Friday, January 07, 2011

The silliest debate on the Constitution

The Republicans started out their control of the House of Representatives yesterday by having the Constitution read aloud. Many liberals scoffed at this as mere symbolism. Just so.

The Democratic House members apparently figured that there was no up side to appearing to be anti-Constitution and so they joined in the reading. But not before a few Democrats objected that the GOP were reading a "redacted" Constitution and leaving out the portions of the Constitution that have been overridden by subsequent amendments. Here is Dana Milbank putting for that view.
In fact, there is only one version of the Constitution - and it wasn't what the lawmakers read aloud. What the Republican majority decided to read was a sanitized Constitution - an excerpted version of the founding document conjuring a fanciful land that never counted a black person as Three-Fifths of a white person, never denied women the right to vote, never allowed slavery and never banned liquor.

The idea of reading the Constitution aloud was generated by the Tea Party as a way to re-affirm lawmakers' fealty to the framers, but in practice it did the opposite. In deciding to omit objectionable passages that were later altered by amendment, the new majority jettisoned "originalist" and "constructionist" beliefs and created - dare it be said? - a "living Constitution" pruned of the founders' missteps. Nobody's proud of the Three-Fifths compromise, but how can we learn from our founding if we aren't honest about it?

The selective constitutional reading was the latest indication that, for all the talk of honoring the Constitution, Tea Party-infused lawmakers are more interested in editing it. Some have talked of repealing the 14th Amendment, which gives birthright citizenship and guarantees equal protection. The new majority leader has endorsed a constitutional amendment that would allow a group of states to nullify federal laws.

On Thursday, Republicans said the selective reading of the Constitution was approved by the Congressional Research Service, but it often seemed willy-nilly. Readers skipped right over the three-fifths compromise and the bit about escaped slaves. They neglected to cut a passage guaranteeing the vote to "male inhabitants" who are at least 21, but they lopped off the entire Prohibition amendment.
This is silly taken to the extreme. The Constitution has been amended and certain parts of the Constitution are no longer operative. There is no point in reading the Three-fifths Clause because that was modified by the Fourteenth Amendment. If you look at any printed version of the Constitution or a version online, something is done to indicate that the words of the Three-Fifths Clause are no longer operative. They might be in italics or with cross-throughs with an explanatory note as to how those sections have been made obsolete by subsequent amendments. For example, we no longer elect the president in the way originally planned by the Constitution because of the Twelfth Amendment.

If we followed the objections by these sanctimonious of originalists like Dana Milbank and the Democrats complaining in the House, we would have a constitution that was internally inconsistent. They'd read about one way to choose senators that is no longer in existence because of the Seventeenth Amendment. The Three-fifths Clause is no longer part of today's Constitution. Since the point of reading the Constitution was for the members to pay fealty to the principle that we are a nation governed by laws, by a fixed Constitution. That Constitution can be amended and when it is, the amendments are a part of the Constitution and owed as much deference as the body of the document. And, as such, when an amendment modified a part of the original Constitution, that change is part of the new Constitution - the one that judges must interpret. No judge today bases a decision based on a part of the Constitution that is now obsolete. So why would the House today in 2011 be including those deleted portions?

And individual members might have ideas about further amendments that they'd like to see ratified. But the point is that they're making their ideas for change within the framework given in the Constitution about how to amend the Constitution. They're not just storming ahead willy-nilly and asserting that they can do whatever they want without any regard for how the Founders planned for such changes in the Constitution in a method that was deliberately designed to be difficult and lengthy because the Founders were suspicious of changes inspired by the passions of the people without careful consideration.

The only reason to make those demands to read the Three-Fifths Clause is to rub people's faces in the faults of the original Constitution and remind people that are Founding has an original sin - the sin of slavery. Yes, it did. That was a tragedy and no one is denying that. But it is no longer true. There is no debate about whether those portions of the Constitution that were made obsolete by the Thirteenth and Fourteenth Amendments are still in effect. But the fact that these Democrats would be making that demand makes it clear what their real attitude towards the Constitution is. They regard it as a faulty document that deserves no deference today by this generation's legislators.