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Rereading the Constitution

Thursday, January 06, 2011

Welcome to Politics Bites, where every afternoon at It's a Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on The Brian Lehrer ShowGeoffrey Stone, a professor of Constitutional Law at the University of Chicago and Chairman of the American Constitution Society, explains the actual document behind the Republican plan to read the Constitution on the floor of the house.

Republicans organized a reading of the Constitution on the House floor today, in order to make a point that liberals who believe in activist government are acting outside of the founding fathers' vision. The Constitution, which allows wars, taxation, and regulation of business, and prohibits actions from states such as the levying of import fees on imports from other states, has changed much over the years with 27 amendments.

While the Bill of Rights is designed to protect individuals from the government, the Constitution also empowers the government and gives it mandated duties, Stone said. “For example, the federal government is required to provide to the states a republican form of government.” 

Stone discussed some of the difficulties with adherence to a strict interpretation of the document, pointing out that under a strict interpretation of the Constitution, there would be no Air Force, since airplanes had yet to be invented.

The United States didn’t have a separate Air Force during World War II, even. They had an Army air force and a Navy air force, so there was an awareness of the problem. Finally people said this is ridiculous, and they recommended that the Constitution is meant to be flexible. It’s a document that was created over 200 years ago. The framers themselves, who were very far-sighted, and who were men of the enlightenment, understood that they needed to draft in generalities, and for the most part, that’s what they did. And those generalities were understood and intended by them to flexible and open to both interpretation and change over time. 

In addition, noted Stone, the Constitution refers to the President as “him," which will inevitably face challenges from women running for the office in the future. 

The Preamble to the Constitution is generally assumed not to have the force of law, but rather to be what Stone called “a useful piece of information to bring to bear in interpreting the body of the Constitution.” He said of the phrase “to promote the general welfare”  is not a call for activist government but instead the statement of an overarching goal. 

One of the ways that we promote the general welfare is by giving and respecting the powers of the states, so I don’t think that one can assume that that phrase necessarily anticipates a far-reaching federal government. The framers themselves, for the most part, did not envision themselves as creating a federal government with large powers. They wanted a federal government much more powerful than the Articles of Federation had established, which was a disaster, but they still believed in states rights, and they still believed that the federal government would be a government that enabled the nation to do what was necessary. So they would have given a more narrow understanding of “promote the general welfare” than simply saying that means the federal government can do anything that the federal government thinks promotes the general welfare.

Stone pointed out an interesting note about the Preamble. “We the People” was not in the language of the Articles of Confederation — instead it was “The States” who were coming together. Original drafts of the Constitution also said “The States” instead of “We the People”, but at some point a deliberate change was made.

There was a recognition that the United States was ultimately a bond formed among the people themselves, not just between the states.

A caller from Dyker Heights wondered who was going to get stuck reading the part of the Constitution defining some people, those in slavery, as “three-fifths” of a human being." Stone agreed that the original language contained several problematic clauses.

There are parts of the original Constitution that are certainly embarrassing... even the fugitive slave clause in the original Constitution, which requires states to return escaped slaves to their masters. Then there’s the importation clause, which essentially allows states to import slaves until 1808. So, yeah, there’s a lot in the original Constitution — and later — that’s embarrassing.

The framers were careful, however, said Stone, not to use words like “slaves” and “slavery”, so unless you knew the context, it wouldn’t be clear from the document itself. 

A caller from Long Island liked the language in the Preamble that calls for a union “more perfect”, saying those words “leave a lot of latitude for change.”

Stone agreed that the 21st amendment repealing the previous 18th amendment of prohibition does point to the Constitution being a living document, but is mindful of the extreme difficulty of that sort of change.

The United States Constitution is the most difficult Constitution in the world to amend. The framers didn’t intend that... but what has happened is that it’s become so difficult to amend the Constitution that there has become, as a practical matter, a need for flexibility of interpretation. 

As the lawmakers today read the entire document (omitting some parts, it turns out), those framers’ words will be heard by all, to interpret to the best of their abilities in the coming years.  

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Comments [31]

This is my first post!!!

