Legal Commentary

Understandably, a lot of blog posts have been written about the opening ceremonies of the new Congress yesterday, which included the reading of the Constitution (or some of it, anyway).  On his blog, Tim Sandefur writes that "this symbolic move is refreshing to those of us who take the Constitution seriously, and it?s sad to see that some people find it objectionable."

If it makes Sandefur feel better, at the AALS program on the Tea Party and the Constitution that I attended yesterday (I missed some of it but heard reports of the rest; congrats to Richard Albert of BC for putting together a great panel), most of the panelists, who ranged from left to right, felt just fine about the reading of the Constitution.  The view expressed was that taking the Constitution seriously, and making it a part of the public dialogue, can't be a bad thing.  This should be unsurprising to constitutional law profs.  In contemporary constitutional theory, elitist constitutionalism prevails in practice, but popular constitutionalism is popular in theory and in the standard current scholarly rhetoric.

I would like to add my thoughts to this discussion.  They amount to two cheers for reading the Constitution aloud on the House floor.  The crux of my position is one I have written about, more or less, elsewhere, and hope to expand on in a series of articles over the next couple of years.  What is valuable about the Constitution-reading exercise is not its connection to popular constitutionalism, but its connection to the idea of reading the Constitution as an indefeasible individual duty for office-holders.  Members of Congress take an oath to "support this constitution."  The oath, like all oaths, binds them--morally, spiritually, by dint of honor, however you want to phrase it--individually, not as members of parties, representatives of states or the voters, or members of the Tea Party or any other political movement.  

In keeping with the political rhetoric of the movement and the moment, the Constitution-reading exercise has been linked to a popular restoration of the Constitution, or perhaps a restoration of a popular understanding of the Constitution.  But those members who took the constitutional oath have an independent obligation to read, understand, and act on and according to the Constitution themselves.  The Constitution-reading exercise may have been formed in the crucible of a populist movement.  But it is also a moment of elite constitutionalism, inasmuch as those members have taken an oath to "support this constitution" -- not the one they would like to have, but not necessarily the one their Tea Party followers would like to have either.  The members are obliged to engage in a conscience-driven effort to apply the Constitution as they understand it, regardless of whether that understanding departs from popular or populist understandings of the document.

I am not offering a substantive reading of the Constitution here.  I'm not saying it is necessarily different in meaning from what the Tea Party, the New York Times, the median voter, or anyone else thinks it means.  What is important to me is not the meaning of the Constitution, but the fact that those oath-taking members who symbolized the importance of the Constitution by reading it aloud must decide for themselves what it means--and act accordingly.  They cannot let Erwin Chemerinsky, a majority of voting members of the Supreme Court, David Barton, Glenn Beck, Rachel Maddow, or anyone else tell them what it means.  If reading the Constitution aloud was not just pure political theater, it must have been a call to individual duty and the individual conscience of the members.  If its "symbolic" importance was to take the Constitution seriously, then that must mean the members must take it seriously as individual oath-takers.  It means that whether or not they engage in a popular "dialogue" about constitutional meaning, in the final analysis they must each follow their own understanding, regardless of whether that understanding pleases or disappoints their constituents.  

In those terms, the reading of the Constitution raises some questions for those members.  For one thing, it requires them to think about the method by which they will read and understand the Constitution.  If they follow the pure text, will they reject Justice Scalia's understanding of the Equal Protection Clause as not requiring women's equality, given that clause's plain textual meaning?  If they take an original public meaning view, how will they interpret the relatively power-limiting provisions of the original Constitution when read in pari materia with the Civil War amendments, and which public understanding will they treat as authoritative?  Where the document is unclear, what devices should they use to break through any ambiguities, and against what background understanding will they resolve those ambiguities?  If they take a strong view that the Constitution demands a highly limited government, will they follow their duty loyally, or will they follow it only selectively, as appears to be the almost certain result?  Will they see it as their duty to cut back on every law that they believe exceeds Congress's constitutional power, or only those they believe to be politically expedient to cut back?  If the latter, what does that say about their understanding of their constitutional obligations as oath-takers?  If they think popular or judicial understandings of the Constitution are somehow interpretively relevant, what does that say about their theory of the sources and "evolution" of constitutional meaning?  

These are all serious questions.  Again, I do not mean to point to a substantive answer.  I want to do only two things.  First, I want to caution against an over-reading of the reading of the Constitution on the House floor as a popular, populist, and/or symbolic moment.  The oath-taking members have an obligation to understand and support the Constitution, but that obligation is individual and indefeasible.  If they are actually cognizant of their oath-bound status, they ought to understand the reading of the Constitution as being as much about their individual duties as "elite" readers of the Constitution as it is about popular constitutionalism.  Second, I want to point out that if the members take that duty seriously, then they are about to embark on the same interpretive exercise that any serious reader of the Constitution undertakes, and they will be going places that no popular movement (and, equally, no set of instructions from the liberal elite) alone can take them.  If they are serious about their duty, they will follow it whither it leads--including into political oblivion and, if fate so provides, even political and economic disaster.  If they are not, they will be that all-too-common type: politically successful, pragmatically oriented political leaders with a highly imperfect loyalty to the Constitution.