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Reading the Constitution's Text Alone Isn't Enough

Thursday, January 06, 2011 - 10:05 AM

With a nod to the Tea Party, Republicans newly in charge of House of Representatives will read the U.S. Constitution aloud today, in its entirety. This is something that has never been done in the chambers 221-year history. As Brian Lehrer discussed on his show Monday, Republicans also want to require that every new bill contain a statement by the lawmaker sponsoring the proposed legislation that cites the constitutional authority to enact it.

Many who subscribe to Tea Party values feel Congress has strayed far from the country's founding principals. I applaud their desire to celebrate the Constitution. I believe our Constitution should be part of a careful course of study for all school children in this country. (In fact, I have taught such a course, to high school students, back when I was in law school.) Yet, as with so much of what the Tea Party does, a simple reading of the Constitution, without a more in-depth examination, is an empty gesture. One cannot simply read the text of the Constitution and call it a day. The very real danger here is that the new Tea Partiers in Congress (and some of their followers at home) will actually listen to the reading of the 7,591 word document (that includes all 27 amendments) without the benefit of real constitutional understanding.

The original text has evolved a bit over the years. We've changed it not only by adding articles of amendment, but also through two hundred years of jurisprudence. No one can understand the Constitution without some greater understanding of the amendment process and the case law that interprets the text.

The Constitution itself can be read in under an hour. I participated in a similar exercise back when I was a teaching fellow at Stanford. As I recall, it took about 40 minutes, without interruption. Today is likely to be much longer. Lawmakers apparently have their pocket Constitutions in hand. They plan to share the reading of the text, with one representative reading a portion of the Constitution before yielding the floor to the next representative, and so forth and so on. I doubt there is enough text for all 435 members to read. But, more to the point of this post, unless lawmakers stop every sentence, or so, to say, "...The aforementioned language was changed by this or that amendment," the chamber will not really be reading or hearing good law. That is, they will not be hearing the true meaning of the Constitution, as it stands today. Thus, the entire exercise is a bit unexamined.

Of course, another approach would be for lawmakers to substitute the proper amended language for the obsolete original text, but I'm betting conservatives won't go for that.  They love all things "original."  

Even assuming we can somehow get past the complicated problem of the text, a law professor really should be on hand today to help House members — yes, even the lawyers — interpret that other means of amending the Constitution, Supreme Court jurisprudence. That is the gradual, incremental process by which the highest court in the land applies the text to the facts of a particular case.

That is why, in law school. we are required to take an entire year of Constitutional Law. In that course alone, we read case after case after case, two hundred years worth of jurisprudence, the majority, concurring and dissenting opinions, starting with Marbury v. Madison (1803) and continuing through Bush v. Gore (2000). For those who simply cannot get enough there is Con Law 2 in second year. There are also Federal Courts, Criminal Procedure, Evidence and a variety of other courses that have the Constitution of the United States as their underpinning. In fact, nearly every class we take in law school intersects with Constitutional Law. A mere reading of the text of the document will never do.

If there is one thing I learned in law school it was a simple fact: the framers were practitioners of centuries-old common law. They were steeped in incremental change by the judiciary. They believed that, with the careful interpretation by the judiciary, the document they drafted would be flexible over time. It would adapt to changes they could not anticipate. In that way our democracy would flourish.

As for the political matter of reading the document on the House floor, I don't believe the framers would have much cared one way or the other. Clearly, they could have required each session begin this way, had they thought it necessary to do so. 

As a matter of law, however, the framers would have been appalled at the idea of a Constitution strictly construed, according only to the words on the  page, without regard to intent, purpose or the current reality. That is precisely why the Constitution is so short.

Jami Floyd is a broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues.

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Comments [7]

Charles Harris from island heights nj

Gunds that spew 10 bullets a second are seductive in themselves. Looj what I can do with my index finger? Bam!

Jan. 10 2011 11:27 AM
Connie

It's a republic, not a democracy.

I'm sorry if it isn't perfect enough for you by accounting for state's conventions. We all saw the perfect constitutionality of the bills passed in the 111th congress, so this is obviously a worthless exercise.

