An Historical Introduction to the Constitution of the United States

2. Free speech

1. First apparition

Freedom of speech has been omitted in the English charters of liberty, because neither the Magna Carta of 1215 nor later the English Bill of Rights of 1689 mentioned a right like freedom of speech. The more it was revolutionary, when the first written protection of free speech was put into the Massachusetts Body of Liberties in 1641. After the American Revolution, the newly independent states formed constitutions, of which several mentioned freedom of speech. From this moment on, freedom of speech was understood as one of the fundamental rights, which every free America should possess.

2. The historical struggle over the extent of free speech

Only seven years after the First Amendment was approved in 1791, the extent of the right of free speech was deeply questioned. Under English law, criticizing governmental actions or the government itself was forbidden under punishment.

27. The Sedition Act of 1798

It was considered a form of treason known as sedition, when evaluating the government and publishing negative results. Sedition came in very handy, whenever the government was in a political crisis. It so happened, that President John Adams and his Federalist Allies in Congress enacted the Sedition Act in 1798 to weaken their political opponents, Thomas Jefferson and his Democratic-Republican-Party. However, sedition, as it was known in England, was modified in America as far as truth was introduced as a defense to sedition. Nevertheless, colorful metaphors, as they are often used in critical statements and evaluations, could hardly ever be proven factually before the Federalist-dominated judiciary of that time. As a consequence, the Sedition Act of 1798 was never brought before the Supreme Court. Instead Thomas Jefferson and James Madison drafted the Virginia and Kentucky Resolution, which said, that states had the power to declare laws like the Sedition Act unconstitutional. The Sedition Act became the main part of the Democratic-Republican election campaign and Jefferson was well successful with it. He became president in the election of 1800. The Sedition Act expired in 1801 and thanks to Jefferson it was not until 1917 that another sedition law was passed.

28. Espionage Act of 1917

The Espionage Act of 1917 prohibited any disloyal interference with the form of government in the U.S..  The result was that more than two thousand people were convicted of violating the Espionage Act. Appeals were numerous among the convicted prisoners and for the first time the Supreme Court was about to rule on the right of free speech. In Schenck v. United States (1919), the Supreme Court ruled that the Espionage Act was conforming to the First Amendment and from then on, the struggle over the nature of free speech and its limits continued until the present day.

3. Today’s right of free speech

Today, if a governmental action seems to infringe upon the freedom of speech, one has first of all to determine, whether the action is “content-based” or “content-neutral”. If the action is “content-based”, the strict scrutiny test is applied and the action will be rarely sustained. On the contrary, “content-neutral” actions are subjected to a less demanding test and are therefore more often upheld.

1. Amendment II

1. The militia of minutemen

During the colonial period (1508-1763), Americans learned to disregard the British use of a permanent and professional army. Americans therefore decided against a standing army and established the institute of minutemen, who successfully fought in the American Revolution. Minutemen formed a kind of militia, which was composed of normal citizens, who had received state organized training sessions with guns. Every free male adult had the duty to own a weapon and ammunition and to attend sporadic drilling sessions in town. The advantage of the militia was the low cost for the government and great loyalty towards their mission. American citizen had to defend their beloved liberties on their own, instead of sending a professional army to war. Motivation was therefore high, because minutemen fought for their own aims and not for money. Today, the militia of the American Revolution continues as the National Guard.

3. The right to bear arms belongs “to the people”

The second part of the Second Amendment declares that the right to bear arms belongs “to the people”. The interpretative question, whether an individual right to bear arms or rather a collective right of the government to form a militia is protected by the Second Amendment, can be answered by looking at the Second Amendment’s history. The same expression “to the people”, as it is found in the Second Amendment, appears in the First, Fourth and Ninth Amendment. In their context, the expression applies to individual rights, not states. Therefore, the assertion, that the Second Amendment also protects the individual right to bear arms doesn’t seem too far fetched. Moreover, James Madison regarded it as an outstanding advantage of the American people to be armed in comparison to almost every other nation, when he wrote an article in Federalist 46. And indeed, the Supreme Court ruled in 2001, that the Second Amendment well included an individual right to bear arms outside a militia.

2. Amendment III

Nowadays, Americans don’t pay much attention to the Third Amendment and the Supreme Court never actually decided a case on the ground of the Third Amendment. However, the Third Amendment was one of the dearest to American ancestors.

