The Constitution, Ritual, and History

I'm fascinated by constitutions. Founding documents are historical gold: they express the dynamic discourses of a moment and they shape the political and cultural progress of peoples for years, decades, sometimes even centuries to follow. They are sometimes brilliantly constructed systemic compromises, and sometimes they are simply descriptions of the way things work, and sometimes they are failed attempts to stabilize desperate situations. Some of them are inspirational and influential; some are simply technical and obscure; most are a mix. I use constitutions in my teaching and fourteen years ago I may have been the first person to digitize the Meiji and 1947 Constitutions of Japan with my hand-held optical scanner.

The new Republican majority in the U.S. House of Representatives started the congressional session on Thursday with a reading of the U.S. Constitution.  This secular ceremony was intended to focus lawmakers' attention on the limits of their authority, to express a renewed commitment to the core principles of divided government and personal liberty. This is an outgrowth of the Tea Party movement which dominated discussion in last year's election cycle, which emphasized limited government, nationalism and frequent invocations of the leaders of the American Revolution and early Republic. This motivated primarily Republican, fundamentally conservative voters and produced some new dynamics, particularly within the Republican Party. My own state's new senator, Jerry Moran, is on the record as saying that he hopes this session of Congress produces no new law this year, only repeals and revisions.

The emphasis on the origins of the United States, its founding documents and personalities, and national pride based on core original principles has produced some fascinating historical discussions, both scholarly and popular, ranging from historical reenactors to published research. This focus, though, has produced some interesting tensions: when the Constitution reading ritual was announced, liberal commentators pointed out that the original Constitution as written included now defunct provisions such as the three-fifths compromise over slavery which could be somewhat embarrassing to the legislators assigned those portions for public performance. Whether in response to these criticisms, or to concerns of their own, the version of the Constitution which was read in the House chamber was the current one, as amended, even omitting the 18th and 21st amendments -- Prohibition and repeal -- on the grounds that none of them currently are in force.

Personally, I think this is fine: the Constitution read in the House Chamber—aside from a few minorslips and interruptions -- is our Constitution at this point. It hasn't been altered since the ratification of the 27th Amendment (Congressional compensation) in 1992, and before that the 1961-1971 wave of amendments including D.C. representation in presidential elections, voting rights (age and tax), and presidential succession. For the last forty years, then, we've had a very stable Constitution, though the edited version read in the House is not necessarily definitive.

But how is reading the current Constitution consistent with the rhetoric of originalism? It isn't. As Dahlia Lithwick writes:

The signatories put their names to the instrument as written, not the bowdlerized version read aloud today. For Republicans who want to restore this country to the sanctity of the Constitution as written, and to show reverence for the men who wrote it, today's exercise in putting forward an official"new and improved!" version was a truly baffling first step.

But that's not the most interesting issue here, I think. Constitutional originalists, like all supposedly literal interpreters of sacred texts, are selective readers. Almost everyone has ideas about how to change the Constitution and its existing applications; when I took Constitutional Law of U.S. Foreign Policy in college, I was known in class as "the Congressionalist" for my resistance to the unilateral authority of the presidency. Congressional Republicans are no exception to this, with active discussion regarding repeal or modification of the 14th (birthright citizenship), 17th (direct election of Senators), and 20th (seating and scheduling of Congressional sessions) Amendments, among others. They try to frame these changes as "reversions" away from recent innovations which compromise the core values of the original document, but this sort of rhetorical invocation of historical principles is just as selective, and the issues are very contemporary.

One of the fascinating differences between Japan and the United States is the history of their constitutions. Japan has never amended a Constitution -- technically, the 1947 Constitution is an amendment to the Meiji Constitution, but complete replacement is a better description -- even though both its modern constitutions were written with minimal public input. The Meiji Constitution was so vague in its provisions that the government went from oligarchic rule to party-based parliamentary republic to fascist military rule without ever changing the text. The 1947 Constitution has been more successful at maintaining political order, but many of its provisions -- demilitarization and religious freedom, for example -- are skirted or blatantly ignored in practice.  The United States, on the other hand, has a lively history of constitutional amendment, failed amendments, and proposed amendments. Just as every baseball fan has an idea for how to improve the game -- banking runs, rotating positions, strike zones, etc. -- every politically engaged American seems to have a proposal for constitutional improvement; many involve the Electoral College, for obvious reasons.

This is why I wish the House of Representatives readers had presented both the original text and complete set of amendments. Adam Serwer at the Washington Post wrote:

The reason to include the superceded text is to remind us that the Constitution, while a remarkable document, was not carved out of stone tablets by a finger of light at the summit of Mount Sinai. It was written by men, and despite its promise, it possessed flaws at the moment of its creation that still reverberate today. Republicans could use the history lesson -- last year they attacked Supreme Court Justice Elena Kagan during her nomination process because one of her mentors, Justice Thurgood Marshall, had the audacity to suggest that the Constitution was flawed since it didn't consider black people to be full human beings.

This is a good start, but I think the history lesson goes deeper than that. I'm proud of the U.S. Constitution. It was, at its writing, a highly enlightened document, the second stage of a great political experiment, and the compromised result of epic debates which were not settled, but continued to inform the implementation of politics and rights in America. I'm proud of the amendments as well. The Bill of Rights was a critical addition to the fundamental text, and the inclusion of citizen rights as well as political process has been a feature of almost every constitution since, as far as I know. Even the failed attempt at American alcoholic abstinence -- Prohibition and Repeal -- stands as a testament to the power of vocal, impassioned reformers, to the willingness of Americans to experiment on themselves, and to our ability to correct our own mistakes when we realize them.

I'm not only proud of the Constitution as written in 1789, I'm proud of the American tradition of reform, change, evolution. The U.S. is not unique in this regard, but the Constitution stands at the center of American politics and, with the Declaration of Independence, at the center of our national self-image. It's a shame that the sole focus of our discussion these days is on the authors and context of the early republic, because it forces us to consider history as one of decline and decay. While I'm not a whiggish historian who believes that our history leads inevitably to this glorious moment, I do think that there's a great deal to be proud of in our history of political struggle and continuing experimentation and evolution. In the great crises of our time, the Constitution has been a powerful tool for cohesiont -- the smooth transition after the death of President Lincoln in the wake of the Civil War, for example. The American Republic has endured global struggles as a model to be emulated. But it's not the static, fixed, historic document of 1789 which holds us together and which we hold up as a model to the world: it's the responsive, historical, debated and altered U.S. Constitution which is our great pride, or at least, it should be.