My essay on sufficiency of written constitution, written for online course
Constitutional Law
"All that we need in the Constitution is right there in the text." Attack or defend this statement with at least three distinct arguments, using specific examples to illustrate your points.
My essay:
I don't agree the suggestion "All that we need in the Constitution is right there in the text". It is too dogmatic, shortsighted and incoherent, because a constitution must be much more than what is written in the text so that it can overcome every challenge that may arise by time, by unexpected occasions and by any interpretation that was not contemplated by its authors.
Constitution's Spirit Against Text
A written constitution reflects the idea behind foundation of a state. But that reflection is not the idea itself; the written constitution is only tangible appearance, an outcome of the idea. As in United Kingdom, a country can be governed by an unwritten constitution, whereas there are many unconstitutional countries that have written so-called constitutions just for show. Therefore, the written constitution must be used as a means of proof, commitment and record with regard to the founding spirit but must not be and cannot used for turning its underlying spirit into a fixed document of letters.
In particular, the US constitution is not considered an intellectual product of particular person or persons.[1] Though it is attributed to Thomas Jefferson, he admits that he only penned the independence declaration, a fundamental constitutional instrument, the declaration itself was in the air among the minds of the people that gather to found the USA. Therefore, US Constitution must be considered the common approach for political and civil matters, which was embodied for the purpose of popular dissemination, not textual limitation.
A Constitution For Future Challenges
Even there could be a way to perfectly transfer the ideas into letters, that would be a conveyance of that time only. That would cause great lack in responding to the coming challenges in several aspects.
Considering the fact that the technology got advanced in last 200 hundred years more than the total of the ages before, one can see it is highly critical for the Constitution to be able to adapt to every new development in science. Does the constitution's text really able to handle the matters of broadcast, internet, electronic voting, cyber battles, Wikileaks etc? Right to make propaganda through web, might not be inferred from the constitution if the constitional freedom of expression was handled literally. For example, the frequency of the election has changed by the time, owing to the advancement in the means of transportation and communication.[2]
Aside from the technology, many manners of social life has also tremendously changed since adoption of the Constitution; not only in national but also international level. Much before now, people were fighting duels, killing each other on personal, sometimes unimportant matters of honor -in their sense of dignity of that time. Or KKK could freely conduct great rallies on streets, defending their rights. Not only the technological tools but also social acceptances are advanced, mostly in liberal way, by time. This is why a paper, formed of constant propositions cannot be used as a recipe to solve every social problem. Otherwise, the right to information and even free press could not be derived from the constitutional provisions concerning the freedom of speech.[3] Freedom of getting information from the government, without giving any reasoning was something that perhaps could not be imagined during the times the constiution's words were shaped. Today it is possible by handling today's social needs through the constitutional mentality, not the text itself.
Power of Amendment Presuming Imperfect Nature of Text
Though there are several checks, the legislative body's power to amend[4] the constitution itself implies that what is written in the Constitution may be wrong; it may not be the true Constitution, but a text that misinterprets the standpoint that constituted the USA. Therefore 'all we need in the constitution' is not the text itself, but the political will that had led to the written constitution and new interpretations of or constructions from that political will is what makes the later amendments legitimate.
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[1] This is why it begins with the wording "We, the people" and as Mr. Amar mention in the first lecture, the noun "we" does not refer to the undersigners; it refers to the people of the USA.
[2] Mr. Amar in the early lectures had stated that the House elections were held less frequently in the first years, because it took time to make elections and send the elected person to the capital city. It was a common practice of that time as a result the level of the technology by then.
[3] In Houchins v. KQED, Inc., 438 U.S. 1, 15–16 (1978) decision, Supreme Court Justice Steven's dissenting opinion later allowed the right to obtain information from government by wide interpretation of freedom of expression for the press. Mr. Amar made reference to this case in his lecture on Supreme Court's contribution to the constitutional law.
[4] Though the 'amendments' are the supplements to the Constitution, I here refer both to those additions to the Constitution and also the modification on the original deed.
