full range of human rights. But we see not only Supreme Court justices, but many courts around the country, that are either hesitant or actively opposed to making it so.

HLT: Given those barriers, do you think that reforms are needed to the process of appointing justices to the Supreme Court, as a presidential commission is currently studying?

Jenkins: I think the best solution is to build the political will to appoint and confirm justices who are committed to the full application of our Constitution to uphold human rights and equality. That is really what we should all be striving for.

I think we have seen specific efforts in the last couple of years to manipulate the system, and to put in place justices who are hostile to fundamental human rights, and who, at least based on historical practice, would not even have been considered previously for nomination. I think that is its own problem, and I think there are some good arguments for an immediate, one-time fix for that sort of manipulation of the system. But more broadly, I personally think the historical system that the framers chose for nominations and filling Supreme Court vacancies is probably a good one.

It’s worth noting that the size of U.S. Supreme Court has been changed multiple times. Two of those changes came right after the Civil War to ensure that the new constitutional amendments, the 13th, 14th, and 15th amendments abolishing slavery, ensuring due process and equal protection of the laws, and ensuring voting rights for Black men, would actually be applied and implemented by the federal courts and the Supreme Court. Again, that was a unique moment, because it was the end of the Civil War. It was a moment in which President Lincoln had been assassinated. And there was a new president, Andrew Johnson, who was hostile to those constitutional amendments. Congress saw fit to change the size and composition of the U.S. Supreme Court through legislation; note that they didn’t have to amend the Constitution, to make sure that those fundamental rights were respected. We may be in that kind of unique moment now.

HLT: There is a lot of ongoing debate in America today about Critical Race Theory, and sometimes it feels like people are arguing about different things. What is Critical Race Theory, and how is it applied in American law, if at all?

Jenkins: One of the godfathers of Critical Race Theory was Professor Derrick Bell, who was one of my professors at Harvard Law School when I was a student here. It really is about the idea that we can’t fully understand our Constitution and laws unless we understand their full history and development. And that we can’t understand that full history and development unless we study and understand the role that race and racial discrimination have played. Otherwise, it’s like going to see a movie and coming in at the middle of it, and expecting to understand everything that comes next. You just can’t do it, because you don’t have the context. Critical Race Theory is the idea that students of the law in particular should understand that full history, including aspects that sometimes make us uncomfortable, that sometimes haven’t been discussed in mainstream academia or textbooks, because they included uncomfortable truths.

The idea of Critical Race Theory has become a political shorthand for any kind of uncomfortable racial discussion. And most of the people who are speaking out against so called Critical Race Theory actually have no idea what it is. It has never been something that has been taught in elementary schools; it’s a relatively arcane set of legal theories that would be quite surprising to find in K-12 educational curricula. The argument is really over the fundamental principle: should we understand our entire history, including those things that may make us uncomfortable, that may cast historical figures in a more nuanced or controversial light? Or should we ignore, and in some cases, censor, that past, hide it from students?

HLT: You’re teaching a course this semester called Communication, Law and Social Justice. What is it about?

Jenkins: Before joining the Harvard Law School faculty, my most recent job was as co-founder and president of The Opportunity Agenda, an organization that uses strategic communications and cultural strategies to move hearts, minds, and policy towards greater and more equal opportunity.

My idea for this course is that you can win a lawsuit, but if you haven’t built public support for the outcomes, that legal result is going to be ignored, overturned, or forgotten. You can’t sustain victories for social justice unless you have built the public support that is needed. The primary tool for doing that is better communications and persuasive strategies. As lawyers, we are terrible at that. We learn in law school to speak a very rarefied language that only people with law degrees can understand – and that has its place. But it is exactly the wrong language for trying to explain and persuade general audiences that the policies that we seek are the right ones for our community, our nation, and our world. My course is about looking at and helping students to understand a variety of strategies, both historical and contemporary, for achieving and protecting legal outcomes through communications and cultural strategies.

Modal Gallery

Gallery block modal gallery.

The Constitutional Flaw That’s Killing American Democracy

The Constitution doesn’t have to be something we merely inherit; it could be something we can change ourselves—starting with rewriting the too-stringent rules for making such changes.

The recent set of watershed Supreme Court opinions pulsates with the language of democratic accountability. Dobbs v. Jackson , overruling Roe v. Wade , makes its refrain the promise to “return” the abortion question “to the people and their elected representatives.” Concurring in West Virginia v. EPA , which restricts regulators’ ability to decarbonize the electricity grid, Justice Neil Gorsuch explained that the point of the decision was to keep power in the hands of “the people’s representatives” rather than “a ruling class of largely unaccountable ‘ministers.’” In New York State Rifle and Pistol Association v. Bruen , which struck down New York State’s 117-year-old limitation on carrying weapons, Justice Clarence Thomas presented the Court’s severe, originalist approach to the Second Amendment as a vindication of a judgment “by the people” against wishy-washy federal judges who had let the restriction stand. Indeed, while these opinions have little in common besides their conservative outcomes— Dobbs eliminated a personal right, Bruen expanded a right, and West Virginia curtailed agency interpretations of statutes such as the Clean Air Act—they all claim to protect the rightful power of “the people.”

David Litt: A court without precedent

Liberal critics, in turn, have appealed to democracy in attacking the Court as “radical” and “illegitimate.” Majorities tend to support abortion rights, climate action, and gun control, they point out, so whatever mythic “people” the justices have in mind, they are going against those people as they actually exist today. Calls to add justices to the Court , deny it jurisdiction over certain cases , or even impeach some conservative justices all come in the name of greater democratic control. Some progressives hope to get back to a more democratic Constitution, whether it is in the spirit of the reformist Warren Court of the 1950s and ’60s (the Court that gave us Brown v. Board of Education and the one-person-one-vote principle); the New Deal vision of a “second bill of rights,” including rights to good work and economic security; or even an “ abolition constitution ” rooted in radical traditions of freedom and equality.

But the Constitution is too fundamentally antidemocratic a document to serve democratic purposes reliably. If we want to make it genuinely and lastingly democratic, we will first have to consider changing it in the most basic way: by amending Article V, which governs amendments and so serves as the gatekeeper for living generations to say what they—we—believe American fundamental law should be. This would be a way of empowering ourselves to become founders, over and over, and not just inheritors.

The feeling that the Court is dangerously abusing its power is a new experience for many of today’s liberals (not so for conservatives, who denounced the Court for decades before finally taking it over), but it is just the latest episode of a long-standing dynamic that we might call the Iron Law of Judicial Oligarchy. Because the Constitution establishes fundamental law and is itself hard to amend, judicial interpretation is always a key lever of power in American politics. Because power attracts agendas, various constituencies are always crowding around the Court. Before the Civil War, the justices upheld the prerogatives of slaveholders and the interests of the white oligarchies in the slave states, forming a key part of Southern Democrats’ grip on national power. That’s why, in his first inaugural address , Abraham Lincoln warned that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.” From the 1880s through the 1930s, the Court protected capitalist interests from populists, unions, and other radicals, striking down labor regulations, an income tax, and other forward-thinking policies. Progressives rallied against it. In 1912, Teddy Roosevelt promised to “put the fear of God into judges” who had struck down labor legislation. In 1924, the great reformist senator Robert La Follette of Wisconsin proposed a constitutional amendment authorizing Congress to override Supreme Court decisions that invalidated federal laws—a proposal whose insurrectionary spirit future Justice Felix Frankfurter praised in The New Republic , lamenting of the pro-business jurisprudence of his time, “we have never had a more irresponsible Supreme Court.”

What has been unusual in the past 70 years—that is, all of living memory—is that the Court has been mostly seen as, on balance, a liberal institution, partly on the strength of now long-past desegregation and voting-rights cases, partly because of high-profile LGBTQ-rights cases in more recent decades. That progressive reputation has been largely misplaced for a while. The Court has been expanding protection for big money in politics since 1976, with dramatic developments since Citizens United in 2010. It cut the legs from under the Affordable Care Act’s Medicaid expansion in 2012 and from Voting Rights Act enforcement in 2013. It announced a personal right to bear arms outside militia service in 2008. But the term that ended in June 2022 sounded a trumpet blast that no one could ignore. The Court is now seen for what it is: a node of conservative power in American government that will persist for years, regardless of elections and popular opinion.

The flip side of the Iron Law of Judicial Oligarchy is a recurrent populist counterblast to the Court’s power, which denies the Court’s legitimacy in the name of democracy. Who are these old, politically connected lawyers to tell us what our fundamental law is? Who do they think they are (as Justice John Roberts asked in dissent in Obergefell v. Hodges , the 2015 case establishing a right to same-sex marriage)? Progressives asked the same question when the Court was striking down labor laws a century ago. Today’s liberals belong to a party, and often to movements, in which elite lawyers have long been overrepresented, and going to court has tended to be the first response to any new political conflict. They are rediscovering that the Court is an oligarchic institution and trying to remember how to be its populist critics. This is a change in worldview, even in identity, for people who have spent their lives regarding the Court as the bulwark of constitutional legitimacy, even against decades of growing counterexamples.

