Is the Constitution a “living” document? 61a definition of executive power. The wording also had the desirable consequence of
making the clause flexible enough to serve the country both in times that require strong
presidential action (such as the Civil War, the Great Depression, or World War II) and in
times when the president was not as central (such as the “golden age of Congress” in the
late nineteenth century).
Perhaps the best illustration of the importance of ambiguity in the Constitution
is the commerce clause, which gives Congress “the power to regulate commerce...
among the several States.” What is “commerce” and what exactly does “among the
states” mean? Different interpretations have reflected prevailing norms of the time.
In the nineteenth century, when the national government was relatively weak and
more power was held at the state level, the Supreme Court interpreted the clause
to mean that Congress could not regulate commerce that was entirely within the
boundaries of a single state (intrastate, as opposed to interstate, commerce). Because
manufacturing typically occurred within the boundaries of a given state, this ruling
led to a distinction between manufacturing and commerce, which had significant
implications. For example, Congress could not regulate working hours, worker safety,
or child labor given that these were defined as part of manufacturing rather than
commerce. In the New Deal era of the mid-1930s, the Court adopted a more expansive
interpretation of the commerce clause that largely obliterated the distinction between
intrastate and interstate commerce. This view was strengthened in the 1960s when
the Supreme Court upheld a civil rights law that, among other things, prevented
owners of hotels and restaurants from discriminating against African Americans.
For nearly 60 years this interpretation held. More recently the Supreme Court has
tightened the scope of Congress’s powers to regulate commerce, but the clause still
serves as the basis for most important national legislation. The commerce clause has
been unchanged since 1789, but its ambiguous wording has been used to justify or
restrict a varying array of legislation.
One consequence of this ambiguity is that both sides of every major political debate
in our history have claimed to ground their views in the Constitution. Proslavery
and antislavery factions during the pre–Civil War period, New Deal supporters and
opponents during the Great Depression, and civil rights activists and segregationists
all claimed to have the Constitution on their side, whether the dispute was over a broad
or narrow interpretation of the commerce clause, the Fourteenth Amendment, or the
Tenth Amendment. Today’s vigorous debate about the proper scope of the national
government’s powers on issues such as health care, immigration, and economic policy
is only the most recent chapter in this perpetual conflict.Changing the Constitution
The most obvious way that the Constitution keeps up with the times is by allowing for
changes to its language. The framers broadly supported the idea behind Article V,
which lays out the formal process for amending the Constitution: the people must
control their own political system, which includes the ability to change it through a
regular, nonviolent process. George Washington called constitutional amendments
“explicit and authentic acts,” and Thomas Jefferson was adamant that each generation
needed to have the power to change the Constitution. Toward the end of his life, he
wrote in a letter to James Madison:Some men look at constitutions with sanctimonious reverence, and deem them like
the ark of the covenant, too sacred to be touched. They ascribe to the men of the
preceding age a wisdom more than human, and suppose what they did to be beyondFull_03_APT_64431_ch02_030-069.indd 61 16/11/18 1:34 PM