[Nesster]

There's a very good overview of the Constitution in a recent New Yorker:
The battle over the Constitution : The New Yorker

You can keep a constitution in your pocket, as Thomas Paine once pointed out. Pocket constitutions have been around since the seventeen-nineties. The Cato Institute prints a handsome Constitution, the size and appearance of a passport, available for four dollars and ninety-five cents. The National Center for Constitutional Studies, founded by W. Cleon Skousen, a rogue Mormon, John Bircher, and all-purpose conspiracy theorist, prints a stapled paper version, the dimensions of a datebook, thirty cents if you order a gross. I got mine, free, at a Tea Party meeting in Boston. Andrew Johnson, our first impeached President, was said to have waved around his pocket constitution so often that he resembled a newsboy hawking the daily paper. Crying constitution is a minor American art form. “This is my copy of the Constitution,” John Boehner, the Speaker of the House, said at a Tea Party rally in Ohio last year, holding up a pocket-size pamphlet. “And I’m going to stand here with the Founding Fathers, who wrote in the preamble, ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights including life, liberty and the pursuit of happiness.’ ” Not to nitpick, but this is not the preamble to the Constitution. It is the second sentence of the Declaration of Independence.

The document’s learnedness and the changing meaning of words isn’t the whole problem, though, because the charge that the Constitution is too difficult for ordinary people to understand—not because of its vocabulary but because of the complexity of its ideas—was brought nearly the minute it was made public. Anti-Federalists charged that the Constitution was so difficult to read that it amounted to a conspiracy against the understanding of a plain man, that it was willfully incomprehensible. “The constitution of a wise and free people, ought to be as evident to simple reason, as the letters of our alphabet,” an Anti-Federalist wrote. “A constitution ought to be, like a beacon, held up to the public eye, so as to be understood by every man,” Patrick Henry argued. He believed that what was drafted in Philadelphia was “of such an intricate and complicated nature, that no man on this earth can know its real operation.” Anti-Federalists had more complaints, too, which is why ratification—a process wonderfully recounted by Pauline Maier in “Ratification: The People Debate the Constitution, 1787-1788”—was touch and go. Rhode Island, the only state to hold a popular referendum on the Constitution, rejected it. Elsewhere, in state ratifying conventions, the Constitution passed by the narrowest of margins: eighty-nine to seventy-nine in Virginia, thirty to twenty-seven in New York, a hundred and eighty-seven to a hundred and sixty-eight in Massachusetts.

Nor were complaints that the Constitution is obscure silenced by ratification. In a 1798 essay called “The Key of Libberty,” William Manning, the plainest of men—a New England farmer, a Revolutionary veteran, and the father of thirteen children—expressed a view widely held by Jeffersonian Republicans: “The Federal Constitution by a fair construction is a good one prinsapaly, but I have no dout but that the Convention who made it intended to destroy our free governments by it, or they neaver would have spent 4 Months in making such an inexpliset thing.” Franklin called the Constitution an “instrument”; he meant that it was a legal instrument, like a will. Manning thought that it was another kind of instrument: “It was made like a Fiddle, with but few Strings, but so that the ruling Majority could play any tune upon it they please.”

“We’ll keep clinging to our Constitution, our guns, and our religion,” Palin said last spring, “and you can keep the change.” Behind the word “change” is the word “evolution.” In 1913, Woodrow Wilson insisted, “All that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is a recognition of the fact that a nation is a living thing.” Conservatives called for a rejection of this nonsense about the “living Constitution.” In 1916, the Sons of the American Revolution campaigned for Constitution Day. In 1919, the National Association for Constitutional Government published some fifty thousand copies of a pocket edition of the Constitution. (The association’s other publications included an investigation into the influence of socialists in American colleges.) In 1921, Warren Harding called the Constitution divinely inspired; it was Harding who ordered the Librarian of Congress to take the parchment out of storage and put it into a shrine. Soon, the National Security League was distributing free copies of reactionary books written by “Mr. Constitution,” James Montgomery Beck, who was Harding’s solicitor general. “The Constitution is in graver danger today than at any other time in the history of America,” Beck warned.

