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Reading and Perfecting the Constitution

The House of Representatives is reading the Constitution this morning.  It is a symbolic gesture, but as noted in this post, symbolic gestures can have an effect on the zeitgeist and ultimately impact substantive decisions.

You hear some rhapsodizing in some quarters about the "perfect Constitution."  That is nonsense, as a full reading reveals.  The original Constitution was far from perfect.  Some deficiencies stemmed from necessary political compromises, some from oversights, and some from ideas that just didn't work out.  Amendments were necessary and remain necessary.
Article IV, ยง2 provides, "No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, in consequence of any Law or Regulation therein, be discharged from such Service or Labor, but shall be delivered up upon the Claim of the Party to whom such Service or Labor may be due."  That paragraph, not the much-misunderstood three-fifths compromise, is the ugliest stain on the original document. 

Politics is the art of the possible, though.  The compromise was necessary to get the full package approved, and the full package was a major improvement over the status quo ante.  Most of the improvements were in the structure and authority of the federal government, but there were improvements in the individual rights arena as well.

The new Congress, unlike the Confederation Congress, had the power to abolish the slave trade, although it was postponed to 1808.

The claim that the new Constitution had no bill of rights is not entirely accurate.  Article I contains limitations on the federal government in Section 9 and limitations on States in Section 10.  Article III protects trial by jury of the vicinage and limits some of the abuses of treason prosecutions practiced in England.

Most importantly, though, the new Constitution could be amended by three-fourths of the States rather than the unanimity requirement of the Articles of Confederation.

The Bill of Rights was quickly passed to address the criticism that individual rights were insufficiently protected.  In the years since, amendments have been passed for various reasons.

The original necessary but distasteful compromises on slavery were swept away by the Thirteenth Amendment. 

Election, qualification, and term of office provisions were tweaked by the Twelfth, Twentieth, Twenty-Second, and Twenty-Fifth Amendments.  A limit on congressional pay increases was part of the original Bill of Rights package but not ratified until two centuries later as the Twenty-Seventh Amendment. All of these amendments can be classified as correcting oversights or changing provisions that just didn't work out in practice.

The only major structural change in the federal government was wrought by the Seventeenth Amendment, providing for election of Senators by the people instead of the state legislatures.

The original Constitution left qualifications for voting entirely to the States. The Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments expanded the franchise.  The Twenty-Third gave D.C. voters a voice in the election of the President.

The huge proactive change in individual rights (as distinguished from the conservative preservation of existing rights in the Bill of Rights) came in the Fourteenth Amendment.

The Noble Experiment of Prohibition came in with a roar in the Eighteenth Amendment and made its exit as a discredited failure in the Twenty-First.

Finally, overturning Supreme Court decisions has also been a major reason for amendments: 

The Eleventh Amendment, on state sovereign immunity, abrogated Chisholm v. Georgia, 2 U.S. 419 (1973).

The citizenship clause of the Fourteenth Amendment abrogated one of the key holdings of Scott v. Sandford, 60 U.S. 393 (1857).

The Sixteenth Amendment, on income tax, abrogated Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895).

Section 2 of the Twenty-First Amendment raises to a constitutional rule the rejection of Leisy v. Hardin, 135 U.S. 100 (1890).  That case had misused the Commerce Clause to prevent a state from prohibiting sales of alcohol from another state in the original package.  Congress had abrogated that decision by statute, but part of the deal on repealing Prohibition was to insure local option as a constitutional matter.

The Twenty-Sixth Amendment was necessary because the Supreme Court decided in Oregon v. Mitchell, 400 U.S. 112 (1970) that Congress could not expand the franchise to 18-year-olds in state elections by statute.

Of the five Supreme Court decisions abrogated by constitutional amendment, at least three and possibly four were wrongly decided in the first place.  Only Mitchell was clearly correct.

What this history shows us is that there is no disconnect, and certainly no hypocrisy, in honoring the Constitution, promising to obey it, and at the same time proposing amendments to it.  Those who respect the Constitution need not worship it.

The original Constitution was a major step forward in the history of government.  The structure it established was advanced for its day in terms of a government that was responsive to the people and provided them the right to govern themselves but still protective of individual rights.  Yet it was still far from the goal, even though closer than any other government to that date.

The Constitution has been brought closer to the goal by numerous amendments.  It has also been amended to restore its true meaning after misinterpretation by the Supreme Court.  That process can and should continue.

Update:  In the WaPo, David Fahenthold and Philip Rucket report that the House chose not to read "those portions superseded by amendment...."

Update 2:  The Republican leadership gave the task of reading the Thirteenth Amendment to Rep. John Lewis (D-Ga.), David Ingram reports at BLT.  That was classy.  His reading got a standing ovation.


I found this post fascinating. For a different take on the current focus on the Constitution from a commentator from the opposite end of the political spectrum, you might be interested in this Slate piece by Dahlia Lithwick:


Interestingly, she seems to be making the same basic point (i.e., that the Constitution isn't perfect and shouldn't be worshipped like a deity), but she gets to that point by a very different route.

Thanks for the pointer. Lithwick's piece is consistent to the extent you say, but she completely misses the boat on some points.

One of her main points seems to be that devolution to states has nothing to do with individual freedom.

Prof. Robert Williams of Rutgers University School of Law, Camden, notes that states have what's called "plenary authority" over much of what isn't spelled out elsewhere, which explains why Massachusetts can force you to purchase health insurance and why some states have much more stringent environmental regulations than the federal rules would require. As a political matter, this might not be worrisome if you live in, say, Idaho, where overregulation is not a concern. But as a constitutional matter, that's an enormous amount of potential authority the Tea Party is willing to shift to the states.

But if you live in Massachusetts and truly can't stand what its government is doing, you can pack up and move to Idaho and vice versa. Changing countries if you can't stand what Uncle Sam is doing is a far more difficult matter.

Federalism thus does contain an inherent element of individual freedom.

Kent, here's a follow-up article, also by Dahlia Lithwick:


I think this part of the debate is fascinating as well, and the analogy to revising "The Adventures of Huckleberry Finn" to remove offensive language is apt. In keeping with the original point, I think it is important to remember the parts of the Constitution that were discarded in order to remember all of our history, not just the good parts.

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