Wednesday, January 05, 2011

Reading the Constitution aloud and the preconceptions of what it says

This week the United States Constitution will be read aloud in its entirety in the U.S. House of Representatives compliments of the new Republican majority leadership. This, of course, is pandering to the so-called “tea party” movement whose members claim the nation has drifted away from the rule of law established by the founding fathers during some mythical golden era. Despite all that, the reading is probably a good idea. Not only would conservative Republicans and tea-partyers learn that the U.S. Constitution is a living/evolving document (it has been amended many times) but that it may say something different from what they believe it to say. Garrett Epps explains:
Conservative Republicans tend to go on and on about how the Constitution puts shackles on Congress. Sen. Jim DeMint (R-SC) recently explained that "although the Constitution does give some defined powers to the federal government, it is overwhelmingly a document of limits, and those limits must be respected."

DeMint has, usually, a very clear view of his own eye. The intention to limit Congress is, to me at least, pretty hard to actually find in the Constitution itself. Article I, which sets up the House and Senate and lays out their powers, is the longest Article in the document. Its 2500 words amount to fully one-third of the Constitution, even today after 27 amendments. In Article I, about 450 words are devoted to specific powers of Congress; about half that many to things Congress can't do. And in case you begin, Ron Paul-style, to claim that Congress can do only what is in Article I § 8, please look carefully at Article I § 8 cl. 18, which gives Congress the power "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." (Italics mine.)

If in fact you are Rep. Ron Paul (R-TX), please volunteer to read the specific text that gives Congress the power to conduct the kind of investigation of the Federal Reserve you plan. You can take the day off, Dr. Paul; it isn't there. To most readers, though, it is clearly implied--as are a lot of other powers Rep. Paul claims to find illegitimate, including the power to issue Federal Reserve notes instead of gold or silver certificates.

New members: Please don't leave the floor after George Washington's name is read either, because the Constitution has actually been changed since 1787. The following amendments all add to Congress's power: 13th, 14th, 15th, 16th, 19th, 20th, 23rd, and 24th. To the extent that you really care about the text, it's hard to discern Sen. DeMint's "overwhelming" list of limits.

There really are significant limits in the Constitution, of course--but the majority of them are limits placed on the states. The Constitution's text forbids the states from conducting their own foreign policy, printing their own money, taxing goods shipped in or out of their borders, or engaging in military operations. Many things they can only do by asking Congress's permission; states can't even negotiate among themselves unless Congress consents. In fact, the federal government retains veto power over each state's constitution, which must create a "republican form of government."

The idea that states have "rights," or that they are "sovereign," appears nowhere in the text of the Constitution.

I hope the members will listen carefully when their favorite amendment, the 10th, is read aloud. Conservatives like to sneak the word "expressly" into the amendment's statement that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It's not there. That's not an accident; the Articles of Confederation did have a similar provision including "expressly." Madison, a nationalist in 1789, pointedly omitted the word in his proposal for what became the 10th Amendment. And note that the amendment doesn't even "reserve" anything directly for state governments. The words "or to the people" mean something--they are not just another word for "state governments."

Listen carefully to these words as well, which are in the Constitution: "treaties . . . the law of nations . . . admiralty and maritime jurisdiction." These words refer to something called "international law," which was recently banned in Oklahoma but was a subject of much study for the Framers. Perhaps attempts to interpret the Constitution without it won't be accurate.

If the Members actually listen, they may notice that the document they are hearing is nationalistic, not state-oriented; concerned with giving Congress power, not taking it away; forward-looking, not nostalgic for the past; aimed creating a new government that can solve new problems, not freezing in place an old one that must fold its hands while the nation declines.
You can read Epps' entire piece here.

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