This essay is adapted from a work in progress, tentatively titled Unhinged: Reclaiming Our Constitution From the Lunatic Right. By Garret Epps
In October I spent a crisp Saturday in the windowless basement of a suburban Virginia church attending a seminar on "The Substance and Meaning of the Constitution." I was told the secrets the "elite" have concealed from the people: the Constitution is based on the Law of Moses; Mosaic law was brought to the West by the ancient Anglo-Saxons, who were probably the Ten Lost Tribes of Israel; the Constitution restores the fifth-century kingdom of the Anglo-Saxons.
Carlos Alberto Da Silva
There's more: virtually all of modern American life and government is unconstitutional. Social Security, the Federal Reserve, the Environmental Protection Agency, the Civil Rights Act of 1964, hate crime laws—all flatly violate God's law. State governments are not required to observe the Bill of Rights; the First Amendment establishes "The Religion of America," which is "nondenominational" Christianity.
The instructor was Lester Pearce, an Arizona judge and the brother of state senator Russell Pearce, author of Arizona's anti-immigrant law, SB 1070. (Perhaps not surprising, Lester tended to digress about how he cracks down on Mexican immigrants in court.) Pearce got rapt attention from the fifty people in the audience, although one boy near me spent his time perfecting a detailed sketch of an assault rifle.
These were earnest citizens who had come to learn about America and its Constitution. What they were being taught was poisonous rubbish.
Americans today are frightened and disoriented. In the midst of uncertainty, they are turning to the Constitution for tools to deal with crisis. The far right—the toxic coalition of Fox News talking heads, radio hosts, angry "patriot" groups and power-hungry right-wing politicians—is responding to this demand by feeding their fellow citizens mythology and lies.
The seminar I attended was organized by the National Center for Constitutional Studies, nestled securely in the metropolis of Malta, Idaho (2000 Census population 177, white population 174). The NCCS was the cold war brainchild of the late W. Cleon Skousen, a prominent John Bircher. The center and its crazed ideology have been taken up by Glenn Beck, who touts its educational programs on his TV show. Civic groups, school districts and even some city governments across the country have been persuaded to sponsor daylong seminars by the "nonpartisan" NCCS; its speakers are visiting high schools to distribute pocket copies of the Constitution. Skousen's massive "guide" to the Constitution, The Making of America: The Substance and Meaning of the Constitution, is currently No. 14 on Amazon's "constitutional history" bestseller list—and has ranked as high as No. 4 in the past year.
Beck is not the only commentator who is espousing such extremist notions. Popular authors Thomas Woods Jr. and Kevin Gutzman, in their book Who Killed the Constitution?, argue that Brown v. Board of Education should be overturned. Not even the Constitution is safe from the "constitutionalists": Fox News commentator Andrew Napolitano recently called the popular election of senators "the only part of the Constitution that is itself unconstitutional." A gathering of conservative law professors and activists at the 2010 convention of the Federalist Society, after gloating about the right-wing triumph in the off-year elections, advocated calling a constitutional convention to strip Congress of its current powers. House majority leader Eric Cantor supports a constitutional amendment to permit the state legislatures to repeal federal laws.
The new Republican majority in the House decided to kick off Congress with a televised reading of "the Constitution" by members. I use the quotation marks because the Constitution they read was edited so that members wouldn't have to read embarrassing anachronisms like Article I, Section 2, which counted a slave as three-fifths of a white person. (Poignantly, the language in the First Amendment about "the right of the people peaceably to assemble" was read by Representative Gabrielle Giffords, who was shot at a constituent meeting two days later.) They also have enacted a rule requiring that every new piece of legislation include a "constitutional authority" statement explaining why Congress has the power to pass it. (The false implication is that previous Congresses enacted laws willy-nilly, with no attention to that body's powers.)
Conservative lawmakers increasingly claim that the "original intent" of the Constitution's framers and the views of the right wing of the Republican Party are one and the same. Newly elected Senator Mike Lee of Utah has endorsed state "nullification" of the healthcare law. And far-right Republican Congresswoman Michele Bachmann has set up a "Constitution school" for new members of Congress; Justice Antonin Scalia (in other contexts a stickler for the separation of powers) has agreed to join Bachmann's faculty.
