GOP's Whitewashed (mis)reading of the Constitution

Hello Senate Floor Friends, its' been a while since I posted but Slate had a great article entitled "What House Republican's left out when they read (parts of) America's founding document" that I felt I had to share.

To those of you who hadn't heard, the new GOP controlled House of Representatives decided that they were going to start the session with a reading of the Constitution. Their version, not the actual version.

The article makes some really good points, which I would like to discuss. Namely, the nature of the Constitution as a flawed but still incredibly forward thinking document. There is no part of the constitution that is ever re-written. Even if we make amendments, the original text always remains. Including the references to slavery. To the lack of universal suffrage. To powers of the original federal government to tax (or lack thereof).

My friends on the right always go on about the original meaning of the original text, as if it was a holy biblical document with divinity, that it is some sort of perfect statement of law. It is not, it never was, and it was never intended to be.

When I first heard reports that house leaders wanted to open the session with a reading of the constitution, I thought, sure, how can anyone have a problem with that? When I heard that Scalia was going to give a presentation on Constitutional Law to members of Congress, again, I thought, hey, I would love to attend a Scalia lecture on conlaw.

However, as the article points out, the GOP reading of the constitution is misguided, and legally and factually inacurate. The GOP shouldn't read an edited version of the Constitution that they believe is law, they shouldn't get to pick and choose which parts they think are relevant. I believe they should hav eread the entire Constitution, in all its' imperfect glory.

 

The good news is that the full text remains in force whether or not it gets read correctly into the congressional record.

 

Well, slavery proves the Founding Fathers were fallible, and we can't have that. That wouldn't mesh with teabagger ideology.

The really funny part was when someone said "Except Obama!" Yeah, way to keep the crazies out, Boehner.

 

I think Boehner had as much to do with that as Obama had to do with letting Joe Wilson yell at him in Congress.

 

That woman, Theresa Cao, was not a Congressional representative and was removed from the chamber. Boehner had nothing to do with her outburst.

[image=http://4.bp.blogspot.com/_t6rV3U9ZEHM/TSdBxGuKZRI/AAAAAAAA_Sc/Qah-B8_2gOM/s1600/TheresaCao.jpg]

Source

 

That is not exactly accurate.

The Constitution has a dual nature. It is both a historical document and a legal document. As a historical document (which is how most people tend to study the Constitution), the original text always remains. However, as a legal document, that text has been modified.

What was the purpose behind reading the Constitution in Congress? It wasn't meant as a history lesson, but as a legal lesson. As such, they read the legal document. Consider the US Code. When you repeal a section, it is no longer considered part of the legal document. Repealed (or later revised) sections can be found in historical versions, but they are not considered part of the current version.

Can you point to a single part of the Constitution that they did not read that is still current as the supreme law of the land? From the articles I've read, the only parts that they did not read had to do with the selection of Senators by state legislatures, the counting of slaves for purposes of apportionment, the prohibition of alcohol, and presidential succession. Each of those items has been overturned or replaced by a later amendment, and so none of those items have any legal force today.

The 18th Amendment, while a historical part of the Constitution, is no longer a legal part of the Constitution, because it was repealed by the 21st Amendment. That's what it means to repeal something, it no longer has legal force and is no longer part of the current legal document.

If they had decided not to read the 14th Amendment (for example) because they wanted to ignore it, you would have a point, but that's not what they did. They simply read the document as it currently has legal force.

Of course, if anyone has any proof of something with legal force that they left out, then you would have a point here. Until that proof shows up, you're really making much ado about nothing.

Kimball Kinnison

 

I'm with Kimball here. The Constitution in my textbooks always had strikethrough sections for the parts that were null and void. That's a hugely significant and entirely valid distinction.

 

Agreed with the above. Stick to applicable laws of the land. The repealed portions are best served as a historical layout. Whether or not it will have the intended effect I like the implication of the reading and the lecture: This is the document and the land we serve.

 

OWM, I think you and Slate are making much ado about nothing, and I'd have to agree with the 3 prior posts to mine.

