The Cult of the Constitution

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After much hullabaloo, the 112th Congress kicked off its second day as promised: by reading the Constitution aloud on the House floor for the first time ever, per a chamber historian. Except not all of it. The bipartisan recitation omitted several critical passages, including the three-fifths compromise.

Both the ceremonial reading and the whitewashing it involved were fitting. There is a long record of politicians of all stripes devoting time to publicly venerating the Constitution, but in the 2010 election cycle the cult of the Constitution seemed to balloon. Candidates brandished their copies at campaign events. Tea Partyers treated it as though it were handed down from the heavens. Republicans widely promoted a new breed of candidate: the “constitutional conservative.” Michele Bachmann hatched plans to hold a weekly constitutional study groups, which she likened to a group of athletes watching game film. (Hardly a bad idea.) In short, a pocket copy of the seminal text was to the midterms what the flag pin was in 2008: a totem of one’s patriotic bona fides. The Journal’s Janet Adamy, in piece today that’s worth reading, recounts a moment in November when Republican Sen. Bob Corker was confronted by constituent who felt Corker had lost his constitutional moorings. Peeved, Corker proclaimed he carries the document around “at all times,” and in fact read it last Thursday morning.

Which brings us to today’s reading. Is there anything wrong with starting a new session of Congress by reviewing one of America’s seminal texts? Not as far as it goes, though as Vanity Fair notes, you could argue it’s an expensive use of time: more than $1 million in opportunity cost, by one reckoning. The Constitution is a remarkable document, and eminently worthy of the reverence heaped on it, but it’s also flawed. Despite their genius, the framers were fallible. Law professor Sanford Levinson wrote a book called “Our Undemocratic Constitution” which points out some of these flaws-including its treatment of slavery, which the House papered over today. (A similar move was recently pulled by a publisher who planned to purge Huck Finn’s racial epithets in a forthcoming edition. It’s hard to learn from our history if we favorably revise it.)

That’s one reason why the fetishizing of the Constitution is unsettling. It’s not that it isn’t worthy of veneration or study. It’s that too often, the Constitution is wielded as a political cudgel, even if, as Garrett Epps wrote this week at the Atlantic, the cudgelers fail to grasp the document’s finer points. Both parties are desperate to claim themselves as the true descendants of the framers, and they drape themselves in the constitution like a political safety blanket, since it’s one of the only unassailable quantities in contemporary politics. (Among the others, I count jobs, capitalism, liberty, faith and not a whole lot else.)

Consider one example of how the Constitution gets hauled out for partisan arguments. At Commentary Magazine today, Pete Wehner, a former Bush Administration and a senior fellow at the Ethics and Public Policy Center, writes:  “For many modern-day liberals, the Constitution is, at best, a piece of quaint, even irrelevant, parchment.” In the context of his argument, this swipe follows from a discussion of how liberals’ dismissal of the today’s reading as a “gimmick” shows they don’t take the document seriously. It eventually leads to a defense of the orginalism, the theory which holds the Constitution should be interpreted according to the original intent of its framers, as best we can surmise them. Its most famous proponent, Justice Antonin Scalia, has argued — as Wehner points out — that the problem with treating the Constitution like a living document is that there will never be agreement about how it should evolve, and because it’s too messy to make those determinations, it must stay static.

Admittedly, I’m radically oversimplifying this idea, which far smarter people than me (Scalia included) subscribe to. But the notion that our governing document should never evolve has always struck me as mildly insane. And while most politicians treat the Constitution as sacrosanct, their actions often don’t jibe with their words. As Dahlia Lithwick wrote Tuesday in Slate: “Unless Tea Party Republicans are willing to stand proud and announce that they adore and revere the whole Constitution as written, except for the First, 14, 16th, and 17th amendments, which totally [itals hers] blow, they should admit right now that they are in the same conundrum as everyone else: This document no more commands the specific policies they espouse than it commands the specific policies their opponents support.” In September, TIME’s legal columnist, Adam Cohen, also made a good argument for why strict originalism is problematic.

Meanwhile, here’s Thomas Jefferson weighing in: “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment…But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”

These, almost as much as any the framers gave us, are words worth remembering.

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