Constitutions: amend with care: as talk of changing the U.S. Constitution stirs up again, state constitutions serve as examples of what it can mean to alter these documents.

• Author: Bowser, Jennie Drage
• Position: Cover story

The U.S. Constitution is nearly 230 years old, and its longevity and seeming immutability are both a cause for celebration and a source of debate. You'd be hard-pressed to find a government document more revered. John Adams referred to its creation as "the greatest single effort of national deliberation that the world has ever seen." Benjamin Franklin teared up while signing it. George Washington called it "the guide which I never will abandon."

Most Americans agree with the sentiments of our forefathers and the values spelled out in the preamble. But not everyone agrees the U.S. Constitution should be so cherished that it's untouchable. Critics argue the country would benefit from a constitutional overhaul, or at least an update, but lament the arduous path to amending it.

Indeed, the U.S. Constitution has been amended only 27 times--a testament to just how difficult the process is. Either both houses of Congress must pass an amendment by a two-thirds vote, or two-thirds of the state legislatures must call for what's known as an Article V Convention. The amendment must then be ratified by three-fourths of the states, either by the state legislature or by a convention, and Congress can choose which.

Among those pressing for a convention today are some who would rein in the federal government, others bound to a particular cause--balancing the federal budget or overturning what they view as unpalatable Supreme Court decisions--and still others who simply see the Constitution as outdated. Would-be changemakers might want to consider the experience of the states, where amending constitutions is relatively easy and has been done, with mixed results, frequently.

Antiquated or Timeless?

Georgetown University law professor Louis Michael Seidman has been vocal in his criticism of Americans' strict adherence to the document, referring to their reverence as "Constitution worship." Others defend the Constitution's relevancy, arguing its longevity reflects the genius of the Founding Fathers. Its general principles have stood the test of time and continue to reflect the values for which this country stands.

When asked whether our Constitution is still relevant hundreds of years after it was written, Richard Epstein, a professor at the New York University School of Law, says yes--at least mostly.

"Sections like the Fugitive Slave Clause are emphatically not relevant, but much of the document is a coherent institutionalization of structures and protection of rights that harness the good in self-interest, while controlling for avarice and fraud."

And on the question of whether our Constitution should be easier to amend, Epstein says no.

The strict amendment process prevents the adoption of short-lived changes and ensures the approval of only those amendments that enjoy broad support, he argues. If amendments were easy to make the result would be a document cluttered with frivolous changes. "Most amendments, especially if they themselves are amended, will make matters worse," Epstein says.

Seidman and others disagree. They argue that the difficulty of adapting the document to a changing world is out of step with contemporary needs.

According to Seidman, problems arise because some of the Constitution's provisions are simply unclear. Political actors end up interpreting what these clauses mean, resulting in "political rather than practical" debates, he says.

To illustrate this, he points to the Affordable Care Act. The debate over its constitutionality under the Commerce Clause forces discussions, he says, that are "away from practical matters, like whether the statute will increase coverage at acceptable costs or force people into coverage they don't want. Instead, we are talking about who is a true American and who is a traitor to our foundational document."

It's simply too difficult to apply a document that's hundreds of years old to our vastly different modern world, he argues. "A lot of the problem would be solved if we better understood that the Constitution was written by ordinary human beings who suffered from the prejudices, narrowness of vision and inability to foresee the future that all of us suffer from," he says.

Amend What?

Many argue the amendments adopted so far were necessary, proof that the amendment system can work. "Today's Constitution is a realistic document of freedom only because of several corrective amendments," Thurgood Marshall, the first African-American U.S. Supreme Court justice, wrote after successfully challenging the doctrine of "separate but equal" as a violation of the 14th Amendment."

Many changes suggested over the years, however, never made it into the document. The list is long, with some proposals breaking sharply along partisan lines. Recently debated ideas include a ban on burning the U.S. flag, statehood for the District of Columbia and proposals from various points of view concerning marriage and reproductive rights.

The most popular of all successful amendment topics has been elections. Ten amendments relate to elections in one way or another, and the topic continues...