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Posted: September 5th, 2023
How accurate is it to describe the US Constitution as too rigid and difficult to change? The USA has a written codified constitution and as a result, it may be described as too rigid and difficult to change. The UK in contrast, has an unwritten constitution in the sense that it is not contained in one single document so it lacks a formal constitution but is made up of a variety of different sources along with long-standing traditions. This has led to some saying it is too flexible and easy to change.
While it may be argued, that the US constitution is too rigid and too difficult to change and this is highlighted through the lack of new amendments, I do not feel that this is a bad thing, it was desire of the Founding Fathers to be this way in order to ensure long-term political stability. In order to amend the constitution the Founding Fathers stated that Congress must call a national convention at the request of two thirds of the state legislatures or there must be a two-thirds supermajority in favour of the amendment of both houses in Congress, the first has never been used.
For a proposal to be ratified the Founding Fathers specified that there should never be another supermajority in three-quarters of the state legislatures for this amendment to be added to the constitution. The relatively inflexible nature of the US constitution is revealed through the number of amendments that have been made. Since the bill of rights, which was the inclusion of ten rights to the constitution, there have been only 17 amendments made.
Even two of these cancel each other out, the 18th and 21st regarding to the prohibition of alcohol. This could be argued this is appropriate rigidity, some people would argue that it prevents the USA from adapting to changes in the national culture and situations. Many people state the ‘right to bear arms’ as the principle example highlighting the nation’s failure to set stricter gun laws. However, the nature of the constitutional change in the USA requires that the majority of people to put pressure onto Congress to implement necessary changes.
The fact that this has not happened in some ways shows that the constitution is fulfilling its role and preventing fundamental changes based on minority views, just as it was designed to do. While the limited number of amendments presents the USA constitution as being highly flexible, it has been kept up to date through judicial interpretation. The founding fathers granted the judiciary the power to interpret the document and this has allowed the rules of the constitution to be kept up to date. It has been flexible in the sense it can evolve along with the changes in society.
In this role, the judiciary has been willing to interpret the words in the light of modern conditions and ignore precedent. It should be noted that when the Judiciary is mainly Republican, they are more likely to conserve the constitution in its present state, whereas Democrats are likely to be more willing to add and interoperate the constitution more freely. The constitution was intended to be a full set of fundamental principles for the ‘new nation state’. If they are such fundamental principles, then it possibly could be argued that it should in fact be entrenched and difficult to change.
In the USA, constitutional law is above that of ordinary statute law where there is conflict between the two. In contrast, the UK does not have constitutional law. ‘Constitutional changes’ are implemented in exactly the same manner as statute law, by a simple majority in the sovereign parliament, such as the Devolution of Scotland, however, in America any change in power would need constitutional amendment, and as I have pointed out this is a difficult process, however though not many amendments have been enacted, a few have showing it does happen time to time.
The founding fathers set in place the rigidity of the constitution, giving the judiciary, the ability in making constitution to be flexible in terms of its interpretation, thus allowing it to keep it up to date. It has stood the test of time and has maintained political stability
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