In 1966, Lyndon B. Johnson lauded that “it is the genius of our Constitution that under its shelter of enduring institutions and rooted principles there is ample room for the rich fertility of American political invention.” This leeway for “political invention” is what makes the US Constitution a living document, since not only do its contents change with the years, but also its interpretation.
Of the over 8,000 words in the Constitution today, only about 4,500 of them are from the original 1787 document. The first ten amendments, known as the Bill of Rights, weren’t added to the Constitution until 1791 and an additional seventeen have since been added. That being said, the fact that the US Constitution is not only the supreme law of the land, but also an extremely powerful symbol of America makes it extremely difficult to know when, why, and how to amend the dang thing.
In 1856, Abraham Lincoln – the go-to president for great quotes and warm, fatherly feelings – warned: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” Which is more than a little ironic coming from a guy who not only suspended the writ of habeas corpus (which protects citizens against illegal imprisonment) just five years later, but also added the 13th Amendment to the Constitution during his short presidency. Lincoln clearly didn’t believe that maintaining the integrity of the Constitution meant serenading it to the tune of “Don’t Go Changin’.”
This opens up the nasty can of worms that is the letter of the law vs. the spirit of the law. Those who interpret the Constitution strictly argue that it was written by some of the brightest and best minds in American history, who thought long and hard about their exact word choice so that future generations wouldn’t have to. Those in favor of a more elastic interpretation, however, cite the document’s various instances of “historical flavor” to argue that the Constitution must be interpreted in accordance with the times; for instance, up until it was stricken from the document after the Civil War, part of Article I Section 2 of the Constitution referred to a slave as 3/5 of a person for census-taking purposes.
Of all the amendments added to the Constitution, only one was ever considered a bad enough idea to merit annulment. Passed in 1917 after years of hard campaigning by the temperance movement, the 18th Amendment legalized prohibition nationwide. Not only was the ban on alcohol completely ineffective, but it actually fueled a powerful underworld of crime and bootlegging (à la Great Gatsby) that give rise to mafia criminals such as Al Capone. Nevertheless, it took over 14 years before the 18th Amendment was repealed via the 21st Amendment.
In general, the more contentious parts of the Constitution are altered not through sweeping written changes, but through differences in interpretation. In 1907, New York mayor and future Supreme Court Justice Charles Evans Hughes famously said that “the Constitution is what the judges say it is.” Pretty hard to argue with, considering the historical context; since the 1880’s, the Supreme Court had been interpreting the word “people” in the Equal Protection clause of the 14th Amendment to include corporations, thereby severely restricting the government’s ability to regulate the abuses of big business.
The Supreme Court’s huge influence over constitutional law is the reason why all Supreme Court nominations undergo such harsh and prolonged scrutiny before being accepted to the bench. Perhaps Supreme Court Justice Hugo Black best expressed our ongoing concern over judges when he insisted in 1970 that the “Constitution was not written in the sands to be washed away by each wave of new judges.”
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