Is The Constitution Still Relevant Today Essay

I hope this helps with your essay. As ever, it is an approach, not the approach. There are so many arguments not made and examples not given. It is impossible to get everything in here so do not worry if you have approached this differently. Just make sure you focus on the document’s relevance.

Evaluate the relevance of the US Constitution today:

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The US Constitution is immensely significant to politics today. It is difficult to argue otherwise.

1. The US political stability owes itself to the Constitution. A huge fear of the tyranny of the majority led the founders to form a representative, republican form of government with a strong, but at the same time limited, national government. This is the framework of the US still – well over 200 years later.

2. The framers set up a framework of a two tier government where national and state powers were outlined in the codified Constitution. This two tier government is as relevant in the US today as ever.

3. The framers separated the three US institutions of national government and allowed each branch to ‘check & balance’ the other two. The separation of powers and checks and balances are still very much the order of the day in the US – just ask Barack Obama as he tries to get his Jobs Bill or Healthcare reform through a Republican dominated House of Representatives!

4. The framers gave each branch of government different constituencies and terms of office (HoR; Senate; President & Judges) – they intended that this would create different pressures and conflicting interests that would require deliberation and compromise – and boy does the US deliberate!! During the summer of 2011 it nearly defaulted on some of its debts as Congress tore itself apart about whether or not to raise the ‘debt ceiling’. Every piece of legislation is major compromise resulting in only 5% making it through compared to 95% of legislation introduced in the UK. Thus the framework laid down by the Founding Fathers still has a fundamental impact and relevance in the US today. Singh: “In these interlocking ways, the Constitution has patterned the structure of government and politics from 1787 to the present”

5. The Constitution is relevant today for more reasons that being a ‘framework’ for the structures of government: Singh argues “More than any other nation, political life is pervaded by the need for all branches of government…to adhere to the…Constitution’s provisions as supreme – the key guarantor of the rule of law and the preservation of political freedom, democracy and limited government”. Michael Foley (1991) argues that if ‘Americanism’ is a religion then the Constitution is its version of the Bible and the courts are the High Priests. The Constitution is brought up in everyday talk in the US, the way you would never hear any of the European constitutions mentioned. The fact that we study the US Constitution and not the UK’s speaks for itself.

6. The Bill of Rights is as important to politics today as the structures laid down by the Constitution. No public policy or legislation is unaffected by the first ten amendments. Legislation or Presidential action requires more than a majority vote, it requires Constitutional validity.

7. All social, economic and political debates come down to one question – is the proposed action constitutional? This can be introducing a federal income tax (added to the Constitution by the 16th Amendment), or debating laws over same-sex marriage or gun control. Use the handout I gave you to provide some examples here. Skim read that handout – Death penalty; Gay Rights; Abortion; Gun Control; Pornography; Religion have all been played out in the Constitution.

 8. With the exception of the Civil War 1861-1865 Americans have never actually sought to overhaul the Constitution or the structures of government that it established. In the same period of time France has had numerous regime changes and is now on its Fifth Republic (since 1958).

9. The Constitution is revered today – even by those who criticise aspects of it:

a. To be wholly critical of the Constitution is to be ‘un-American’. Isaac Kramnick (1987) puts it: “Along with the flag, the Constitution stands alone as a symbol of national unity. America has no royal family, no…symbols or national church…To this day…to become an American citizen it is traditional for immigrants to have to pass a test on the Constitution…”.

b. Secondly, the sheer longevity and survival of the Constitution increases admiration for it – civil war; westward expansion; industrialisation; major economic upheaval and depression; two world wars; Cold War; immigration; civil rights upheaval and Vietnam have all occurred under the auspices of the same document. This fails to mention some notable rulers who have risen and fallen since the document’s birth e.g. Napoleon!

c. Thirdly, the document has been able to adapt and change due to its vagueness whilst standing firm in its changeless principles. The principles of limited government, individual rights and the sanctity of private property remain whilst the substance of the Constitution has been reinterpreted by Americans over time. This has kept it relevant to the 21st century.