Adam Serwer: Republicans’ cowardly excuses for not protecting marriage equality

The Constitution produces judicial oligarchy (and inspires populist backlash) through several of its features: federal judges’ life tenure, their nomination by the president (twice in this century elected by someone who won the Electoral College but lost the national popular vote—something that would have happened again in 2020 with a switch of fewer than 50,000 votes), and their confirmation by the Senate (whose Republican majority during Donald Trump’s presidency represented significantly less than half of the country’s population).

But the root of judicial oligarchy is that the Constitution is almost impossible to change. Article V requires that amendments be ratified by three-quarters of the states, either through the state legislatures or in special conventions. (The convention route has happened only once, when the Twenty-First Amendment repealed Prohibition in 1933.) The upshot is that it takes only 13 states to block a proposed amendment. And to send an amendment to the states in the first place, the proposed language must be approved by a two-thirds vote of both houses of Congress.

There is an alternative route, in which two-thirds of state legislatures call on Congress to establish a special convention, which then proposes language to the states; this has never happened. With these hurdles in place, it’s no wonder that no meaningful amendment has been ratified in 50 years, nor that the fundamental changes in constitutional law for the past century—upholding the New Deal, pressing desegregation and voting rights, embracing and then rejecting abortion rights, protecting money in politics, establishing a personal right to bear arms—have all come through judicial interpretation of the Constitution, not democratic decisions to update the Constitution itself.

It may be hard to see the judicial monopoly on constitutional change (and, by the same token, on constitutional stasis) as the problem with the Constitution, because we are so accustomed to it. How else could a constitution work? But there is an answer right on the face of our Constitution, which opens with the words “We the People.” That “we” is the subject of the first sentence of the Constitution, and it goes on to “ordain and establish” everything that follows. On its own terms, it is law because “we” made it law.

Nikolas Bowie and Daphna Renan: The Supreme Court is not supposed to have this much power

But that “we” isn’t us. When that language was ratified in 1789, its “we” was all male, nearly all white, and mostly restricted to property holders. Every one of its members lived in an 18th-century agrarian republic and died a very long time ago. Even the Fourteenth Amendment, the basis of many modern constitutional rights, was ratified in 1868 by male citizens of a patriarchal country that had just abolished formal slavery. Almost all of those men have been dead for a century or more.

As striking as the demographic differences are between who counted as “the people” in 1789 or 1868 versus today, the most fundamental problem is the tyranny of the past over the present. If today’s Americans could freely decide that the Second Amendment’s “right of the People to keep and bear arms” should remain our fundamental law today, it wouldn’t really matter that the language was, in a sense, proposed to us by members of a very different, long-ago society. The real scandal of the Constitution is that it gives the living people no real choice in the matter. Past generations dictate our fundamental law.

Indeed, even if those past political processes had been much more inclusive, they would still belong to the past.  If we take seriously the democratic principle of ratification that the phrase “We the People” suggests, then nothing can make another generation’s fundamental law count as ours except our consenting to it. In American constitutional law, silence—the fact that we have not amended the Constitution—counts as consent. But because amending the Constitution is nearly impossible, our silence is compelled, then laundered into consent.

Plenty of efforts have been made to square this circle, but none has really worked. The justices of the Supreme Court interpret an old and rather brief Constitution, and they do so under constant pressure from talented lawyers to find new meanings in phrases such as equal protection of the laws , words like liberty , or the general pattern of authority that the Constitution creates among the states and the national government. No wonder so many of the justices’ opinions seem to come down to what W. E. B. Du Bois in Black Reconstruction impatiently called “incantation and abracadabra.”

At the moment, the most notorious abracadabra is originalism. The method of the Court’s recent gun-rights decisions, and deeply influential in its rejection of Roe (although Justice Samuel Alito presented his analysis in Dobbs as more traditionalist than strictly originalist), it purports to anchor constitutional interpretation to the public meaning the words had when they were ratified. Originalism strikes its critics as ancestor worship—worse, the selective worship of some Americans’ white, property-holding, male ancestors. But as the late Justice Antonin Scalia often explained, the basic theory of originalism is that the Constitution changes only when the people mobilize to change it. The alternative, he warned, was that it would change whenever five justices changed their minds, which would put ultimate political power in the hands of the Court. Originalism makes what sense it does because it is a way of defining the justices’ power as compatible with democracy—at least notionally.

Due to its premise that legitimate constitutional change comes only from the people, originalism would be a pretty solid way to interpret a constitution that living majorities had meaningful power to change. Were the amendment process a lower hurdle, it really would make sense to say that if we haven’t made new fundamental law, that must show that we are content with the old law. But our Constitution is not that kind.

Because constitutional text is effectively closed to change, anti-originalist justices have felt justified in finding new constitutional meanings in the old language. After all, the world changes; who else but judges will change the Constitution accordingly? The passage of time brings new insights, former Justice Anthony Kennedy replied to Justice Scalia in Obergefell , and only expansive interpretation can bring those insights into the old text. Freedom and equality have very different meanings in our lives today than in 1868, when the Fourteenth Amendment was adopted. Why should the Constitution be stuck when the rest of us are moving on, using old words in new ways?

Each side can clearly see Du Bois’s abracadabra in the other. Each is partly right about the other’s democracy problem. Living constitutionalism is sincerely motivated, but its originalist critics are not wrong: It does amount to saying that, on key issues, “the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” as Justice Scalia pungently put it. By the same token, with a frozen constitutional text, originalism can handcuff a diverse and changing country to old and unwelcome principles—a colonial-era right to bear arms, or, as Justice Thomas has proposed, a constitutional ban on most federal environmental law (ecology having been far from the Founders’ minds).

But even saying that originalism keeps us trapped in the past takes it too much on its own terms: What it does, rather, is carry us into the future in the way preferred by a handful of right-wing jurists. Its appeals to a certain kind of constitutional democracy do not make it any less a version of judicial oligarchy. Originalism is not conservative in the sense of preserving legal principle. Rather, it is radical: a recipe for uprooting key features of modern law, including (at least) labor and safety regulations as well as environmental law. And originalists have no special mind-meld with the founding generation or with constitutional principle. Like anyone else playing the judicial-review game, they decide questions of fundamental law through the votes of nine politically connected judges.

Ryan D. Doerfler and Samuel Moyn: Reform the Court but don’t pack it

The real irony in originalism’s march to the heights of judicial power is that, under the banner of loyalty to law, history, and the prerogatives of democracy, originalists (and the rest of the conservative legal movement) pursued a strategy that showed just the opposite conviction: In an oligarchy, power belongs to those who choose and train the oligarchs. Over more than four decades, the Federalist Society has recruited, trained, and placed a right-wing legal elite in the country’s top institutions. It has done so because conservatives in the 1970s—the last decade when it was really possible to regard courts as vehicles of broad progressive reform—saw the legal profession as suffused with broadly liberal politics and jurisprudence. Legal liberals regarded their hegemony as the natural and proper state of the law. They recruited, trained, and placed their own legal elite, and thus provided the model for right-wing institution-building. The difference was that many liberals had grown complacent enough to forget that they were engaged in an ideological battle for control of oligarchic institutions. The conservative insurrectionaries did not forget.

Both originalism and living constitutionalism are versions of judicial oligarchy, fought out in battles for control of the courts. They cannot be anything else in a country with a frozen Constitution and partisan courts. The judicial opinions that the public reads are a kind of bookkeeping, documenting the balance of power. The Dobbs opinion had been written for years, in originalist dissents from abortion cases, in Federalist Society talks and journals. Justice Alito’s 79 pages, plus appendices, is how the Supreme Court writes “6–3.” That is six votes out of some 330 million Americans. But then again, Obergefell had only five.

So do we need to line up with our preferred oligarchs and fight like hell for control of judicial seats? Quite understandably, this has been the progressive attitude. It has the virtue of pragmatism. But it has the vice of accepting that we live under a basically undemocratic Constitution.

A more directly democratic approach would bring that pregnant phrase “We the People” back to life in the 21st century. This would mean amending Article V so that living generations could amend the Constitution and make a fundamental law that is actually our law.

The concrete results could be dramatic. Based on public-opinion polling, they might well include reinstating a baseline national abortion right, allowing for gun regulation that promotes public safety, and reauthorizing Congress and state legislatures to limit the campaign spending of corporations and wealthy individuals. Constitutional amendment could reform or eliminate the Electoral College, empowering national majorities to choose the president. It would be an opportunity to take on gerrymandering for House seats and the Senate’s two-seat-per-state structure—both major vehicles for minority rule.

There would be a more basic benefit too. A constitution makes democratic sense as a fundamental law, a limit on what legislatures and executives and even majorities of citizens can do with government power, if and only if those who live with it can consent to it when they wish, and change it otherwise. This was very clear to some of our Constitution’s Framers, such as James Wilson (also an early Supreme Court justice), who insisted that “the people” would be able to change the Constitution “whenever and however they please. This is a right of which no positive institution can ever deprive them.” Although James Madison wrote that the Constitution he did so much to design was marked by “the total of exclusion of the people in their collective capacity” from any share in government—that is, our system boxes out direct democracy—he also held that the power “to alter or abolish its established government” always resided with the majority. (He justified the Constitution’s arcane amendment process by denying that the United States was a nation; he considered it a hybrid of a nation and a confederation—a position that far fewer citizens would find plausible today than in 1787.) To boil it down: Constitutional commitments have authority, as the Constitution’s first words indicate, because they are the people’s commitments.

