10 Things I Learned About the US Constitution (Including a Couple I Wish I Hadn’t)

I’m finally catching up with my personal reading and dove into a couple of old New Yorkers, only to stumble upon a great article and familiar name.  Jill Lepore was writing about King Philip’s War way back in the day, and has since gone on to bigger battles of all sorts.  She is now David Woods Kemper ’41 Professor of American History at Harvard University where she also chairs the History and Literature Program.  Jill is a regular contributor to the New Yorker.

Her January article about the Constitution, A CRITIC AT LARGE, THE COMMANDMENTS: The Constitution and its worshippers was positively eye-opening. 

A few facts, a little history—next thing you don’t know what to believe.

I can admit to reading the Constitution exactly once when I was made to in college.  That one reading apparently puts me in rarified air among Americans, who seem as likely to misquote and misuse the Constitution as they are unlikely to read it.  Heck, at 4400 words (before the Amendments) it’s one of the shortest constitutions in existence--but still too long, it seems, to read.

Here are some of the (often verbatim) learnings from Jill’s good article:.

1.      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. Patrick Henry 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.”

Benjamin Franklin was sure that the document had its faults, and just as sure that the framers were fallible.  He called the Constitution an “instrument”; he meant that it was a legal instrument, like a will. William Manning, a New England farmer and Revolutionary veteran, 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.”

2.      Ratification 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.

3.      The original Constitution was simply filed away and, later, shuffled from one place to another. When New York’s City Hall underwent renovations, the Constitution was transferred to the Department of State. The following year, it moved with Congress to Philadelphia and, in 1800, to Washington, where it was stored at the Treasury Department until it was shifted to the War Office. In 1814, three clerks stuffed it into a linen sack and carried it to a gristmill in Virginia, which was fortunate, because the British burned Washington down. In the eighteen-twenties, when someone asked James Madison where it was, he had no idea.  In 1875, the Constitution found a home in a tin box in the bottom of a closet in a new building that housed the Departments of State, War, and Navy. In 1894, it was sealed between glass plates and locked in a safe in the basement.

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.

Presumably, that was the year it became holy and immutable.

4.      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. 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.

5.      A national survey taken this summer reported that seventy-two per cent of about a thousand people polled had never once read the entire Constitution, though eighty-six per cent of respondents agreed that the Constitution has “an impact on their daily lives.”

6.       “Find It in the Constitution,” the Tea Party rally signs read. Forty-four hundred words and “God” is not one of them, as Benjamin Rush complained to John Adams, hoping for an emendation: “Perhaps an acknowledgement might be made of his goodness or of his providence in the proposed amendments.” It was not. “White” isn’t in the Constitution, but Senator Stephen Douglas, of Illinois, was still sure that the federal government was “made by white men, for the benefit of white men and their posterity forever.” What about black men? “They are not included, and were not intended to be included,” the Supreme Court ruled, in 1857. Railroads, slavery, banks, women, free markets, privacy, health care, wiretapping: not there. “There is nothing in the United States Constitution that gives the Congress, the President, or the Supreme Court the right to declare that white and colored children must attend the same public schools,” Senator James Eastland, of Mississippi, said, after Brown v. Board of Education. “Have You Ever Seen the Words Forced Busing in the Constitution?” read a sign carried in Boston in 1975.

“Where in the Constitution is the separation of church and state?” Christine O’Donnell asked Chris Coons during a debate in October. When Coons quoted the First Amendment, O’Donnell was flabbergasted: “That’s in the First Amendment?” Left-wing bloggers slapped their thighs; Coons won the election in a landslide.

But the phrase “separation of church and state” really isn’t in the Constitution or in any of the amendments.

7.      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.’”  About a quarter of American voters are what political scientists call, impoliticly, “know nothings,” meaning that they possess almost no general knowledge of the workings of their government.

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.)

8.      Originalists argue that originalism is the only faithfully democratic mode of constitutional interpretation. Laws are passed by the elected representatives of the people; the courts protect the will of the people by making sure those laws adhere to the Constitution, as originally drafted and popularly ratified.

“If democratic legitimacy is the measure of a sound constitutional interpretive practice,” the Columbia law professor Jamal Greene has written, “then Justice Scalia needs to give an account of why and how rote obedience to the commitments of voters two centuries distant and wildly different in racial, ethnic, sexual, and cultural composition can be justified on democratic grounds.”

9.      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.” 

In 1995, Newt Gingrich wrote, “Liberals neither understand nor believe in the Constitutional right to bear arms.” 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.

10.  The Tea Party Express endorses “The Constitution Made Easy,” a translation into colloquial English made by Michael Holler, and available on Holler’s Web site for eight dollars and ninety-five cents. Holler studied at Biola University, a Christian college offering a Biblically centered education. Much of his translation, which appears side by side with the original, is forthright. Holler’s Second Amendment is less straightforward; he inverts the language of the original, so that it reads, “The people have the right to own and carry firearms, and it may not be violated because a well-equipped Militia is necessary for a State to remain secure and free.” Holler is an N.R.A.-certified handgun instructor who, in addition to offering courses on the Constitution, sells classes in how to obtain a concealed-handgun permit.

“U.S. Constitution for Dummies,” published in 2009, was written by Michael Arnheim, an English barrister. The book includes a foreword by Ted Cruz, a nationally prominent defender of the death penalty and a former solicitor general of Texas who successfully defended a monument to the Ten Commandments at the Texas State Capitol.

Jill concludes, “If the Constitution is a fiddle, it is also all the music that has ever been played on it. Some of that music is beautiful; much of it is humdrum; some of it sounds like hell.”

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