Scalia's injudicious involvement with House Republicans underscores the new boldness of conservative federal judges in adopting the rhetoric and ideas of the hard right. Scalia has repeatedly said that direct election of senators is "a bad idea." He recently said that the Equal Protection Clause provides no protection for women against discrimination because when it was adopted "nobody thought it was directed against sex discrimination." Federal District Judge Roger Vinson of Florida, who is hearing a challenge to the new healthcare program, recently cast doubt on its constitutionality in an opinion that cited, among other things, a Wall Street Journal op-ed as its "authority."
It's easy to understand why conservative politicians and judges are trying to align their political program with a strained reading of the Constitution: Social Security, Medicare, environmental protection and aid to education have broad popular support. Even the healthcare program, so reviled by the Republican Party, will be almost impossible to repeal using the legislative process.
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So the right is seeking to win by changing the rules. Progressive, democratically enacted policy choices are unconstitutional, they argue. A document that over time has become more democratic and egalitarian is being rewritten as a charter of privilege and inequality. This shouldn't be allowed to happen.
Why has the right done such a good job of putting out its invented "Constitution"? Some of the responsibility lies with progressive legal scholars, who are well situated to explain the Constitution to the public. It isn't that they have failed; it's that they seldom try. Scholars from top schools hold forth with polysyllabic theories of hermeneutics that ordinary citizens can't fathom. Meanwhile, conservatives don't hesitate to speak directly to the public—and, often, to dumb down the Constitution. They purvey a simple myth: anyone who doesn't support the far-right version of the Constitution is at best unpatriotic, at worst a traitor.
Enough of that. The Constitution belongs to all of us. It's time to take it back from those who are trying to steal it in plain sight. Our Constitution wasn't written to rig the political game but to allow us to play it without killing one another. It created a government and gave that government the power it needed to function.
That seems elementary, but the right claims that the Constitution was designed to prevent America from abandoning the tallow-candle purity of the Anglo-Saxon past. Any innovative government program, the argument runs, must be unconstitutional, or the framers would have predicted it in so many words. But the Constitution wasn't a revival; it was something brand-new—the first national written constitution in Western history. The framers wanted to impel change, not prevent it.
Conservatives also claim that the Constitution was set up to restrain the federal government. If so, there's precious little evidence of it. The actual text of the Constitution is overwhelmingly concerned with making sure the new government had enough power; the framers thought the old Articles of Confederation were fatally weak. Sure, they didn't want to set up a government that could throw people in jail without a good reason, or steal their property, or do away with free elections. The original Constitution prohibited oppressive practices, and the Bill of Rights added other restrictions.
But the document as a whole is much more concerned with what the government can do—not with what it can't. From the beginning it was empowered to levy taxes, to raise armies, to make war, to set the rules of commerce and to bind the nation through treaties and international agreements. There's no sign of the libertarian fairyland many on the far right have invented. Rather, the Constitution allowed for a government adequate to the challenges facing a modern nation.
In particular, the Constitution was not written to weaken an overreaching Congress but to strengthen an enfeebled one. The old Articles of Confederation had set up a Congress with the power only to beg states for money and recommend laws for them to enact. That didn't work; the country found itself headed for bankruptcy and disaster. To replace that old Congress, the Constitution created a bicameral Congress with a long and impressive list of textual powers. It also gives this Congress the power "to make all laws which shall be necessary and proper for carrying into execution," not only those specific powers but "all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
That's a lot of power. And over the years, the government has sometimes needed it, to deal with civil war, economic calamity and internal disorder.
Another myth is that the Constitution was created to "protect" the states from federal power. Again, if that's true, it's not because of anything actually in the Constitution. The Constitution includes limits—but they are mostly limits on state governments and corresponding increases in federal power. The idea that states have rights, or that they are sovereign, appears nowhere in the original Constitution. And constitutional amendments have repeatedly imposed further limits on the states while granting more power to Congress.
One of the pet peeves of the right is the "intrusion" of ideas from international law into American law. Senators at the confirmation hearings for Justice Sonia Sotomayor demanded (and, regrettably, got) a promise that she would never rely on international law. A measure adopted by voters in Oklahoma in November forbids state courts from even looking to "the legal precepts of other nations or cultures" or "international law."
This is not a defense of the Constitution; it is a mutilation. The framers knew a great deal of international law. The document itself mentions many sources of international law: treaties (a major source of international law, they are part of "the supreme law of the land"); "the law of nations," which designates customary international law; and "admiralty and maritime jurisdiction," among others.
