Saturday, January 8, 2011

The Constitutional Cloak

This week, as the new Congress began its business, we were treated to the spectacle of members of the House of Representatives reading the text of the Constitution from the podium -- the whole text (well, almost), out loud, spurred by a desire on the part of the Tea Party and others to remind Congress of the centrality of the Constitution to American government. Of course, despite the belief of many, many Constitution-wavers across the country (and in the halls of Congress), there is no "pure" version of the founding document -- parts of it have changed, parts of it have been replaced, the whole thing has been amended twenty-seven times -- so decisions had to be made about what to read and what to leave out. And, like all things in Congress these days, those decisions were controversial.

For instance, the decision to leave out the various references to slavery in the original document prompted some members to chastise the Republican sponsors of the reading for presenting a censored version of the document that whitewashed the troubled history of the nation and the way in which the Constitution has changed and grown over the centuries to reflect changing mores and values. Of course, the amendment process that led to those changes in the original document was itself part of the original -- so in that sense the amendments are a part of the document in a way that Supreme Court decisions are not. And we should always keep in mind that the Constitution does not refer specifically to "slavery," for the Framers chose always to use some other expression or euphemism: the "three-fifths clause" speaks of "all other persons"; the "fugitive slave clause" refers to a "Person held to Service or Labour"; Article 1, Section 9, in prohibiting Congress from interfering with the "slave trade" (without calling it that) until 1808, speaks only of "such Persons as any of the States now existing shall think proper to admit." The words "slave" and "slavery" do not appear until the Civil War Amendments. 

From the reports I saw, about one-third of the members of the House attended the reading.That is a sad commentary on the state of things in Washington. What were those other members doing? Taking a stand against the reading of the Constitution? Why? Just because it was sponsored by the wrong folks? Did they believe this was simply "political theater" (a term I heard in one of the news reports)? It was, but that does not necessarily undermine the value of the exercise. All Americans, not least of all our elected representatives, should become vastly more familiar with the Constitution. The Constitution is central to what it means to be an American citizen -- so knowledge and understanding of the Constitution is fundamental to good citizenship in the United States. Not many have actually read the entire Constitution, and that includes, I suspect, an unfortunately high percentage of those who have taken an oath to defend it. By reading the Constitution from the floor of the House, an example is set that should be emulated rather than castigated.

We need to spend more time thinking about our Constitution and about the characteristics of constitutionalism, and so turning Constitution-reading into a partisan event is unfortunate. In fact, it may be fatal to the kind of spirit essential to successful constitutional democracy. The critics of the reading in the House have a point to the extent that some politicians seek to use the Constitution as a cloak in which to wrap a particular set of political views. The Constitution, of course, does embody certain political views, but they are not those of the Tea Party any more than they are of liberal Democrats. The Constitution reflects the view of a generation of American statesmen (and a handful of women), more than 200 years ago, that constitutional democracy was preferable to monarchy (even constitutional monarchy of the British sort). Those statesmen also believed that constitutional democracy was preferable to the sort of decentralized democracy espoused by the civic republican tradition as translated into American thinking by some of those labeled "anti-federalists." The Constitution, in other words, had nothing to do with favoring certain kinds of policies over others (say, government-run health care over insurance company-run health care). Rather, it sought to establish a moderate constitutional democracy that combined both national and state power, and it sought to establish it in the face of those who preferred the certainties of a centralized monarchy and of those who preferred to keep all power (except some national defense functions) in the hands of state governments.

The key feature of the Constitution is that it places significant limits on both the power of the people and the power of the government. It does not establish a democracy, if by that term we mean a system in which the majority rules (no matter what it wants to do), for much of the Constitution and all of the Bill of Rights is specifically aimed at stopping the people from using their government to do certain things. In fact, it was the experience of democracy during the 1780s that prompted many of the Framers to call for both a stronger national government and limits on the responsiveness of government to popular whim. Many of the Framers had come to fear state governments and they set out to build a much stronger national government -- a government removed from the people by size, distance, and a body of institutional mechanisms (including the Electoral College and the indirect election of senators) that insulated national government from the whimsical meddling of the people. The non-democratic features of the Constitution have been recognized by critics (then and now), and their complaints about it filled the newspapers and broadsheets of the day and the academic studies of today.

Constitutional democracy is preserved by a balance of forces: state vs. national, legislative vs. executive vs. judicial branches, House vs. Senate, and so forth. The Constitution was a brilliant attempt by a body of statesmen -- some wise, some narrow-minded; some nationalists, others not -- to craft a constitutional democracy, to establish a structure and a pattern that would persist through time. All of them -- a point that cannot be made strongly enough given the silly ideas associated with shallower forms of originalism -- believed that the Constitution would either change over time or fail, and it would change not just through the amendment process but also because its terms would take on new meanings as the world itself changed. (Madison made this point clearly in Federalist 37.) It was, after all, a structure designed to last in a changing world, a framework capable of adjusting to new conditions as they arose. It was not an attempt to create a Platonic ideal state that would avoid the nasty tendency of material reality to change over time. The Constitution is not scripture -- for it is not the Word of God but the flawed attempt of humans to find some little bit of stability in a political world. That means, of course, that while the Constitution lies at the heart of what it means to be an American, it is not a sacred document and should not be treated as such.

The reading of Constitution this week could have been an important step in strengthening constitutionalism. The sad thing about what actually happened was that the occasion was treated by some as a chance to don the document as a cloak for their controversial political predilections. It is also unfortunate that many in our society, including many in Congress, continue to treat the Constitution as if it were something handed down from heaven, something worthy of worship, something sacrosanct, something with some deep, original meaning that must not to be violated.

Finally, it is sad that some reject the very idea of reading the Constitution in public. For even if the reading in the House was a mere "happening" set up by those seeking to score political points, familiarity with the founding document of our constitutional democracy should be encouraged, And the reading itself could have been used to remind all citizens of the importance of the document without reducing it to a political statement. The point could have been made that the Constitution is not something to be worshiped; rather, it establishes a framework within which the people can pursue the common good. The point could have been made that the Constitution is about constitutionalism and not about Republicans and Democrats.

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