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by The Honorable John McClellan Marshall

“You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.” ~ R. Buckminster Fuller

ABSTRACT

This paper discusses the historical and process by which amendment of the Constitution effectively rewrites and renews the document as an expression of the ideals laid down in the Declaration of Independence. The “iterative” and “transitional” design features of the 1787 document are reflected and discussed in detail to highlight both the structural modifications and philosophical expressions of the Constitution. The combination of amendment and historical context define the reality of the Constitution in the modern world as an ongoing part of the American Revolution, as seen from a judicial perspective.

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We must remember that in 1787, the Founding Fathers did not write “We, the vested economic and politically placed representatives of the United States.” In a challenge to the world of princes and potentates instead, they wrote “We, the People of the United States…” It was the phrase that encapsulated most perfectly the ideals of the Declaration of Independence that “all men are created equal” and that the just powers of government are derived from the “consent of the governed.” The statement alone redefined the source of governmental authority and, hence, civil rights and liberties. No longer would the government tell the citizens what to do or be. On the contrary, the government that they created would be one of limited powers defined in such a way as to preserve individual liberty. It was that simple… and that profound.

It is important to recall that the Convention was held only four years after the end of the Revolutionary War.  Many of the delegates had participated in that conflict, and some had signed the Declaration. The seven Articles of the Constitution, in effect, created a governmental structure that had the potential to implement the ideals of the Declaration. At the same time, while the war had been fought to get rid of a government that had refused to hear the voice of the governed, it was clearly not the intention of the Convention to replace it with one that would do the same thing, only on this side of the Atlantic. Each of the first three Articles established for the first time a government composed of three co-equal branches that had defined, and limited, authority. The least defined in the original document was the judiciary, but in the words of Alexander Hamilton, it was viewed as “the least dangerous branch” since it has “no influence over either the sword or the purse.”[1] The implication of that statement clearly was that the other two were capable of mischief and needed watching.

What is significant about the first three Articles also is that they created a government that reflected the Revolutionary ideal of popular government without sanctioning mob rule in the equation. In the years since 1791, there has developed a debate about the role of the Constitution in relation to society. On the one side is the so-called “originalist” view, championed by the late Justice Antonin Scalia. This simply says that any interpretation of the document is to be read in the context of its “original intent.” One of the problems with that view, however, is that it often ignores supporting source materials such as the notes of James Madison on the Convention itself or The Federalist essays by Madison, Hamilton, and Jay that discuss the expressions of “original intent” by those authors. The other view is that the Constitution is a “living document” that is constantly to be interpreted in relation to changes in the society that it serves. As the late Justice William J. Brennan Jr., said, “Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. . . ..”[2] The problem with that viewpoint is that it can slip into partisan politicization, as it sometimes has, such that the stability of the judiciary as an institution may be uneven in the performance of its duty to “say what the law is.”[3]

The simple reality is that while neither of these approaches to Constitutional interpretation is dispositive, each, if properly viewed, is complementary to the other in a positive way to allow the system of government to function in a more or less orderly fashion. More to the point, both of these views ignore a fundamental reality about the Constitution: it is, both in its structure of government and its philosophy of the society, an extension of the Declaration of Independence as tempered by the Revolutionary War. While the Articles of Confederation had been useful as a wartime government, by 1783 when the war ended, it had become clear that a confederation was not a strong enough peacetime government to maintain internal progress and external security.[4]  Something else was needed, and it was believed that the Confederation needed major “revision,” the public reason for the Convention.

Obviously, the first three Articles, establishing the tripartite system of government, borrowed heavily on the colonial experience and the influence of the 18th-century Enlightenment. The separation of powers between the executive and legislative branches of government is clearly derived from the writings of Locke and Montesquieu.[5] Inherent in the broad provisions of Article I, Section 8 (the “enumerated powers”) and the more limited powers of Article II, is the notion of a balance between the executive and the legislative branches.  In other words, the system of “checks and balances” exists from the founding of the government. It is only in 1803 that it becomes clear that the “judicial Power” as defined in Article III, Section 2, with its foundation in the common law history of England, had the potential to serve as another “check” on the actions of the other two through the doctrine of “judicial review.”  In effect, this division of the governmental authority, while it increased the flexibility of the governmental structure to act, also served to limit the ability of government to interfere affirmatively in the daily lives of the citizenry.

