J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Sunday, January 09, 2011

Reading the Constition, Almost, Sort of

Last week the new Republican leadership in the House of Representatives arranged for members to read the U.S. Constitution aloud during a legislative session. That had never been done, they said. It still hasn’t.

Of course, the Constitution provides the legal basis for Congress and the rest of the federal government, and has never been far from its deliberations. Members of Congress swear to protect it. The late Sen. Robert Byrd (D-W.V.) was known for handing out copies from his pockets.

These days the text of the Constitution is easier to find than ever. I have copies in booklets, reference books, and computer files. There’s a standard text, and an annotated text from the Congressional Research Service, noting which clauses have been superseded by amendment. The Supreme Court’s interpretations of the document are more voluminous, of course, and ongoing.

But the House leadership didn’t like the standard historical text. Those men apparently wanted to avoid having members recorded reading clauses that protected slavery, like the “three-fifths” and fugitive clauses. Their choice produced objections from other House members who wanted that history recognized explicitly instead of implicitly by reading the whole document.

The Republican leadership also didn’t want members to read the Eighteenth Amendment, prohibiting the sale of alcohol, though they did include the subsequent Twentieth-first Amendment, which makes no sense without the text it repeals. Passages on the Electoral College and the Vice President’s election, showing that the founders’ system never worked as intended, were also silently removed.

Nevertheless, as Bob Fuss at CBS News, Dahlia Lithwick at Slate, and Matthew J. Franck at National Review Online pointed out, the scrubbed text still included passages and details that have been superseded by later amendments.

The most embarrassing moment of this episode, however, came when Jeff Fortenberry (R-Neb.) started reading, “or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…” He began in the middle of a sentence, and what he read made no sense with what had come before. The reading had skipped a page. Fortenberry later told the Omaha World-Herald that he knew he was in the wrong place, but he read what was in front of him anyway.

And no one spoke up. If members of Congress in the chamber were following along in their own copies, or familiar enough with the Constitution to recognize the error, they said nothing. Not even, “Mr. Speaker, did we skip a page?” Maybe they thought that the missing text was one of the parts that had been edited out.

The organizer of the reading, Rep. Bob Goodlatte (R-Va.), later read the missing text into the Congressional Record, much as individual representatives have inserted the whole text in the past. But the full Constitution has still never been read aloud in a House session.

The Congressional Record will include the edited text that the House wanted to read, though I can’t find that text on the web. (There’s a C-SPAN transcript of the session.) Apparently this is another of the limits on the new leadership’s “openness.”

Most observers say this theatrical exercise was staged for the benefit of the Tea Party, adherents of which so revere the Constitution that some wish to change the legal meaning of the Fourteenth Amendment, alter the Sixteenth Amendment, rescind the Seventeenth Amendment, add a nullification process, and overlook the prohibition on religious tests for office and religious establishment. Of course, the Tea Party also complains about wasteful government action, and they might question the value of an errant reading of the Constitution.

POSTSCRIPT: In its article on the House reading, New York Times reported this detail:

“I just read the First Amendment!” Representative Gabrielle Giffords, an Arizona Democrat, said gleefully as she exited the floor.

“I wanted to be here, I think it’s important,” Ms. Giffords said. “Reflecting on the Constitution in a bipartisan way is a good way to start the year.”
As most people have no doubt heard, Rep. Giffords was shot at a public event in her district yesterday.


j gregory said...

I am not sure which is more entertaining: this post or the rants of the tea partites. I do know your blog is most entertaining and illuminating.

Waldo4me said...

I agree with John. Your blog is almost always illuminating and entertaining. Today it's not. I'm so tired of the Republican vs Democrat nonsense that I see everywhere. I'm encouraged by the rise of independents in our electorate, but I cringe every time I read an article that has an R or D after everyone's name. I have the ability to think for myself. And, to tie this tragic shooting in AZ to politics (as some have done, not Mr. Bell) is very sad. We have so many important concerns, let's stop wasting our time with the endless political gossiping.

