Legal Commentary

Today's Reading of the Constitution has turned into something of a political litmus test--Republicans love it, Democrats ridicule it as a stunt.

The problem is that discussion of the reading is being conflated with the proposed new rule requiring that all legislation cite its underlying constitutional authority, which some liberals and liberal scholar supprt (and even would like to extend, or at least take seriously). I particularly like Mike Dorf's suggestion that they should have to point not only to the source of authority, but also explain why a piece of legislation does not run afoul of external limits on legislative power (say, the First Amendment). It would end the practice (often traced, fairly, to robust judicial review) of Congress passing symbolic legislation it knows to be probably unconstitutional, seeking the political benefit while knowing that the courts are going to knock it down.

But I see today's event as little more than a stunt because it accomplishes nothing of substance--and I am not sure it is intended to do so. I will give members of Congress credit that they are passingly familiar with the Constitution (at least the parts they like), so this is not going to educate anyone about something they don't already know. The constitutional language is, quite deliberately, vague and ambiguous--so much so as to be meaningless from the simple five-minute reading of text alone. The assumption from the organizers of this event is that the meaning will self-evident to all from a simple reading aloud; it's not. It is not as if someone is going to have some interpretive epiphany--"oh, oh, oh, I get it, Congress has the power to regulate commerce 'among the several States'" or "oh, oh, I get it, Congress has the power to 'enforce . . . the provisions' of the Fourteenth Amendment."  Nor is this designed to begin some great legislative conversation on constitutional meaning or interpretive approaches.

So to reject today's reading is not to reject or belittle this new project of getting Congress to engage with the Constitution. It is, instead, to wish they would do it in a grown-up manner.