Reading The Constitution

01/05/2011 06:45 pm ET | Updated May 25, 2011

The newly-Republican House of Representatives is going to start off their tenure with a gimmick. Or, to be slightly more charitable, a bit of political theater. They're going to read the entire United States Constitution on the floor of the House, as a sop to the Tea Party Republicans. Their aim is twofold -- to appease the Tea Party Republican faction, right from the get-go; and to provide stirring video clips of Republicans faithfully reading our country's founding document. There's one problem with this second goal, though: Who gets to read the uncomfortable bits?

Who, for instance, gets to read the Preamble's clause "... promote the general Welfare... ," which is (shall we say) not exactly the Republicans' favorite phrase? More importantly, who is going to read Article I, Section 2, paragraph 3? I'm assuming that the Republicans are not going to read only the parts of the original text of the Constitution that are still in force, but the entire document as originally adopted by our Founding Fathers. Which means someone's soon going to have a C-SPAN clip of them reading the following:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

This is, without doubt, the most racist piece of our country's founding document. Which Republican is going to be brave enough to read it, I wonder. The social hierarchy, when our Constitution was written, went roughly like this: property-owning free white males; property-less free white males; indentured white males; white females; free non-white males; free non-white females; slaves (who were only counted as three-fifths of a person, for Census reasons); and then Native Americans (who weren't even counted at all). This is our history. And it is enshrined in our Constitution (which at least refrained from using the words "merciless savage" to describe Native Americans, as is found in the Declaration of Independence). Meaning somebody's got to read it tomorrow on the House floor.

There are two other clauses that also are going to have to be read by somebody, which could become interesting video clips for future use. The first comes from Article I, Section 9:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Artfully, this clause doesn't use the word "slave," even though the subject being addressed is how to tax the importation of more slaves. Article IV, Section 2 is even more forthright:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

In other words, escaped slaves had to make it to Canada to truly gain their freedom -- since they could be recaptured and sent back if found in any state (even a non-slave-owning state). Who is going to volunteer to read that tomorrow?

Of course, if you looked up any of these clauses in a schoolbook, you would find they are crossed out -- indicating that they have been amended out of existence (by the Thirteenth Amendment and the Fourteenth Amendment, for instance), and are no longer a valid part of the Constitution. Which, ironically enough, makes a point the Republicans are hoping nobody will notice -- the Constitution is indeed a living document. It is not written in stone, never to be changed. It was not handed down from On High on tablets, it was written by men who knew that it would change over time.

They even intentionally put in several vague phrases to make this point in the original text itself. Article I, Section 8 lays out the powers Congress can exercise, and both begins and ends with sweeping statements:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;


To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This is where it gets truly hilarious. The incoming Republicans, as another sop to the Tea Party Republicans, have made a big stinking point that every bill the House writes from now on will be required to state what part of the Constitution authorizes such a new law. But since the Constitution doesn't say a word about modern things like the internet or wiretapping, sometimes vague language in the original text has come to cover areas that could not be foreseen in the 1780s. The funny part is that some Republicans actually now want to pick and choose which parts of the Constitution are "allowable" for bills to cite. And they want to ban using parts of the previous two clauses -- the phrase "general Welfare" (or, as Republicans might put it, "the W-word"), and the sweeping "all Laws which shall be necessary and proper," which is wide open to interpretation.

So, to follow this twisted Republican logic: The Constitution is sacred, and we're going to read it in full and require new bills to cite specifically which part of the Constitution authorizes them -- except for the parts we don't like, which we're going to ignore. Or, to put it even more amusingly: "All parts of the Constitution are equal, except that some parts are more equal than others." To be blunt, it's hard not to quote Orwell when faced with such Orwellian "logic."

There are other parts of the Constitution that are also going to be tough for Republicans to be seen reading as well. Not as embarrassing as talking about recapturing escaped slaves, perhaps, but ideologically embarrassing in today's political context for Republicans. For example, the Sixteenth Amendment is not going to be one Republican House members will be fighting each other for the honor to read tomorrow:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Or the Fourteenth Amendment, for that matter -- which Republicans are already trying to somehow get around when it comes to babies born to illegal immigrants:

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.

The Constitution of the United States is not a sacred scripture. It is not immutable. It even contains instructions for how it can be changed over time, as well as providing for a federal judiciary to interpret its meaning when the inevitable disputes arise. In fact, it is impossible to read the text of our Constitution without noticing how many changes it has already been through since it was initially inked.

Think about it -- the first order of business the newly-born United States government undertook was to offer 10 amendments to the Constitution. Within two years, the Bill of Rights had been added -- full of amendments promising uninfringeable rights to all citizens. Again, to be blunt, virtually all of those rights have been infringed by the government in one way or another in the intervening centuries. Your right to free speech is not absolute, for many different reasons. Neither is the right of assembly. Or the right to bear arms. Or the right not be searched arbitrarily by police. The Bill of Rights is an ideal the American people revere, but one that never truly existed in pure form -- neither back when these amendments were adopted, nor in today's world. They have always -- always -- been tempered by other laws, interpreted by the courts (sometimes rightly, sometimes wrongly), and debated among the politicians. Always.

My interpretation of the Constitution is a very different one from many Republicans and many federal judges. Which is as it should be. America has always been engaged in the grand debate over what the Constitution means, and it likely always will be. A recent example shows the supreme irony of the Republican's panacea of citing the Constitution in all bills -- in the healthcare reform bill, which passed and was signed into law, one particular item cited the constitutionality behind it: the individual mandate. That's right -- the most contentious piece actually delineated why it was constitutional, right in the text of the bill. Which is exactly what Republicans are now demanding for all future bills. Except (the ironic part) that the mandate is the piece of the new law that has been challenged in federal court over its constitutionality. Meaning the entire exercise of each bill citing the Constitution is downright meaningless -- because, in the end, the courts will rule on each issue as it comes before them.

As they're supposed to, and as they always have. Because that is the power given to them by the Constitution. Although it took a strong Supreme Court (in Marbury v. Madison) to assert this interpretation.

The only real lesson that can be taken away from the Republican's political stunt of reading the Constitution is how endlessly changeable and interpretable the document truly is. Parts of the original text have been, in essence, crossed out by subsequent amendments. Phrases and clauses have been expanded far beyond the original framer's intent, but that's OK because that is the system they initially set up. Just as nobody in Revolutionary times could have foreseen the modern world we live in today, nobody drafting the Constitution could have foreseen how some of it would eventually be modernized as life changed in America and the world. Just because (for instance) radio and television had not been invented when the Constitution was written doesn't preclude the federal government setting up the Federal Communications Commission -- or any other agency to deal with aspects of modern life which didn't exist in 1789.

The Constitution of the United States of America is not a religious document. It is not dogma. It is not sacred. It was meant to grow and change over time -- which it has. Mostly for the better, but sometimes for the worse. All members of Congress swear their fealty to the Constitution when entering office (as they just did today), but each member interprets the document somewhat differently (to put it mildly). Just as everyone is free to interpret reading the full Constitution on the House floor. My chosen interpretation tomorrow will be ironic celebration as to the "living document" nature of the Constitution. This, it should be pointed out, is not exactly what the Tea Party Republicans had intended by their stunt.

But you know what? It's a free country. Which leaves them free to read the Constitution, and me free to interpret such political theater in my own way.


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