But, on balance, Boston 1775 is a wonderful blog. I never miss a day.

J. L. Bell said...

One of the points of this essay was that House members weren’t able to think for themselves. If reading the Constitution was so important, then they should have read the Constitution in its standard form, acknowledging how it’s changed. They should have noticed the error and paused the reading to fix it. But they didn’t, suggesting that reading that Constitution wasn’t truly as important as being seen on television to read the Constitution.

Peter Fisk said...

Mr. Bell did not interject partisanship. A group of congressional demagogues (who happened to be Republicans) were engaging in grandstanding, trying to use the Constitution as a political football. In so doing they screwed up in their attempt to portray the facts of the document, and Mr. Bell set the record straight, as is the proper thing for a historian to do.

RFuller said...

More than whether there's an R or D after their names is the fact that the media culture which drives Congressional performance (literally) is so shallow, that the Congressmen thought it was better to keep the show going, than to call attention to the fact that there were parts missing. It speaks well for them that they realized there were parts missing, but it spoke ill of their character that they did not speak up right then and there. Character often means timing in one's actions, after all. It also means that they thought their electorate or anybody else watching the TV show were too stupid to also realize the omission, too.

For some -on both sides of the aisle- it's probably the only time they have ever heard the document, other than the parts that serve them best.

J. L. Bell said...

I agree that most Americans haven’t heard the whole Constitution read aloud since it’s not a document intended for such reading. (Of course, my generation can sing the Preamble, thanks to Schoolhouse Rock.)

And of course complaints about not adhering to the Constitution don’t come from just one part of the political spectrum. The left said that the Bush-Cheney administration was overstepping executive powers, flouting the Fourth Amendment, &c. The right is saying the health-insurance reform goes beyond the “commerce clause.” Some judges have agreed with all of those complaints.

This particular exercise seems to be designed to say, “We will stick to the Constitution’s language even when political leaders or the public demands otherwise.” Which makes the House members’ choice to tailor their language and ignore the omissions for the sake of good television all the more ironic.

Jeff Pasley said...

Great post on a happening my mind sort of refused to acknowledge when it was actually occurring. I am still trying to process the inconsistency of people so literalist about the Constitution that they would read it aloud just dropping the bits that embarrassed them. Did you see any explanation for leaving out Prohibition: a GOP-southern Dem production support of which would map almost perfectly on the present House majority.

RFuller said...

In the light of all the compaints about right-wing talk radio (although I've heard some equally hateful speech come from the hosts on Air America, albeit from the other side of the aisle) being the cause of Rep. Giffords' attempted assassination, it is in times such as this we again must ask ourselves: do we really honor the principles of the First Amendment, and are we willing to take the good with the bad that free speech entails? Freedom is messy, often unsafe, but the benefits far outweigh the dangers. We have to decide: which is more important? freedom or security? Or, do we pass new versions of the Alien and Sedition Acts?

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
- --Justice Oliver Wendell Holmes, Jr., Schenck v. United States, 1919

I may not agree with what you say, but I will defend to the death your right to say it.
- --[Francois Marie Arouet] Voltaire (1694-1778)

J. L. Bell said...

Jeff, I don’t recall the Republican leadership offering any explanations on why they excised certain parts of the Constitution from reading, except that they’ve been superseded.

I was inferring that they didn’t like the “visuals” of a member reading the three-fifths clause, the fugitives clause, or the protection of transatlantic slave traffic until 1808. I wondered if something similar was at work for not reading the Eighteenth Amendment, but that doesn’t seem to be such a raw wound. And they did read the amendment reinstating income tax as a possibility.

J. L. Bell said...

As with Scheier’s proposal about the Washington Monument, the First and Second Amendments do present us with questions of trade-offs: balancing freedoms with the undesirable things that can come from them.

There is, of course, another possibility: that society can express its abhorrence of violent political rhetoric or activity (i.e., fundraisers linked to machine guns) without making that illegal. In some ways, society already has: most of the politicians who used the rhetoric of violence most often in the last couple of election cycles are not in office.