Jan. 07 2011 08:34 AM
Giuseppe from Manhattan

I love the United States Constitution precisely for its essential interpretive nature, for its intention of being the genotype and not the phenotype of American polity.
Alas, this reading of the amended Constitution as the "original" smacks of political gambit.
Returning to the origins is a favorite of politicians of all colors and stripes.
When I first visited the Soviet Union in the summer of 1988, our party-sanctioned
guide was touting the need to return to Lenin's teaching ...

The reading of the amended Constitution as ``original'' abstracts it from
its evolution and seems to imply that Constitutional Law is moot.
It parallels the literalist reading of the Bible of so many supporters of the Tea Party!

I love the United States Constitution precisely for its essential interpretive nature, for its intention of being the genotype and not the phenotype of American polity.
Alas, this reading of the amended Constitution as the "original" smacks of political gambit.
Returning to the origins is a favorite of politicians of all colors and stripes.
When I first visited the Soviet Union in the summer of 1988, our party-sanctioned
guide was touting the need to return to Lenin's teaching ...

The reading of the amended Constitution as ``original'' abstracts it from
its evolution and seems to imply that Constitutional Law is moot.
It parallels the literalist reading of the Bible of so many supporters of the Tea Party!

Jan. 06 2011 11:56 PM
Estelle from Austin

This is a general complaint about the page today: I came here to listen to the audio of today's Congressional reading (which Lehrer said would be here), and it is not here.
Or maybe it is just too hard to find for a busy listener. Either way, I'm disappointed.

Jan. 06 2011 03:54 PM
Vir Gules from New York City

As Professor Jack Rakove outlined in his seminal work on interpreting the constitution, "Original Meaning," for which he won the Pulitzer Prize, the only way we could understand the original meaning of the constitution is to plumb the records of each state's constitutional convention that voted on whether to adopt this rendition of our organizing documents. No other records matter. Such records do not exist, because the founding fathers did not cleave to anything like the constricted theory of 'original meaning.' In fact, the founding fathers just ignored their organizing document of the day, the Articles of Confederation, and adopted our current constitution without regard for the Articles provisions for amendment.

The closest we have to such records is in the work of James Madison, who did not participate in the states' convention debates, which records reflect only upon the vote in Philadelphia and not on what the states' ratifiers thought the words mean.

Nonetheless, the Tea Partiers' ancestors, viz. Judge Bork and Justice Scalia, proclaimed loudly and without any reference to any record of any state's convention (there is none of any state's) that it is the original meaning of the constitution that must be applied to disputes before the courts and to understandings of the power of the branches. ... Balderdash.

Where were the Tea Partiers and Bork/Scalia with their version of the constitution when President Bush 2 issued memoranda, upon signing acts in to law, that Bush claimed had effect upon a law's meaning or when he declared war upon Iraq or ... (I have little space left to memorialize the distortions)? There is no constitutional basis for the bulk of controversial things that the last president did, and no Tea Partier has tried to defend them or to critique them.

It appears that we must weather the demagoguery and dissembling that passes amongst conservatives as intellectual discourse.

Jan. 06 2011 01:55 PM
Jack Jackson from Central New Jersey

Reading the Constitution 'as amended' - dropping the '3/5 all other persons' clause, the absolutely loopy Presidential and Vice-Presidental election rules, etc. gives the false impression of fallibility of the framers. It also makes for some absolutely loopy portions - as the Rep from Hawaii had to do when reading those sections that reflected the changes to "the's and and's".

Go and read the whole thing as enacted and then read the Amendments.

Jan. 06 2011 12:16 PM
Karol from NYC

Jami, I agree with you that reading the text is not enough. And, as I said on Brian's show on Tuesday, a strict following of the Constitution when legislating would be political suicide (no metals of honor, no federal emergency aid, etc.).

But I have to disagree that the founders didn't want strict adherence to the Constitution as written. First off, they could have had an unwritten Constitution if that was the case, one that could be fluid and change with the times. Second, nowhere does the Constitution read as merely suggested, everything written in it seems pretty definitive, especially about what Congress should and should not do. To treat the Constitution as merely a guideline for how our government should behave negates its importance and usefulness.

Jan. 06 2011 10:24 AM

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