10. Although the governmental framework is fairly rigid, the Constitution did allow for formal amendments to be made. Thus the Senate is now popularly elected since the 17th Amendment in 1913 & the President is restricted to two terms (22nd Amendment 1951). Such ability to formally adapt has kept the Constitution relevant.

11. Supreme Court interpretations of vague phrases have also ‘democratised’ the Constitution and brought along principles, not included in the 18th century document e.g. ‘one man, one vote’. Many of the interpretations have been made with the far reaching 14th Amendment ‘equal protection’ and ‘due process’ clauses. E.g. the Bill of Rights did not apply to individual protection from state governments – just federal government. The SC, over time, applied the B of R to the states too using the ‘equal protection’ clause. For instance. Gitlow vs New York (1925) extended First Amendment (free speech) laws that applied to Congress to state governments as well. As your handout illustrates, this type of issue is still very relevant in the pornography debate in the US. Interpretation of the vague wording of the Constitution has therefore ensured the Constitution’s relevance today.

So what of the criticisms?

1. Some aspects of the Constitution’s relevance can be questioned. For instance, the 18th century document left unanswered questions including whether or not a national bank could be formed and no adequate long term solution was delivered on slavery. Indeed the document defined slaves as 3/5ths a person for taxation and representation purposes in national government. How can blacks in 2012 find such a document relevant? Most agree that the Constitution was “defective from the start” (Justice Thurgood Marshall (one of only two Black Justices ever) 1987.) Even James Madison thought the document flawed – it was after all a Great Compromise of its own generation. The document protected the economic interests of the elite, white propertied (slave owning) classes and excluded women and blacks from American citizenship.

2. The Constitution has lasted a long time yes, but during that period the US has numerous examples of illiberalism – slavery; segregation; anti-Semitism; Japanese internment; McCarthy witch-hunts and anti-communism; political repression; death penalty. In fact in the instances of slavery, segregation, the death penalty and Japanese internment the Supreme Court has upheld (later to strike down (except death penalty) ) these practices on the basis of the Constitution! This poses the question – is it the Constitution that is relevant or is it the US society that makes the decisions and uses the document as a ‘cloak’ – some sort of ‘legitimatisation tool’ for the actions of a majority?

3. Another criticism is that the document is outmoded and inappropriatefor the 21st century. Some cited examples are gun-control & abortion. The 2nd Amendment right to bear arms (better than the right to arm bears) causes great debate over modern attempts to tackle the US gun & gang culture. It is so difficult to formally amend the Constitution that liberal America has never mustered sufficient support against a gun favouring minority. Therefore to many Americans it is ludicrous that a 1791 provision, and procedures outlined in a 1787 document, should provide a barrier to change. Further, the SC read into the Constitution a woman’s right to an abortion on the basis of a woman’s ‘right to privacy’ as implied by the protections of the Constitution – not by any specific wording in the Constitution!

4. Another criticism is that the very framework is the main cause of ‘gridlock’ in the US political system. Thus, the document is inefficient. The Constitution slows down or prevents wide-spread social reform. That is why over 30m Americans had no healthcare coverage until Obama got his (much diluted) reforms through – years behind Europe. Furthermore, black Americans had to endure 170 years of discrimination and deprivation before the US really became democratic amid a very real civil rights turmoil in the 1960s (and even since then many argue that institutional racism is rife, although the election of a black President makes this argument seem a little dated itself.)

A response to the criticisms:

1. Yes, there were unanswered questions, but to use this criticism is out of context. The Framers were concerned with unity and had they not ‘parked’ slavery for instance there would have been no USA. That it tore America apart in the 19th century supports this. In an 18th century context NO western constitution would have been more liberal or included blacks or women.

2. Yes, the US may have lots of illiberal examples, but the Constitution doesn’t make society behave in a certain way, it merely ensures that a significant majority support particular measures before they can be used. Unfortunately anti-communist hysteria of the 1950s saw Constitutional freedoms side-tracked. This does not make the constitution irrelevant but rather shows how America can act in times of national unity (for good or bad). With the example of the death penalty, the Constitution can not be blamed. It doesn’t make states use the death penalty and 12 states chose not to.

3. The same can be said of gun – control. The Constitution is still very relevant as it is providing a barrier to gun control! Nonetheless, as with the point above, if there was sufficient will then the Second Amendment could be overturned as was Prohibition with the 21st Amendment!

