Reading the Constitution's Text Alone Isn't Enough

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.