I don't know if it's also been mentioned or if the first post left it out, but this reading was made to go along with a proposal to require that any new spending be accompanied by the Constitutional authority that grants it. As such, the legally binding version of the Constitution was read aloud, which KK pointed out above. If the new House wanted to make onions a focus of the upcoming term, then they would have read aloud a favorite recipe for creamy onion potato chip dip, because that's a tradition granted to the majority party. But just because the House read a onion dip recipe doesn't mean that everyone hates garlic dip, and any suggestion otherwise would be silly.

People can certainly interject their opinions about the read, such as "OMG, they didn't read Art 1, section 2 which was repealed by the 13th Amendment back in 1865," but that's all they are, opinions. Because the focus of the read was on deficit spending and the current legal authority to do so, not a historical lesson about every article of the Constitution.

 

One additional point. The actual copy that was used for the reading came from the Library of Congress. From OWM's article in the first post:

Even before the reading could begin, Rep. Jay Inslee, D-Wash., was on his feet trying to determine why the reading would not include the original language of the document. After a moment of parliamentary debate, Inslee asked Rep. Bob Goodlatte, R-Va.?who was overseeing the reading?to clarify why language was being "deleted" from the reading. Goodlatte replied that he'd consulted with the Congressional Research Service and the Library of Congress which "actually maintains a copy of the Constitution which includes those sections that have been superseded by amendment, and so we are not reading those sections that have been superseded by amendment."

Both the CRS and the LoC are non-partisan organizations, and for the most part, the portions of the Constitution that have been superseded are fairly well recognized and agreed upon. There are some portions where there is some dispute (as mentioned in the article), but from what I can see, where there isn't wide agreement, the text was left in the reading.

Most of this fuss seems to be an attempt to score partisan points, and nothing more.

Kimball Kinnison

 

I more meant that we're supposed to believe this isn't going to be as crazy as they were in the election.

Of course we also have people who didn't even get sworn in voting.

 

I'm not a fan of political grandstanding of any kind, and this pushed the envelope of ass-hattery. The abuse of history and the fallacious rhetoric of Founding Father ideological homogeneity kill me, and give the history faculty here ulcers. The guys who wrote the Constitution were as ideologically diverse as this debate forum, and while it is possible for us to agree on a particular sentence, it does not stand to reason that why we endorse a statement is homogenous, or that our interpretations of a given statement are uniform. Historical nuance and complexity seems to be lost on modern-day ideologues.

 

Agreed. You can't expect homogeneity. I mean, that's why things like the three-fifths compromise and the bicameral legislature exist.

 

I have to agree in full with the original post of this thread. I consider myself unapologetically on the left, but even so I was disagreeing with many left-wingers who for whatever reason were against the reading. I thought reading the Constitution was a great idea. Until they actually tried it, and botched it.

And before people go around ascribing political motives, consider who it was that objected to leaving out the 3/5 compromise on the House floor: Rep. Jesse Jackson, Jr. (son of civil rights leader Jesse Jackson). He was absolutely correct to point out that those parts left out of the reading are "no less serious, no less part of our ongoing struggle to improve the country and to make the country better." If you don't believe his sincerity I suggest you watch the clip for yourself: http://www.youtube.com/watch?v=v7bfK9Oq-5s The Republican he was addressing certainly seemed to take him at his word.

And for those who are only worried about leaving out parts that are still valid, I'm sorry to say they did that too, although accidentally. According to The Rachel Maddow Show that night, they claimed some pages had stuck together and that's why they were skipped. I could dig up the clip but I predict if you don't believe me telling you that you're probably not going to believe Rachel Maddow.

Agreed! Although I associate no negative connotation with the word "ideology." I think ideology is very important. That word can be defined in many different ways, though.

 

Jackson didn't mention the 3/5 compromise in that clip.

 

All I ask isa citation for which specific parts they supposedly left out, that are still legally valid. The text of the Constitution is readily available, and there is archived footage of the House reading it, so it would be quite easy to verify whether your claim is valid. All you have to do is tell us which part(s) they supposedly left out because "some pages had stuck together". Present the evidence, and we will evaluate it fairly.