It’s fine and good for judges to enforce these commitments and inevitably disagree about their meaning, as long as the people can give the final word. Originalism’s basic problem is that living generations have no real way of consenting to the old Constitution. Living constitutionalism’s basic problem is that living generations have no decisive way of stating what fundamental law they would prefer. Enhancing the democratic power to change or reaffirm the Constitution would solve both problems—and dissolve the need for both originalism and living constitutionalism as we know them.

How should we go about changing the Constitution, if we could? There is a lot of value in giving constitutional change a separate track from ordinary politics, so it does not become just another partisan football. Constitutional principles should come from the people in a different sense than laws, presidential elections, or midterms do. One way would be to hold a constitutional convention every generation, staffed by a blend of specially elected delegates, senior public officials, and, perhaps, citizens selected jury-style to represent everyday experience. The convention might proceed in two stages: state, local, or regional versions channeling their results and some of their personnel into a national convention. The convention would propose any constitutional changes its members endorsed, which would then go to a special national referendum. Offered, say, a proposal to reinstate Roe , authorize campaign-finance regulation, or rebalance the Senate, the people would speak via this process as a “we.”

Constitutional conventions have about the same odor in liberal circles as “citizen sheriffs” and the posse comitatus—cranky tricorne-hat stuff interesting only to the populist right. This impression gets a boost from the ongoing conservative effort to call a convention through state legislatures, with the goal of amending the Constitution to require a balanced budget, term limits for federal regulators, and perhaps some other right-wing goals. But nothing about constitutional revision is intrinsically conservative—quite the contrary—and if it seems cranky, that is only because liberals became too comfortable with the idea that the Constitution was basically democratic enough and that the courts were politically congenial. Those conceits are hard to sustain now.

The most basic reason for constitutional change is not partisan at all, despite the fact that the right benefits from a frozen, anti-majoritarian Constitution and liberals are currently angry at the Supreme Court. Re-creating a constitutional politics for living citizens would make democratic self-rule a reality for everyone. The highest civic compliment we could pay one another would be to prefer the results of deliberation and voting today to an old Constitution interpreted by a few judges.

Could it really happen? After all, we start out in the world of Article V’s high barrier to change.

The first thing to see is that it will never happen if we don’t think it will. Mass movements for constitutional change did succeed in the past, before all constitutional politics went to the courts. Mobilized citizens stripped the power to appoint senators from their state legislatures (and forced those same legislatures to ratify the change), authorized a federal income tax, granted women the vote, and, for better or worse, adopted and then repealed Prohibition.

Second, as noted, important constitutional Framers argued that the right to reform the Constitution belonged inalienably to the people. There is something to be said for an open, fully democratic effort to put a change to Article V directly onto a national ballot, to stand or fall with the choice of the living majority. Constitutional rules are important, and backroom or minoritarian coups are always illegitimate, but if a constitution is about letting a people set their own fundamental law, then the people should be able to act democratically in order to make a more democratic constitution.

What about the dangers of majority rule? Generations of Americans have learned that constitutional barriers protect us from the tyranny of the majority. Would a more democratic Constitution dissolve those barriers?

There is no reason to expect that it would. A periodic convention to reassess the Constitution is a far cry from rolling referenda on whatever question arouses a moment’s passion. The First Amendment, the Fifth Amendment, the equal-protection clause, and so forth would be re-ratified in almost any imaginable constitutional process—perhaps with some clarification that, for instance, “freedom of speech” does not mean unlimited money in politics. In any case, if majorities really wanted to reject these principles root and branch, courts would not save them from themselves for long.

Any government can hurt people. Power is always dangerous. Recent Supreme Court decisions are a reminder that channeling power through old texts and the decisions of robed lawyers does not mean it ceases being power. Democracy is the gamble that, all things considered, we are our own best rulers, and can trust one another further than we can trust any version of minority rule—judicial, geographic, class, or otherwise. To come closer to that principle, we need a Constitution that empowers us, the people (no need for capitalization), to set our own fundamental law.

• Share full article

Advertisement

Supported by

Guest Essay

The Constitution Is Broken and Should Not Be Reclaimed

By Ryan D. Doerfler and Samuel Moyn

Dr. Doerfler and Dr. Moyn teach law at Harvard and Yale.

When liberals lose in the Supreme Court — as they increasingly have over the past half-century — they usually say that the justices got the Constitution wrong. But struggling over the Constitution has proved a dead end. The real need is not to reclaim the Constitution , as many would have it, but instead to reclaim America from constitutionalism.

The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. Having a constitution is about setting more sacrosanct rules than the ones the legislature can pass day to day. Our Constitution’s guarantee of two senators to each state is an example. And ever since the American founders were forced to add a Bill of Rights to get their handiwork passed, national constitutions have been associated with some set of basic freedoms and values that transient majorities might otherwise trample.

But constitutions — especially the broken one we have now — inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now. This aids the right, which insists on sticking with what it claims to be the original meaning of the past.

Arming for war over the Constitution concedes in advance that the left must translate its politics into something consistent with the past. But liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it. It’s time for them to radically alter the basic rules of the game.

In making calls to regain ownership of our founding charter, progressives have disagreed about strategy and tactics more than about this crucial goal. Proposals to increase the number of justices, strip the Supreme Court’s jurisdiction to invalidate federal law or otherwise soften the blow of judicial review frequently come together with the assurance that the problem is not the Constitution; only the Supreme Court’s hijacking of it is. And even when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism.

Since the Supreme Court began to drift right in the 1970s, liberals have proposed better ways of reading the Constitution . The conservative Federalist Society engaged in a successful attempt to remake constitutional law by brainstorming ideas, creating networks of potential judges and eventually helping to guide the selection of President Donald Trump’s nominees. It was revealing that liberals responded by founding (in 2001) an organization called the American Constitution Society, which produced the book “ Keeping Faith With the Constitution .” And when liberal law professors got together in the mid-2000s to dream of a different America, that yielded the book “ The Constitution in 2020 .” But since then — with the death of Ruth Bader Ginsburg, the consolidation of right-wing control of constitutional law and the overturning of Roe and other disasters this term — the damage has only worsened.

One reason for these woeful outcomes is that our current Constitution is inadequate, which is why it serves reactionaries so well. Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change while drawing on much vaguer and more malleable resources like commitments to due process and equal protection — resources that a conservative Supreme Court has used over the years to invalidate things like abortion rights and child labor laws and might use in the coming term to prohibit affirmative action .

Sometimes reclaiming the Constitution is presented as a much-needed step toward empowering the people and their elected representatives. In a new book, the law professors Joseph Fishkin and William Forbath urge progressives to stop treating constitutional law as an “autonomous” domain, “separate from politics.” In contrast with earlier efforts among liberals, which, as Jedediah Purdy put it in a 2018 Times guest essay, put forward a “vivid picture of what judges should do with the power of the courts,” such exercises in progressive constitutionalism call on Congress and other nonjudicial actors to claim some amount of authority to interpret the Constitution for themselves.

It is a breath of fresh air to witness progressives offering bold new proposals to reform courts and shift power to elected officials. But even such proposals raise the question: Why justify our politics by the Constitution or by calls for some renovated constitutional tradition? It has exacted a terrible price in distortion and distraction to transform our national life into a contest over reinterpreting our founding charter consistently with what majorities believe now.

No matter how openly political it may purport to be, reclaiming the Constitution remains a kind of antipolitics. It requires the substitution of claims about the best reading of some centuries-old text or about promises said to be already in our traditions for direct arguments about what fairness or justice demands.

It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.

By leaving democracy hostage to constraints that are harder to change than the rest of the legal order, constitutionalism of any sort demands extraordinary consensus for meaningful progress. It conditions democracy in which majority rule always must matter most on surviving vetoes from powerful minorities that invoke the constitutional past to obstruct a new future.

After failing to get the Constitution interpreted in an egalitarian way for so long, the way to seek real freedom will be to use procedures consistent with popular rule. It will not be easy, but a new way of fighting within American democracy must start with a more open politics of altering our fundamental law, perhaps in the first place by making the Constitution more amendable than it is now.

In a second stage, though, Americans could learn simply to do politics through ordinary statute rather than staging constant wars over who controls the heavy weaponry of constitutional law from the past. If legislatures just passed rules and protected values majorities believe in, the distinction between “higher law” and everyday politics effectively disappears.

One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.

More aggressively, Congress could simply pass a Congress Act, reorganizing our legislature in ways that are more fairly representative of where people actually live and vote, and perhaps even reducing the Senate to a mere “ council of revision ” (a term Jamelle Bouie used to describe the Canadian Senate), without the power to obstruct laws.

In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review. Fundamental values like racial equality or environmental justice would be protected not by law that stands apart from politics but — as they typically are — by ordinary expressions of popular will. And the basic structure of government, like whether to elect the president by majority vote or to limit judges to fixed terms, would be decided by the present electorate, as opposed to one from some foggy past.

A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way.

Ryan D. Doerfler of Harvard and Samuel Moyn of Yale are law professors .

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow The New York Times Opinion section on Facebook , Twitter (@NYTopinion) and Instagram .

Explore the Constitution

The constitution.

• Read the Full Text

Dive Deeper

Constitution 101 course.

