The Constitution and Bill of Rights

Flawed in its greatness; great in its flawedness

As one of the foundational documents of our nation, the Constitution’s importance in our government’s infrastructure can’t quite be overstated. In spite of being over 200 years old (and would most likely crumble into dust if you looked at it too hard), it has served as the fundamental basis for countless decisions made on every level of government for as long as it’s been ratified. The era of Federalist vs. Antifederalist antagonism seems long gone, and almost silly in retrospect, knowing just how crucial this yellowing piece of parchment would eventually become for everything America. And it was, indeed, the cathartic culmination of years of frustration built up from the nation’s troubled past.

However, as important as it is, & as superior as it was to its less-successful predecessor Articles of Confederation, it won’t come as a surprise to hear that the Constitution is — like all other things — very, very flawed. Especially if you’ve paid any attention to any supreme court case that rests on the deliberator’s ability to interpret the Constitution’s purposely ambiguous language. The Constitution’s vague wording has caused problems more than once, with notable examples involving any Supreme Court case resting on amendments like the Fourth and Eighth that house particularly notorious examples of nonspecific wording (the ‘search and seizures’ and ‘cruel & unusual punishment’ clauses in particular). There’s also the inherent problem of it just being outdated— a document from more than two centuries ago can’t possibly live up to the standards of contemporary America; one that’s undergone significant technological, social, & political changes by way of two world wars, nearly 50 economic recessions, the arrival of the digital age, and many more remarkable advancements. A more specific example of this could likely be the Third Amendment, which has little relevance now that the government no longer has a need to quarter soldiers at all, and has, in fact, never even been cited in a single Supreme Court case. It was absolutely necessary then, but in the context of America today, it’s little more than a waste of pen (quill?) ink.

As these flaws are – in my opinion – the most egregious the Constitution and Bill of Rights’ have to offer, my version of the documents would do away with the vague wording and make more of an effort to get specific about what certain clauses apply to, when, and why. For example, the ‘cruel & unusual punishment’ clause of the Eighth Amendment could enumerate specifically what punishments it considers to be ‘cruel’ and ‘unusual’. While the Founding Fathers may have preferred to keep things indeterminate as an easy way of covering broader grounds, it’s clear now that this has done much more harm than good. Greater amounts of deliberation will be needed to achieve this — getting specific means you must heavily consider the semantics and implications of your word choice — but it’s more than worth it for the amount of future confusion in courts & other legal decisions that would be absolved.
I would also change certain amendments to fit the modern contexts of today, and make it easier for amendments to be added in the first place, since they have always been infamously hard to pass. A staggering 11,000 amendments have been proposed since the Bill of Rights was passed in 1791, but only 27 have ever been ratified (that’s about 0.24%). This is because any proposed amendment requires a two-thirds majority agreement from not just one, but both houses of Congress to pass; something much easier said than done. By either lowering the threshold of votes needed, or requiring something different entirely, the process of amendment could be streamlined, therefore making the Constitution easier to modernize with changing times.

In regards to specific amendments I would add, change, or remove, I have a few ideas:

• Specify the right to vote in Article I. Due to its vague wording, the Constitution never specifically enumerates the right for citizens to vote. Many Americans believe that their right to vote is inherent, but as the Constitution only protects the right for “members of several States” to elect members of the House of Representatives. This means loopholes can easily be exploited to bar certain people from voting. This can be seen not only in the 19th and 20th centuries with things like poll taxes and intelligence tests, but as well as in contemporary America, with certain states still not allowing felons to vote. Even a small additional clause to Article I reading something like “No citizen shall be deprived of their right to vote” would be enough to fix this issue.
• Restrict the Second Amendment. The right to bear arms has become a hotly debated topic in recent years, and brings up strong feelings from both sides of the debate. Proponents of it argue that they ought to have a right to defend themselves, and that because America is ‘the land of the free’, they should be allowed to exercise this right freely. While I do understand this point of view, it’s crucial to consider that the kinds of guns we have available on the market now are simply nothing like anything we had in the 18th century. These days — depending on what state you live in — almost anyone can walk into their local gun store and buy an automatic assault rifle that can spray tens of rounds in mere seconds. On the other hand, from the 16–1800s, single-shot powder muskets, pistols, and rifles were most of what technology had to offer. Clearly, the guns we have now are leagues above their more primitive predecessors; and yet, the Second Amendment has stayed exactly the same. This doesn’t seem very logical, and the consequences of this lack of modernization are clear; with America having among the highest rates of school shootings and gun fatalities in general. A recent study put the numbers at 1 gun death every eleven minutes. Something like a pistol is understandable for self-defense, but there’s simply no reason why any civilian would need access to weapons capable of mass-killing, like machine guns or AR-15s. I may be biased as a fairly liberal person, but regardless of what political affiliation someone has, there’s no justification for the level of brutality the Second Amendment now enables.
• Get rid of the Third Amendment. I gave most of my reasons for why earlier in this section, but it having basically no relevance today, I see little reason as to why we even need it. You could maybe stretch it as being important to defining citizen-military boundaries, but if that was its real intention, it’d be much more efficient to just change it to that. As it stands now, it’s sort of a dead weight.
• Add an amendment to protect LGBTQ+ rights. As they stand now, there is currently nothing in the Constitution or Bill of Rights offering any protection whatsoever from the rights of queer folk from being taken away. Minority rights were a concern the drafters had when writing both documents, but the very concept had nearly the opposite meaning that it does now; instead mainly pertaining to the wealthy & powerful few. With over 500 anti-trans bills introduced in the past year alone, and even the right for two same-gender people to get married at constant threat, it seems like we need an amendment like this more than ever. The amendment would ideally have a clause that protects gay marriage, as well as the legality & accessibility of hormones, gender-affirming surgeries, name/sex marker changes, and potentially even more. It could read something like… “The rights of same-gender couples to marry shall not be abridged; nor the access of gender-affirming care for Transgender individuals, in and out of medical settings”. I can’t really see an amendment like this realistically getting passed (at least not in our current sociopolitical climate), but it still ought to be a priority nonetheless.
• Add an amendment abolishing the death penalty. While capital punishment has hundreds of years of roots in our nation, I do not think that states should have the right to take a person’s life, full stop. Even besides any issue of morality, countless studies have observed that the system is inherently flawed on levels inexhaustibly deep. The Death Penalty Information Center is a wonderful official source that provides information and regular press releases to the government, media, and general public on everything related to capital punishment. In an article about racial bias, they cited a 1990 study by the USGAO that noted “In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.” This is on top of mounds of other evidence that points to clear racial disparities, including that defendants with white victims are more than three times as likely to receive capital punishment than defendants with victims of color. I’ve also written extensively in my midterm essay about how the supposed advancement in humaneness of methods has been shown to be false. The flaws in this system are so inextricable, and so tied to hundreds of years worth of human bias and error, that a full abolishment is the only thing that can fully absolve them. We may be well on our way to an outcome like this, too — death penalties have been on a slow decline since the mid-80s, and almost half the states already have it banned.

I could write more specific things I’d like changed, but overall, my grievances about the vague wording and difficulty in amending cover most of my concerns. If it were up to me, I’d write an entirely new Constitution that efficiently tackles the issues of a modern America better than the 200-year-old document we have now ever could. However, that’s easier said than done — it’s an impossible feat to account for all the wants and needs of hundreds of millions of people perfectly in just four pages. That being said, the best thing we can do in the future is just to stay vigilant and progressive about making sure we’re always on top of tackling our issues.