Bench Memos

A Constitutional Error

Earlier today, in one of its most anticipated actions, the House of Representatives undertook to read the text of the entire Constitution.  Only that’s not what happened.  Rep. Bob Goodlatte of Virginia, managing the business on the floor for the Republican majority, was pressed before the exercise began, by Democratic members Jay Inslee of Washington and Jesse Jackson, Jr. of Illinois, to explain just what text the members would be reading.  The “complete text,” Goodlatte said . . . except that they would not read “sections superseded by amendment.”  Goodlatte laid this off on the Congressional Research Service of the Library of Congress–but of course the CRS and the Library would be able to provide the text with or without those sections, so this was plainly a choice made by the majority.  So why the deletions?

Rep. Jackson insinuated, and liberal bloggers picked up and hollered, the explanation that the Republicans were choosing a “redacted” Constitution (Jackson, ahem, kept saying “dedacted,” but one caught his drift) because they specifically wanted not to read the sections of the document that obliquely refer to slavery.  Those tea-partying framer worshippers, you see, must want to present the framers as untainted by association with that evil institution.  If there was anything to that speculation, then the Republicans were foolishly and unnecessarily courting criticism, because the entire Constitution–”warts and all”–could profitably be read without the least damage to the reputation of the framers, or to the admiration traditionally accorded them.  The clauses having to do with slavery, as everyone knows who has ever read them, never even use the words “slave” or “slavery,” the latter word not appearing in the text until the Thirteenth Amendment, which accomplished its abolition.  The original Constitution contains only euphemisms about various “persons” who can only, in context, be slaves.  There is a palpable unease, even a shamefacedness, to these references.  That’s good to notice.  But it’s also good to notice that there are no clauses that accomplish the legal perpetuation (as opposed to serving the political interest) of the institution of slavery.  The Thirteenth Amendment actually changed nothing in the Constitution, but it made those clauses superfluous, as references now to a nonexistent institution.  

Whatever the reason, the decision to leave out some parts of the historic Constitution produced some pretty dumb results, and in some cases plain mistakes were made.  If the Three-Fifths Clause (Art. I, sec. 2, cl. 3) was omitted, why was the Importation Clause (Art. I, sec. 9, cl. 1) still read?  The latter no less than the former referred to slavery.  Why was Art. I, sec. 9, cl. 4 read, when it has been nullified by the Sixteenth Amendment?  Why was a snippet of Art. III, sec. 2, cl. 1 omitted (“between a State and Citizens of another State”), when the Eleventh Amendment only eliminates federal suits initiated by the second of these parties against the first, not those by the first against the second?  Why was the Eighteenth Amendment omitted altogether, so that one doesn’t know what the heck is being repealed by the Twenty-first when it comes around?

The Constitution–the whole Constitution–is at the center of our history as a nation.  When parts of it are amended, or even explicitly repealed, they remain a part of the document, there for us to see our history.  It’s important to know how we first elected senators, and how the electoral college originally worked, or that Congress used to start its sessions in December.  And so when those things were changed, it was not the decision of the Congress and the state legislatures to “redact” or delete those parts from the text.  They’re still there, and in a true copy of the Constitution should not only be present, but should be unmarked by italics, brackets, or asterisks.  (In a “teaching” copy, such markings may be useful, with explanatory footnotes outside the text–but never in a true copy.)  The Three-Fifths Clause is still a part of our Constitution, and a damned interesting part.  Read the whole blasted text, for pete’s sake.  

A moment that could have been solemn and instructive was, I’m afraid, rendered asinine and ridiculous by this unforced error.

UPDATE: My friend Adam J. White takes a different view at the Weekly Standard, arguing that the oath taken by officeholders extends only to those parts that they can still be expected to uphold.  Why then should the “inoperative” parts be read?  My answer is because they’re still there, and help us understand what is “operative.”  As I suggest above, the clumsy decision of the Republicans led as well to confusion about what is and isn’t operative.  

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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