So corny....so so so freakin corny. The only way it could have been any cornier is if these nerds dressed up like they were from the 18th century. I am officially angry at anyone that actually listened to/watched this mess, because you are enabling their corniness!

Lopate had a Constitutional Law Professor from UNC on his show that really deflated their entire cheeseball chirade. I wish he did the intro for them. He said that every Congressman and Senator review the Constitution prior to drafting legislation. They have to!! Generally speaking, most legislation and referendum cite different sections and articles of the Constitution. So, The Reading, was a total waste of time and cornball chirade meant to rally their base of angry suburbanites. And if they start dressing up like they are from the 1800s then you guys are all in trouble!!!

Jan. 07 2011 12:35 AM
David from New York City, NY

Don: I'm not sure if the "more perfect union" is backward-looking or forward-looking, i.e., were they saying that we have these independent states that have come together loosely and now we are writing this Constitution to strengthen (i.e, make more perfect) this unity, or were they implying what you were implying. I don't know. It's a good question to ask some Constitutional scholars.

As far as Brian asking if Ron Paul (who, by the way, was a flight surgeon in the air force) would object to the air force not being in the original constitution and, therefore, is either an unconstitutional creation or—at the very least—would require an amendment to create, I do know that it was originally part of the U.S. Army. Whether or not this set a precedent for it to be split off into its own branch and still be considered strictly Constitutional is again something that would have to be answered by some Constitutional scholars.

Jan. 06 2011 04:12 PM

Your guest was wrong. Of course the 3/5 clause is in the Constitution. How could it be in the 14th Amendment? This will get a lot of attention in discussion. Once you decide to read the document in its entirety and then leave part out, you are missing the point. There are many other sentences, like the election of senators, that have been changed by amendments, but those will be read. Who gets to choose?

Jan. 06 2011 03:27 PM
Anne Greene from Arkansas

I missed the part in the 12th Amendment where the Supreme Court has a role in the Electoral College or otherwise in the election of a president ....

On another point, listening to the C-Span read aloud, I think they missed Article 4 section 4 which guarantees every state a "Republican Form of Government" and protection from invasion and against "domestic Violence."

Jan. 06 2011 03:13 PM
Elisa from White Plains, NY

In the next Constitutional conversation, I would like to hear about 2 things:

1. Your guests' reactions to "Scalia: Women Don't Have Constitutional Protection Against Discrimination" http://www.huffingtonpost.com/2011/01/03/scalia-women-discrimination-constitution_n_803813.html

2. What is the difference between adding an amendment and going through legislation as Scalia suggests?

Jan. 06 2011 02:28 PM
Jack Jackson from Central New Jersey

Reading some of the amended text in-line is making for some kind of wierd video.

Without the 3/5 sections, how do we make sense of the abrogation of the 5th Amendment - 'life, liberty and property'?

Ironic that Gohmert reads the Fourth Amendment - a Bush backer and Bush was the chief user of unlawful search and seizure.

Jan. 06 2011 12:03 PM
Jack Jackson from Central New Jersey

What drama! Some wingnut screams during Pallone's reading of the Presidential requirements. Hope it's worth the jail time that they are going to do.

Reading the Constitution as amended falsely gives the impression that the document is infallible. You have to read it as passed and then the Amendements make sense. Without the full text, we're throwing people's history away. It's like reading Huck Finn without the n-word. You'll get the story but you won't get what Twain wrote.

Jan. 06 2011 11:44 AM

Yup -- it's a stunt. They're not reading the whole document -- it's only an exercise in hypocrisy. I hope someone somewhere posts the Consitution highlighting the parts they read and the parts they left out.

Jan. 06 2011 11:14 AM
JGreen from Brooklyn NY

Surprising that no one seems to be mentioning the possibility that reading the constitution today on the floor of the new congress is a stunt of fairly cheap theatrics by the incoming Republican Majority. Reading such a complex, and intricate document that a million scholars the world over struggle with daily- including the supreme court- and hoping for the importance of each and every passage to resonate cleary with their fellow legislators, amounts to nothing more than a massive inference that the current administration has somehow ignored, or forgotten the importance of the document, and in need of a stiff reminder- almost amounting to some kind of 'lecture' from you're parents who just got home from a long vacation. All the while ignoring the fact that the current president is in fact a constitutional law professor, or maybe this is just a chance to make a fact like that irrelevant. I certainly think reading the constitution before this or any congress begins could be an incredibly poignant and interesting thing- but promoting it the way R's have, pretty much tells all about their true motives. Seems fairly obvious that they're not reading it for all to listen, and benefit- they're reading it TO their democratic colleagues, in an attempt to kick start their agenda.

