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Keepers of the Faith: Why the Constitution Should Not Be Treated as a Sacred Text

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The 112th Congress opened a few weeks ago with a reading of the Constitution. Hard to argue about that? Guess again.

Certain Democrats charged "whitewashing," (maybe they do have a sense of humor after all) because the Republicans planned to read the amended version shorn of its references to slavery.

The document was designed to be amended and has been twenty-seven times. The version without references to the three-fifths clause and the original presidential electoral system, just to name two examples, is the one we use.

Washington politicians and Supreme Court justices seem increasingly interested in playing this absurd channeling-the-founding-fathers game in which they compete to see who can be the most constitutionally pious.

A year before the Civil War began, Frederick Douglass gave a speech my students recently studied. This Congress, and Justice Scalia, should too. Delivered in Scotland, it was titled "The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery?"

By 1860, Southerner Congressmen and Senators were well-practiced at waving their Constitutions in the air while citing various passages they claimed supported their right to maintain and expand the institution of slavery. These are the very passages whose deletion drew criticism from the Democratic side of the aisle last week.

In his speech, Douglass addressed every part of the Constitution that Southerners had cited to justify slavery. In addition to attacking each reference individually, he pointed out that the words slave and slavery appear nowhere in the text. He said, "I demand that the law that completes such a purpose" -- that is, turning people into property -- "shall be expressed with irresistible clearness. The thing must not be left to inference, but must be done in plain English."

Douglass put the defenders of slavery in the position of having to admit that the Constitution was written in code, which in some respects was true. The three-fifths clause and the fugitive-slave provision, for example, both referred to slaves as "persons."

Douglass would have none of it. As he put it, "the paper itself ... with its own plainly written purposes, is the Constitution." Its meaning was in the text, he insisted, "not the secret motives or unexpressed intentions of any body."

Douglass focused on the broad ideals embodied in the Constitution. The preamble begins "We the people," he noted, "not we the white people, not even we the citizens, not we the privileged class, not we the high, not we the low ... but we the people, we the human inhabitants. ..."

He declared that "the constitutionality of slavery can be made out only by disregarding the plain and commonsense reading of the Constitution itself; ... by claiming that the Constitution does not mean what it says, and says what it does not mean. ..."

This was not just an example of fancy footwork in the battle of words that foreshadowed the battle of arms. Douglass was exhorting Americans to assume ownership of our Constitution and our government in our own times.

There is no point in arguing about what the founders intended, he said: "These men are already gone from us. ... They were for a generation, but the Constitution is for the ages."

Douglass lived to see slavery abolished by the 13th Amendment. He also lived to see it succeeded by segregation. But he never lost faith in the ideals for which we continue to strive -- the ones contained in what he called the "fair-seeming and virtuous language" of the Constitution.