• The Drafting Table
• Supreme Court Cases Library
• Founders' Library
• Constitutional Rights: Origins & Travels

Start your constitutional learning journey

• News & Debate Overview
• Constitution Daily Blog
• America's Town Hall Programs
• Special Projects
• Media Library

America’s Town Hall

Watch videos of recent programs.

• Education Overview

Constitution 101 Curriculum

• Classroom Resources by Topic
• Classroom Resources Library
• Live Online Events
• Professional Learning Opportunities
• Constitution Day Resources

Explore our new 15-unit high school curriculum.

• Explore the Museum
• Plan Your Visit
• Exhibits & Programs
• Field Trips & Group Visits
• Host Your Event
• Buy Tickets

New exhibit

The first amendment, on originalism in constitutional interpretation.

by Steven G. Calabresi

Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision. The original meaning of a constitutional text is an objective legal construct like the reasonable man standard in tort law, which judges a person’s actions based on whether an ordinary person would consider them reasonable, given the situation. It exists independently of the subjective “intentions” of those who wrote the text or of the “original expected applications” that the Framers of a constitutional text thought that it would have. 

Originalism is usually contrasted as a theory of constitutional interpretation with Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution. Living constitutionalists believe that racial segregation was constitutional from 1877 to 1954, because public opinion favored it, and that it became unconstitutional only as a result of the Supreme Court decision in Brown v. Board of Education (1954) – a case in which they think the Supreme Court changed and improved the Constitution. In contrast, originalists think that the Fourteenth Amendment always forbade racial segregation—from its adoption in 1868, to the Supreme Court’s erroneous decision upholding segregation in Plessy v. Ferguson (1896), to the decision in Brown in 1954, down to the present day. Living constitutionalists think racial apartheid could become constitutional again if social attitudes toward race evolve. Originalists disagree and think race discrimination will always be unconstitutional unless the Fourteenth Amendment is repealed.

Originalism is grounded in the two-century-long movement toward constitutionalism, and it is behind the U.S. Constitution itself. Consider the following ten purposes that underlie the U.S. Constitution. Critically, all of these counsel in favor of an originalist rather than a living constitutionalist interpretation of the text of the Constitution, which would undermine the accomplishment of these purposes at every turn.

1. Set Up or Constitute the Institutions of the National Government— A first purpose that clearly underlies the U.S. Constitution as an historical matter was to set up or constitute the institutions of the national government. Before 1789, there was no presidency, no Senate or House of Representatives, and no Supreme or inferior federal courts. By creating ex nihilo these institutions, the Framers did get constitutional politics going, as living constitutionalists acknowledge, but they also did quite a bit more to constrain and channel the constitutional politics they started. The Framers in 1787 put in place powerful institutional actors who would become constitutional interpreters, and they set rules on when and how those actors could be selected. The Framers’ decision in 1787 to establish a six-year electoral cycle with House elections every two years, presidential elections every four years, and Senate elections every six years, with one third of the Senate turning over in two-year intervals, completely shapes our public life to the present day. This basic electoral framework rule guarantees that we do not have one winner-take-all election in the U.S. roughly every five years as Britain does. It guarantees that for a political movement to prevail nationally, it must win more than one election. To replace a majority of the Supreme Court, political movements in the U.S. may have to win three to six elections over a six- to twelve-year time period. In Britain or Canada, in contrast, constitutional change can occur by winning just one election. Even when a political movement wins a majority on the Supreme Court, as the advocates of Jim Crow race discrimination did between 1877 and 1954, the real original meaning of the Constitution does not change. The Supreme Court instead decides cases for a time in a way that is itself unconstitutional.

The Framers’ choice of electoral rules sets a rhythm to our politics and promotes gradualism and Burkean change rather than French revolutionary style changes. In this respect, we think a better metaphor for the Constitution than a skeletal framework is that of a sea anchor. A sea anchor is a large parachute filled with water that drags behind a boat and slows enormously its movement in any direction even though the anchor never touches bottom. It can hence be used in the middle of the ocean where the water is too deep for a normal anchor. A first purpose of the U.S. Constitution is to set up the electoral cycle to slow change the way a sea anchor does in the middle of the ocean.

The six-year electoral cycle set up by the Constitution serves other purposes as well as slowing down change. It guarantees that the popular will in the U.S. is sampled not in one election every five or so years but in multiple elections held every two years over a six-year cycle. The U.S. method of sampling the popular will is superior to the British method in the same way that a daily tracking poll is superior to a one-time poll. Multiple samplings lead to greater accuracy. The fact that the U.S. samplings of the popular will occur in geographically different congressional districts—states (for the Senate), and the nation (for the presidency)—adds to the accuracy of our system.

2. Divide and Allocate Power— A second obvious purpose of the Constitution is to divide and allocate power in four different ways. First, the Constitution divides and allocates power between We the People, who are sovereign, and the government, which is given only limited and enumerated powers. Second, the Constitution divides power horizontally among the Congress, the President, and the federal courts. Third, the Constitution divides power vertically between the national government and the states. And, finally, the Constitution protects certain enumerated and unenumerated individual rights from government intrusion at all levels.

This function of dividing and allocating power in so many different ways again goes somewhat beyond just the creation of a skeletal framework or the getting going of politics. The Framers’ Constitution set in motion a whole Newtonian system of planets orbiting around the sun of the sovereign people, each exerting gravitational force on one another. The Madisonian system of checks and balances is, as Michael Kammen has described it, “a machine that would go of itself.” To be sure there are build-outs in structural constitutional law. At the margins, presidential, congressional, and federal judicial power have been made concrete by practice. One cannot understand presidential power in foreign affairs, or the political question doctrine, or the case and controversy limitation without making reference to practice. But again, the basic divisions and allocations of power made in the period between 1787 and 1791 still govern with the vital additions of the Reconstruction and Progressive Era Constitutional Amendments adopted through the amendment process set out in the original document.

3. Serve as a Gag Rule— A third purpose served by the Constitution is that it functions as a gag rule: it takes certain subjects off the table of discussion in ordinary politics. The Framers of the Constitution meant to do this at the national level when they forbade a national established church, protected the free exercise of religion, and forbade religious tests for holding office. These three prohibitions were meant to prevent a repeat of the English civil wars of the seventeenth century by taking the subject of religion and removing it entirely from ordinary politics. The Framers’ effort was a complete success. Religious strife has been greatly reduced. The authors of the Reconstruction Amendments, perhaps inspired by the Framers’ success, tried to take the subject of racial discrimination off the table by forbidding laws that distinguish citizens by race.

4. Restrain the Passions of the Moment— A fourth purpose of the Constitution historically was that it was meant to restrain the passions of the moment. Tying ourselves to the constitutional text was to be like Ulysses lashing himself to the mast of his ship so he could listen to, but not heed, the alluring and deadly songs of the sirens. The Framers deliberately designed the Madisonian system of checks and balances to prevent temporary passions, which might engulf the body politic, from being legislated immediately into law. This guaranteed that change would be slow and incremental. The U.S. Constitution has been highly successful in this respect. That is one reason we have had so much economic growth and liberty as compared with other democracies around the world.

5. A Framework for Private Ordering— A fifth purpose that is served by the Constitution is that it serves as a framework to promote private ordering because it makes change of all kinds slow and incremental. This is the case not only because of the Madisonian system of checks and balances and the divisions and allocations of power alluded to above, but also because Article V makes it very difficult to amend the Constitution while the Senate filibuster (a build-out) makes it hard to pass even ordinary laws. The net result is that the United States has a very entrenched legal system: It is not just hard to amend the Constitution; it is also very hard to pass an ordinary law. The U.S. legal system is thus super-entrenched and that leaves people a lot of room to make their own choices in terms of economics and personal liberties. One goal of a constitution is to guarantee credibly that if you write a book today you will not be prosecuted for what you said in it twenty years from now. Similarly, if you start a business or build a factory today, it will not be taken away from you without just compensation being paid twenty years from now. The U.S. Constitution accomplishes these goals of promoting private ordering because it is so hard to pass laws and even harder to amend the Constitution. This is why the United States is the freest and most prosperous nation on earth. The Framers did not say in so many words that they wanted to promote private ordering, but they did make it clear that they wanted to protect life, liberty, and property. Obviously, they succeeded beyond their wildest expectations.

6. A System of Intergenerational Lawmaking— A sixth purpose of the Constitution is one that the Framers could only have hoped for rather than expected: the successful creation of a real working system of intergenerational lawmaking. Law can create a freedom or power in people that would not exist if it were not there. This insight is at the bottom of contract law. By giving up the “freedom” to breach their contracts, citizens gain a power to make more certain arrangements in the future, which is liberty- and prosperity-enhancing. Ironically, perhaps, agreeing to be bound by a contract is empowering.

The same form of intergenerational lawmaking occurs in constitutional law. There are some problems that are just so big that no one generation can or should have to deal with them on its own. Thus, for example, the U.S. government borrowed a lot of money from future generations to win World War II and the Cold War. The generations that won those wars could not have won them without borrowing from the future. And it made sense to borrow from future generations because those very future citizens would themselves benefit from winning the wars in question. The Constitution similarly allows us, in exchange for giving up our freedom to scrap it, the security of being bound by some pretty sensible rules that have persisted over two hundred years. By agreeing to be bound by our great-great-grandparents’ Fourteenth Amendment, we also gain the power to bind our great-great-grandchildren with some new amendment. Constitutional originalism thus acknowledges that the present has obligations both to the past and to the future, and that just as every individual is not an island all by himself, every generation is not an island all by itself. We honor our parents when we give their laws a presumption of validity while reserving the means to change them in a consensus-based way.

