Burlington High School 
Burlington, Kansas 
Teacher: Devra Parker

A Living Constitution for a Living Nation
By Jessica Doidge
12^th grade

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The Framers were on to something when this wrote this. They knew what the most basic of fundamental rights were and what a nation would require. A great nation requires defense, safety, and rules. They must all be delivered evenly, effectively and fairly. But there is one more item that a great nation needs--the ability to grow.

Although not stated directly in the Preamble, the Framers did include it in our Constitution when they wrote Article 1. In Section 8, there is the most necessary part of our Constitution. True, the Constitution in its entirety is vital, but it would not still be around if it weren’t for Clause 18, the Elastic Clause.

Also known as the Necessary Powers, Implied Powers, and the Proper Clause, this particular clause is the most essential part of our Constitution. Without it, our government would have written countless more Constitutions from scratch. But thanks to this rule, anything can be changed in the Constitution with amendments. That is what is so beautiful about this law. It is what keeps the heart of our country beating.

The reason I believe so firmly in this law is thus: Imagine having to write a brand new doctrine every time a major technological advancement occurs. There would be at least a hundred United States Constitutions. Policies such as voting rights given to minorities and women would have spurred a new Constitution. Little, tiny items that no one really thinks about would have required a new Constitution. Without the ability to amend, there is no room for our country to grow.

Could one honestly imagine the United States still counting African Americans as three-eighths of a person when deciding the representation of a state based on population or women not being able to vote? Or, can we even imagine a democracy with our representatives being chosen by the state legislatures and not the people? Of course not!

Our world has changed immensely in 200 years and, without our Constitution’s ability to change with it, we would still be stuck in the seventeenth century. We would have the same ideals and beliefs, and, no offense to our Framers, but some of them were wrong. Not because they were not smart, but just behind the times when put into today’s context.

The Framers knew that the Constitution wasn’t perfect when they made it. In fact, Benjamin Franklin was quoted saying, “For when you assemble a number of men…, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?”

He is exactly correct. How can a perfect document be created by man? It simply cannot be so because, as humans, we cannot live without a completely unbiased state of mind. We will always have opinions, be they wrong or not; there are always part of mankind. Therefore, we must allow room for changes to be made to the Constitution so that we can fix the trifling mistakes that our Framers might have made. Otherwise, they could escalate into a bigger problem.

The second main reason that the Constitution needs to remain a flexible and living Constitution is so that it can keep up with the advancements in technology. The invention of the airplane prompted new laws in determining how to govern the airspaces they fly in. Copyright and piracy laws have had to be made because of music sharing programs and the internet. It is a whole new world that has been made since the 1700’s.

True, yes, I believe that enumerated powers have their benefits. They are black and white. It is very easy to determine the law when it is not negotiable. However, if all powers were written down, it would take a lifetime of writing to specify all instances, cases and scenarios when a certain power would be used, or how it should be used. One would have to write down each specific occurrence before anything could be done. There is absolutely no margin with an enumerated Constitution.

That is why I believe that a living Constitution is better than enumerated powers. It is more practical for our world of free thinkers. The free will of the United States resides in a living Constitution. I believe that out current Constitution fulfills the needs of our great nation and balances the powers equally. I say thank you to the Framers for allowing the freedom of the Constitution while still allowing a sturdy platform formed by the enumerated powers. It is the longest surviving Constitution of any nation. That has to say something. I feel that the Constitution does all that it says: establishes justice, insures domestic tranquility, provides for the common defense, promotes the general welfare and secures the blessings of liberty to ourselves and our children. I feel quite confident that the future our country is safely assured.

Answers To Questions Prompted By The Required Reading

Q1- Explain what Roger Pilon means when he speaks of a bifurcated Bill of Rights.

 Describe what happened in 1938, according to his testimony.

A1- When he speaks of bifurcating the Bill of Rights, he is talking about splitting the fundamental rights from the nonfundamental rights. In 1938, FDR tried to pack the court with more judges so that it would side with him. However, the court changed their opinion and the sided with him.

