Highlights of NY Times’ annotated Constitution

On July 2, 2017, the New York Times published a special section: an annotated version of the United States Constitution. The special section, says the Times in its introduction, comprises “a slightly abridged Constitution, printed one large, dramatic sheet, as well as an introductory essay, a timeline, and annotations to help elucidate the document’s meaning.” The annotations come from a variety of observers, Republican and Democratic representatives [Bernie Sanders, Dana Rohrabacher, Cory Booker and others], historians, journalists, law professors [Laurence Tribe], authors, and former government officials [Janet Napolitano and others].

I have now read it, in all its unwieldy, small-type glory.  I encourage everyone to take a look at this ambitious project. Unfortunately, it’s available in print only [at this writing], and you’re going to need to brush up on your map-folding skills to handle it. But it’s worth reading. I won’t do it full justice in this post, but I’m offering a selection of quotes that I found particularly intriguing and informative.

In his introductory essay, historian Gary Wills gives a detailed account of the Constitution’s origin story and attempts to put the words and intent of the Constitution’s writers into contemporary context. Or, as the NY Times editors write in their introduction, “How might these words, written in the time of George Washington, guide us in the age of Donald Trump?”

Child of The Enlightenment

Wills reminds us that “America was the first major country founded on the principles of the Enlightenment:’

The founders were at the forefront of science in their day. They would have been astonished had they foreseen a president and his government defying science in matters like evolution and global warming.

Wills also underscores the uniqueness of the secular nature of the US Constitution—the separation of church and state in the First Amendment:

This is the one entirely innovative element in the Constitution: Everything else—separated powers, federalism, the single executive, bicameralism, and independent judiciary—had been known in theory or practice, or both. Only this was truly new. Ours was the first nation started without the assistance of an official deity or cult.

Will adds, provocatively, the “the disestablishment concept was in fact so new that many people have questioned whether Madison really meant it.”

That is why so many logical consequences of separation between church and state have in practice been denied—resulting in “exceptions,” things like tax exemption for churches, state slogans like In God We Trust, legislative and military chaplaincies…”

The Dark Conclave

Wills’ description of the process by which the framers created the Constitution eerily foreshadows [and some would say justifies] much of the secrecy we are seeing in Congress and the executive branch today. He writes:

The framers of our new government were so conscious of their break with the past that they knew they had to sneak it past the very bodies that had authorized their meeting, the states that had sent them as delegates to Philadelphia…The only way to avoid [being recalled] was for…the participants to swear themselves to secrecy, and Washington himself would severely enforce the pledge…

When the convention was over, the records of the procedure were committed to Washington, with the understanding that he would hide them at Mount Vernon. Madison refused throughout his lifetime to release his own detailed diary of the sessions.

Wills also puts the founders’ wariness of direct elections into a modern context, particularly with respect to the selection of federal judges:

The original intent of the Constitution was to keep the judiciary independent of popular pressure…That is what was so bizarre about the opposition to hearings on Merrick Garland’s nomination to the Supreme Court. Republican senators like Mitch McConnell said that the nomination could not even be considered until “the people” had some say on the matter through the 2016 election…This was flatly contradictory to the Constitution’s clear intent, which was to isolate the Supreme Court from every kind of direct vote.

Guns and Slaves

Many 21st Century arguments about the Constitution center on the Second Amendment, whose grammar [that second comma!] and wording are confusing, and which has been used to maximum effect by the National Rifle Association to sell guns and ammunition.

Wills points out an issue that is too often ignored: “…just how far the poison of slavery pervaded the Constitution… the Second Amendment was also intended to protect slaveholders, who used militias to keep a firm grip on their slaves.”

The Second Amendment …was not meant to let individuals prevent federal “tyranny”—how could it? By training our rifles or handguns on the Army, Navy and Air Force? It was meant to guarantee the legality of a “well-regulated [that is, state-controlled] Militia to handle the states’ internal problems, especially the problems of a large slave population.

What other observers say

What do other contemporary readers of the Constitution say about it in the context of today’s issues? The New York Times asked and got a wide variety of answers, some of which will confirm certain points of view, others of which will infuriate. Here are just a few:

The NY Times’ special section is 4 broadsheet pages tall. Shown here with a banana for scale. Hat tip to @JakeSilverstein on Twitter for posting it.

Congressman Mike Lee [R-UT] on Article I, Section I:

“All legislative powers granted shall be vested in a Congress of the United States…”

Lee says:

This clause grants lawmaking power to Congress so the people can keep an eye on their government. Sadly, in the 20th century, members of Congress started to give away lawmaking authority to the executive branch, because they did not want to be held accountable to the people for unpopular laws. As a result, most of the regulations that govern our lives today were created by bureaucrats. Even though they work in the public interest, they are not accountable to the people…The bureaucrats who have de facto lawmaking power are the “swarms of others” the founders protested.”

Congressman Adam Schiff [D-CA] on Article I, Section 8:

“The Congress shall have the power to declare war.”

Schiff says:

More than 15 years ago, Congress authorized force against the perpetrators of the Sept. 11 terror attacks. The 60-word authorization remains the basis for military action against terrorist organizations around the world…These include groups that didn’t exist in 2001, whose connection to the simple language of the original authorization is tenuous at best. It is incumbent on Congress to play the role that the framers intended…

Senator Robert Menendez [R-NJ] on the 14th Amendment:

“Section I: All persons born or naturalized in the United states, and subject to the jurisdictions thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of the United States…”

Menendez says:

…In recent years, the debate over immigration reform has given rise to attacks on the 14th Amendment and on the millions of American-born children of undocumented parents across our country. Ending birthright citizenship would not fix our broken immigration system. Rather, it would give rise to a permanent underclass of undocumented individuals and their descendants…

Op-ed Columnist Ross Douthat on the 27th Amendment:

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

Douthat says:

This might be the last amendment ever added. That sounds extreme, but consider: It has been 46 years since an amendment of any real controversy has been ratified, and the prospects for one gaining two-thirds support in both houses of Congress and then limping through the states grow dimmer with every year of polarization. Meanwhile, our political order is increasingly adapting itself to a world in which the text of the Constitution cannot plausibly be changed. Whenever the textual straitjacket seems to binding, the presidency simply claims new powers or the Supreme Court issues creative reinterpretations of earlier amendments, and Congress shrugs and lets the executive and judicial branches fight things out.

A lot has happened to the Constitution since the founders first put quill to parchment. The pendulum has swung from assault to defense and back again. Some say that the beauty of the United States Constitution is in its vagueness: You can interpret it to mean almost anything, especially because it was written in the differently nuanced language [and inconsistent spelling] of its day, and because it leaves the details up to lawmakers, judges, Presidents and Congresses. Is 21st century America about to experience an unprecedented constitutional crisis? That remains to be seen. As Gary Wills sums it up:

…Madison said that the key component of all government was “virtue.” Unless people are willing to choose good arbitrators and submit to their disinterested judgments, there can be no enlightened progress. If the people really want a mean and selfish government, one that speaks only for a faction, then the voting process, no matter how refined, will let them have it. We have witnessed this abroad, when we encouraged democracy in other countries, only to see democratic tools used against democratic values. Perhaps we will one day witness it at home.

Or perhaps it’s already happening.