The Constitution as a Living Document

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One year ago, I wrote here about the threat of a Constitutional crisis. In doing so, I cited a speech made by Thurgood Marshall, the first African American to serve on the Supreme Court, on the occasion of the 200th birthday of the Constitution in 1987. Marshall wrote, “I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.” He continued, “Along the way, new constitutional principles have emerged to meet the challenges of a changing society. The progress has been dramatic, and it will continue. The men who gathered in Philadelphia in 1787 could not have envisioned these changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. ‘We the People’ no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them.”

Since the 2020 elections, across our nation, dozens of laws have been proposed—and most of them have been passed—that acquiesce in outdated notions of liberty, justice, and equality. Often these laws have been passed with their proponents knowing full they will not withstand a constitutional challenge. They do, however, reveal the biases of those who support them. They also reveal why Marshall was right in stressing that the Constitution was and must remain a living document.

For example, there is endless debate about what rights to gun ownership are established by the Second Amendment, an amendment written before bullets as we know them had even been invented, let alone semiautomatic weapons. When Marshall wrote of “new constitutional principles [which] have emerged to meet the challenges of a changing society,” he had in mind, among others, the Thirteenth and Fifteenth Amendments, which ended slavery and the denial of the vote based on race, respectively. During his lifetime, he saw progress toward a more just and equal nation. Had he lived into the twenty-first century, he would have been horrified to see us moving backward.

Last week Marshall would have seen a glaring backward movement in the area of racial justice as he watched with the rest of the nation what happened in Tennessee. The Tennessee state legislature expelled Rep. Justin J. Pearson and Rep. Justin Jones, two young black representatives because they took part in a peaceful protest against the gun violence that most recently took six lives at an elementary school in Nashville. These representatives were removed from political office after being duly elected by their constituents, leaving those constituents temporarily without representation. Representative Gloria Johnson, a white Democrat, participated in the same protest but was not removed from office. Ironically, quiet racial gerrymandering of voting districts is what brought into power state legislatures that are able to get by with such blatant injustices.

While both Rep. Justin J. Pearson and Rep. Justin Jones have been reinstated, the backlash from their expulsion will unravel in the weeks to come. Our Constitution assumed men of honor would be the ones enforcing it. Unfortunately, as the Constitution evolves we may have to legislate standards of integrity as well. For the better part of 200 years, Americans used the power of the vote to say no to politicians involved in a scandal or espousing blatant racism—except in the South, where that remains a problem. Our Founders didn’t think they needed to be made explicit. Perhaps today they do.


"Constitution"  by is licensed under CC BY 2.0

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About the Author
Donna Haisty Winchell directed the first-year writing program and codirected Digital Portfolio Institutes at Clemson University before her retirement in 2008. She edited several freshman writing anthologies and continues to write about argumentative writing and about fiction by African-American women. She is the author of The Elements of Argument and The Structure of Argument with Annette T. Rottenberg.