I hardly get to read the now-venerable H-Net email lists any more, but this morning I did catch a good post from H-LAW and H-SHEAR patiently explaining to the lawyers and right-wingers who swarm those lists on certain topics that the Constitution should not be read the way fundamentalist Christians read the Bible, as an “inerrant” text every word of which is divinely inspired. The author of the following is constitutional historian R.B. Bernstein, and he was responding to a post asking somewhat bitterly whether the last five words in Article I, Section 6, Clause 2 of the Constitution “are anything but a complete nullity,” as though it was news that there was some not eternally-applicable language in there:
I also think that the question, as it stands with its note of suppressed dismay and outrage at language that might be a nullity, targets a constitutional straw-man, a general assumption about the Constitution’s text that we ought to discard once and for all — that the text is not only authoritative but somehow transcendantly so, clear and dispositive far beyond the powers of mortal men.
The framers of the Constitution were human beings, working under very difficult conditions that sometimes meant that they did not write — or “frame” — with the focused, unwavering attention to clarity and guidance for posterity that posterity has too often attributed to them. One example, memorably elucidated by Professor Michael Stokes Paulsen, now distinguished university professor at the University of St. Thomas School of Law in Minneapolis, is the arrangement for who would preside in the case of a Senate impeachment trial of the Vice President. The constitutional text, read with care, indicates only one possible answer: the Vice President. The explanation is that the framers added the Vice Presidency to the Constitution at a very late stage of the game, and they may have meant to modify the language governing presiding officers in Senate impeachment trials to have the Chief Justice preside over the impeachment trial of a President or a Vice President, but they didn’t do a thorough enough mark-up.
Further, the reverence for the text of the Constitution that suffuses today’s constitutional and legal culture may not have been present at its creation, and for very good reason. The framers and their contemporaries lived in an era of rapid constitutional change, in which they all lived through three or even four forms of American constitutional governance (British empire to 1775 or 1776, Continental Congress from 1775-1776 to 1781, Articles of Confederation from 1781 to 1789, and Constitution from 1789 on); they also each lived through at least two and sometimes three different versions of state constitutional arrangements — charter or other colonial organization to 1775-1776, provision or first constitution in 1776, with at least one and sometimes two later constitutions, depending on the state. (The only exception is Rhode Island, which marked up its colonial charter to remove references to the British Crown and then did not do anything to revise or replace that reworked charter until the Dorr Rebellion in the late 1830s and early 1840s.) When Jefferson referred to the Articles of Confederation in late 1787 as a venerable fabric, he was not writing with the sarcasm that some later scholars have attributed to him. Given that rapid succession of constitutional frameworks on both state and national levels, it’s unlikely at best that the framers of the Constitution or their contemporaries thought that the Constitution proposed in 1787, ratified in 1788, and put into effect in 1789 would last more than a generation.
It may be true, as James Madison argued in an essay for the NATIONAL GAZETTE on 19 January 1792, that “every word [of the Constitution] decides a question between power and liberty,” but that is a description of the Constitution’s purposes and functions, not of its consistent literary excellence, and we would do well to recognize this fact.
Not my thoughts exactly — much more judicious — but perhaps this is the sort of cool reason that ahistorical abusers of the Constitution and the Founders might be able to heed? Probably not, but they should.