The most important truth about the Constitution is this: it was written as a set of rules by which living people could solve their own problems, not as a "dead hand" restricting their options. Strikingly many important questions, from the nature of the Supreme Court to the composition of the cabinet, are left to Congress. There's ample evidence in the text that the framers didn't think of themselves as peering into the future and settling all questions; instead, they wrote a document that in essence says, "Work it out."
These conclusions come from a careful reading of the Constitution, not from some hazy idea of a "living Constitution." The "living Constitution" is a whipping boy of the right. Progressives supposedly believe, in Ron Paul's words, that "government may unilaterally change the terms of its contract with the American people." Right-wing historian Kevin Gutzman writes that Supreme Court justices use the "myth of a living Constitution" to "write their own views into law on some of the most contentious issues of our day."
This "debate" is a mystification. The far right views the Constitution as something like the "killing jar" scientists use to preserve butterflies, freezing the country under glass, preventing social change and stripping the democratic process of its effectiveness. The issue in constitutional interpretation is not whether the Constitution is a living document; it is whether the United States is a living nation.
That simple reality is often obscured by conservatives' claim that they, and only they, follow the framers' "original intent." Originalism, writes scholar David Forte in The Heritage Guide to the Constitution, "implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution—the supreme law of the land—as it was originally written." Who could be against that? Nobody, Forte writes, except those who believe that the Constitution has "no fixed meaning."
This notion—that there is somehow a fixed, binding, single intent hidden in a each phrase of the Constitution—confuses the Constitution with the Bible. The idea of a single, literal, intended meaning of a biblical text gained primacy during the Reformation. The religious historian Jaroslav Pelikan sees in early Protestant theology the origins of American constitutional discourse. Luther and the other Reformers believed that "Scripture had to be not interpreted but delivered from interpretations to speak for itself." What mattered to Luther was "the original intent and sensus literalis [literal meaning]" of the words of the Bible.
The general Protestant notion of "original intent" was elaborated a century ago, when a group of American evangelical Christians published a set of essays on "the fundamentals" of Christian belief. In large part, fundamentalism was a revolt against "higher criticism"—scholarship that studied the Bible like any other literary work in history. Rejecting this approach, fundamentalists believed that the Bible is the literal word of God; all parts of it are created directly by the breath of God into the human soul. The inspiration is not general but verbal—God has fixed not just the ideas in the Bible but the very words in which they were written. Thus every word has a fixed meaning, immune from question by history; and all the words fit together into one divine whole. This "true" meaning must be zealously guarded against corrupt worldly forces—the "higher critics"—seeking to contaminate it with modern, un-Christian ideas.
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So influential has biblical fundamentalism been in this country that these attitudes are now cultural rather than specifically religious values. In fact, "originalists" have an enemy just as the fundamentalists did. Like the "higher critics," the supposed advocates of the "living Constitution" are smooth-talking "elite" deceivers who want to replace the good old Constitution with their personal views.
But that's one of the right's biggest lies. "We are all federalists, we are all republicans," Thomas Jefferson said in his first inaugural address. And we are all "originalists." But many constitutional interpreters find the "intent" of the framers and ratifiers of the Constitution in, well, what the Constitution says.
If the Constitution says that Congress has the power to regulate "commerce with foreign nations, and among the several states, and with the Indian tribes," we look around us and see what "commerce" today consists of. If the village "barber chirurgeon" has been replaced by a nationwide for-profit hospital chain and a system of group health insurance, then the power of Congress tracks that change. That's an act of interpretation, to be sure; but it's no more of one than the Da Vinci Code–style charade engaged in by many far-right "originalists."
At their baldest and strongest, originalists claim that the nation is bound by their own opinion of what was in the minds of the framers. For all their claims of superior virtue, "originalists" agree that what the framers said governs; they just want to control what counts as what the founders said.
Recognizing the problems inherent in the quest for "original intent," a number of originalists have moved on to what they call a quest for "original public meaning," or the "original understanding." That is, they say, we should consult history to determine what ordinary people in 1787 (or 1866, or whenever a specific provision was written) would have thought the words meant. Justice Scalia, for one, considers that inquiry pretty straightforward: "Often—I dare say usually—that is easy to discern and simple to apply." But as practiced by Scalia, that tends to reduce itself to, "Trust me, I knew the framers and here's what they would have said."
