Concept of Living Constitution in “Essential of American Government: Root and Reforms” a Book by O’Connor, Yanus and Sabato

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Table of Contents

Constitutional Amendments
Federalism
Works Cited

O’Connor, Yanus and Sabato, in their book (Essential of American Government: Root and Reforms), described the concept of the ‘living constitution’ as a document that is flexible and has the ability to change. During the development of the constitution, there was need to consider the changing society over time.

Therefore, the constitution had to be made in such a way as to allow its evolution in order to accommodate the needs of the society. It is also argued that the constitution was written intentionally to be flexible and broad. This was in order to allow for technological and social changes that occur over time.

Thomas Jefferson argued that institutions and laws must not lag behind as changes occur in the human mind. He suggested that people become more enlightened and more developed. New discoveries are made and new ideas and truths unfolded. Therefore, there was need to accommodate these changes of circumstances in order to keep pace with them (Scalia and Gutmann 133). He explained how it was impossible for a grown man to fit into the coat that he once wore as a boy.

The constitution may be described as a living document in three ways. Firstly, it may be viewed as living due to the way in which formal amendment are made. It could also be said to be living based on the informal amendment process. The custom, tradition and usage of the constitution also make it a living document. The formal amendment process describes how changes are made to the document.

There are two ways in which an amendment may be proposed and two ways in which it may be ratified. These methods have been highlighted in Article V of the constitution (Goldford 150). This section has played an important role since it has allowed Congress to enact an amendment. Since a three-fourths majority of the votes is required for the amendment to be approved, it ensures that the Congress remains honest. This has also kept it constantly growing.

Informal amendments can also be made on the constitution in various ways. Congress may pass them as basic legislations. They can also result from court decisions or executive agreements. The Congress may pass legislations as it desires.

Executive agreements, which are contracts made between the head of state and head of foreign states, are used by the president when he needs to deal with foreign issues (Rehnquist 473). Court decision have for a long time been used to make constitutional changes in that they have led to the coming up of new laws.

The customs, traditions and the various ways in which the constitution was used in the past have greatly shaped the activities today. An example of a custom that has dictated how certain things are done today is the delivering of the State of Union Address annually. It is usually done at almost the same time every year.

However, there is nowhere in the constitution where the individual responsible should do it at a particular time and in the presence of the press. However, it has traditionally been done that way and it has become a custom. Changes have also arisen from the use of certain portions of the legislation. A good example is the War Powers Resolution of 1973. It has never been formally enforced. Only parts of it have been used occasionally. Not a single president has stood completely by the resolution’s provisions.

Another application of the living constitution may be in the reference made by the Supreme Court (James 49). In the eighth amendment, it talks of ‘evolving standards of decency’. It defines the constitution in broad terms. Therefore, it states that the court shall interpret the situation with the current societal conditions in mind. It recognizes that the society is constantly changing and so are the standards of decency.

Constitutional Amendments

O’Connor, Yanus and Sabato also discussed the several amendments to the U.S. constitution (350). Some of these amendments were not passed due to one reason or the other. One the amendments proposed to the U.S. Constitution was the Equal Rights Amendment (ERA). This amendment was proposed with the promise of guaranteeing equal rights for the women (Nicholson 254). It was meant to take effect two years after its ratification.

It was originally composed by Alice Paul and was brought to the Congress. Several decades after it was first introduced to the Congress, it passed both houses of Congress (Moore 78). It was then taken for ratification in the state legislatures. However, it failed to get the required number of ratifications before the deadline. In addition to this, conservatives opposed the Equal Rights Amendment (Mansbridge 79). Therefore, it failed to be adopted.

I would support this amendment since I believe in gender equality. I believe that men and women should be treated equally unless there is a sound biological reason to warrant different treatment. The government should provide equality in law and ensure that there is equality when it comes to social situations. Both men and women should have equal democratic rights.

In terms of employment, both should also be paid equally for equal work and have the same opportunities when it comes to growth (training) and promotions. Women should also be allowed to pursue careers and get into positions that have always been occupied by the men. In many countries, women have been allowed to serve in the army. Some work in the police force and fire departments. Women should also have equal opportunities when it comes to the occupation of political positions or top management positions in organizations.