4. The political process was supposed to be slow. The framers did not want legislation made on a whim and this has been achieved without preventing US economic expansion and becoming the world’s only superpower. US power has grown and grown throughout the 20th century and yes this may be eclipsed by China or India at some point in the 21st or 22nd centuries but such things are cyclical throughout history (ask Napoleon?)

Conclusion

Whether you choose to criticise or laud the Constitution its relevance is unquestionable today. The US President swears to uphold the Constitution; political, social & economic arguments are based on it and US citizens revere it. Michael Foley is right, the Constitution is the ‘holy writ’ of the ‘American’ religion and this does not make it perfect but even its would-be detractors use the Constitution to solve their disputes and grievances.

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Friday, 7th July 2017

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On Sunday (9 July) we will celebrate Constitution Day. It will be 117 years since the Queen assented the Australian Constitution into law in the UK. On this occasion we thought it was a good opportunity to open up a discussion about whether the Constitution which formed our country, is the basis of our democracy and the foundation of all our laws, is still relevant today. We hope you join the discussion.

A very radical document for its time

Our Constitution was very much ahead of its time. The people who helped write the document scoured the world and examined constitutions from all corners of the earth. They then used these ideas to create our Constitution. Some sections are similar to other countries constitutions, while others are and were completely new ideas. In the end, we ended up with a Constitution that was and is unique to Australia. Constitutional expert Helen Irving writes:

The Constitution is a legal document upon which the Commonwealth of Australia was founded at federation in 1901. It can be thought of as a type of ‘contract’ or ‘compact’ between the people of the six Australian States (or colonies, as they were previously called). The colonies were self-governing in the nineteenth century, but they chose to come together, to create a federal nation, and thus do things on a larger scale (like defence, trade, and immigration) more effectively than they could on their own.

Our Constitution is better than most others. You’re probably thinking ‘yeah, well you would say that at CEFA’. And of course we would. But its true. We have a Constitution that was written by Australians for Australians. Our democracy is consistently ranked in the top ten in the world.

Our Constitution and effectively our country was formed to unite the people. Throughout history many Constitutions around the world were written after violent conflicts and wars, basically as peace accords. The people who wrote our Constitution did not have the burden of war or authoritarian rule steering the creation of our system of government. Instead there was great hope about the future and the possibilities of the country. In 2009 former Senator John Faulkner stated:

Our Constitution was drafted as neither an act of defiance nor one of reconciliation. It was created by pragmatic idealists, crafting a blueprint for a new nation, combining high hopes with low compromises. Their vision – a nation for a continent – was a grand one. The problems they had to overcome were more pedestrian. Not defiance of distant empire, decades of oppression and division or the negotiation of profound shifts in power relations. Instead, our founding fathers struggled to negotiate the finicky interrelations of multiple jurisdictions, competing agendas and different-sized railway gauges. Is it any wonder our Constitution is technical rather than sweeping, mechanistic rather than grandiose?

Embedded democracy

The creation of our Constitution was thoroughly democratic. The people who wrote our Constitution were elected by the people. And the draft document written was submitted to referendums in each of the colonies. The people voted for this Constitution. It was then submitted to the British Parliament, where very minor changes were negotiated by delegates from each of the Australian colonies. It was passed by Westminster and then assented into law by Queen Victoria on 9 July 1900. On 1 January 1901, it came into force and there were huge celebrations all around Australia.

The value of a constitution

Australians are sometimes disparaging when commenting about our constitution. But if we didn’t have the Australian Constitution what would we have? Would we still be six individual colonies? Or perhaps dominions, like what New Zealand became? Would each dominion have its own currency and army? Would each of them enter into their own international treaties? Would each of the six countries that now form Australia charge trade duties on each other?

Has the strength of our democracy been galvanised by our founding document? Are our lives better with the Australian Constitution outlining our system of government? Some commentators are beginning to point out that when people get fed up with politicians they seem to get fed up with everything else involved with the system.

