The American Constitution was originally created by the founding fathers to protect the values of personal liberty and equality of opportunity, but just how effective is it as a codified set of rules that serve to balance the interests and powers of government against those of the people? Do any of its weaknesses compromise its role as higher law?
One of the most commonly argued weaknesses of the constitution criticises the hindrance it has on government and quick, decisive action. The nature of the document’s entrenchment is both its greatest strength and weakness, as any action taken by the government cannot be in conflict with the laws of the constitution, even if it acts in the interests of wider society.
The slow process of amendment, and the substantial majority required in order to propose and ratify it, means that it fundamentally weakens the position of government and authority. It is a measured contrast to the UK political system for example, where no such codified or entrenched law exists, and therefore the system can act both unhindered and without great swathes of bureaucracy. But is this truly a weakness? The founding fathers purposefully created this document to prevent the power of government surpassing the liberty of the people; expediency may simply be the small price to pay for that.
The constitution’s strength lies in the fact that the government has no ability to override the rights of its citizens, nor enact great change to the detriment of the country. In addition, the advantage it has over the UK system of government is that it is less likely to be susceptible to large trends in public opinion or emotion. The slower and less drastically motivated process of government ensures that no rash action is taken in accordance with temporary surges in popularity (Although there has been one exception to the rule in the form of prohibition).
Another argued weakness of the constitution is the vague nature of its articles and amendments, and subsequently the power placed into the hands of the Supreme Court, who can interpret the dubious nature therein. Indeed, the constitution has the power of Judicial Review, which it can use to override anything short of a ratified amendment itself in government.
This contrasts the wishes of the Founding Fathers who believed that a clear and distinct separation of powers with even checks and balances was the best way to govern; arguably too much power has fallen into the power of the Judiciary. The vague wording of the constitution also presents another problem, it means that the rights’ of individuals and government are subject to interpretation, they are not as entrenched as they first seem, and arguably one, unelected branch in government has the power to override it through interpretation.
But on the other side of the coin, one can argue that the lack of distinct clarification in the constitution is another great strength, for it has only needed a comparatively small amount of amendments since its creation, testament to its flexibility and applicability to modern life.
The flexibility of the constitution is a form of compromise between excessive and weak government, it can be adjusted to suit a new perspective with a new interpretation. It arguably contains the best parts of the flexible, but uncodified (and therefore ultimately interpretive) UK ‘constitution’ and ‘higher law’ constitutions located in other Western countries, which often force their governments into expensive and slow bureaucracies.
There is only one example that I personally believe to contradict what I have said above about the modern applicability of the US constitution; The Second Amendment. The problem with the second amendment is that it is a relic of an era where the ‘right to bear arms’ was an arguable necessity to protect ones property and from tyranny. In modern America, even if a state is largely against gun ownership, it is still enforced upon them.
It is arguably something that should be rescinded to state level, because the need for such an amendment has long passed. Unfortunately, this exposes another fundamental flaw in the constitution, that the long process allows a minority of states to override the want of a majority of states, who, unless 75% of them reach a consensus, will not be able to restrict the imposition of such an archaic amendment.
Another, very frequently expressed argument against the current constitution, is that it doesn’t promote ‘true’ liberty. America likes to think of itself as a meritocracy, where all individuals have equal rights and privileges. This however, has very specific contextual elements, traced back through history; we find for example that black slaves were only counted as 3/5ths of a citizen in congress, this continued into segregation, Japanese interment camps (which further highlights the ‘flexibility’ of the constitution for ‘US citizens’) etc.
Clearly, there is an element of discrimination in the Constitution, an unwritten clause that allows it to apply only to certain individuals; ‘these rules only apply to you if you fall into category X, Y and, Z’. Whilst one can posit that this problem has largely been eliminated, if one takes a look at modern day America, one can find that there are elements of discrimination in law regarding celebrities and wealthy personalities, or the vast inequality that surrounds the legal system in general; only the rich can afford lawyers who have the sufficient knowledge and understanding of the constitution to manoeuvre it to suit their case, skewing ‘justice’ and therefore liberty.
The natural counter to this argument lies in the first 10 amendments of the constitution, the bill of rights, in the eyes of the constitution, all citizens are equal, and that it is merely the fault of government for such an inequality, but again, this raises questions regarding the interpretive nature of the document, and how it can be manipulated away from its intent.
Another example of this issue arises from a recent example where George Bush took the USA to war without discussing it in the senate, not necessarily acting outside the bounds of his role as the executive and chief of armed forces, but questionably ignoring the intent of the constitution to ensure that such decisions were put forward in congress first, to prevent over accumulation of power into one individual.
The constitution does however, have measures against the gathering of long-term political power. Fixed terms are a good example; no one individual can be in government office for an overextended period of time (Allowing Roosevelt). The same holds true with staggered government elections (Executive, House, Senate etc) which keep government in check and accountable to the people, as they have the ability to influence its makeup on a more regular basis than in the UK for example.
This does present another interesting conundrum though, the difficulty in enacting any change, whether good aswell bad, becomes much harder because the constitution limits the power any potential idealist or revolutionary thinker could have. It can and arguably does prevent real, good change from happening in the US, making politics somewhat stagnated and similar, with no extreme viewpoints and diluted ideas.
The involvement of the president in the constitution is also cause for concern; it was originally the founding father’s intentions to give congress the ability to go to war, but decided because it met too infrequently, that the president should have the power to declare war instead. This, in part, has lead to congress acting as a supervisory entity to the president; the opposite of what was intended. This is an example of how the constitution has not prevented the concentration of power. The role that the electoral colleges play is also regarded as a somewhat dangerous (As evidenced by the election of George Bush) gap in the constitution’s aims to protect democracy and ‘the free and natural path to lead’.
But, many argue; checks and balances still exist, and the other two branches of government; Congress and the Supreme court, have the ability to remove a president, regardless of how much power he has accumulated, via the process of impeachment granted in the constitution. This, they argue, is a positive thing, a president with a great deal of power that is still held in check, is more effective than a powerful but slow congress, as the president can act quickly, and then be ‘yanked back on the leash’ if things go overboard.
In conclusion, it really comes down to how one views government, as a pragmatist or as an idealist. If one is pragmatic about the relationship government has with its people, then the difficulty involved in changing the constitution and the safeguards it has for its citizens are more desirable.