Consider Scalia's concurrence in Citizens United v. Federal Election Commission. In that case, the conservative majority gutted federal restrictions on expenditures by corporations during elections. In his dissent, Justice John Paul Stevens challenged the right on "originalist" grounds. During the founding period, he noted, most political thinkers distrusted the corporate form of organization. That might be true, Scalia replied, but only because in the eighteenth century corporations were associated with monopoly privileges: "Modern corporations do not have such privileges, and would probably have been favored by most of our enterprising Founders."
This dishonest contortion exemplifies the problems with "original meaning." Scalia is essentially saying, "They didn't really know what they thought; luckily, I do." If we adopt his definition of the founders' intent, then we the people lose all right to interpret or even really read our own Constitution. At best, we must accept the dictates of historians, who often disagree.
At worst, though, we are delivered into the hands of Justice Scalia and his ilk. Judges usually know very little about history. But an "originalist" like Scalia is utterly confident about his power to pluck the "easy, simple" meaning from the air. By a bizarre coincidence, the "easy, simple" meaning usually coincides with the program of the twenty-first-century judicial right.
Serious originalist scholarship is very useful as one way of learning more about the Constitution. But in the hands of judges like Scalia or demagogues like Glenn Beck, it is really a kind of intellectual weapon designed to hide from ordinary citizens what is in plain sight—the text of the Constitution and the present circumstances to which it must be applied.
That text, and those circumstances, are the tools we the people need in order to fight back. To save our Constitution, we have to read it. What's remarkable is how few people actually do this before proclaiming their opinions. God knows lawyers don't. In most law schools, constitutional law courses don't even begin with the text. Instead, on day one, students read the 1803 case of Marbury v. Madison. That's the case in which the Supreme Court for the first time announced the doctrine of "judicial review," which allows it to review state and federal laws and invalidate those that, in its judgment, don't comply with the Constitution. Marbury is a terrific case; but the doctrine it embodies isn't written in the Constitution. So at the very beginning of their study, most lawyers leave the text behind, and never return to it.
Ordinary citizens also resist reading the Constitution. They think it's dull. In 1987, the American novelist E.L. Doctorow found no poetry in it. "It is five thousand words long but reads like fifty thousand," he reported sadly. "It lacks high rhetoric and shows not a trace of wit, as you might expect, having been produced by a committee of lawyers. It uses none of the tropes of literature to create empathetic states in the mind of the reader."
Doctorow was wrong. The Constitution as a whole takes effort to read; but once one puts in the effort—several readings, all the way through, and some serious thought about what one has read—it reveals a surprising, indeed sometimes dazzling, array of meanings. By turns political, legal, epic and poetic, it shows us a number of strategies for dealing with contemporary challenges.
How do we read the Constitution then? A citizen who seeks to understand the Constitution should not assume that the answers lie in Supreme Court cases. For one thing, many important constitutional questions have never come before the Court. Some, indeed, can never be heard by any court—they constitute what judges and scholars call "political questions," which must be worked out by other branches of the government.
Second, the courts may get it wrong. In 1857, the Supreme Court announced that Americans of African descent were not and never could become citizens. A bitter political struggle, and an even more bitter Civil War, produced a national consensus that this decision was profoundly wrong even on the day it was announced. More recent decisions, from Roe v. Wade to Citizens United, have provoked profound criticism by political leaders and ordinary citizens. Citizens are not "wrong" because they disagree with the Court.
At its most basic level, reading the Constitution requires the tools that Vladimir Nabokov urged readers to bring to any text: imagination, memory, a dictionary and a willingness to use all three when the going gets tough.
Read the Constitution and measure it against the absurd claims we hear every day. This is a matter of life and death for our Republic. We won't find the Tea Party manifesto there; nor will we find the agenda of progressive advocacy groups. What we will find is a set of political tools and a language that fair-minded citizens, progressive or conservative, can use to talk through our disagreements.
Trapped in that ghastly church basement last year, I made a resolution that I would try to help rescue the Constitution from "constitutionalists." Here and now I say to Nation readers that if any group of citizens anywhere wants to meet in a church basement to discuss these issues, I will either go there to help or try to find someone who will. It's time for progressive constitutional scholars to stop mumbling about deconstruction and speak up for democracy.
Ordinary Americans love the Constitution at least as much as far-right ideologues. It's our Constitution too.
It's time to take it back.