In anticipation of societal changes, the authors of the Constitution included Article V. It provided for a process of amendment that would allow the government to evolve and function as times changed without necessarily dispensing with the fundamental protections of the civil rights envisioned in the Declaration. In other words, the Revolution was not to be viewed as having ended in 1783. It was to be viewed as a process that was open-ended. Indeed, Thomas Jefferson, in a letter to James Madison in 1787, wrote, “I hold it that a little rebellion, now and then, is a good thing…”[6]  From the perspective of the judicial process, each case that comes before a court embodies the potential “little rebellion” simply because of the impact of the common law heritage of the American judiciary.

Yet, almost immediately after the ratification of the Constitution, Congress submitted to the states twelve amendments, the first ten of which were ratified by the end of 1791, known as the Bill of Rights. They defined those rights that were inherent in the citizenry and, thus, limited the ability of government to micromanage the private lives of citizens. When combined with the first seven Articles, the Bill of Rights clearly completed the establishment of a governmental framework that had the ability to protect those rights, broadly defined by the Declaration, now made more specific.

It is helpful to refer to the work of Dr. Terri Irwin in her discussions of design in the art world as applied to Constitutional construction.[7] In the design of the government that the Constitution created, there is the view that it was “written in stone” and not susceptible to external change. That view, the “iterative design” articulated by Justice Scalia, formed the basis of the “originalist” view of the document. Unfortunately, when the whole context of society changes, which began almost immediately after ratification, the iterative design model cannot readily accommodate the new situation. Indeed, the simple existence of Article V recognized that the Constitution would express a “transitional” political philosophy.[8] It is not just that the Framers included a mechanism for the amendment of the document; it is the structure of that mechanism that is significant.  Whether the amendment is proposed by two thirds of each House of Congress or by a “Convention” called by the legislatures of two thirds of the states, the process begins at the base of the population. To this extent, the amendment process is deliberately reflective of the influence of the Jeffersonians at Philadelphia, as it keeps the focus of the source of change, the “consent of the governed”, on “the People.” In the end, any amendment, regardless of how it starts, must be ratified by three fourths of the states’ legislatures before it becomes part of the Constitution. As a result, the Constitution has been, in fact, rewritten and renewed with each amendment, expressing the transitional design of the Framers.

Historically, the amendments tend to fall into two categories: “structural” and “philosophical.” The structural amendments are those that modify how the government is going to operate. For example, the Eleventh Amendment, ratified in 1795, delineates the jurisdiction of the “judicial power” that had been broadly created in Article III. On a very pragmatic level, the Sixteenth Amendment, ratified in 1913, granted power to Congress to initiate taxation of income. The Twentieth Amendment, ratified in 1933, addressed the beginning of the term of Congress and the start of the term of a newly elected President. Similarly, the Twelfth Amendment outlines in great detail the method of electing the President and Vice-President of the United States, the Electoral College.  While it was ratified in 1804, long before the rise of the modern two-party system, at its base is the notion that the “electors” are chosen by the people, contrary to the notion of “indirect election.” This is shown quite clearly in the procedure that, in the event that a candidate does not get a majority of the electoral vote, the “election” will be held by the House of Representatives, again, “the People.” The Twenty-second Amendment, ratified in 1951, created a two-term limitation to be applied to the President. In 1967, it was decided to amend the Constitution to take care of governmental continuity in the event of a vacancy in the office of the Vice-President or the disability of the President to carry out the duties of the office. It is interesting that the procedure in the Twenty-fifth Amendment as to replacement of a Vice-President involves selection by the President and then confirmation by a majority of both Houses of Congress, i.e., both “the People” and “the states” concurring.  Perhaps one of the more interesting “structural” amendments, one of the original twelve submitted to the first Congress, was not ratified until 1992. This was the Twenty-seventh Amendment, which provides that Congress cannot give itself a pay increase effective before the next election, a clearly Jeffersonian measure to ensure fiscal accountability. It is apparent that, in terms of the structure of the government, the Constitution was, and is, very much a “transition” designed document.