Gender equality should be observed in all aspects including the home setting. For example, activities such as cleaning, childcare and nursing should not be considered as exclusively the women’s. Men are equal to the task and should take responsibility. The Equal Rights Amendment should have been passed in order to ensure equality of both men and women.

The Every Vote Counts Amendment was another proposed amendment in the U.S. It was meant to change the way in which the president and the vice president are put into power. It provided for the popular election of the two individuals (Bugh 32). Therefore, this would mean that an electoral system is used in place of the Electoral College (Edwards 122).

The two positions would be filled by the individuals who gunner the most votes from the citizens. Citizens from the different states and the district would elect a leader of their choice. The Electoral College have for a long time elected the president and vice president of the United States.

I favour the passing of this amendment because the process in which the president and vice president are put in power is credible and appropriate. The choice of the leaders of a particular country should be made by the individuals to be led. This means that the citizens are the ones to select their own leaders.

The Electoral College is made up of few individuals who may not necessarily represent the desires of the entire population. Therefore, all the citizens should be given the opportunity to vote in the leaders of their choice. This way, they would be responsible for the kind of leadership that the elected persons exercise. Voting should be regarded as the right of every individual.

Federalism

The American government was initially thought to be run under the system of federalism (Kelly, Harbison, and Belz 321). This is a term that was derived from the Federalists. It expressed the idea that the governmental power was divided between different units. These included the central government (national authority) and the states. There are several forms of federalism described by O’Connor and her colleagues. Some of them include cooperative federalism, fiscal federalism, dual federalism, new federalism and creative federalism.

Dual federalism

This is the theory of shared power in the U.S. government. The federal constitutional law assumes that power is divided into two different spheres. One of the spheres of power is in the possession of the federal government. The other belongs to each of the states.

Both spheres are equally powerful and are limiting to the other. In this case, the provisions of the constitution are interpreted and applied differently in such a way as to give authority to the governments within the particular sphere (O’Connor, Yanus and Sabato 247). However, it also works in such a way as to limit its power over the other.

Fiscal Federalism

This involves the division of the functions of the public sector and funds among the various parts of the government. There is an emphasis on the need for improved performance of the public sector.

Proper alignment of the fiscal instruments is also required. A focus and the maximization of welfare are important to the optimization of jurisdictional authority. However, economic considerations only cannot be enough to ensure optimal jurisdictional authority. Political considerations must also be considered since it helps shape the fiscal relations between governments in most of the federations.

Creative Federalism

This form of federalism was popular during the 1960s. One of its characteristics was that the federal government was responsible for the determination of the states’ needs (Lowi 147). During this period, the federal government served the state directly and provided its needs, which included social services. There was need for liaison between federal government and the state government in order to plan how to achieve the set objectives.

Cooperative Federalism

This form of federalism assumes that the state and federal governments have equal power. The local, state and national governments work together to solve common issues (Hills 907).

New Federalism

This was created in order to ensure devolution of power. This form was deemed necessary after the state governments lost power. Loss of power was associated with the enforcement of civil rights in U.S. and President Franklin Roosevelt’s New Deal (Zavodnyik 166).

There was a push and pull between the states and the federal government and this prompted for some change in policies. It led to the transfer of power back to the local and state governments. It involved the provision of block grants by the federal government. Revenue sharing was also returned to the lesser governments.

Civil Rights and Liberties

O’Connor, Yanus and Sabato mentioned the rights and liberties enjoyed by every American. However, some have been jeopardized today. One of the rights of the American people that have been jeopardized recently is the rights to privacy (communications privacy). This may be seen in the way the private communications of innocent citizens are intercepted by law enforcement agents. The USA Patriot Act, in particular has led to such violations.

The act came about in response to the September 11^th terrorist attacks. This act reduced the restrictions placed on agencies as they gathered intelligence within the United States. It also allowed for the deporting and detaining of immigrants who were thought to have terrorist intent. Therefore, there was an enhanced domestic security against terrorism. This led to the enhancement of surveillance procedures by the particular bodies. Surveillance and wiretapping were extensively used and at some point caused conflict.

The Electronic Privacy Information Center, for example, opposed the surveillance of packet switched networks. This is because the content in the address information would be exposed. There was also expansion in search warrants as the FBI could access voicemails. Only a search warrant was required in order for one to get access. The agents could also perform a ‘sneak and peek’ search. This was to be done without prior notice. This notice also prevented anyone from resisting any search even if it was wrongfully done.