Jan. 06 2011 11:02 AM
jgarbuz from Queens

The US Constitution is all that peacefully holds this hodgepodge of peoples living here together in one nation, that earlier writers referred to as an "empire of liberty." Since we are NOT an ethnic state, like Germany, Ireland, Italy or Israel, but rather are a hodgepodge of settlers and slaves, or desecendants thereof, who came to inhabit the lands of the indigenous "indian" nations to create a
land of freedom for all, it is a very important document indeed. Though not given at Mount Sinai by a deity, it is the creation of educated men who tried their best to apply reason and justice with discretion, and who tried to incorporate checks and balances to keep it from turning into another typical autocratic tyranny, as was the fate of most countries over time. So it is a good thing to periodically review it and see how well we have lived up to its intentions, and how far we may have strayed from them.

Jan. 06 2011 10:53 AM
Chet from wayne, nj

is there anything in the constitution that forces republicans and democrats to work with each other and not to be absolutely neutral for a 2 years and do absolutely nothing?

Jan. 06 2011 10:47 AM
Paul Lukas from Brooklyn

Progressives should welcome this debate. After conservatives have spent the past 30 years trying to frame public policy debates in the context of the Bible, we should be thrilled that they're embracing the Constitution instead.

Sure, their interpretation of the Constitution is badly flawed, but that's what public debate is for. At least we're debating in terms of the law, not God.

Jan. 06 2011 10:47 AM
It *should* be difficult to amend.

People talk lightly about amending the Constitution for this or that reason, but that's a bad idea. The Constitution's impact is due in part to its brevity and generality. State Constitutions are a perfect example of the alternative: because they can be easily amended, they have morphed into huge, sprawling, unreadable screeds. They are typically amended for reasons of partisan grandstanding, and no one bothers to read them anyway.

Jan. 06 2011 10:45 AM
nyc

from thehill.com:

A Goodlatte aide explained that the Constitution will be read in its most modern, amended form. This will prevent lawmakers from having to recite politically uncomfortable portions, notably the provisions on the “three-fifths compromise” under which slaves were counted as three-fifths of a person for the purposes of taxation and representation.

Jan. 06 2011 10:45 AM
bernie from bklyn

much of the constitution isn't meant to be taken literally or "constructionist". keep in mind the authors of this were men who owned other human being and believed in the concept of human slavery. it's hard to really admire these men when that fact is so glaring.
seems like the people who call themselves strict constructionists are also the same people who take the bible literally also. not a guide, but a literal way to live life and control other people's lives. i think they're all crazy and should not be paid any attention.
on that note, any stats on how many of our representatives believe in evolution?

Jan. 06 2011 10:43 AM
The Truth from Becky

The originators did not prepape this document with the foresight of the citizens of 2011 USA in mind.

Jan. 06 2011 10:43 AM
Peter from NJ

-Oh-
The word "Christian" is decidedly absent!

Jan. 06 2011 10:42 AM

it’s my understanding they will be reading the admended Constitution, not the “3/5s” parts

Jan. 06 2011 10:42 AM
Dorothy from Manhattan

http://dailycaller.com/2011/01/05/original-u-s-constitution-will-not-be-read-in-entirety-on-house-floor/

Here's the link - re: They're going to skip parts of the constitution.

Jan. 06 2011 10:41 AM
Peter from NJ

I have a developed fascination withe the word "except" within the constitution.
It is Rare and most notable in the clause to suspend Habeus Corpus.

Most of its appearances have been mode obsolete over time (via amendments) and the lack of exceptions (to me) implies the document shall apply generally and protect all persons .

Quite a feat for a centuries-old document!

