“What is the most radical element of the Constitution? There are those who reckon it is the fact that the Constitution was written down. . . . Why did America choose to put its Constitution into written form?”
by Seth Lipsky
Members of the 113th Congress are set to start reading the 8,000 or so words of the American Constitution into the record today. It is the second time the full document will be read aloud on the House floor, a tradition begun in 2011 when the House was won by the Republicans, who hope the reading will become a tradition. When the document was first read aloud, it was met with an uproar. The New York Times issued an editorial calling it a “ghastly waste of time.” A blogger for The Washington Post suggested the Constitution “has no binding power,” before rowing back the claim. Salon headlined its piece “Let’s stop pretending the Constitution is sacred.” While things have been more subdued this year—aside from the recent op-ed in the Times arguing that it is time to “Give Up on the Constitution”—here are five clauses of our founding document to cock an ear for as it is being read today:
The Commerce clause. This celebrated clause says that Congress shall have the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” These 15 words have been deemed by one of the 20th century’s most famous constitutional scholars, W.W. Crosskey, the most important of the nonmilitary powers in the whole document. Some of the best legal minds in the nation reckoned the court would use this clause to sustain Obamacare. It was a lead-pipe cinch.
In the event, the justices concluded the commerce clause could not be used as a basis for Obamacare. They preferred, instead, the taxing power. The court didn’t take this line, but consider this: if the clause could have enabled Congress to reach into a state and require an individual to purchase health insurance, would it have enabled Congress to reach into an Indian reservation to do the same thing. Or into a foreign country—say, France?
The Letter of Marque and Reprisal Clause. This clause contains one of the basic war powers granted to Congress. Some insist it is archaic, since more than a century ago the Europeans signed a treaty giving up the practice of issuing these letters, which amount to licenses for private parties to conduct acts of war. America, which used letters of marque against the Barbary Pirates, refused to ratify the treaty, however, and Congress can still issue these instruments.
Shortly after al Qaeda struck on 9/11, moreover, Congressman Ron Paul introduced what he called the September 11, 2001, Letter of Marque and Reprisal Act. It would have authorized Congress to issue such letters to private parties to hunt down Osama bin Laden and bring him back, dead or alive. It offered $40 billion in what amounted to bounties. Congressman Paul reckoned we didn’t need to send a trillion-dollar expedition to find the fiend. Right or wrong, it’s something to think about as the Constitution is read today.
The Diminishment Clause. Oh, this is a beauty. It relates to judges’ pay, which was one of the grievances against King George III enumerated in the Declaration of Independence. The Declaration complains that the tyrant had “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” So in the Constitution the Founders gave judges life tenure, required them to be paid, and said that their compensation “shall not be diminished during their Continuance in Office.”
It turns out the Supreme Court has just agreed to hear a case brought by a group of distinguished federal judges. It involves the question of whether Congress violated the Constitution when it suspended an automatic cost-of-living increase that it had previously legislated for judges. As this clause is read today, think of these two questions: if a judge started out being paid in a dollar worth a 35th of an ounce of gold and today he is being paid in a dollar whose value has collapsed to less than a 1,600th of an ounce of gold, has his pay been diminished? If so, why do the rest of us have to put up with legal-tender paper money?
The Treason Clause. The hunt is on for the first American since World War II to be charged with treason. He is Adam Yahiye Gadahn, who, for the broadcasts he has made in the current war, is sort of the Tokyo Rose of al Qaeda. In 2006 he was indicted, in absentia, for treason. Who knows whether or when he will ever be caught and brought to trial. But if he is, prosecutors will face enormous hurdles. For this, the most serious of all crimes, is the only crime that the Constitution defines—and prohibits Congress from defining any other way.
A copy of President George Washington’s personal copy of the Constitution and Bill of Rights is displayed at Christie’s auction house in New York City, June 15, 2012. (Spencer Platt/Getty)
“Treason against the United States,” the Constitution says, “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It goes on to say that a court needs two witnesses to the treasonous act. They both have to witness the same act. And it has to be an overt act. Nor can the courts use a confession to treason that was given at a police station or to the FBI. Any confession to treason has to be made in open court. Listen for this as the document is read and think about why.
The “Well-Regulated Militia” Clause. This part of the Second Amendment is often overlooked. The Supreme Court has firmly concluded—even Justice Kagan considers it settled law—that the right to keep and bear arms is an individual right. The reason the right was given to individuals, the Constitution says, is that a “well-regulated Militia” is “necessary to the security of a free State.” So if the well-regulated militia is the only institution the Constitution defines as “necessary to the security of a free state,” what is this militia?
It turns out that there is a scholar—Edwin Vieira Jr., brother of Meredith—who has made, and just begun privately circulating, what is probably the most profound study ever of this question. Called “The Sword and Sovereignty,” it is a magisterial work running to more than 2,000 pages. Who belonged to these militia? What were the rules relating to them? What was expected of them? What responsibilities did they have that made them, above all other institutions, the only one that the Founders described in the Constitution as “necessary”? Well, let me not give away the plot.
As the Constitution is read today, it’s going to take some time (the 2011 reading took 84 minutes, according to CNN). So here’s one last question to think about while listening. What is the most radical element of the Constitution? There are those who reckon it is the fact that the Constitution was written down. This makes it different from the Constitution of the United Kingdom, which has no single written document. Why did America choose to put its Constitution into written form?
Seth Lipsky is the author of “The Citizen’s Constitution, An Annotated Guide.” This article first ran on Jan. 15, at The Daily Beast. The United States Constitution was read aloud on the House floor yesterday, Tuesday, January 15, 2013.