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By Bill Altreuter

For some reason I drifted to sleep last night thinking about constitutional law. One of the things that impresses me as peculiar about Originalism is that its proponents seem to overlook the fact that the document has changed 16 times since its periwigged drafters first set pen to paper. Sometimes the changes have been wrong-headed exercises that had no place in the fundamental governing document of a nation and sometimes the Constitution has been amended to fine-tune the document. There have been more than a few occasions when the Constitution has been amended to correct a serious injustice, and the Civil War Amendments, along with the 19th, 23rd and 26th fall into that category.

It's the 14th that's the big one, though. After that we are really looking at a completely different government, and denying this is the equivalent of admitting that you are really living in a dream world.

What really got me thinking though was that the Constitution sometimes seems more capable of amendment than at other times. Setting aside the anomalous 27th for the moment, the 18 year-old vote, in 1971, was the last time the amendment process has been used. 39 years isn't the longest period without an amendment-- the average is 13.6 years, more or less, with the longest gap being the 61 years between the 12th(1804) and the 13th (1865). There was a 43 year gap between the 15th and the 16th and 17th, passed the same year. We are now in the third longest period without a Constitutional change. We were going nuts between 1961 and 1971, a more prolific stretch than any other.

I find myself wondering if the prospect of Constitutional change seemed as remote between 1804 and the Civil War as it does today. Hell, even passing ordinary legislation seems like a big lift today.

Full post as published by Outside Counsel on August 11, 2010 (boomark / email).