In an essay in Slate magazine Dahlia Lithwick has chastised the House of Representatives for reading the actual Constitution yesterday. (Congressman Robert Goodlatte, R-Virginia pictured above supervised the reading.) Apparently she would have had the House read the original document, including repealed provisions, and then various amendents to it seriatim. Lithwick argues that superceded provisions of the Constitution are still somehow part of the Supreme Law, because copies of the Constitution that she has read include the original language, as well as subsequent amendments. Indeed, she quotes Professor Akhil Amar for the proposition that:
"The Constitution is a thread. Nothing is ever erased and nothing can be omitted. Nothing tells us specifically what it repeals."
In the view of this Blogger, both Lithwick and Professor Amar are incorrect.
1) Thir argument proves too much. If they are correct, then the House should also have read the entire Articles of Confederation, which, after all, the Constitution did not expressly repeal. And, for that matter, why not also read each of the state constitutions extant between the Declaration of Independence and the adoption of the Articles, as well as the Northwest Ordinance (and changes thereto), which governed the territories of the United States both before and after the Constitution was ratified?
2) The Constitution does, in some cases, expressly repeal prior provisions. The 21st Amendment begins with the following language: "The eighteenth article of amendment to the Constitution is hereby repealed." What could be more clear? Also, Section 1 of the 14th Amendment, read by Congressman Mel Watt (D-NC) (pictured above) provides that all persons born in the United States are citizens, and Section 2 provides that "representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed" thereby superceding (quite obviously) the prior provision in Article I, Section 2 whereby slaves were not counted fully for purposes of apportioning representatives among the states. The 14th Amendment's failure expressly to reference Article I, Section 2 does not change this result one wit. The plain language of the 14th Amendment leaves no doubt of its meaning in this context and thus no doubt about the content of the actual Constitution. The Constitution does not, John Marshall said, partake of the prolixity of a legal code or, as Justice Scalia has said, bristle with supras and infras.
3) More fundamentally, a "Constitution" is by definition a framework --- written or unwritten --- for actual governing that both empowers and limits governmental actors. Thus, the actual American Constitution includes the 14th Amendment and the 21st Amendment. It does not include the 18th Amendment or the provisions of Article I, Section 2 that the 14th Amendment repealed, for instance, any more than it includes a random provision selected from whatever constitution was in force in Vermont in 1896. A federal prosecutor who sought an indictment based on the 18th Amendment would be laughed out of court --- and subjected to sanctions --- and properly so.
4) Finally, it may well be that "constitutions" that Lithwick has read include provisions that have been repealed. However, the editorial choices of publishers cannot change the actual content of our fundamental law. Presumably original language is included in such publications as a matter of historical interest and to provide context for the amendments. (For instance, the 21st Amendment's reference to repeal of the 18th makes more sense if the text of the 18th is handy to the reader.) But language included for sake of convenience or historical exposition does not thereby become, by some form of legal alchemy, part of the actual Constitution of the United States.
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While Lithwick's recommendation would make for an interesting and important history lesson, the House of Representatives is not, thankfully, a history department. Presumably the point of reading the Constitution yesterday was to impress upon members of the House both the source and the limits of their authority over their fellow citizens. Judged by this standard, the House properly read the actual Constitution that binds us and not those parts that We The People have discarded.