An ongoing debate in our nation is the question of whether our rule of law is a “living Constitution” or one that should be taken literally. The former says the Constitution was intentionally written in broad and flexible terms so as to change with the times. The latter focuses on the original words, meaning, and intent of the Constitution.
This debate has been raging since 39 of the 55 delegates to the Constitutional Convention signed the document. Three delegates refused to sign because they considered it a flawed document: George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts.
In the state ratification debates that followed, these three were joined by a host of other “Anti-Federalists” who also opposed ratification, including: Samuel Adams, Patrick Henry, James Monroe, Richard Henry Lee and George Clinton.
The “Federalists” were rallied by Alexander Hamilton, James Madison and John Jay, who authored a series of 85 articles in support of the Constitution: “The Federalist Papers.”
In Federalist No. 50, Hamilton and/or Madison focused on changes to the Constitution: “Periodical Appeals to the People Considered,” which notes: “IT MAY be contended, perhaps, that instead of occasional appeals to the people, which are liable to the objections urged against them, periodical appeals are the proper and adequate means of preventing and correcting infractions of the constitution.”
Interestingly, Federalist 50 cites Pennsylvania’s now forgotten Council of Censors, which met in 1783 and 1784 to determine “’whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other.’ This important and novel experiment in politics merits, in several points of view, very particular attention . . . .”
Among the benefits cited of such a Council of Censors are reasons why the amendment process is so important, including serving as a check to the “passion” of the moment that results in decisions based upon “not reason” and decisions that “misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.”
In his Farewell Address of 1796, President George Washington said: “If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.”
I agree: if we fail to follow the Constitution, it becomes mere words on paper. When we adhere to the Constitution and amend rather than interpret it, it remains our rule of law.