2. First Quartering Act of 1766

In 1756, when the British defended the western lands of their American colonies from the French and their allied Native American tribes in the French and Indian War (1754-1763), citizens of Albany denied British soldiers refuge in their houses. The British commander of the military troops then took the homes by force and thereby enforced his right of room and board. This was considered by the Americans as a deep intrusion in the private sphere of the houses` owners and their families. The British didn’t even have the duty to pay what they received, when Americans quartered them. With the Quartering Act of 1766, Americans were even forced by a written document to give British troops room and board. Obviously, heated debates were led over the Quartering Act of 1766 and Americans opposed it with mighty strength. They thought of it as a tax for a standing army, which they opposed to have. The first American colony, who stood up to such practices was New York. New York banned quartering troops from private homes without the owner’s consent by putting their Charter of Liberties and Privileges in 1683 into action. The controversy over the issue finally led to the Boston Massacre in 1770. The Massachusetts government had refused to quarter British troops in Boston and the townspeople fought their homes. All in all, British soldiers killed five Americans.

4. Second Quartering Act of 1774

After the Quartering Act of 1766, parliament passed a second Quartering Act in 1774, which was part of a whole series of laws, which the Americans later called Intolerable Acts. This new law admitted British soldiers not only to quarter in private homes, but also to use public buildings as temporary shelters.

5. Consequences of the Quartering Acts

After the Revolutionary War, many states included the protection of American homes against quartering soldiers in their constitutions. In order to stop the practice to take homes violently, more states proposed an amendment forbidding the right to obtain room and board by force than proposed an amendment to be granted the right of free speech. The Delaware Constitution of 1776 and the New Hampshire Constitution of 1784 forbade “all peacetime quartering of troops and wartime quartering without legislative authorization”. When the colonies declared themselves independent, they especially emphasized their discontent with the Quartering Acts in their Declaration of Independence, as they included the grievance of “quartering large bodies of armed troops” among them. The Third Amendment was finally ratified in 1971. The new Constitution thereafter banned quartering soldiers without the owner’s permission and thereby protected civilians against the threat of an overbearing military.

6. Today’s significance of the Third Amendment

Today the Third Amendment is more regarded, as an important cornerstone of the right to privacy than his original function really matters nowadays. The Third Amendment is said to protect that a man’s house should be his castle privileged against intrusion from outside. In Griswold v. Connecticut (1965) the right of privacy was born as a right of the Constitution, which was not explicitly named. The Supreme Court held that the Third, Fourth, Fifth and Ninth Amendment form “zones of privacy”. As we see, although the Third Amendment will seldom be used as a protection against soldiers claiming shelter, it hasn’t lost its importance, when helping to protect private homes from government intrusions.

3. Amendment IV

The Sixth Amendment forbids “unreasonable searches and seizures” and thereby guarantees that police investigatory techniques do not involve unreasonable physical interference with property or person.

3. General warrants and writs of assistance

In the sixteenth and seventeenth century, it was a common English practice to use general warrants and writs of assistance. These two legal tools allowed federal agents to search anywhere, anytime and anyone they wanted and to confiscate any object they pleased. Writs of assistance and general warrants were authorized by the monarch and were valid for the agent’s lifetime duty. Thus no oath in front of a magistrate or a probable clause, as exists nowadays, was necessary, because everything was left to the discretion of the warrant’s owner. Harassment was therefore inevitable and the American colonists became the victims. In the sixteenth and seventeenth century England used general warrants mainly to enforce schemes of printer licensing and to search private places for smuggled goods in order to increase British tax incomes from America. Americans therefore outlawed England’s techniques of search and seizure, because during the colonial period they became very familiar with the invasive power of the English government.

7. James Otis’s lawsuit

In 1761 a prominent Boston lawyer named James Otis filed a lawsuit against the writ of assistance on behalf of Boston merchants, whose fear was that their businesses might be searched by government agents. He condemned general warrants and writs of assistance, because he regarded them as too unspecific and too general, as they allowed random violations of the principle of English liberty, that a man’s house is his castle. He wanted the writ to be declared void. Unfortunately, he lost his case, but the idea of illegality of unreasonable searches and seizures became thereafter very popular.

