Is the U.S. Constitution Obsolete?
By Gary Scott, September 17, 2010 in Uncategorized

Is the U.S. Constitution obsolete since it was written in a bygone era?  Sixty-two percent of Americans surveyed by the Intercollegiate Studies Institute in 2008 disagree with the notion that, “America’s Founding documents are obsolete.  More importantly, as Americans’ knowledge of American history, political thought, civil rights, and economics increase; they tend to even more strongly affirm the continued validity of America’s Founding documents

The politics of jurisprudence today concern the hermeneutics of reading the Constitution.  Some claim that personal traits and life experiences, apart from formal education, importantly adjust one’s interpretation and empathetic reading and application of law.

Nominating our newest Supreme Court justice at the White House, for example, President Obama emphasized her “temperament” and her “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people…” 

ISI’s survey evidence demonstrates, however, that those characteristics often equated with empathy such as income class, race, ethnicity, and gender were all neutral, or failed to make a difference, in one’s strength of assenting to or rejecting the notion that, “America’s Founding documents are obsolete.”  Knowing the principles and the history surrounding those documents influence a person’s assessment of the status of these texts more strongly and when juxtaposed to various socio-economic classifications.

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Lee Trepanier on Sep 18, 2010 at 11:44 am

It is strange that the Obama adminstration places an emphasis on emapthy for its judicial nominees. I'm not sure whether this is an attempt to formulate an intellectual defense of the "living constitution" position or something else.

Anonymous on Sep 18, 2010 at 1:39 pm

I suspect that the reason (though the correlation isn't precise) is because the Obama administration subscribes (latently) to a theory of constitutional interpretation that we might call constitutional subjectivism. The theory of the living constitution is one variant of that position. Of course, original intentionalism is as well. I realize many folks have come to realize the problems with original intentionalism and have opted for something more like "originalism"--which is, of course, not the same. But this leaves open the question--is originalism a species of constitutional subjectivism (as over and against to what we might call the constitutional objectivism of folks like Plato, Aristotle, St. Thomas, or, for that matter Madison or Hamilton--though perhaps not, or at least not always, Jefferson)? I suspect folks like Whittington may still be in the constitutional subjectivism camp. That would be too bad--for there are modal and signifier-referent difficulties with constitutional subjectivism.

Last updated on Sep 18, 2010 at 1:41 pm.
Anonymous on Sep 18, 2010 at 1:49 pm


Let me suggest that the question "Is the Constitution obsolete?" has for its converse, at least partly, "Is the Constitution any good?" (the question which opens my Uncovering the Constitution's Moral Design). We want to know if the Constitution is good or bad (on balance) per se AND if it is good for us, in light of our particular circumstances, in our time and place. Is it generally good and does it suit us. If it is not and does not, then it is obsolete for us. But notice what happens when we frame the question this way. It becomes apparent that whether or not it is any good cannot be a function of whether its our Constitution or whether its the one our framers bequeathed to us or whether most Americans appreciate it (given an informed understanding of it). Whether it is any good (on the one hand) or obsolete (on the other) is a question about reality and not about perception (and not even about informed perception). Ontology must precedes epistemology in such considerations. What many of our friends and allies fail sometimes to get is that we must address such questions as yours and mine on their own terms. I say this in light of the relative dearth of conservative scholarship that goes to the merits of the Constitution itself (though my book and, I take it, J. Budziszewski's presentation at the institute this year, constitute an attempt to do that--Hadley's work falls into this camp as well).

Lee Trepanier on Sep 20, 2010 at 4:23 am

I know of originalism, but I never heard of original intentionalism. Is it a philosophical theory? a legal one?

Gary Scott on Sep 20, 2010 at 5:23 pm

Concerning American opinion on whether, “America’s Founding documents are obsolete,” interviewers did not specify whether these documents refer to the Declaration, the Constitution, The Federalist Papers, Presidential Addresses, or even the Mayflower Compact. Respondents who score higher on ISI’s civic knowledge test, however, more frequently and more strongly reject the general proposition above, no matter which texts they had in mind.