Q2- Give three examples of what is described in the testimony as fundamental rights and three examples of nonfundamental rights. Which of these rights do you, after reading portions of Dr. Pilon's testimony, believe should be subjected to strict scrutiny?

A2- Fundamental rights are things such as the freedom of speech, press, and voting whereas, things such as the ability to carry a concealed weapon, property ownership, and contracts are nonfundamental rights. None of them, I think, should be subject to strict scrutiny.

Q3- Define:

Enumerated powers- These powers are granted to the United States Congress by Article 1 Section 8. This type of power means that the legislature can only use the powers that are declared in writing, in the Constitution. They can be limited though, by the Bill of Rights and other works in the Constitution.

Living constitution-This is a term that is often given to our constitution because of its ability to grow and adapt to our present needs, due mostly to the Elastic Clause. It is extremely flexible and can be modified for technological advancements and new thoughts and ideas.

Politicizing the constitution- Politicizing the Constitution is when a politician twists the Constitution so that it works with and/or for his cause.

Q4- Why does Roger Pilon claim a living constitution is worse than no constitution at all?

A4- He says this because the constitution remains but the political forces that a constitution is supposed to keep under control are released. If our own politicians disregard the law of the land, then how are the people expected to do so; they won’t.

Q5- Explain what is meant by moral legitimacy, political legitimacy and legal legitimacy. Give your own example of each.

A5- Moral legitimacy is what a person believes to be right or wrong according to their beliefs such as abortion. Legal legitimacy is whether or not a person feels that a law really is of an authority to them such as obeying a speed limit. Political legitimacy is whether or not people believe that the government is really in control of them and if it’s worth while following.

Q6- Dr. Pilon spends some time enumerating five implications of an illegitimate constitution. Name the five implications and state why one seems to be the most serious in your personal opinion.

A6- Five implications are the loss of legitimacy, disorder that follows a very general law, disrespect for the Constitution, losing the discipline a Constitution is supposed to enforce, and the economic implications of boundless government. In my personal opinion, I would believe that losing the discipline found in the Constitution would be the most serious implication to lose. Even if no one really followed the Constitution, as long as they didn’t commit any serious crimes, there would be no reason to be alarmed by the disregard.

Q7- When he says "those true to its conception as a means of founding, maintaining and promoting a great nation in the public good.", is Mr. Frankfurter talking about the wisdom of enumerated powers or the constitution's preordained destiny as a living document?

A7- I believe that he was speaking of the wisdom held in the Constitution as a living and breathing manuscript that could be changed and amended to meet our present day needs.

Q8- Do you agree, with Felix Frankfurter, that the Founding Fathers refused to write limitations and qualifications into the U.S. Constitution? 

A8- No, I don’t agree with him because there were limitations written into the Constitution.

Q9- Compare the manner in which the U.S. Constitution was changed after the Civil War with the way changes were made to the Constitution during the New Deal era.

A9- The New Deal Era put into effect a lot more civil services such as welfare and works progress groups illegitimately without amendments to the Constitution. The Civil War gave African Americans their freedom, and fundamental rights with changes in the Constitution and the addition of amendments.

Q10- U.S. Constitution prevents legislators from making the needs of Americans their priority. This paragraph claims that the expressed purpose of the U. S. Constitution is not to serve the people but the politicians.

Q11- FDR made a political speech for the times; the eve of WW II. References were made in his speech that may be relevant to our position in the world today. Comment on the similarities.

A11- Decisions made in today’s world immediately affect everyone. Other forms of government laugh at our own democracy but we knew then and now that people will not submit to a dictatorship for very long and will want to choose their own leaders. Also, fear is built up in the world with governments of the sort.

Q12- Comment on whether you think the "new idea" come to "dominate thought about government" is still the dominate idea or has the past 70 years turned it into an old idea that needs to be reformed? Make these comments brief as this question is the crux of the paper you will be preparing for submittal.

A12- I think the “new idea” is still applicable to our world today. I believe that it will be for as long as the world remains essentially uncorrupted.

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