Our Constitution protects us

While our Constitution does not have many express or individual rights, it does have many protections for us as a society. For instance, the layout of the Constitution provides us with a separation of powers. By having different functions of our democracy being exercisable by different people or groups of people (parliament, executive or judiciary) we are protected by layers of checks and balances that prevent an authoritarian government being formed.

The constitution and our culture

Most Australians have a commitment to democracy, but believe it shouldn’t interfere too much with their lives. In the last decade or so there has been a decline in approval of democracy which has been demonstrated by the Lowy Poll each year. The Lowy Poll were initially shocked by the number of people who answered that in some cases a non democratic government can be better. They probed further into why particularly young people gave this answer and it wasn’t because they preferred an autocratic government. It was because they were unhappy with the state of government at the moment.

Nationhood and the ability to change and adapt

The meaning of the words in our Constitution are not as set in stone as you may think. The High Court is charged with interpreting the Constitution and this has evolved over time. For instance at federation a person from the UK who lived in Australia could be elected to the Federal Parliament. These days the definition of ‘foreign power’ has changed and a UK citizen (even a dual UK and Australian citizen) is incapable of being chosen as a Member of Parliament. Quick and Garran in their Commentaries on the Constitution of the Commonwealth of Australia 1901 write about nationhood:

Nations are made only by great occasions, not by paper constitutions. But the energy will be there, and in the fulness of time, when the opportunity comes, the nation will arise like a bridegroom coming forth from his chamber, like a strong man to run a race. This change will not necessarily imply any conflict with the States, because the people of the States, who are also the people of the nation, will throb with the new life, and will be disposed to yield to the irresistible pressure of nationhood. In the adaptability of the Constitution, and (should need arise) in the power of amending the Constitution—the facilities for which are far greater than in the United States—there is ample room for the growth and development of such tendencies as may assert themselves in the present or the distant future of the Commonwealth. The Constitution will come into operation under the fair and well-distributed influence of two forces. One of those forces will be the centralizing attraction of the Commonwealth, and its tendency to detract from the power and dignity of its corporate units the States.

(Maybe you can see why we sometimes giggle at what was written and discussed during the constitutional conventions in the 1890’s. We often forget that people talk very differently depending on what era they are born in.)

So, what has changed since federation?

Well, a lot. For instance, the relationship between the Federal Government and the States has altered dramatically. This has mainly occurred through taxation and the external affairs power. Section 51xxix gives the Federal Government the power to enter into international treaties and deals, which then also apply to the States and Territories. The Federal Government has more power than it did at Federation.

The introduction of the Statute of Westminster Adoption Act 1942 and the Australian Act 1986 have also drastically altered Australia’s relationship with the United Kingdom. Of course there are people who want more change in regards to this, such as those pushing for republic.

Is our referendum process too hard?

To alter our Constitution a referendum must be held and the people of Australia vote. For a change to occur the YES vote must result in a double majority (over 50% throughout Australia and a majority in at least four States). Only eight out of 44 questions have ever resulted in the double majority. But is this because Australians are against changing the Constitution? Or is it because the right questions have not been asked?

If change is offered that is valuable or right for the people of Australia they will vote YES, as had occurred eight times since 1901. On the other hand, if they are offered the opportunity to change the power structures (i.e. reduce the power of the Senate) they overwhelmingly vote NO.

Future changes

There are some things that were not considered by the people who wrote our Constitution and they knew this would be the case. But as a living document our Constitution can be altered by you and every other Australian in a national vote.

Many now believe that not recognising the Aboriginal and Torres Strait Islander peoples in the Constitution was a huge mistake. However in the late 19th century this was inconceivable. Many Australians now cringe about that. Here at CEFA we sometimes receive correspondence from people who state things like ‘I cannot see any validity or legitimacy in the Constitution, given that it ignores the sovereignty, governance, and histories of Indigenous peoples’. Often these commenters go on to state that we need of a new Constitution. However, we have an opportunity to make a change to the current Constitution if we wish. Referendums are nation building exercises that ensure that our Constitution is able to be adapted to meet the needs of Australians now and in the future. This is nationhood.

Please let us know if you think the Constitution is still relevant today? Are there any changes you would like to see? You can comment below or join us on Facebook for what is normally a robust conversation. 

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