8. State constitutions and the Fourth Amendment

After James Otis had lost his lawsuit in 1761, many states refused the appliance of general warrants and writs of assistance on their territory. In 1762 Massachusetts passed a bill, which required all writs of assistance to be as specific as the writs used by the local officers. After the Massachusetts concept was working out, many other states did likewise in order to ban unreasonable searches and seizures from their territory. Virginia was one of the many states, which followed the Massachusetts role model, when it put its Declaration of Rights on the 12th of June 1776 into action. Article X of the Declaration of Rights forbade general warrants as they existed in England. By the time of the ratification of the Constitution, only five states – Maryland, New York, North and South Carolina and Georgia – still used general warrants. The Fourth Amendment finally ended the usage of general warrants and writs of assistance once and for all.

4. Amendment V

4. Self- incrimination

In America, the defendant is regarded as innocent as long as he has not been proven guilty and the legislation may not force the suspect to testify against himself. Nevertheless, a lot of people only see pleading the Fifth Amendment as a tantamount to admitting the guilt, but the Fifth Amendment actually has quite a decisive history. In England the right of self-incrimination evolved from the necessity to end the notorious English system of inquisition. The Star Chamber, a famous royal court, questioned its suspected religious dissenters under oath. If the defendant lied, he risked his soul and if he stayed truthful, he risked his life on earth. Thus inquisition became a trap for almost all suspects of the Star Chamber. Out of this forsaken situation, Puritan printer John Lilburn refused to take the Star Chamber’s oath in 1637, because he had well seen the trap, which the Inquisition had set up for him. As a reaction to Lilburn’s non-cooperation, the English Parliament later abolished the Star Chamber and the Americans introduced the right to stay silent to their legal system.  

9. Protection of the due process of law

The due process of law is protected by the Fifth Amendment, which limits governmental actions. The underlying concept of the due process of law is that the government may not act arbitrarily, but must act fairly in regard to the established rules of the country. This idea has its roots in the Magna Carta of 1215, which limited King John’s power over his nobles. Punishment was only possible, as long as it was according to the “law of the land”.

5. Amendment VI

The Sixth Amendment specifies the rights of defendants in criminal law cases, including the right to a trial by an impartial jury, to a speedy and public trial, to information about the nature of the charges and to the assistance to counsel.

5. Application of the Sixth Amendment

For most of U.S. history, the provisions of the Bill of Rights protected only individual rights against federal government actions. However, during the twentieth century, the Supreme Court ruled that many provisions, including the Sixth Amendment, could also be applied to state and local governments. It results, that the defendant benefits in all criminal persecutions from the Sixth Amendment.

10. Trial by ordeal

During the early Middle Ages in England, suspects of crimes were generally suspected to a trial by ordeal. The ordeal by water and fire were the most common ones. The ordeal by water was used to determine, whether a women was a witch or whether she was simply a female human with some knowledge of herbs and cures. The practice was to bind the woman’s hands and feet and to throw her into blessed water. If she floated at the water’s surface, the woman was considered guilty, because the holy water rejected her. But if she sank, she would be found innocent – event if she drowned. The ordeal of fire grounded on the belief that Divine Providence would spare an innocent human being from severe suffering and physical harm. To determine a suspect’s guilt by the ordeal of fire meant that the accused individual was forced to put his hand or foot into an open fire until it was significantly burned. After a while, an authority would look at the wounds and would decide from their severity over the suspect’s innocence or guilt. In England the trial by ordeal was still common in the twelfth and thirteenth century until it was finally replaced by the jury trial, which to the English meant “twelve men, good and true”. Nevertheless, serious offences against the doctrines of the church and the Crown continued to be trialed by judges of the Star Chamber, who didn’t accept jury trials. Luckily, an institution like the Star Chamber never existed in the U.S. and jury trials were quiet early introduced to the American legal system.

11. Jury  trials in America

In the American colonies the tradition of jury trials and the calling on witnesses was introduced in order to prevent the tyranny of royal judges and officials, like it had happed in England. The jury trial secured, that the people, who lived under the law and were charged with crimes, were judged by their fellow citizens. Alexis Toqueville wrote in his classic study “Democracy in America”:

“The institution of the jury places the real direction of society in the hands of the governed and not in that of the government” .

The jury trial thus became an important pillar of the American law system and the British use of special courts, that didn’t respect the American wish for a jury, contributed to the War of Independence. Americans included the grievance of “depriving us, in many cases, of the benefits of a Trial Jury” into their Declaration of Independence. A tyranny of judges, as it was known in England, therefore never got the chance to develop in America.

