The far right has stolen the Constitution. It is ours to take back.
In October I spent a crisp Saturday in the windowless basement of a suburban Virginia church attending a seminar titled “The Substance and Meaning of the Constitution.” I was told that the Constitution is based on the Law of Moses; that Mosaic law was brought to the West by the ancient Anglo-Saxons, who were probably the Ten Lost Tribes of Israel; and that the Constitution restores the fifth-century kingdom of the Anglo-Saxons.
The instructor, an Arizona judge named Lester Pearce, also declared that 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, and the First Amendment establishes “the religion of America,” which is “nondenominational” Christianity.
Pearce’s brother is Arizona State Senator Russell Pearce, author of the anti-immigrant law SB 1070. So it wasn’t surprising that Lester tended to digress about how he cracks down on Mexican immigrants in court. More astounding was that he had the rapt attention of 50 attendees—earnest citizens who had come to learn about their country’s Constitution.
And 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 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 Malta, Idaho (population 177), the NCCS was the Cold War brainchild of the late W. Cleon Skousen, a prominent John Bircher. The center’s revisionist ideology and, in particular, its educational programs are touted on the air by Fox firebrand Glenn Beck. Across the country, civic groups, school districts, and even some city governments have been persuaded to sponsor daylong seminars by the self-proclaimed “nonpartisan” organization.
Skousen’s 900-page tome The Making of America: The Substance and Meaning of the Constitution, published more than 25 year ago, is currently number five on Amazon’s Constitutional History Bestseller List. 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. 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. And 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 document 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.) The lawmakers also 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 health care 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 joined the 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.” Recently, he argued that the Equal Protection Clause provides no protection against discrimination for women 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 health care program, recently cast doubt on its constitutionality. In his opinion, Vinson referenced the Boston Tea Party, which members of the Obama administration read as tacit evidence that modern-day Tea Partiers are influencing the judiciary.
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 health care program, so reviled by the Republican Party, will be almost impossible to repeal using the legislative process. So the right is seeking to win by arguing that progressive, democratically enacted policy choices are unconstitutional. In the process, a document that over time has become more democratic and egalitarian is being rewritten as a charter of privilege and inequality.
It’s true that some of the responsibility for this backslide lies with progressive legal scholars, who are well situated to explain the Constitution to the public. It isn’t that they have failed to teach; 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 was written not 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 written national constitution in Western history. The framers wanted to impel change, not prevent it.
Conservatives routinely 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. It’s true that 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 than 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 written not 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 written in the document. 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, among them 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.”
The most important truth about the Constitution is that 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.”
The “living Constitution” is a whipping boy of the right. Progressives supposedly believe that, in Texas Representative Ron Paul’s words, “government may unilaterally change the terms of its contract with the American people.” Right-wing historian Kevin Gutzman believes 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 pseudo-debate is mystifying. 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 conversation is often obscured by conservatives’ claim that they, and only they, follow the framers’ “original intent.” Originalism, writes legal 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.”
In his book Interpreting the Bible and the Constitution, the religious historian Jaroslav Pelikan writes that the origins of American constitutional discourse can be traced to early Protestant theology. Martin Luther, Pelikan wrote, is one of the theologians who initiated the Reformation of the 1500s, believing 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 Protestants’ overall take on “original intent” was elaborated on 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 as if it were any other literary work in history. Rejecting this approach, fundamentalists believe 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 also the very words in which they were written. Thus every word has a fixed meaning, immune from question by history; 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.
So influential has biblical fundamentalism been in America that these attitudes now infuse not only our religious but also our cultural values. In fact, constitutional originalists have an enemy just as the fundamentalists did. Like the higher critics, those who advocate for what’s commonly referred to as a “living Constitution” are nothing more than smooth-talking elites who want to impose their personal views on society.
But the truth is that many constitutional interpreters simply choose to discern the framers’ intent by paying close attention to, well, what the Constitution actually 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 and see what “commerce” consists of today. If the village “barber chirurgeon” has been replaced by a 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 no more so 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.” 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, indeed 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 corporate spending on political campaigns. 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 18th 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 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, 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 thin air. By a bizarre coincidence, the meaning usually coincides with the program of the 21st century’s judicial right.
It’s important to note that 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 5,000 words long but reads like 50,000,” he reported. “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, 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 then do we read the Constitution? 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, culminating in civil war, ultimately 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 the public. 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.
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 do. It’s our Constitution too.
It’s time to take it back.
Garrett Epps is an American legal scholar, novelist, and journalist. This essay is adapted from a work in progress, tentatively titled Unhinged: Reclaiming Our Constitution from the Lunatic Right. Reprinted from The Nation (Feb. 7, 2011), a progressive publication that weighs in weekly on politics, arts, and culture. Copyright © 2011, The Nation. www.thenation.com
This article first appeared in the May-June 2011 issue of Utne Reader.