These practices threatened the citizen’s individual liberties since they thought it was ironic that their freedom was shacked and yet the main terrorists (such as Osama) walked freely. I chose to discuss this issue because it is controversial. From the book by O’Connor, Yanus and Sabato, I have learnt that the efforts of the government to safeguard the United States from terrorism have come with a cost and the citizens are the ones to pay. Going through people’s voicemails and emails infringes the right to privacy and this should not be the case.

Another right that has been in jeopardy is the freedom of speech. The Democracy Is Strengthened by Casting Light On Spending in Elections Act (DISCLOSE) was opposed by several parties since it jeopardised the citizen’s rights and liberties (Kiang and Murray 41).

This bill was introduced in order to prohibit foreign corporations from influencing the election results through campaigns (Kolodny 154). This meant that the corporations were not allowed to make political contributions or provide access to certain information (financial) to its members or the public.

This, in a way, restricts some institutions from exercising their rights (free speech). Just as the American citizens were starting to express their rights to free speech, the democrats geared up for a vote on the new bill that would undermine the First Amendment. With the amendment of the bill, the playing field would not be levelled since the opposition would have been literally silenced. The funny thing is that the amendments were to be made only five months to the elections.

This bill was opposed and criticised by the American Civil Liberties Union. This was due to its ability to cause unnecessary damage to the freedom of speech rights (Warburton 176). In addition to this, it did not consider protecting the privacy of the citizens. One of the negative impacts that would have been caused by this is the lack of donor anonymity.

Some opposed it arguing that it would violate the principle of fairness and equality. I chose to discuss this case since freedom of speech should be enjoyed by every citizen in the United States of America. From what I have learnt from the course, I can rightfully say that laws that act in such a way as to prevent free speech should not be passed.

Works Cited

Bugh, Gary. Representation in Congressional efforts to amend the presidential election system. Burlington, VT: Ashgate Publishers, 2010. Print.

Edwards, George. Why the electoral college is bad for America (second edition). New Haven and London: Yale University Press, 2011. Print.

Goldford, Dennis. The American constitution and the debate over originalism. Cambridge: Cambridge University Press, 2005. Print.

Hills, Roderick. “The political economy of cooperative federalism: Why state autonomy makes sense and dual sovereignty doesn’t.” Michigan Law Review 64.4 (1998): 813-944. Print.

James, Leanoard. The Supreme Court in American Life. Chicago: Scott Foreman, 1964. Print.

Kelly, Alfred, Winfred Harbison, and Herman Belz. The American constitution: Its origins and development (7^th ed.). New York: W.W. Norton & Co., 1991. Print.

Kiang, Mathias, and Andrew Murray. Human rights in the digital age. New York: Routledge, 2005. Print.

Kolodny, Robin. The Several elections of 1824 – Congress & the Presidency. Washington, D.C.: American University, 1996. Print.

Lowi, Teri. The end of the republican Era. Oklahoma: University of Oklahoma Press, 2006. Print.

Mansbridge, Jane. Why we lost the ERA. Chicago: University of Chicago Press, 1986. Print.

Moore, John. Congressional Quarterly’s guide to U.S. Elections. Washington, D.C.: Congressional Quarterly. Inc., 1985. Print.

Nicholson, Zoe. The hungry heart – A woman’s fast for justice. Newport Beach: Lune Soleil Press, 2004. Print.

O’Connor, Karen, Alixandra Yanus, and Larry Sabato. Essential of American Government: Root and Reforms, 2011 Edition (10^th ed.). New York: Longman, 2011. Print.

Rehnquist, William. “The notion of a living constitution.” Texas Law Review 693.54 (1976): 344-511. Print.

Scalia, Antonin, and Amy Gutmann. A matter of interpretation: Federal courts and the law. Princeton: Princeton University Press, 1998. Print.

Warburton, Nigel. Free speech: A very short introduction. Oxford: Oxford University Press, 2009. Print.

Zavodnyik, Peter. The rise of the federal colossus: The growth of federal power from Lincoln to F.D.R. Santa Barbara, CA: ABC-CLIO, 2011. Print.

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