Jan. 06 2011 10:41 AM

The Tea Partiers have dominated the conversation about the Constitution in recent months. Many of their interpretations are unique and take selective parts to buttress their points. Ask your guest to about the role of the Federalist Papers in creating the Consitution and if they impact our interpretation of the Constution today. Many Tea Parties cite sections of the Federalist Papers to support their various views of the Constitution.

Jan. 06 2011 10:41 AM

In re the Preamble:

By extension, if "general welfare" is not the force of law, then why should "born equal, endowed by their creator with certain inalienable rights" have the force of law? Strictly speaking, the Declaration of Independence is not Constitutional (as it predates it) nor The Law, yet it has the full force (even if it took 200 years).

Jan. 06 2011 10:40 AM
Derek from Wayne, NJ

Article 1, Section 2, Clause 3,

What about Article the First about reapportionment of representatives? There were tweleve Amendments and two failed the second was enacted in1992

The Census according the US Constitution is mandated to apportion (add) the representatives by State not reapportion. Why has the US Congress not expanded its membership since the 1910 census and why did the Congress freeze the membership at 435 in the Reapportionment Act of 1929. The congressional distinct sizes have tripled in population (212,000 to 650,000) while the Congressional House membership has been stagnant at 435. If this is truly a representative governments we need to increase the House Membership to reflect the population growth. This also affects the Electoral College and Presidential elections. Also the Method of Equal Proportions is a disaster for apportionment and an equal divisor method would be ideal with a fixed number of people per Representative.
Please visit http://www.thirty-thousand.org/ and http://www.publiclaw62-5.org for more information.

Jan. 06 2011 10:36 AM
Dorothy from Manhattan

If you're going to read along with the reading, you'll note that they're skipping parts of the Constitution. I hope someone publishing the omissions.

Jan. 06 2011 10:36 AM

Strange: aren't the representatives and senators supposed to know the Constitution before they are sworn in? If they don't, then how can they swear to "uphold and protect" something they don't know?

Also, it seems to me that We The People should be reading the Constitution to Congress, rather than Congress reading it to us. We don't need the lecture; Congress needs the reminder.

Finally, if they want to read something aloud, they should also read the Articles of the Confederation and explain each and every flaw in it. That way they really can appreciate why the Constitution came into being (and why small and weak government was a complete failure).

Jan. 06 2011 10:35 AM

It’s great that they will read the Constitution because “Boehner confuses Constitution with Declaration”
http://www.examiner.com/liberal-in-madison/boehner-confuses-constitution-with-declaration-and-grievances-within-document-to-current-events

Jan. 06 2011 10:35 AM
Ken from Little Neck

I couldn't disagree more strongly with congressional Republicans on pretty much every issue, but I love this idea. Of course, it's a gimmick, and it reveals a tremendous amount of hypocrisy (they obviously didn't care about the constitution under Bush), but at it's core, this is a wonderful exercise. We should all be more familiar with out founding document and how it shapes our government.

Jan. 06 2011 10:34 AM
Don from Smithtown

(When I voted in your highly unscientific survey. More than 15 vote in all of jurisdictions I can vote in, I hope!)

Jan. 06 2011 10:32 AM
Amy from Manhattan

I wonder if they'll include the amendments in their reading. Remember Reagan's references to "the unamended Constitution"?

Jan. 06 2011 10:31 AM
Don from Smithtown

To all who say that the founding fathers created a perfect or flawless constitution for this nation, consider the preamble:

"We the People of the United States, in Order to form a more perfect Union...."

They did not say "in Order to for the perfect Union". They recognized that there was still work to do and that it was an imperfect and flawed compromise. I believe that we should still be working on perfect our more perfect union.

When I voted, there were 7 of us who read it and 8 who didn't. I have two copies and try to lend them out when possible.

Jan. 06 2011 10:31 AM
Jeff Pappas from Ct.

Good because the 'G' word is not in it , oh I'll just be politically incorrect and say GOD !
And as far as " anchor babies" go :

Amendment 14
1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws.
Just two examples of the Republicans misunderstanding , and then to paraphrase a quote " The constitution is the last resort of scoundrels "

Jan. 06 2011 09:32 AM

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