7. Promote the Rule of Law— A seventh purpose of the Constitution is to promote the rule of law and not of individual men or women. As Robert’s Rules of Order say at the outset, “where there is no law and where every man does what is right in his own eyes there is the least of real liberty.” The original Constitution is an ingenious effort to promote the rule of law because, as James Madison explained in The Federalist No. 51 , it does not rely on mere parchment barriers for enforcement, but instead sets in play a mechanism by which ambition is made to counteract ambition. Ultimately, We the Sovereign People enforce the Constitution over the six-year electoral cycle.

8. Promote Democracy— An eighth purpose of the Constitution is to promote democracy. As much as they believed in and talked about checks and balances, the Framers were determined to set up a democratic system of government and not an English-style monarchy or aristocracy. The Constitution provides for popular ratification and for popular election of representatives, senators, and, indirectly, Presidents. Judges, whose selection is removed from the people, are picked by the President and Senate and thus indirectly by the people. Even the six-year electoral cycle, described above as a series of biannual tracking polls, is an effort to discern what the people really want, as opposed to what they might impulsively vote for in one election.

9. Certainty from Getting Things in Writing— A ninth purpose of the Constitution is to make it easier to find the law by getting it down in writing. The Framers grew up with the British unwritten constitution, and they obviously thought it was very important to get constitutional constraints in writing so as to eliminate uncertainty about the law and, in Jefferson’s words, to bind down government officials in the chains of the Constitution. The Framers were skeptical about the ability of people to agree on unwritten constitutional commands, and this skepticism seems well warranted. The writtenness of the Constitution reflects the Framers’ desire to make concrete the meaning of our fundamental law.

10.  Lead to Good Consequences— The tenth and final purpose of the Constitution is aspirational and consequential. The Constitution itself describes its purposes aspirationally and consequentially in the Preamble. The Framers say the purposes of the Constitution include forming a more perfect Union, establishing Justice, ensuring domestic tranquility, providing for the common defense, and securing the Blessings of Liberty to ourselves and our posterity. The Constitution aspires to promote these ends so as to produce good consequences, and the Preamble describes the promotion of these ends as being a purpose of the document.

Read More About the Constitution

The constitutional convention of 1787: a revolution in government, the declaration, the constitution, and the bill of rights, democratic constitutionalism, modal title.

Modal body text goes here.

Share with Students

Background Essay: “A Glorious Liberty Document:” The U.S. Constitution and Its Principles

Guiding Questions: How are republican principles of limited government, separation of powers, and checks and balances reflected in the U.S. Constitution?

• I can identify the ways the Founders tried to limit the power of the government.
• I can explain how the principles of government in the Constitution limit the power of the government.
• I can explain how the Constitution protects liberty.

Essential Vocabulary

Introduction.

In 1852, abolitionist Frederick Douglass gave a speech on the meaning of the Fourth of July. He addressed the inequalities and injustices for Black Americans that made them feel they did not belong and had no reason to celebrate the holiday. However, he also stated his belief that the Constitution was “a glorious liberty document.” Douglass believed that the document created a constitutional government with the central purpose of protecting liberty and a free society for all Americans.

The Founders of the Constitution wanted to build a new and enduring representative government based on the authority of the people. Important constitutional principles guided their work at the Constitutional Convention during the summer of 1787. The balancing act of including these principles was difficult but necessary to protect the liberties of the people. Given their assumptions about human nature, and always keeping in mind the ideals of the Declaration of Independence, the Founders created a Constitution rooted in sound principles of government.

Human Nature and Limited Government

The Founders’ understanding of human nature determined the kind of government they created. In Federalist No. 51, James Madison asked, “What is government itself, but the greatest of all reflections on human nature?” The Founders believed that humans were flawed but capable of virtue. Therefore, humans must be allowed to govern themselves, but that government had to be limited and controlled by the people, or liberty would be lost.

The Constitution defines the powers of the national government. Some powers are enumerated powers , or specifically listed. Others are implied powers or not explicitly listed. These are powers that relate to other powers and are therefore implied. For example, the power to raise an army for defense implicitly includes the power to raise an air force. The Founders wanted to strengthen the national government over what existed under the Articles of Confederation, but they also wanted to limit the powers of that government.

Republican Government and Popular Sovereignty

Based upon the Enlightenment ideas of John Locke, the Declaration asserted that just governments derive their powers from the consent of the governed and thus laid the basis for American self-government. This is the principle of popular sovereignty , which means the people hold ultimate authority. The authority of the people themselves is the greatest limit on the power of the government. In Federalist No. 39 , Madison defined a republic as a government that derives its powers from the people and is governed by representatives elected by the people to serve for a defined period.

The republican principle of self-government guided the Founders in creating the new constitutional government. The Preamble begins, “We the People,” and lists the guiding principles of government. The Constitution also provides for defined terms of office, including two years for the House of Representatives, four years for the president, and six years for the Senate. The most republican feature of the Constitution is the predominance of the legislative branch, which is closest to the people.

Separation of Powers

The Founders trusted the people and their representatives in the new government but created additional tools to prevent government from amassing too much power. Madison made it clear in Federalist No. 48 that the people cannot rely on mere “parchment barriers,” limits written on paper, to control government. Government is most effectively limited through well-founded institutions. The Founders chose to divide power as the best way to avoid tyranny and to ensure the rights of the people are protected. The Constitution contains many examples of the separation of powers . Each division of government exercises distinct powers to carry out its functions and to prevent the accumulation of power. The Congress is divided into two houses—a House of Representatives and a Senate—in a principle called bicameralism. The national government is divided into three branches with different powers and functions to prevent any one branch from becoming too powerful. A legislature makes the law, an executive enforces the law, and a judiciary interprets the law. Some specific constitutional examples are Congress’s power to declare war, the president’s power to make treaties, and the courts’ power to hear cases resulting from legal disputes. The government is also divided into different levels—national, state, and local—to separate power and limit government. This principle of different levels of government having their respective powers is called federalism .

Checks and Balances

Another central device limiting the power of the national government is the provision for the three branches to check and balance each other’s powers. The Constitution contains many such examples of checks and balances . Congress may pass a law, but the president has to sign or veto it. The president can make treaties, but the Senate has to ratify them. The Supreme Court can review a congressional law or an executive order. Another example is that the House can impeach a president and the Senate can remove a president from office if found guilty in a trial presided over by the chief justice of the Supreme Court. There are numerous other examples that would make a very long list.

The division of power among different levels of government is called federalism. As Madison described in Federalist No. 39 , the Constitution is a mixture of the national and the federal principles. In other words, sometimes the national government has exclusive power, and at other times, the national government shares power with the states. Some examples of federalism from the Constitution include the ratification process for the document itself. The people and their representatives had to decide whether to ratify, or approve, the Constitution in popular ratifying [approving] conventions in the states. The amendment process includes ratification by three-quarters of state legislatures or state conventions. Structuring these processes through the states ensures that approval of and changes to the national government are balanced among the states. Similarly, the Senate equally comprises two senators per state, who were originally elected by state legislatures. The Electoral College gives the states a voice in presidential elections through electors the states choose. These provisions also ensure that though the federal government is supreme, the states have a meaningful role in the system.

In the American federal system, both the national and state governments have sovereignty. In general, the national government is sovereign over national matters, such as national defense, foreign trade, and immigration, while states are sovereign over local matters, including basic rules of public order. As Madison noted in Federalist No. 45 , “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” In the federal system, the ultimate power to make decisions for the entire nation rests exclusively with the national government, which, when operating under its proper jurisdiction,is supreme in its enumerated powers. Article VI of the Constitution states that the Constitution, all constitutional laws, and all treaties are the supreme law of the land. More generally, the Constitution empowers the national government to govern for the entire nation. It makes the laws for the country. It makes decisions related to war and peace and conducts relations with foreign nations. It regulates trade between the states and settles disputes among them.

Constitutional Government

American constitutional government is rooted in the ideas of limited government, popular sovereignty, separation of powers, checks and balances, and federalism. These ideas protect the liberties of the people and their right to govern themselves. The Constitution contains words and principles that have the flexibility to respond to centuries of social, economic, and technological change. While the text of the Constitution has words that should be adhered to closely, they are hardly etched in marble. Besides the amendment process that offers a constitutional means of change over time, the American people and their representatives breathe life into the meaning of their Founding documents. They have done so for more than two centuries, through civil dialogue, debate, and deliberation, to reason through the often contested meaning of the Constitution.

Related Content

Background Essay Graphic Organizer: “A Glorious Liberty Document”: The U.S. Constitution and Its Principles

“A Glorious Liberty Document”: The U.S. Constitution and Its Principles

How are the republican principles of limited government, separation of powers, and checks and balances reflected in the U.S. Constitution?

James Madison and Federalist No. 51

The Battle of the Branches: Madison’s “Auxiliary Precautions”

Wait a second!

More handpicked essays just for you.

