The Blog

Misreading the Constitution

5:41 PM, Jan 6, 2011 • By ADAM J. WHITE
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

For days, Democrats have made clear their displeasure with the Republican leadership's decision to begin the new House term with a reading of the U.S. Constitution. But Democrats' specific grievance, immediately before the reading commenced, was a surprise: Rep. Jesse Jackson Jr. and others demanded a reading of portions of the Constitution that had been superseded by amendments -- most notably, the "three-fifths" clause of the original 1787 Constitution, which denied slave states the ability to boost their representation in the House of Representatives by counting the total number of slaves as part of their population, while simultaneously excluding them from the body politic.

Misreading the Constitution

That provision, set forth in Article I, Section 2, Clause 3 of the 1787 Constitution, was nullified in 1868 by the Fourteenth Amendment, Section 2. In fact, the Constitution published on the House's web site includes an express annotation tying the two clauses together. And the Constitution published on the Senate's web site makes this even clearer, marking the three-fifths clause in italics to denote that the clause has been "dropped from the Constitution."

The Washington Post's Adam Serwer calls the House's reading of the Constitution in its current form, minus subsequently nullified provisions, "Huck Finning The Constitution," comparing it to a publisher's recent sanitization of Huck Finn. But as Commentary's Alana Goodman correctly explained, Serwer misses the point: "The reason Congress read the Constitution wasn’t to perform an academic historical exercise. The left may not understand this, but the Constitution is actually still used on a daily basis to uphold our nation’s laws." The Constitution was read today to remind Congress of what it can and cannot legally do – not to must about what mistakes of the Founding Fathers requires subsequent correction. 

To call the three-fifths clause and other superseded provisions part of the current "Constitution" is silly. I suspect that when President Obama swore his oath to "preserve, protect, and defend the Constitution of the United States," he didn't have the three-fifths clause in mind. (Or Prohibition.  Or the election of senators by state legislatures.) Nor did Rep. Jackson, when he swore his own oath to support the Constitution.

The demand by some to read inoperative parts of the Constitution furthered no obvious purpose other than to denigrate the original Constitution's limits on Congress. (Serwer suggests that reading the three-fifths clause was intended to "remind us that the Constitution, while a remarkable document, was not carved out of stone tablets by a finger of light at the summit of Mount Sinai" – a silly caricature that no serious person espouses.)  Unfortunately, this is but the latest manifestation of modern liberal politics, focused first and foremost on complaining about societal ills corrected by the American people long ago – in this case, nearly 150 years ago.

But while on the subject of the Fourteenth Amendment, it must be noted that Democrats were not alone in their petty mistakes today. According to the Legal Times, Republicans did not join Democrats in applauding the reading of the Fourteenth Amendment's "Privileges or Immunities" Clause, the post-Civil-War amendment prohibiting the States from "mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States." 

The Legal Times's account, if true, is disappointing. The Fourteenth Amendment, including the Privileges or Immunities Clause, was one of the foundational triumphs of the Republican Party, and a bedrock reform of the Reconstruction Era. Whether or not the federal courts have distorted the Fourteenth Amendment in subsequent judicial decisions is beside the point. Republicans should celebrate the Amendment, and save their complaints for the judges that have distorted it. 

Adam J. White is a lawyer in Washington, D.C.

Correction: In the House's reading of the Constitution, Rep. John Lewis read the Thirteenth Amendment (which abolished slavery), not the Fourteenth as this article previously stated.  The Fourteenth Amendment's sections were allocated among various House members; among those, the Privileges or Immunities Clause was read by Rep. Scott Rigell (R-Va.).

Recent Blog Posts