Fine Day to Read the US Constitution

There is no better day than Independence Day to find a copy of the US Constitution, read it and join the decades old debates about what it says, what it means and how we should interpret it in our own time.

There is no better day than Independence Day to find a copy of the US Constitution, read it and join the decades old debates about what it says, what it means and how we should interpret it in our own time.

To celebrate the nation’s birthday, The New York Times published the US Constitution and its 27 amendments (in print form only) with annotated comments from prominent Americans and a preface by historian Garry Wills.
Even though the Constitution is the bulwark of American rights and liberties, many Americans are unfamiliar with the document, its origins and the debates over its meaning that have spiraled through our national history.
Washington Senator Patty Murray points to the Seventeenth Amendment that requires the direct election of US senators. Previously, senators were elected by state legislatures. Murray, who launched her political career by resisted state legislative efforts to cut preschool funding, said, “If these words hadn’t become law, I would almost certainly not be in the US Senate today.
Utah Senator Mike Lee, who just published his latest book titled Written Out of History: The Forgotten Founders Who Fought Big Government, underscores the importance of the very first clause in Article I of the Constitution that says “All legislative powers granted shall be vested in a Congress.” Lee observed, “Sadly, in the 20th Century, members of Congress started to give away lawmaking authority to the executive branch because they did not want to be held accountable to the people for unpopular laws.”
Vermont Senator and unsuccessful presidential candidate Bernie Sanders wrote, “At a time when the President is actively working to undermine the foundations of American democracy and openly admires the world’s strongmen, autocrats and dictators, we must, regardless of party and say, ‘This is not what our constitutional democracy stands for.’”
Times Supreme Court reporter Adam Liptak offers perspectives about the Constitution and capital punishment. He says the Fifth Amendment doesn’t help death penalty opponents by calling for grand juries involving “a capital or otherwise infamous crime.” However, the Eighth Amendment bans “cruel and unusual punishment.” Liptak quotes a dissent by Supreme Court Justice Stephen G. Breyer in 2015 who said flaws in the modern administration of the death penalty make it unreliable, arbitrary and warped by racism, which he equated with cruel. He also cited the late Justice Antonin Scalia who accused Breyer of spouting gobbledygook. “Capital punishment presents moral questions that philosophers, theologians and statesmen have grappled with millennia. The framers of the Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled other controversial issues. They left it to the People to decide.”
Scalia’s observation about the death penalty and founding father disagreements is an interesting segue to the contemporary debate over originalism – – the view that the Constitution should be interpreted in the context of the time and mindset of the men who wrote it.
In the preface, Wills questions the wisdom and utility of an originalist interpretation of the Constitution. “Finding original intent,” Wills wrote, “is more complicated than just looking up words in dictionaries of the 18th Century. It means re-entry into a lost world.”
Take the Second Amendment, for example, which has generated an irreconcilable debate over gun rights. Wills says James Madison, who played a central role in drafting the Constitution and the critical role in adopting the first 10 amendments to the document, wrote the Second Amendment to pacify southerners, especially slave owners who wanted to maintain armed state militias to suppress salves and quell a slave insurrection. “The original intent consideration of the Second Amendment,” Wills said, “shows just how far the poison of slavery pervaded the Constitution” and has little to do with the modern-day debate over owning assault rifles. Ironically, Madison didn’t feel it was necessary to protect an individual’s right to own a gun because almost everyone in his time owned one.
Lee, who is a leader in the congressional Freedom Caucus, wrote an earlier book titled Our Lost Constitution: The Willful Subversion of America’s Founding Document. In both his newest and first book, Lee makes the case for federalism, with power shared by the central and state governments. It was a debate waged vigorously at the constitutional convention and, as Scalia observed, was spelled out with characteristic constitutional ambivalence. Which explains why both political parties argue the issue inconsistently. Conservatives want less federal oversight on environmental rules and voting procedures, but favor a federal ban on abortion. Liberals see an important federal role in education and enforcing anti-discrimination, but favor allowing states and cities to pursue anti-carbon policies consistent with the Paris Climate Accords.
Most people don’t carry a copy of the Constitution in their pocket, so Independence Day is a great day to find and read a copy. You might be surprised at what’s in there. And remember that the men who wrote it didn’t always agree on what it said and what it meant. We don’t always need to agree either, which may be one the most underappreciated legacies of our Constitution.

The Real Hastert Rule

Thumb through the U.S. Constitution and you won't find the Hastert Rule, which says no bill can come to the House floor unless there are enough votes to pass it in the majority caucus. Turns out former Speaker Dennis Hastert, a former high school wrestling coach, said there never was a Hastert Rule.

This is relevant because current House Speaker John Boehner has invoked the Hastert Rule in blocking legislation that might attract enough Republicans and Democrats to pass, but doesn't have enough votes to pass with just Republicans.

Sound illogical? Perhaps, but it is the leverage exerted by the Tea Party faction of the House GOP conference. They have enough votes to deny Boehner the 218 vote-majority he needs of his fellow party members. This leverage is what has landed Congress in gridlock and led to a partial federal government shutdown, now entering its fourth day.

Republican spokesmen have made a lot out of President Obama and Senate Democrats refusing to negotiate to "find common ground" on defunding Obamacare. But another way to look at the stalemate is that the House is not letting is full membership exercise its collective judgment in deference to a minority that could be as few as 30 members.

Apart from the grandstanding and finger pointing on Capitol Hill, there is a valid question about whether the presumptive Hastert Rule is constitutional or at least in the spirit of the Constitution.

James Madison and other founding fathers detested what they called "factions." They worried that partisan considerations could overtake policy considerations. While senators have the right to filibuster any legislation of which they disapprove, no such privilege extends in the House.