By 1923, twenty-three states required constitutional instruction and, by 1931, forty-three. Studying Middletown’s high school in 1929, the sociologists Robert and Helen Lynd found these classes worrying: “70 percent of the boys and 75 percent of the girls answered ‘false’ to the statement ‘A citizen of the United States should be allowed to say anything he pleases, even to advocate violent revolution, if he does no violent act himself.’ ” Still, such instruction was by no means uniformly conservative. The author of an elementary-school textbook published in 1930 wrote, “This Constitution is yours, boys and girls of America, to cherish and to obey, to preserve and, if need be, to better.”

Pop quiz, from a test administered by the Hearst Corporation in 1987.


True or False: The following phrases are found in the U.S. Constitution:
“From each according to his ability, to each according to his need.”
“The consent of the governed.”
“Life, liberty, and the pursuit of happiness.”
“All men are created equal.”
“Of the people, by the people, for the people.”

This is what’s known as a trick question. None of these phrases are in the Constitution. Eight in ten Americans believed, like Boehner, that “all men are created equal” was in the Constitution. Even more thought that “of the people, by the people, for the people” was in the Constitution. (Abraham Lincoln, Gettysburg, 1863.) Nearly five in ten thought “From each according to his ability, to each according to his need” was written in Philadelphia in 1787. (Karl Marx, 1875.)

Another approach has been to argue that originalism, so far from being original, in the sense of being the same age as those four sheets of parchment in the National Archives, is quite modern. Consider the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Historical evidence can be marshalled to support different interpretations of these words, and it certainly has been. But the Yale law professor Reva Siegel has argued that, for much of the twentieth century, legal scholars, judges, and politicians, both conservative and liberal, commonly understood the Second Amendment as protecting the right of citizens to form militias—as narrow a right as the protection provided by the Third Amendment against the government’s forcing you to quarter troops in your house. Beginning in the early nineteen-seventies, lawyers for the National Rifle Association, concerned about gun-control laws passed in the wake of the assassinations of Martin Luther King, Jr., and Robert F. Kennedy, argued that the Second Amendment protects the right of individuals to bear arms—and that this represented not a changing interpretation but a restoration of its original meaning. The N.R.A., which had never before backed a Presidential candidate, backed Ronald Reagan in 1980. As late as 1989, even Bork could argue that the Second Amendment works “to guarantee the right of states to form militias, not for individuals to bear arms.” In an interview in 1991, the former Chief Justice Warren Burger said that the N.R.A.’s interpretation of the Second Amendment was “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

The individual-rights argument warrants serious debate. But, instead, on the political stage, people who disagreed with it were accused of failing to respect the Constitution, or of being too stupid to understand it. In 1995, Newt Gingrich wrote, “Liberals neither understand nor believe in the Constitutional right to bear arms.” Who are the know-nothings now? Liberal scholars and jurists. In 2005, Mark Levin, a talk-radio host who worked under Meese in the Reagan Justice Department, wrote that Thurgood Marshall, who had challenged originalism, “couldn’t have had a weaker grasp of the Constitution.” In 2008, the N.R.A.’s argument about the Second Amendment was made law in the District of Columbia v. Heller, which ruled as unconstitutional a gun-control law passed in D.C. in 1968. This decision, Siegel argues, has more to do with Charlton Heston than with James Madison.

Originalism is popular. Four in ten Americans favor it. Not all Tea Partiers are originalists, but the movement is fairly described as a populist movement inclined toward originalism. The populist appeal of originalism overlaps with that of heritage tourism: both collapse the distance between past and present and locate virtue in an imaginary eighteenth century where “the people” and “the élite” are perfectly aligned in unity of purpose. Originalism, which has no purchase anywhere but here, has a natural affinity with some varieties of Protestantism, and the United States differs from all other Western democracies in the far greater proportion of its citizens who believe in the literal truth of the Bible. Although originalism is a serious and influential mode of constitutional interpretation, Greene has argued that it is also a political product manufactured by the New Right and marketed to the public by talk radio, cable television, and the Internet, where it enjoys a competitive advantage over other varieties of constitutional interpretation, partly because it’s the easiest.

[Tom S.]

Very interesting and mostly well written article, with enough ammo for all sides to argue with!

Thanks for the link!