The Seventeenth Amendment, ratified in 1913, actually blends structure and philosophy by changing the election of senators from the state legislatures to popular election, a reflection of Locke. Forty-eight years later, the Twenty-third Amendment, again in a blend of structure and philosophy, granted representation in the Electoral College to the citizens of the District of Columbia, thus equalizing the Presidential electorate nationwide. In 1964, the amendment process belatedly discarded what was perhaps the most antiquated and irrelevant historical leftover of the pre-Constitution period in American history. The property requirement as a prerequisite to the right to vote was abolished in the bluntest possible terms in the Twenty-Fourth Amendment. Admittedly slowly, but inexorably, the Articles of the Constitution were being rewritten, transitioned if you will, by the structural amendments.

The philosophy of the Constitution, however, is somewhat more iterative in its origins and elaboration. The influence of the Declaration of Independence, as tempered by the Revolutionary War, is unmistakable. In reality, the Federalists and the Jeffersonians, as shown in the correspondence of Adams and Jefferson, were not in deep disagreement with the notion that “all men are created equal…”[9] It has been more a matter of timing and the implementation of those ideals that were the sources of disputes then, and now, rather than disagreement as to what the ideals were. The earliest example of this in the amendment process were the so-called “Reconstruction Amendments,” ratified between 1865 and 1870. The Thirteenth Amendment abolished slavery. The reality was that slavery was already on its way out due to economics, but the war between the States provided the opportunity for it to be legally disposed of… and it was. The immediate impact was that, in the economic sense, the former slaves were now theoretically “equal” to their former masters. The Fourteenth Amendment, among other things, conferred citizenship on the former slaves (perhaps unwittingly also on the Native Americans as “birthright citizens”).  It remained for the Fifteenth Amendment to give the former slaves, now citizens, the right to vote. With this major shift in the political population, it remained still largely a “male” definition of “the People”. Even so, the Constitutional expansionist movement was clear in its philosophy.  Nowhere was this intent more clearly expressed than in the Twentieth Amendment (1933) and the Twenty-sixth Amendment (1971). The former created a major expansion of the electorate by granting women the right to vote, while the latter lowered the voting age to eighteen.

When the Constitution and its Amendments are viewed both as to content and as to the historical frame in which it was changed, it should be apparent that the “originalist” and the “living document” views, while handy for lawyers to argue, are largely irrelevant to the practical aspects of its application. Whether “transition” or “iterative” in design, the reality is that they are complementary in the real world as applied to the citizenry. In short, the philosophical intent of the Framers was a society in which there would be true equality in relation to the law with a governmental structure that made it possible. Although the Declaration is not a part of the positive law of the United States, it remains in place as the foundation of the Constitution. It is reasonable to anticipate that, from time to time, it may continue to be “rewritten,” but only to be “renewed.” To that extent, the Constitution is the Revolution in progress in the United States. ♦

The author gratefully acknowledges the comments of Prof. Roger F. Malina as to the design of the Constitution, both in the 18th and 19th Centuries and as it has developed in the 20th Century.

Copyright 2025 by John McClellan Marshall
All rights reserved

The Honorable don John McClellan Marshall
Texas Bar College 35 Year Fellow, Joined 1991
Senior Judge, Fourteenth Judicial District of Texas
Sitting by Assignment
Honorary Professor of the University, UMCS

JUDICIAL SERVICE – Served as Judge Presiding, Municipal Court of Muenster, Texas, 1976-1980, Judge Presiding, Fourteenth Judicial District of Texas, 1981-2000; Judge for the Dallas County Emergency Medical-Legal Project, 1986-2000, Judge of the Sabine Valley Child Protection Court, 2001-2004. Sitting by assignment 2001-present.

EDUCATION AND PROFESSIONAL ACTIVITIES – BA–Virginia Military Institute, 1965 (Valedictorian); MA – Vanderbilt University, 1966; Juris Doctor (JD) – Southern Methodist University, 1975; LL.D. (Honorary), Academia Mexicana de Derecho Internacional, 1985. Honorary Professor of the University, Marie Curie-Sklodowska University [UMCS], Lublin, Poland (teaching course in American Legal Studies since 1993), conferred 2004. Member of The International Academy of Astronautics, elected 1999. Senior Life Fellow of the College of State Bar of Texas. President, North Texas Mensa, 2020. Honorary Member, Iustitia [Polish Judges’ Association], elected 2021.