Creation of the US constitution

Principles of the american constitution

Don’t take our word for it - see why 10 million students trust us with their essay needs.

Should The Constitution Be Changed Essay

Should the Constitution be rewritten every 19 years? In 1787, The United States of America formally replaced the Articles of Confederation with a wholly new governing document, written by the delegates who attended the Constitutional Convention in Philadelphia. This document, known as the Constitution, has served as the supreme law of our land for the past 228 years. It has stood the test of time and a majority of Americans still support it today (Dougherty). The Constitution was designed in a way that allows for it to be amended, in order to address changing societal needs. Article V discusses the process by which the Constitution can be altered. This feature has enabled it to stay in effect and keep up with current times. The Constitution should not be rewritten every 19 years because it would not only weaken its importance, but it would also hurt foreign relations and continuously rewriting it would give political parties too much power. The Constitution is arguably one of the most important documents in the United States of America. The founders spent four very long months …show more content…

The United States is the oldest yet also the shortest in the world (National Constitution Center). Despite the fact that we’ve had the same Constitution for over 200 years, many Americans still are not very familiar with its contents. In a study in 2011, 70% of Americans couldn’t answer the question “What is the supreme law of the land?” and only 38% could name all three branches of the U.S. government (Hentoff). Completely rewriting the Constitution every 19 years would only worsen this existing problem. If most Americans are that illiterate about the Constitution in its current form than it would be really difficult for them to be literate about it if it were rewritten regularly. As soon as people began to be familiar with its contents, the entire system of government would

Us Constitution Dbq Essay

From five states arose delegates who would soon propose an idea that would impact the United States greatly. The idea was to hold a meeting in Philadelphia called the Constitutional Convention in 1787 meant to discuss the improvements for the Articles of Confederation and would later be called the United States Constitution. The United States Constitution was greatly influenced by Ancient Rome, the Enlightenment, and Colonial Grievances.

The Articles Of Confederation And The Constitution: An In-Depth Analysis

The Articles of Confederation were approved by Congress on November 15, 1777 and ratified by the states on March 1, 1781. It was a modest attempt by a new country to unite itself and form a national government. The Articles set up a Confederation that gave most of the power to the states. Many problems arose and so a new Constitution was written in 1787 in Independence Hall. The new Constitution called for a much more unified government with a lot more power. Let us now examine the changes that were undertaken.

Why We Shouldn't Abandon The Constitution of the United States

The above statement is somewhat mind-boggling. It is something that a revolutionist might have coined over 200 years ago and it leaves much to the imagination. It is about as close to being treasonous as one could get without actually committing the crime. The former Vice-President Albert Gore once stated that "the constitution was a living breathing document, open to change". His statement was quite controversial and it definitely created a stir with the patriot-cult crowd. Why would anyone want to scrap the entire Constitution of the United States of America? Has someone come up with a more impressive document that better signifies what this country is all about?

Problems with the Articles of Confederation

Although the Articles had problems of their own, they had constructive ideas that lead to the Constitution, which ended up being one of the most important documents written in US history.

The Constitution Dbq

The constitution was a document that embodies the fundamental laws and principles by which the U.S is governed. The constitution states basic rights for its citizens. Delegates signed the constitution on September 17, 1787. There is a total of 27 constitutional amendments. The reasoning for writing it was for a stronger federal government - legislative, executive and judicial. The constitution was a break with a past of ‘unfair’ taxes, wars and ‘unfair’ treatment.

22nd Amendment Essay

I agree with the statement, “The 22nd Amendment to the U.S. Constitution, limiting the American president to elected terms in office, has been successful and should be retained. This amendment has facilitated rotation in office and new ideas, both crucial to an effective democracy.”. The statement is an agreeable because it does not deprive citizens of their right to elect, it opens the candidate pool, problems have not arisen, and stops the country from being a monarchy. The 22nd Amendment limits the American president to two terms, totaling to eight years in office. The restrictions made by the 22nd Amendment have not proven to be a problem.

Essay Arguments Against Ratifying The Constitution

The U.S Constitution is recognized as a document that secures basic rights for citizens and structures the American national government. Before the Constitution, the states had all the power and the national government was very weak. Therefore, the creation of the Constitution was necessary to grant the national government power. Even though, the Constitution was signed in 1787, there was still debate in that the Constitution gave the national government too much power. Some of the individuals whom opposed the Constitution where Patrick Henry and George Mason. Patrick Henry became the leader of the opponents, because of his strong legal and rhetoric skills. On the other hand, George Mason was a patriot during the American Revolution, whom believed in the inalienable rights of the people. These two man were important figures that argued the dangers ratifying the Constitution would bring and that the Constitution would give too much power to the national government.

Robert Dahl's How Democratic Is The American Constitution

When it comes to the Constitution, I believe it should be updated every couple of years, because our world and technology is changing. By having the same laws, we are not moving on from the past and advancing. We do need more equal representation when it comes to Senate, and we need more rights for women, Native Americans and African Americans. Since the Constitution is outdated and was mostly written by a group of men in 1787 that were mostly republican, it is seen as more of a republican document than a democratic

The Us Constitution Has An Impact On My Life Essay

Today our country is who we are today based on an important document that changed our lives forever; The Constitution of The United States. This document is a revision of the Articles of Confederation that was ratified in 1781; the United States Constitution was ratified in 1788. The document contains 4,543 words and 27 amendments that are the reasons we can do the certain things we do today. The United States Constitution has an impact on my life as a college student living and working due to me being able to attend college as a black student, taxes being taken out of my everyday life activities, being a young woman able to work and having equal rights as men, and lastly being an 18 year old citizen having the right to vote for our president or in our case presently, electoral college.

U.S. Constitution: Counter Revolutionary?

The purpose of a revolution is to bring forth change in government and political standing. There has been revolutions happening throughout the course of history. The opposite of a revolution is a counter-revolution. A counter-revolution is revolution against a government recently established by a previous revolution. One particular culprit to the counter revolution is the United States' Constitution. This document is debated to be counter-revolutionary while still keeping the fundamental principles of the American Revolution alive. There is definitely proof for both arguments. Therefore, the U.S. Constitution was both a counter-revolutionary document and an extension to the American Revolution.

The Second Amendment To The Constitution Of The United States

In 1787, the United States Constitution was drawn up for the first time by our Founding Fathers. Although the Constitution was beautifully crafted, it only stated what the

Should The United States Constitution Reflect The Modern Political System?

The United States constitution was written roughly 200 years ago and at the time the framers laid out a system of government that they thought would function effectively and represent their vision for the nation. I believe that the modern political system does not reflect the framers vision at all because the relationship between state and federal government has drastically changed, the balance of power within the federal government changed in favor of the executive branch and in the modern system citizenship has been expanded.

Should First Amendment Be Changed

The “Founding Father’s” made many statements that state that the basis of all other rights are protected by the First Amendment. The First Amendment protects the rights of free speech, press, assembly, petition, and press. Benjamin Franklin stated, “Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech” (Franklin, 1722). Franklin believed that the First Amendment allows people to go unpunished for expressing their thoughts and feelings into speech. The only way for someone to completely override the government would be to completely get rid of the First Amendment rights. Benjamin Franklin is making a statement that without freedom of speech, then there would be no freedom or liberty in our nation. This can be seen in many countries, like communist

Revising the constitution

Our Constitution and Declaration of Independence have endured for 225 years and remain powerful and effective tools to guide our country, however our world continues to change at a rapid pace. Some argue that the Constitution needs to be discarded and completely re-written. Ongoing regular review and update of our Constitution would guarantee that the problems of the United States are addressed and that our Constitution remains applicable to current world issues and times.

Constitution Changes As Society Changes

What of the idea that the Constitution changes as society changes? Well, this contention is firstly false; we have already shown that words don’t change, people’s inferences change. Thus, what’s really being said is “We change what we infer about the Constitution, not based on the Constitution, but on society’s positions.” This position is the great antithesis to the idea of a Constitution, and a Republic. Allow me to explain:

More about Should The Constitution Be Changed Essay

• Subscribe Now

Is there a need to change the 1987 Philippine Constitution?

Already have Rappler+? Sign in to listen to groundbreaking journalism.

This is AI generated summarization, which may have errors. For context, always refer to the full article.

MANILA, Philippines –   The 1987 Philippine Constitution reestablished the democracy halted by decades of Martial Law under former dictator Ferdinand Marcos. Now, lawmakers in Congress are once again attempting to change the nation’s highest law.    

Critics and defenders of the Constitution know it is not a perfect document. There are several provisions that need to be clarified – including Article XVII, which outlines the process of amending or revising the Charter and which has spurred contentious debates between the House of Representatives and the  Senate . (READ: Why 1987 PH Constitution unclear on Congress’ Charter Change vote )

Past administrations touted Charter Change as a means to address these flaws and “improve” the country. President Rodrigo Duterte likewise pushed for a federal form of government during his campaign.  

But is there really a need to change the Constitution?  

Open to abuse

Retired Supreme Court (SC) Justice Vicente Mendoza explained that while the Constitution may have its flaws, now is not the time to change it as partisanship runs thick. (READ: What you need to know about Charter Change )

“This is a very partisan period in our history and it is no time to do these things…The risks that constitutional reform might be used as an excuse for extending stays in office and shifting to federalism are just too great to offset the need to make these changes,” Mendoza said.

