Flexibility within the Constitution

In order to remain relevant to modern society, a codified document must have sufficient flexibility in terms of interpretation. Societal attitudes are in a constant state of flux, and for a Constitution to remain relevant it must avoid rigidity. In some areas, this ‘elasticity’ has been quite striking. For instance, the Constitution has at various times legitimized segregation and de-segregation. In the case of Plessy v. Ferguson (1896) the Supreme Court ruled that the Constitution specifies “separate but equal” treatment of white people and black people. However, this particular ruling in favor of racial segregation was effectively overturned in Brown v. Board of Education (1954). In a more recent example, the Court ruled a federal government affirmative action scheme to be unconstitutional (Adarand Constructors v. Pena (1995)) but upheld a similar program in the context of an admissions policy at the University of Michigan (the Grutter ruling of 2003).

The American Constitution is therefore in no sense a fixed document resistant to change. The only debate to be had is ‘how far do we go down the road of flexibility?’ Naturally, this issue divides liberals from conservatives. To the latter, the Constitution should be interpreted in a literal manner. Judges should avoid deviating from the original meaning of the Constitution. The document reflects the accumulated wisdom of previous generations, and is something that should remain largely immutable from one generation to the next. For conservatives, there are considerable dangers in the judiciary adopting an activist mindset. For instance, judges are unaccountable and out-of-touch with the common-sense values of the American people. Moreover, the literal approach to constitutional interpretation avoids the problem of judicial overreach. An expansion in judicial power generates an unhealthy dynamic all of its own; as shown during the controversial Warren court. The more the Court does, the more the Court is expected to do. Inevitably, it may legislate in areas over which it should leave to elected and accountable politicians. For social conservatives, there is no better illustration of the problem inherent with judicial overreach than Roe v. Wade (1973).

The liberal perspective takes a different approach. Liberals are more inclined to believe that the judicial branch should fully take into account changing circumstances and to some extent changes within societal attitudes. The country has undoubtedly progressed since the document was first written down, and constitutional interpretation should always reflect such change. Given the difficulty in amending the Constitution, judges must be able to interpret the document differently from one set of circumstances to the next. Without a degree of flexibility, the Constitution would become fossilized and irrelevant. Unlike conservatives, tradition is not in itself a worthwhile goal for liberals. Indeed, tradition can provide a mindset opposed to necessary social change.

Inevitably, there is a debate to be had over the consequences of constitutional interpretation. It might be argued that the American system of governance as laid down in the Constitution marginalizes effectiveness for democracy. The result is a dysfunctional system that continually frustrates the American people, particularly when it's characterized by wrangling between the two parties during a period of divided government. However, this is partly dependent upon the actions of politicians themselves. They can of course reach a compromise position, but all too often choose to please the party base and employ the politics of obstructionism. From a more positive viewpoint, it could be argued that the Constitution has upheld the values championed by the founding fathers such as Madison, Washington and Jefferson. A system based upon staggered elections, the separation of powers and a comprehensive network of checks and balances has ensured that the country has avoided tyrannical rule. Compared to many other countries, the United States has an enviable reputation in preventing the emergence of a dictatorial regime or leader.