12. Impartial jury

The Fifth Amendment guarantees an “impartial jury”. The jury members therefore have to be from the “district wherein the crime shall have been committed” and the courts have ruled on the ground of these words, that the jury members should represent a reasonable cross-section of the local residential community. Moreover, the selection of the jurors has to take place without reference to race, religion, personal wealth and gender. But this has not always been the case. Women, for example, were only able to serve on juries from 1920 on, because the right to be a jury member was simultaneously established with the woman’s right to vote. However, women were not forced to serve as jurors. They were only allowed to volunteer for jury service. This changed in the year 1975, when the Supreme Court decided that the “systematic exclusion” of women from jury service violates the “fair cross-section requirement” of the right to a fair trial. A landmark case in the struggle for the acceptance of African Americans and Mexican Americans as jurors was made by the Supreme Court, when it unmade the conviction of a Mexican-American defendant, because for twenty-five year no Mexican-American had been accepted as juror in Texas. Today, only marginal groups of mentally challenged people, people without the American citizenship and those, who have committed crimes and are not capable to speak English, are excluded from serving as jurors.

13. Speedy and public trial

The Sixth Amendment guarantees the right to a “speedy and public trial”. The guarantee of a speedy trial prevents, that prisoners can be locked up for unlimited time periods until the trial finally takes place, whereas the guarantee of a “public trial” prevents secret inquisition, as it was practiced by the Star Chamber in England.

14. Nature of the charges

Besides a “speedy and public trial” by an impartial jury, the Sixth Amendment requires that the suspect has to “be informed of the nature and cause of the accusation”. Before the Sixth Amendment was ratified, people were often imprisoned without having the slightest idea of why they had been arrested and what for. Without that knowledge, they were not unable to explain their situation nor were they able to figure out how long they would be imprisoned until the actual trial. This situation was obviously unbearable and was finally abolished by the ratification of the Fifth Amendment.

15. Assistance of Counsel

Finally, the Sixth Amendment guarantees the accused “to have the Assistance of Counsel for his defense”. Nevertheless, the right to be represented by a lawyer does not necessarily mean that one can afford legal assistance. It wasn’t until Earl Gideon decided to challenge the Sixth Amendment that legal assistance became a right, which everyone had access to, no matter what they financial background was. Earl Gideon was a small-time gambler, who was charged with attempted burglary. The important thing was that he was too poor to afford legal assistance and Florida did not sponsor a lawyer for him. Earl Gideon was found guilty. However after his conviction, he wrote to the Supreme Court and asked it to review his case. In 1963 Gideon’s appeal was successful and his case was trialed once again. In Gideon v. Wainwright (1963) the Supreme Court had ruled, that the “Assistance of Counsel” is an essential right of the Sixth Amendment and that the correspondence of wealth and legal assistance violates the principle that every defendant shall stand equal before the law. Ever since Gideon v. Wainwright, poor defendants have been equipped with legal assistance in court. Nevertheless, the differences between poor and rich defendants have not been abolished. Court-appointed lawyers are often overworked and underpaid, what affects their motivation and their success in court. However, the Sixth Amendment builds the fundament of a formal equal stand before the law.

6. Amendment VII

The Seventh Amendment guarantees trial by jury in most civil cases. The trial by jury, as guaranteed by the Sixth Amendment, would not be worth a lot, if it did not guarantee a trial by jury even for minor offenses in order to ensure, that common sense rather than the strict application of the law determines jurisdiction.

7. Amendment VIII

The Eighth Amendment is the shortest of all the amendments and it requires that the punishment of the offender is proportional to the crime committed.  

6. Punishments in England

In England during the seventeenth century, corporal punishment in form of the infliction of physical pain and torture was common practice. A judgment of treason meant that the offender’s heart and bowels were removed while he was still alive and his hands and feet cut off until he was finally divided into four quarters. In time, people began to fight for the abolition of such barbarous and inhuman practices, as they were unusually severe in regard to the deed committed. It was thus achieved that the English Bill of Rights, which was passed by Parliament in 1689, included a provision, which prohibited “cruel and unusual punishment”. As a result of the English Bill of Rights, punishments became more lenient throughout England, but flogging and the removal of hands and feet still remained common.

