The Danger Behind Republican Constitutional Storytime Moment

Like a middle school sleepover, House Republicans will begin their tenure in the 112th Congress with a good cry and storytime, where members will alternate reading the Constitution aloud to each other. It’s one of the more pathos-laced moments ever planned in modern politics, and concerning for what it says about the national discourse on the Constitution, constitutional decisionmaking, and the GOP’s profound unseriousness.

Of course, I have no problem with the act of reading the Constitution. In fact, that’s something any lawyer, or person interested in politics, should do regularly. There are parts of the document that only make sense after a straight-through reading: as one of my professors used to say, you don’t really get a feel for the importance of the separation of powers until you read and appreciate the clean division the document’s structure sets up, and the primacy it places on Congress, front and center, in Article I.

Rather the danger lies in the implied assertion that, to understand the Constitution, all you have to do is read it. That’s not the way the document was written, and not the way its architects intended it to be understood. The Constitution exists against a deeper and intensely relevant backstory. We still debate the content and meaning of that backstory, but all agree that it matters. More importantly, the Constitution is the start but not the end of the structure of U.S. government. The document sets up institutions and concepts that have developed over the centuries and form an inextricable part of the American experience — like judicial review, privacy, and the administrative state — but which naturally leave no trace, at least in their current iterations, in the document itself. Reading the Constitution and then “calling it a day” gives the impression that the lack of an explicit textual basis equates to the lack of a constitutional basis. But that’s not how it works.

Educating oneself about the Constitution is as much about what’s in the document as what’s not, but has organically grown from it, in line with the Founders’ intent. This latest Republican gimmick trades real constitutionalism for a pale shade of itself, and risks simultaneously stunting the nation’s constitutional education, resulting in more not less reliance on Washington as the arbiter of the document. A little knowledge is a dangerous thing: but that’s all Boehner’s Washington wants you to have.

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5 comments

  1. Reading the Constitution and then “calling it a day” gives the impression that the lack of an explicit textual basis equates to the lack of a constitutional basis. But that’s not how it works.

    Not how it works, but how it should work. Otherwise, you’re saying there’s a constitutional basis despite there not being a constitutional basis.

    Don’t get me wrong – I think our constitution’s way underamended, I believe some of its extant provisions are unmitigated crap, and I believe in substantive 9th Amendment rights. But I also think anything other than mindlessly slavish mechanistic formalism undermines the rule of law.

    1. To wit, I don’t think the backstory matters for shit.

    2. Have you ever read the Book of Lord Shang, Steve? It sounds like early Chinese Legalism might appeal to you.

      http://en.wikipedia.org/wiki/The_Book_of_Lord_Shang

      1. No, I’ve never read that. Is there a particularly good translation I should look for?

        1. Yeah, the Duyvendak translation from 1928 is the only one ever made, at least that I know of.

          http://classiques.uqac.ca/classiques/duyvendak_jjl/B25_book_of_lord_shang/duyvlord.rtf

          It’s a fine translation in itself, but the historical introduction is probably somewhat dated.

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