If not, then it's more likely that Rachel Maddow was using sarcasm and ridicule, rather than actually reporting the news. As hers is an opinion show, that's not exactly uncommon.

Kimball Kinnison

 

In what sense was it meant "as a legal lesson?" It was, in the first place, a symbolic gesture. More to the point, there are no clear infractions of Constitutional law, anywhere extant, and the piece of legislation most often accused of such A)specifically cites its constitutional authority within the actual text of the law and B)has had the majority of court cases decided in favor of its constitutionality. Regardless of how it ultimately comes out, these are not conditions that merit a "legal lesson."

Rather, the point was broader, and more historically based. The Republican point has never been that the US has strayed from the way in which the Supreme Court has legally upheld the reading of the Constitution. Rather, they push the notion that the country strayed from the spirit of the document and its authors. The question of the fouders' attitudes, belief, and acumen is entirely a historical one. Is their "wisdom" the only way to prosperity, or not? What did it consist of? Etc. In such a debate, it's crucial to account for their glaring miscalculations--both moral and political--in the form of the several sections of Constitution that later had to be repealed.

 

It was meant as a reminder of the legal limits of power imposed by the Constitution. As such, only those parts currently in effect are relevant to that purpose.

That would be a misrepresentation of their arguments.

Their argument isn't that all of the founder's attitudes were perfect, or that their "wisdom" is the only way to prosperity. Their point is that you cannot change the meaning of the Constitution by reinterpreting it to mean something else. The proper mechanism for changing it is through amendment (which is how each of the portions that weren't read was nullified).

To use a semi-recent example from the courts, the Constitution says that the government cannot take private property for public use without just compensation. In Kelo v. New London, the Supreme Court basically changed that to mean that it doesn't actually have to be for a public use, but any purpose that tangentially benefits the public (including tax revenues) would suffice. That essentially allows the government to take land for private use, as long as they can identify some potential public benefit.

That is essentially a rewrite of the takings clause in the Constitution, but it was done outside of the amendment process outlined in Article V.

That is the sort of complaint that Republicans have had about not following the Constitution. It is not that it was perfect as written by the founding fathers, but that it was created with a mechanism for change, and that it is improper to try to change it outside of that mechanism.

Kimball Kinnison

 

It was Article IV. Section IV. She was reporting on what congressional aides had said about it and shows her source, she wasn't making a joke. Just watch the clip at about 4:00: http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#40957418 By the way, Rachel Maddow may openly express her opinion, but she doesn't just make stuff up out of whole cloth like, say, Glenn Beck does. If you think she does, I'd like to see an example of that.

So are you saying it hasn't been part of Republican rhetoric since the election of Obama to claim that we need to go back how the founding fathers wanted the country run? Because I've heard that line innumerable times, it's hard to believe you haven't.

He was talking about the history of African-Americans and the Constitution, I don't think it's a stretch to assume that's one of the things he was referring to.

That was actually more than a proposal, it was a campaign promise, and it was really two separate campaign promises. One was that they wouldn't pass ANY law without citing where the Constitution gives them the power to make that law. The other was the idea of "Cut-Go" (since they'll never admit they were wrong to repeal the Democratic Pay-Go policy that gave us the Clinton balanced budget) where they promised that any law they make would have to be paid for from reallocation of existing funds (whereas Pay-Go permitted the creation of new revenue sources). And yet when it comes to health care repeal they're neither citing the Constitution nor admitting that the CBO's estimate that it would add $200+ billion to the national debt has any validity, so they're not even trying to pay for it. They're breaking two promises from their little pamphlet thing from the elections right off the bat.

 

You might want to check your link. It went to Maddow's interview with Jon Stewart, talking about "Conversation stoppers".

Of course, looking a little through Google, I found the sort of evidence that you should have provided with the claim in the first place: article:

During the reading of the Constitution, because of an inadvertent double page turn, Section 4 of Article IV was skipped, as was a part of Article V. (It was entered into the record later.)

Now, do you have any evidence that it was anything other than an accidental double page turn? Considering they probably prepared the text for each person to read specifically for that event, if they intended to leave that part out, why would they have had it there to "double page turn"? If you have any evidence (other than your accusation itself, which isn't evidence), please present it.