Prize-winning author [George Washington Medal of Freedoms Foundation (“The Bill of Rights”) and State Bar College best article of the year 1999], specializing in procedural law [co-author, West’s Texas Rules of Civil Procedure, Annotated since 1996]. Associate Historian, Florida Institute of Technology, 1970-71 [wrote history of Apollo/Saturn V Launch Operations at Kennedy Space Center]. Technical Instructor, Skylab Program at KSC, 1971-73. Presenter, International Astronautical Congress: Brussels, 1971 [“The Mobile Concept in Apollo/Saturn V Launch Operations”]; Oslo, 1995 [“The Terminator Missed a Chip!: Cyberethics”]. Lecturer, University of Texas at Dallas Center for Values in Medicine, Science and Technology, 2012-present. Speaker at MEDEL Conference, Kraków, Poland, 2018 – “The Constitution and the Independent Judiciary”; co-author, Precedent in The Judicial Process: Judges’ Perspective in Comparative Approach, UMCS [Lublin, Poland] 2019] (published in English and Polish); “The Modern Memory Hole”, The Athenaeum Review, Fall 2019 (University of Texas at Dallas); ” Cyberethics In The 21st Century: The Reign Of The Machines”, Mensa Bulletin, January 2020; “Machine-Machine To Major Tom: Cyberethics”, IAA/UT Conference on Space Traffic Management, Austin, TX, January 2021; Technoevidence: The “Turing Limit” 2020, Journal of AI and Society (2021), doi: 10.1007/s00146-020-01139-z; “Cross-examining the Computer: Uncertainty in the Court”, Studia Iuridica Lubliensia (2023), doi: 10.17951/sil.2023.32.4.97-115; co-author, SMU School of Law: The First Fifty Years 1925-1975, SMI Dedman School of Law (April 2024); “The Modern ‘Barbarians at the Gate'”, The Athenæum Review (June 2024); “Metropolis Revisited. . .and Coming”, Journal of AI and Society (December 2024), doi: 10.1007/s00146-023-01799-7; “Emergent Surrealities”, Mensa Bulletin (June 2025), Part of ISSN: 0025-9543. ORCID ID# 0000-0003-4504-144X

PERSONAL – Born in Dallas, TX, October 9, 1943. Married to Jamie Lynn Marshall, Esq., two daughters. 2º Black Belt in Tae Kwon Do. Knight de jure sanguinis, Sacred and Military Constantinian Order of St. George (Madrid), with style Don [equivalent of “Sir”]; Hereditary Member, Society of the Cincinnati in the State of Virginia.

Member Spotlight: Judge John McClellan Marshall

Judge Marshall is a graduate of Virginia Military Institute, Vanderbilt University, Southern Methodist University School of Law, and Academia Mexicana de Derecho Internacional.

TECHNOEVIDENCE: The “Turing Limit” 2020

Modern technology has had an undeniable impact on a wide range of social institutions. Not the least of these is the legal community and its efforts to seek the truth of a given situation.

[1]Federalist No. 78, May 28, 1788.

[2]Speech, Georgetown University, October 12, 1985. See also William H. Frievogel, “Originalism v. a living Constitution”, Gateway Journalism Review, February 2, 2023.

[3]Marbury v. Madison, 1 Cranch 137, 5 U.S. 137,  2 L.Ed. 60 (1803),¶141.

[4]The riots known as “Shay’s Rebellion” in 1786 simply underscored the need for revision of the Articles of Confederation and led directly to the calling of the Convention.

[5]See John Locke, Two Treatises of Government (1689) and Charles-Louis de Secondat, baron de La Brède et de Montesquieu, De l’esprit des lois (1750).

[6]Thomas Jefferson to James Madison, January 30, 1787.

[7]“Iterative design” is required when the context/the world stays the same, but the observer wants to change/improve something.

[8]“Transition design” results when the context/the world changes, and the observer wants to define the impact of the change. See Dr. Terry Irwin, Carnegie Mellon University, various works.

[9]See The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson and Abigail and John Adams (The University of North Carolina Press, 1959).