16. Punishments in colonial America

Punishment in the American colonies had ever been less severe than in England. While a witch was burned alive in England, she was graciously only hanged in America. Even handing a person seems inhumane to us nowadays, but at that time the punishment of hanging someone was considered to match the crime of witchcraft. However, even in America uproars for less severe punishments took place in several states, forcing them to ban extremely cruel and excessive punishments. The Massachusetts Body of Liberties of 1641 prohibited “inhumane, barbarous or cruel” punishment and by the time of the Declaration of Independence, seven out of the original thirteen colonies had passed laws, which made cruel and barbarous punishment illegal. Finally, the Bill of Rights of 1791 took the exact words from the English Bill of Rights to write the Eighth Amendment in order to balance the crime and the punishment.

17. The inclusion of bail in the Eighth Amendment

Bail is not actually a punishment, but rather a sum of money that the defendant pays in order to stay out of prison until his case is trialed in court. “Excessive bail” was first forbidden in the eighteenth century, because in the past judges had fixed bail at exorbitantly high rates. As a result, the defendant lingered in jail for month or even years until his case was finally looked at by a judge. If the defendant was not able to pay the sum required, he would be send to the debtor’s prison to languish there behind bars. The Eighth Amendment nowadays forbids such practices and assures that the bail is in proportion to the deed committed.

18. The understanding of the word “excessive”

The understanding of the word “excessive” has changed enormously with the passing of time. As we have contemplated before, at some time in the American colonial history hanging a witch was regarded as the appropriate punishment for witchcraft and flogging was continued to be practiced after the English Bill of Rights was passed in 1689. Public flogging was abolished in America in 1839. But it wasn’t until 1910 until the Supreme Court eventually got the opportunity to rule on the Eighth Amendment. The Court was forced to define “cruel and unusual punishment” and it did so by stating that the meaning of these words isn’t static, but rather dynamic. It said that the Eighth Amendment “is not fastened to the absolute but may acquire meaning as public opinion becomes enlightened by human practice”. It is thus up to every generation to define what a “cruel and unusual punishment” actually is.

19. Physical punishment nowadays

Physical punishment is not completely forbidden in America nowadays, but it is widely considered as outdated and not appropriate to achieve the goal of the offender’s reintegration. Nevertheless, the only government-run institution, where physical punishment is still officially allowed is not the prison, nor the mental hospital, but the school. The Supreme Court decided in Ingraham v. Wrigth (1977) that moderate physical punishment is not illegal under the Eighth Amendment. Physical Punishment is therefore allowed in public schools, as long as the punishment doesn’t become excessive and is therefore inappropriate. Nevertheless, half of the American states and a huge number of local educational institutions have committed themselves not to use physical punishment against students and those schools, which still practice physical punishment, do so in strict limits.

8. Amendment IX

7. The impossibility of a perfect Bill of Rights

When the Bill of Rights was crafted, a major problem arose. The question was what would happen if the framers oversaw an important human right. Opponents of the Bill of Rights therefore feared the consequences, which a list of specific and well defined rights could have. They argued that fundamental rights, which were not included in the Bill of Rights, would automatically be regarded as rights of minor importance and therefore would only receive little or no protection at all. Alexander Hamilton was one of the most passionate opponents of the Bill of Rights, who represented the standpoint that no Bill of Rights could ever be comprehensive enough to meet the need of a complex and evolving community. On the other hand, James Madison resolved this problem by simply adding to the list of specific rights one right, which allowed new rights to be incorporated in the Bill of Rights. The Ninth Amendment is supposed to fulfill exactly that function.

20. The unenumerated rights

However, the Ninth Amendment does not exactly what those new rights are supposed to look like and one can only guess, what provisions the authors of the Bill of Rights had exactly in mind, when they ratified the Ninth Amendment.

1. Griswold v. Connecticut (1965)

For nearly two centuries, the Ninth Amendment didn’t play any legal role and wasn’t challenged once. The Ninth Amendment lingered in the dark only to be extracted in 1965 in Griswold v. Connecticut (1965). Estelle Griswold and Dr. C. Lee Buxton were both challenging a Connecticut law from 1879, which made birth control and family planning illegal. They had been both arrested in 1961, because he was a medical director at a clinic managed by her in New Haven, which was sponsored by Planned Parenthood, a national institute of family planning. They appealed against the judgment of the state court, which fined both of them $100. The Supreme Court ruled four years later, in a 7-to-2 decision, that the Connecticut law could no longer be upheld, because of the “right of privacy”. The right of privacy was mainly deprived from the Ninth Amendment. The word privacy does not appear in the Constitution. However, this fact did not constitute a major problem, because the Constitution has always protected rights, which are not specifically mentioned in it. The right to associate with whomever one pleases, for example, is not specifically mentioned in the Constitution. However, it is accepted, that the First Amendment protects the right of free association. Furthermore, the idea of a zone of privacy can be found explicitly in other amendments of the Constitution. The Fourth Amendment prohibits military intruders to invade the privacy of one’s home without a convincing reason and the Fifth Amendment allows a defendant to remain silent. The idea of a right of privacy is therefore found in the Constitution, although it is not explicitly mentioned.