Now consider a sub-sample of Americans enjoying approximately equal knowledge of America’s history and institutions. Inside this sub-sample, differences of race, class, gender, or religious belief failed to further and systematically alter their judgments of whether, “America’s Founding documents are obsolete.” It suggests that American civic knowledge strongly shapes belief on this particular opinion; and not ethnic heritage, sexual biology, racial background, income flow, or religion.

Is the Constitution, in its amended form, eternally good? Per your cross-examinations above, it begs first the question of any converging intelligibility of that text. If legal texts are hopelessly arbitrary, as you know, then matriculation and graduation from law school can occur within minutes of learning of our meaningless language. Legal scholars however appear united, at least from my distance, in ruling despotic monarchy or mob-like democracy outside the rule-of-law tradition of our representative republic.

Is there any good news here? Popular opinion paradoxically overrules a mindless populism. Seventy-three percent of Americans in ISI’s 2008 survey affirm that, “A person’s evaluation of a nation improves with his or her understanding of that nation.” Even more encouraging, more knowledge of America’s history and institutions leads to an upgrading of trust or appreciation for the continued relevance of “America’s Founding documents.” Any bad news? College seniors know so little of America’s history and institutions, and only trivially more than college freshmen.

Anonymous on Sep 21, 2010 at 7:27 am


The phrase "original intent" or "original intention" may originate with the Reagan administration and principally with Edwin Meese III and the folks surrounding him. There's a speech by Meese in 1985 (I believe) delivered to the ABA and subsequent article ('86, I think) in U.S.A. Today in which Meese promotes a jurisprudence of original intention. There is also a subsequent debate in the law journals. Two important articles are H. Jefferson Powell's attack on original intentionalism in "The Original Understanding of Original Intent" and Charles Lofgren's defense of a duly modified variant of the position in "The Original Understanding of Original Intent?" (both in the Harvard Law Review). As I understand "originalism"--the idea originates in the attempt to develop an originalist jurisprudence, on the one hand, that is free of the defects of original intentionalism, on the other.

Anonymous on Sep 21, 2010 at 7:36 am


I wouldn't argue that the Constitution is eternally good. For I think no human constitution can achieve that status. The goal of human constitutions, after all, is the provision of man's temporal good. Nor do I think that a real and transcendent good entails only our Constitution. Rather, I think our Constitution is good in the sense that it presumes moral ideas that are themselves objectively and really good (and even eternal goods). Human constitutions are applications of moral ideas. The moral ideas don't change. But circumstances might dictate that the application of those ideas should (at least in certain, if not in all, respects). As for me, I think there is but one eternal constitution--monarchy. But it is the Kingship of Christ and the Kingdom of God. To that constitution, all others must bow. But, for the governance of temporal things here and now, our Constitution still has very real merits that continue to commend it to us--of course, I think even now there might be appropriate amendments to improve it (for instance, the electoral college has at best functioned a handful of times--and at worst, never--in the way that the framers intended; and as Jim Ceaser points out, there are problems with a less than fully explicated Presidential selection system--which therefore has changed more than once during our history and seems to be a bit of a haphazard amalgam at present; So should we change the electoral college? Nothing in the Constitution stipulates that it must function as it now does; should states change their laws to change how it functions?)

steve on Jul 20, 2011 at 8:02 pm

Wow, you educated idiots should have a beer and go fishing one time. Perhaps catch your own fish and eat it! Our Constitution was derived from a group of Very smart people who saw EXACTLY what we are seeing now! WE can take care of each other, the govenment CANT!

about the author

Gary Scott
Gary Scott

Dr. Gary Scott is Senior Research Fellow in Civic Literacy at ISI and is currently directing a research study of colleges' effectiveness at teaching civic subjects. Before joining ISI in February 2003, he served nine years as an associate professor of economics and graduate program director at St. Mary's University in San Antonio, Texas. His publications include a 1997 book Learning Capital and his more recent Equal Educational Opportunity and the Significance of Circumstantial Knowledge appearing in the British journal Education Economics. He earned his Ph.D. in economics at the University of Notre Dame in 1993.