Otherwise, it's nothing more than nitpicking, and petty attempts to "score points".

Also, you might want to check your reading comprehension. I never said that she makes things up. I suggested that she was using sarcasm and ridicule. There is a big difference there.

You are misinterpreting it.

What the specific complaint is relates to "reinterpreting" the Constitution in order to change what is allowed. If you want to change the Constitution, you need to amend it.

The founding fathers made a Constitution that would be adaptable to the future, but they did that by providing a specific mechanism for those adaptations (found in Article V). If you want to change the way to modify the Constitution, you need to follow the process found there to do it.

Kimball Kinnison

 

http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#40957418 it's taking me to the segment I was trying to direct you to, not the Stewart interview, so I can't explain why it's doing that for you.

I never claimed they did it on purpose, I'm actually pretty sure the word "accidentally" is in my post where I first mentioned it. Note that I'm not insulting your reading abilities because you missed that. I only brought it up because you said that to you only leaving out still valid parts would qualify as a mistake so I was just pointing out that they did, in fact, make that mistake. I don't think it makes much of a difference personally, and frankly I was more perturbed at the omission of much of our country's history than that.

If you're dedicated to the belief that the only reason I think they should have read the whole thing is to "score points" I obviously am not going to be able to convince you otherwise. As I stated, I thought the reading was a great idea when I first heard about it.

I told you what Maddow reported and you said that if I couldn't find a source that "it's more likely that Rachel Maddow was using sarcasm and ridicule, rather than actually reporting the news. As hers is an opinion show, that's not exactly uncommon." Which seems to imply that you think what she said might have been false or made-up (ridicule rather than reporting). I sincerely hope in the future we can discuss our disagreements on these issues without taking jabs at each others' reading abilities.

Who made this specific complaint? I was referring to remarks made by elected representatives, which you don't seem to deny were made.

 

Three things are wrong with your line of thinking:

1. What Tarkus said above.

2. Significant changes have been made simply by "changing our understanding" of the Constitution without additional Amendments. Plessy v Ferguson was found to be in compliance with the 14th Amendment in 1896, and a gross violation thereof by 1954. This occurred even though none of the legal facts of the case had changed. Quite literally, the viability of the "separate but equal" doctrine turned on our understanding of what the 14th Amendment said. Sort of hard for you to argue that something doesn't happen in a way that it quite manifestly has, with huge repercussions for American society.

3. If the debate is over interpretation, how does a reading of the Constitution highlight that fact? By definition, everyone agrees on what the text of the document is. They differ on how to interpret it. Were the Republicans' goal what you suggest, this exercise would have done absolutely nothing to help highlight the issue. At best, it just confuses it.

 

Hey Kimball, why do your posts tend have an air of superiority and mean spiritedness to them? Chill out friend! You can make your points without being so angry about it!

 

Not necessarily. George Bush's interpretation, that Indian affairs are to be left up to the states, goes against the Commerce Clause. Didn't stop the Rehnquist court from repeatedly granting states rights over Indians. This became Bush's infamous interpretation, though not nearly as infamous as his inability to define "sovereignty".

And of course, to use a more well-known example, the Dred Scott decision was cut from whole cloth, according to "original intent". Barring that sitting on the Supreme Court grants you necromantic powers, "original intent" is legalese for "I'm just making this up".

 

I'm sorry, but what do either of those examples have to do with what I said? Dred Scot is one of the worst non-originalist decisions ever made, and quite a few supporters of originalism have said as much. Similarly, what do your comments about George Bush's interpretation of the Constitution have to do with anything I said? Nowhere have I seen anyone claim that either George Bush was a strict originalist when it comes to the Constitution.

Even though there wasn't unanimity when the Constitution was written and ratified, nor when each amendment was passed and ratified, you should still be able to point to historical sources to justify your idea of how it should be interpreted. We may not be able to point to one, single, "perfect" interpretation, but we can at least exclude a good number of interpretations as being outside of what was intended.

Kimball Kinnison