According to Dante Gatmaytan, a constitutional law professor at the University of the Philippines College of Law, skepticism towards Charter Change is rooted in the Marcos era when Marcos changed the Constitution to duck term limits.    

“We have a distrust of our politicians to the point that we do not trust them to tinker with the fundamental law of the land. Every attempt to amend the 1987 Constitution was met with skepticism that they were mere ploys to eliminate term limits,” Gatmaytan said.  

“Since that trust was betrayed, politicians have not earned our respect,” he added.  

While there are areas of the Constitution worth revisiting – such as the extent of judicial review, the ban on political dynasties, and provisions to encourage competition in business – Mendoza and Gatmaytan said doing so now may leave it vulnerable to abuse.    

Hearings in the House of Representatives have given a glimpse at some of the proposed changes to the 1987 Constitution.

These include the shift to a federal form of government, as well as the possible abolition of the Office of the Vice President , Office of the Ombudsman, and Judicial and Bar Council. Lawmakers also proposed to limit the protection for free speech .    

“The 1987 Constitution is not perfect but it is a good document… What worries me about the present attempts to amend the Constitution is the way it is selling federalism as the solution to poverty. With the level of political maturity that we have, federalism is likely to strengthen bosses in their turfs,” Gatmaytan said.    

Mendoza added that while permanence is an attribute of a good Constitution, the reason why the many attempts to change the Charter have failed is not because of intrinsic merit.

“It’s not that this Constitution is flawless or a great Constitution. I do not think it is…It needs amendments. The trouble is, if you do that, politicians will come in and bring proposals to extend their term. That’s what deters people like me from proposing these many changes, to make this a good or better document,” Mendoza said. ( LOOK BACK: Past Charter Change attempts and why they failed )    

Congress as a rubber stamp?

But despite clear opposition and warning, Congress is determined to see Charter Change through.    

House Speaker Pantaleon Alvarez earlier opened the possibility of canceling the midterm 2019 elections while Senate President Aquilino Pimentel III said the 6-year term of Duterte may be extended “if necessary” to shift the country to federalism.    

Lawmakers have also proposed to change the Constitution by convening into a Constituent Assembly, saying it would be “ cheaper and faster ” than a Constitutional Convention as earlier proposed. (READ: The problem with Con-Ass? Distrust with Congress )

Alvarez likewise threatened to allocate a “ zero budget ” to lawmakers who refused to support the proposed Charter Change, though he later took it back and said he was only “joking.” (READ: Zero budget for anti-federalism provinces just a ‘joke,’ says Alvarez )

Framers of the Constitution, however, struck down current attempts to revise it.  

Speaking at a Senate hearing on Charter Change, Christian Monsod – who was part of the 48-member 1986 Constitutional Commission – said problems lie in the implementation of the law, rather than the Constitution itself.  (READ: Congress, not Constitution, is the problem – Monsod )

“The problem is not the Constitution but the legislators who slept on the job for 30 years to fully implement it. Or when reform legislation was passed, [they] made sure it was watered down and underfunded,” he said.    

Retired SC Chief Justice Hilario Davide echoed this statement in a speech to the business community in November 2017 and said the objectives of federalism could be well achieved by the  existing Constitution.  

“I would forthwith assert that a shift to federalism or amendments to our present Constitution to accomplish the goals and objectives of the proponents of federalism is totally unnecessary. The reasons adduced to support it are deceptively misleading and unfounded,” Davide said.  

He added, “All such goals and objectives can adequately and sufficiently be accomplished, and the reasons disproven, by merely – but effectively and efficiently – implementing the relevant provisions of our present 1987 Constitution.”  

If not Charter Change, then what?

Though there is no need to change the Constitution in its entirety, retired SC Justice Adolfo Azcuna said that what should be done instead is a review to determine necessary changes.  

“It is timely to review the Constitution with a view of determining whether or not it should be changed to better address the situation of Filipinos today,” he said.  

Gatmaytan also said there may be no need to revise the Constitution “when an amendment of laws may suffice.”  

While attempts to change the Constitution are serious, Gatmaytan added an assembly that is also beholden to the President may not produce the best document.  

“Any project that involves drafting the fundamental law of the land will benefit from serious deliberation founded on contending views, not a mere collection of ‘yes men,’” he said. – with reports from Jodesz Gavilan/Rappler.com

Add a comment

Please abide by Rappler's commenting guidelines .

There are no comments yet. Add your comment to start the conversation.

How does this make you feel?

Related Topics

Sofia Tomacruz

Recommended stories, {{ item.sitename }}, {{ item.title }}.

Checking your Rappler+ subscription...

Upgrade to Rappler+ for exclusive content and unlimited access.

Why is it important to subscribe? Learn more

You are subscribed to Rappler+

Reagan wouldn’t recognize Trump-style ‘conservatism’ – a look at how the GOP has changed

W hen Mitt Romney announced his intended retirement from the U.S. Senate on Sept. 13, 2023, the Atlantic published an excerpt from his upcoming biography, in which the 2012 Republican presidential nominee told author McKay Coppins, “A very large portion of my party really doesn’t believe in the Constitution.”

This claim would have been startling 15 years ago. For decades, the Republican Party has been the party of conservatism and a champion for the Constitution.

Romney is clear that Donald Trump, who leads what he calls a “populist” and “demagogic” portion of the party , is to blame. And Romney is not the only concerned Republican.

Former Vice President Mike Pence, now running for the GOP presidential nomination, recently asked a crowd at a campaign event, “Will we be the party of conservatism, or will we follow the siren song of populism unmoored to conservative principles?”

What are the conservative principles Romney and Pence spoke about? And what has happened to them since Trump’s rise?

As a political scientist, I spent the past five years researching ideological identity and Trump’s effect on conservatism and on the Republican Party .

Defining “conservatism” is complicated. It has taken many forms over the course of U.S. history. It reinvents itself over time . But a main tenet was summed up by President Ronald Reagan in his 1989 farewell address to the nation : “There’s a clear cause and effect here that is as neat and predictable as a law of physics: As government expands, liberty contracts.”

I focus here on features of what’s called “principled conservatism,” the cohesive belief system that emphasizes liberty and the status quo.

Here is a short inventory of these ideals and how they were violated in recent years. This is not an exhaustive list – but it captures much of Reagan’s style of conservatism, which has been the touchstone for most Republican presidential candidates until recently .

The Constitution and limited government protect liberty

Outspoken conservatives often emphasize the importance of the Constitution , which established laws to protect the liberty of citizens.

First, the Constitution laid the groundwork for federalism, a system where local governments hold some level of power to ensure the national government does not have absolute control. This is where the conservative phrase “states’ rights” comes from.

Second, the Constitution established checks and balances between the three branches of government to prevent any one of them from abusing power.

These safeguards against tyranny are the beating heart of conservative thought.

But when Trump, backed by 126 Republican legislators in Congress, tried to overturn election results of key states in 2020, it was seen as a violation of states’ rights by conservative lawyers and a handful of Republican legislators. When only 17 Republicans voted to impeach or convict Trump for his role in the Jan. 6, 2021, insurrection, it gave the appearance that the abuse of power can go unchecked at the federal level.

Government intervention should be restrained

Since principled conservatism is averse to an overly active, centralized government, it typically opposes federal intervention in business, increased spending, higher taxes, public programs and subsidies .

But using the bully pulpit and his presidential powers, Trump threatened retaliation against companies that moved jobs overseas , increased the national debt , instigated trade wars by raising tariffs and gave subsidies to farmers who were harmed in the trade war process. These behaviors and policies also fly in the face of conservative principles.

Though Republican Sen. Chuck Grassley still considers Republicans to be “a party of free trade,” Trump’s trade war deviated from past GOP policies – with some exceptions – and was mostly met with “statements of discomfort .”

Institutions can support stable civic life

In addition to protecting limited government and free markets, conservatism strives to preserve American institutions such as the military and the justice system, in the belief that they help organize and maintain the stability of civic life.

Yet Trump’s rhetoric persistently attacked the free press , the Department of Justice, the FBI – often considered a conservative organization – military leadership and the integrity of the electoral system . Some of these organizations enforce justice and hold government accountable through free speech, ideals that are embedded in the conservative principles laid out by Republican Rep. Mike Johnson for the Republican Study Committee in 2018.

Conservatives in name only?

Is Donald Trump solely to blame for the unraveling of American conservative ideals?

Yes and no. One the one hand, he is responsible for implementing anti-conservative policies like trade wars, eroding trust in institutions through his rhetoric and inspiring candidates to run for office in his image.

However, Trump is also a product of his voter base. He loses power without them and therefore often reflects what they want. What do they want, though? Here’s where it’s handy to know some political science.

One of the most cited findings in political psychology is that the average American lacks “ideological sophistication.” Most people simply don’t structure their politics around an abstract attitude about the proper role of government. This includes many Americans who call themselves “conservatives .”

Instead, people often form preferences by asking, “How will this policy or person help me and people who are like me? How will this protect the status of my group ?” Positive feelings toward one’s own group and positive – or negative – feelings toward other demographic groups hold real influence over political orientations . This is the stuff that motivates people politically – consequently, there has been a disconnect between the conservative ideals promoted by elites and the attitudes of their voter base.

