Reading (the Constitution) Is Fundamental

But saying it out loud is not the same as understanding it. And that includes accepting that the nation's founders knew the document's interpretation would change with the times.

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I started carrying around a pocket version of the U.S. Constitution in my purse in 1998 after I visited South Africa for the first time. It was only four years after the first full democratic election in that country. When the ANC was voted the ruling party in 1994 and Nelson Mandela was elected president, hundreds of thousands of black South Africans stood in lines extending for miles to exercise their franchise for the first time. Four years later, everyone -- from parliamentary officials to the woman selling tea at a makeshift kiosk in the townships outside Cape Town -- carried a small copy of the South African Constitution on their person. It was inspiring to see how engaged everyone was with the foundational document of their country.

So, all things being equal, I have no objection to the leadership of the newly elected U.S. House of Representatives deciding to open the first session last week with a reading of the Constitution. It was also gratifying to see the reading turn into a bipartisan affair. Of course, as noted by Rep. Elijah Cummings (D-Md.), the House didn't have the stomach to read the original Constitution along with its amendments. Thus the reading excluded some of the framers' greatest constitutional hits, including Article I, Section 2, the counting of slaves as "three fifths of all other Persons" for representation purposes. Nothing like reading an edited and sanitized version of the Constitution to demonstrate respect for it. 

But the deletion of the unpleasant parts of the Constitution is only one of the problems with the constitutional read-in that opened the new congressional session. Many of us hoped that members of Congress would have read the Constitution before they took the oath of office -- in fact, before they ran for office, so that they would be familiar with the structure of government they hoped to influence. But if Republican leaders who hatched this stunt believe that reading the Constitution aloud is the same thing as understanding it, then this new Congress is in for a bumpy year. 

It's important for our leaders to understand that a constitution differs from other sources of law. Unlike a statute or regulation, a constitution sets out the fundamental legal regime by which a nation is organized. Constitutions are meant to stand the test of time. It was Chief Justice John Marshall who reminded us in 1819 that our Constitution was "intended to endure for ages to come … and to be adapted to the various crises of human affairs."

The framers understood this. They provided a means of amending the Constitution, but also drafted language that left enough room in the joints of our governing structure so that successive generations could ensure that our government could function. The perfect example is the Article I "necessary and proper clause," which gives Congress the authority to "make all laws which shall be necessary and proper" for executing the powers vested in the legislative branch by the Constitution. Determining when a law is "necessary and proper" to the execution of a constitutionally enumerated power cannot be determined simply by reading the words of Article I, Section 8, over and over. Likewise, determining the extent of Congress' power under the "commerce clause" to "regulate commerce … among the several states" has been subject to centuries of interpretation by the Supreme Court. Thursday's spoken-word performance has not revealed the parameter of Congress' power in this area.

Behind the Republican leaders' constitutional posturing, of course, the stage is set for an effort to repeal the newly enacted health care law. Challenges to the constitutionality of the law in federal court have centered on the breadth of Congress' powers under Article I, Section 8. The new health care law seems to fall squarely within Congress' power under the commerce clause, which has been interpreted by the Supreme Court to authorize Congress to legislate in a variety of areas.

As long as economic activity substantially affects interstate commerce, the court has been inclined to find that Congress may legislate in that area. For example, the Supreme Court ruled that Title II of the Civil Rights Act of 1964, which forbids hotel owners from denying services to clients based on race, is an exercise of Congress' commerce clause power, and ruled that the commerce clause permits Congress to regulate medical marijuana in the states

But Judge Henry E. Hudson, in Virginia v. Sebelius, offers a cramped analysis of the commerce clause that seems at odds with these cases. In striking down the health care law, Hudson concedes that Congress can regulate economic activity that affects interstate commerce. But, Hudson contends, Congress cannot regulate "inactivity." Thus, according to Hudson, Congress cannot regulate those who seek not to participate in the health care market by having insurance.

Hudson's decision has been derided by many legal scholars, and conflicts with the decisions of other courts that have reviewed challenges to the health care law. (Hudson has also been criticized for his financial connection with an organization that provides services to a number of Republican elected officials -- including Virginia Attorney General Ken Cuccinelli, who filed the legal challenge to the health care law.) 

But simply reading the Constitution, without reference to the nearly 200 years of Supreme Court interpretation of its various provisions, doesn't help us understand the interplay between the commerce clause, the necessary and proper clause, and Congress' power to levy taxes. Nor will it bring the new Tea Party-spooked congressional Republicans any closer to completing the hard work of enacting legislation in a divided Congress. 

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Sept. 19 2014 8:34 AM