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Unpacking the Confiict 65

Subsequently, after procedural changes were made, the Court once again upheld the

practice. However, the Court has since decided that capital punishment for minors

and mentally impaired people constitutes cruel and unusual punishment—decisions

that reflect modern sensibilities but not the thinking of the framers.^28 Similarly, the

text of the First Amendment protections for freedom of speech has never changed, but

the Supreme Court has been willing to uphold significant limitations on free speech,

especially in wartime. When external threats are less severe, the Court has been more

tolerant of controversial speech.

The line between a new interpretation of the Constitution and constitutional

change is difficult to define. Clearly, not every new direction taken by the Supreme

Court or new interpretation of the constitutional roles of the president or Congress

is comparable to a constitutional amendment. In one respect, a constitutional

amendment is much more permanent than a new interpretation by the Court. For

example, the Court could not unilaterally decide that 18- to 20-year-olds, women,

and African Americans no longer have the right to vote. Constitutional amendments

expanded the right to vote to include these groups, and only further amendments could

either expand or restrict the right to vote. However, gradual changes in constitutional

interpretation are probably just as important as the amending process in explaining

the Constitution’s ability to keep pace with the times. For example, although the Civil

War amendments produced lasting and significant changes in the Constitution, during

the New Deal shifts in constitutional interpretation helped establish a huge growth in

national power without changing a single word of the document.

“Why

Should

I Care?”

One of the most remarkable things about the Constitution is its longevity. While

there are intense debates about whether a “living Constitution” is a good thing,

there is no doubt that its ability to change with the times, whether because of

its amending process, multiple interpreters, or ambiguity, has helped make it

the oldest constitution in the world. People may joke that the Constitution isn’t

relevant anymore, but it shapes the boundaries for all of today’s policy debates and

institutional struggles.

Unpacking the Conflict

As we discussed at the beginning of this chapter, the presidency of Donald Trump

raises many questions about the strength and resilience of our Constitution. Considering

all that we know about how the Constitution works, Is American democracy in danger?

Do we really need to be afraid of nuclear war?

While this presidency has raised other new, important constitutional questions such

as “Can the president pardon himself?” and “How does the emoluments clause apply to

the complex real estate holdings of the Trump family?” a look at the facts indicates that

the Constitution is working just as the Founders intended. The first two years of the

Trump presidency illustrate many of the themes of this chapter: the conflictual nature

of politics established by the Constitution (there has been plenty of conflict!) and the

fact that multiple interpreters and ambiguous language provide the flexibility for our

political system to respond to challenging times.

To protect against majority tyranny, the separation of powers and the system

of checks and balances in our political system divide power by giving each branch

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