4. Criticism and conclusion of the ruling Griswold v. Connecticut

Critics of the judgment Griswold v. Connecticut regard the Ninth Amendment as a bottomless well, which is controlled by the will of the Supreme Court judges. On the other hand, the Ninth Amendment offers the unique opportunity to keep the Constitution alive and up to date. It is difficult task, which the Constitution has to fulfill. It has to offer stability on the one hand and flexibility on the other. The new rights of the Ninth Amendment are not invented randomly, but they are all already rooted in the Constitution to some extent and are only defined in regard to the time, in which they are supposed to serve as new guidelines to the people governed by them.

9. Amendment X

8. The reserved powers of the state

Article II of the Articles of Confederation had contained explicit provisions for protecting state sovereignty and numerous early state constitutions included provisions to guarantee the primacy of state laws. At the Constitutional Convention in 1787, the delegates had decided for a federal system of government. Article I of the Constitution enumerates the powers of the national government and those powers, which are explicitly prohibited to the individual states. However, the Constitution does not list those rights, which are specifically “reserved to the states”. Today, it is generally agreed, that the most important powers reserved to the states are the rights to tax, to organize police powers, to regulate commerce within the state’s boundaries and to have the authority about matters like divorce, marriage and the licensing of drivers. Nevertheless, whenever state and federal laws collide, the Tenth Amendment becomes a legal battleground.

21. Child labor

The controversy about state and federal powers is very well illustrated by the issue of child labor in the America.

2. Child Labor Law

Early in the twentieth century, children as young as three years old were working to sustain their families for pitiful wages and under unacceptable working conditions. The National Child Labor Community had been persistent in order to ameliorate the situation of the young laborers. Thanks to its commitment, Congress had eventually passed a Child Labor Law, which stopped the inter-state trade of goods, which were manufactured with the help of children, who worked more than eight hours a day or who were under fourteen years old. However, this law was challenged in Hammer v. Dagenhart (1918). The Supreme Court then decided that the Child Labor Law was unconstitutional, because it trespassed on the states’ rights. The Court ruled that Congress had the authority to regulate inter-state commerce, but it wasn’t authorized to regulate working conditions nationwide.

5. Fair Labor Standards Act

It wasn’t until 1938, when Congress tried again to regulate child labor nationwide. The Fair Labor Standards Act guaranteed a certain minimum of money paid for the childrens’ work and it limited the working hours for children to a certain amount per week. Again the Fair Labor Standards Acts of Congress was challenged and brought before the Supreme Court, but this time the Court decided the case quiet differently from Hammer v. Dagenhart. In United States v. Darby (1941), the Court revised its earlier ruling in the way that it then said that the Tenth Amendment does not prevent the federal government from regulating working conditions within the states. Those clashing decisions illustrate the controversy over the states’ rights, as it still exits today in U.S.

10. Final assumptions

Now, we come back to the introductory question why a document of more than two-hundred years is still uphold nowadays and why the U.S. Constitution has never lost its significance over the years. The U.S. Constitution is the fundament of the legal system of the U.S.A. and functions simultaneously as a symbol of common nationhood . The U.S.A. is a country, which has always represented cultural and intellectual pluralism at its best. It has been largely composed of immigrants virtually coming from all parts of the globe and bringing with them their own traditional views and national customs. This melting pot obviously needed some glue out of the necessity to create a sense of belonging to U.S. Today Americans are above all united by their Constitution. Nevertheless, this has not stopped people to challenge the Constitution on a broad variety of subjects. Justices of the Supreme Court deciding litigation generated by disputes over the implied meaning of the Constitution have refined the particular provisions of the Constitution over the years. This development is yet another reminder that the U.S. Constitution, although written, can be quite as flexible as the unwritten British Constitution. The jurisprudential revolution guarantees regular “updates” to the original Constitution and keeps it up to date. However, it is essential to distinguish between the Constitution itself and the contemporary application of it, because the Constitution is in the last run what “the judges say”.

---