You may hear conservative principles mentioned sporadically in the 2024 campaign. But until Republican voters reward politicians who embody them, it is unlikely actual conservative ideals do – or will – guide politics on the right.

• Georgia’s indictment of Trump is a confirmation of states’ rights, a favorite cause of Republicans since Reagan
• Moms for Liberty: ‘Joyful warriors’ or anti-government conspiracists? The 2-year-old group could have a serious impact on the presidential race

Karyn Amira does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Change, as the Constitution NYT Crossword Clue

Change as the Constitution NYT Mini Crossword Clue Answers are listed below. Did you came up with a solution that did not solve the clue? No worries we keep a close eye on all the clues and update them regularly with the correct answers.

CHANGE AS THE CONSTITUTION NYT

Leave a comment cancel reply.

Your email address will not be published. Required fields are marked *

Arizona Supreme Court rules a near-total abortion ban from 1864 is enforceable

PHOENIX — The Arizona Supreme Court ruled Tuesday that a 160-year-old near-total abortion ban still on the books in the state is enforceable, a bombshell decision that adds the state to the growing lists of places where abortion care is effectively banned.

The ruling allows an 1864 law in Arizona to stand that made abortion a felony punishable by two to five years in prison for anyone who performs one or helps a woman obtain one. 

The law — which was codified in 1901, and again in 1913 — outlaws abortion from the moment of conception but includes an exception to save the woman’s life.

That Civil War-era law — enacted a half-century before Arizona even gained statehood — was never repealed and an appellate court ruled last year that it could remain on the books as long as it was “harmonized” with a 2022 law, leading to substantial confusion in Arizona regarding exactly when during a pregnancy abortion was outlawed.

The decision — which could shutter abortion clinics in the state — effectively undoes a lower court’s ruling that stated that a more recent 15-week ban from March 2022 superseded the 1864 law.

The Arizona Supreme Court said it would put its decision on hold for 14 days, writing that it would send the case back to a lower court so that court could consider “additional constitutional challenges” that haven’t yet been cleared up.

Attorney General Kris Mayes, a Democrat, said moments after the ruling that she would not enforce the law.

“Let me be completely clear, as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state,” Mayes said in a statement, adding that the decision was “unconscionable” and “an affront to freedom.”

Democrats all the way up to President Joe Biden also blasted the ruling.

“Millions of Arizonans will soon live under an even more extreme and dangerous abortion ban, which fails to protect women even when their health is at risk or in tragic cases of rape or incest,” Biden said in a statement. He called the ban “cruel” and “a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom” and vowed to “continue to fight to protect reproductive rights.”

Vice President Kamala Harris announced shortly after the ruling that she would travel to Arizona on Friday “to continue her leadership in the fight for reproductive freedoms."

Responding to questions from NBC News about the Arizona ruling, a spokesperson for Donald Trump's campaign referred only to the former president's comments on Monday that abortion restrictions should be left to states.

“President Trump could not have been more clear. These are decisions for people of each state to make," Trump campaign national press secretary Karoline Leavitt said.

Arizona Gov. Katie Hobbs called for the GOP-controlled Legislature, which is currently in session, to repeal the 1864 ban, though there was no immediate indication that Republican lawmakers in either chamber would take up such an effort.

"We are 14 days away from this extreme ban coming back to life," Hobbs, a Democrat, said at a press conference. "It must be repealed immediately."

While Hobbs said she was "sure" reproductive rights advocates would appeal the ruling in the 14-day window they were given, she also suggested that the best avenue to counter the ruling would be for voters to support abortion rights on the November ballot. A separate, ongoing suit would allow for abortion providers to continue providing services through the 15th week of pregnancy for another 45 days.

"It is more urgent than ever that Arizonans have the opportunity to vote to enshrine the right to abortion in our constitution this November. I’m confident that Arizonans will support this ballot measure, and I’m going to continue doing everything in my power to make sure it is successful," Hobbs said.

In a 4-2 ruling, the court’s majority concluded that the 15-week ban “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” the Civil War-era ban “but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by the 2022 Dobbs decision that overturned Roe v. Wade.

“Absent the federal constitutional abortion right, and because” the 2022 law "does not independently authorize abortion, there is no provision in federal or state law prohibiting” the 1864 ban.

They added that the ban “is now enforceable.”

Tuesday’s ruling is the latest chapter in a decadeslong saga of litigation in the battleground state over abortion rights. 

Reproductive rights groups had sued to overturn the 19th century law in 1971. But when the Roe decision came down in 1973, a lower state court ruled against those groups and placed an injunction on the 1864 ban that remained in effect until the Dobbs decision.

In March 2022, Republican lawmakers in the state enacted the 15-week trigger ban, which, months later — after the Dobbs decision — snapped into effect. The law makes exceptions for medical emergencies but not for rape or incest. 

Litigation resumed after that decision as lawmakers on both sides of the issue sought clarity on whether to enforce the 1864 near-total ban or the 2022 15-week ban.

A state appellate court initially ruled that both the 1864 and 2022 laws could eventually be “harmonized,” but also said that the 15-week ban superseded the near-total abortion ban and put on hold large parts of the older law.

The decision also sent shockwaves through the reproductive rights community in Arizona and nationally.

Angela Florez, the president of Planned Parenthood Arizona, one of the state's remaining abortion care providers, said her group would now only be able to provide abortion care through the 15th week of pregnancy — and only "for a very short period of time."

The issue, however, could soon be in the hands of voters.

Abortion rights groups in the state are likely to succeed in their goal of putting a proposed constitutional amendment on the November ballot that would create a “fundamental right” to receive abortion care up until fetal viability, or about the 24th week of pregnancy.

If voters approved the ballot measure, it would effectively undo the 1864 ban that now remains law in the state. It would bar the state from restricting abortion care in situations where the health or life of the pregnant person is at risk after the point of viability, according to the treating health care professional.

That ballot effort is one of at least 11 across the country that seek to put the issue directly in the hands of voters — a move that has the potential to significantly boost turnout for Democratic candidates emphasizing the issue. 

In 2024, that could factor heavily into the outcome of both the presidential and U.S. Senate races in Arizona. Biden, whose campaign is leaning heavily into reproductive rights, won the state by just over 10,000 votes four years ago. And the Senate race features a tough battle to fill the seat held by the retiring independent Sen. Kyrsten Sinema, most likely between Democrat Ruben Gallego and Republican Kari Lake. 

During her unsuccessful 2022 run for governor in Arizona, Lake said she supported the 1864 law, calling it “ a great law that’s already on the books .” But Lake now says she opposes the 1864 law , as well as a federal abortion ban, while also acknowledging that her own views regarding state policy conflict with some voters’ preferences.

In a statement following the decision, Lake said she opposed the ruling, adding that "it is abundantly clear that the pre-statehood law is out of step with Arizonans." She called on state lawmakers to "come up with an immediate common sense solution that Arizonans can support."

"Ultimately, Arizona voters will make the decision on the ballot come November," she added. 

Gallego, who is backed by several reproductive rights groups, has said he supports the ballot measure. As a member of the U.S. House, he is among the co-sponsors of the Women’s Health Protection Act, which would create federal abortion protections.

In a video posted to X after the ruling, Gallego said he would, with reproductive rights supporters, "fight all the way to November so we can get abortion rights back for women in Arizona."

Other Republicans in the state who’d previously expressed robust support for Roe being overturned joined Lake in condemning the ruling. Reps. Juan Ciscomani and David Schweikert , who both face tough re-elections this fall, both called on state lawmakers to address the issue “immediately.”

The ruling Tuesday — the second in a swing state on the issue in as many weeks — further highlights the already prominent role abortion rights will play in Arizona and across the country.

Last week, the Florida Supreme Court upheld a 15-week ban on abortion in the state, which effectively meant that a six-week abortion ban, with exceptions for rape, incest and the life of the woman, that Gov. Ron DeSantis signed into law last year will take effect. The state's high court also allowed a proposed amendment that would enshrine abortion protections in the state constitution to appear on the November ballot.

Tuesday's decision, while jarring to reproductive rights groups, wasn’t entirely unexpected. All seven justices on the Arizona Supreme Court were appointed by Republican governors, and during opening arguments in December, they aggressively, but civilly, quizzed attorneys on both sides about the fact that the 15-week ban enacted last year did not feature any language making clear whether it was designed to repeal or replace the 1864 ban.

Only six justices participated in Tuesday’s decision, however, after Justice Bill Montgomery — who previously accused Planned Parenthood of practicing “generational genocide” — recused himself. (The court’s chief justice did not appoint another judge to take the spot, which is an option under Arizona law.)

The abortion landscape in Arizona has been uniquely confusing since Roe v. Wade was overturned. 

While the 1864 law had been on hold after the Supreme Court’s 1973 Roe decision, then-Arizona Attorney General Mark Brnovich, a Republican, successfully sued in 2022 to have that injunction lifted following the overturning of Roe, putting the ban back into effect — though a higher court put that ruling on hold. 

But after Mayes succeeded Brnovich as attorney general, she announced that she would not enforce the 1864 ban.

That led to suits from anti-abortion groups seeking enforcement of the ban, which ultimately led to the case making its way up to the state Supreme Court.

Adam Edelman is a political reporter for NBC News.

Alex Tabet is a 2024 NBC News campaign embed.