Constitutional Cowards

Terrance Heath

"Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards."

- Eric Holder, United States Attorney General

Ed. Note: The second half of this post was written before the reading of the constitution on the House floor, at the opening of this session of Congress, and has since been updated.

Like a lot of people, when the new GOP majority in the House announced that they would begin this session by reading the constitution on the floor of the house, I was both amused and bemused. On one hand, I thought sarcastically, it might be educational. Some of them seem to know less about what’s in it, than about all the things of which they’re fond of saying "That’s not in the Constitution," while waving around the copy of the constitution they keep in their front pockets. (I’d wave around the copy I have on my iPhone, but I don’ thing it would have the same dramatic effect.)

I was bemused, because I wondered how conservatives would handle some uncomfortable parts of our history reflected in the Constitution. When I found out, I was more angry than amused, and more bitter than bemused. Congressional conservatives proved themselves to be callow and cowardly regarding the Constitution — unwilling to understand it in anything except a literalist framework, and unable to face up to the contradictions between our history and idealized image of ourselves, when the Constitution lays them out in black and white.

As Bill Scher noted, everything conservatives label, "not in the Constitution," the Constitution itself gives Congress the power to do.

…The Founders said Congress could pass whatever laws it deemed "necessary and proper" in order to "provide" the "general welfare" and "regulate Commerce."

And all of that is mainly in Article I. I’ll be curious to see if the conservatives on the House floor make it Article II before they give up and renounce America.

Like a lot of people, I wondered if they’d make it past Article I, Section 2, Paragraph 3 — better known as the Three Fifths Compromise, in which delegates agreed to count three fifths of slaves in the southern states for the purposes of tax distribution and congressional apportionment. How, I wondered, would they handle it.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The compromise was, according to historians, essential to getting the Constitution ratified, because it won the support of southern states. Without it, there might not have been a Constitution to read on the floor of the House in the first place.

So, how did they handle it?

They handled it by not handling it.

Notable passages left out: (Text taken from the National Archives’ official Constitution site).

1. The Three-Fifths Compromise. The Founding Fathers, seeking to appease slave states, found a compromise that tacitly allowed slavery without writing the word into the Constitution. It wrote that representatives would be parceled out among states based on a count of free people, and three-fifths of "other Persons." That was understood to mean slaves.

That provision’s impact was nullified by the 13th Amendment, which banned slavery.

Left out, from Article 1, Section 2: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

For all their rhetoric about the founders’ "original intent," House Republicans couldn’t handle it when faced with the reality that the founders didn’t intend for many of us today to enjoy the rights and protections they began setting down in the Constitution. (Now president Terry O’Niell reminds us that the founders didn’t include women in the Constitution either.) Instead they continue to take the cowards way out, resorting again to the kind of  revisionism that Mississippi’s GOP governor Haley Barbour had raised to the level of art.

Apparently, Republicans now think they own the Constitution and our history along with it.

To some African Americans, skipping those passages was a stinging omission that overlooked the fact that under the original Constitution they would not have had a right to vote, let alone serve in Congress.

"It’s sanitizing history," said Hilary Shelton, a senior vice president at the NAACP. "You take out the parts of it that aren’t as attractive. . . . We’ve not always been right. But the thing that makes us great is we’ve always been willing to stand up to the challenges before us."

The House clerk’s office does not have an official version of the Constitution it relies on. In the pocket Constitutions printed by the Government Printing Office and given out to congressmen, the three-fifths compromise language is still there, although marked with brackets and an asterisk.

I know at least one of my ancestors was likely counted in the three fifths of slaves owned in Georgia.

One thing I can say for sure is that it is one thing to understand the history of slavery, etc. It is entirely another thing to reach back into one’s lineage and uncover a family member who was indeed a slave; to give a name to someone you’re connected to, who lived through the experience of slavery. For me, it was a moment that caused me to pause and think of all I’d read, and then consider that Henry Heath (who chose to keep his owner’s surname for some reason; perhaps because he was related by blood?)lived through it; not to mention Mrs. Lockhart—who is also my ancestor—and who may well have lived through the reality of being raped, or used against her will, unable to say no, becoming pregnant as a result, and then having to give away her child. History, then, is no longer abstract.

Knowing even a little of one’s genealogy as an African American, requires confronting some uncomfortable realities.

The Constitution does not belong exclusively to the GOP, nor does our history. Nor does my history. And it felt like someone tried to erase part of that history.

 John Lewis’ reading of the 13th amendment inspired an ovation, probably not just because of the words he read, but the fact that he personally faced some of the same ugliness conservatives seek to whitewash or erase from our history.

It’s appropriate, in a sense, that a man who marched across the Edmund Pettus bridge, to face an attack from state troopers — on what became known as Bloody Sunday — would get a standing ovation in an public reading of the Constitution engineered by people who can’t face up to the history it lays out in black and white.


That said, I wanted to follow up my earlier post, with more on conservatives’ increasingly ironic fetish for the Constitution. (Except, of course, the parts they want to repeal.) But I can’t really put it any better than Dahlia Lithwick.

This newfound attention to the relationship between Congress and the Constitution is thrilling and long overdue. Progressives, as Greg Sargent points out, are wrong to scoff at it. This is an opportunity to engage in a reasoned discussion of what the Constitution does and does not do. It’s an opportunity to point out that no matter how many times you read the document on the House floor, cite it in your bill, or how many copies you can stuff into your breast pocket without looking fat, the Constitution is always going to raise more questions than it answers and confound more readers than it comforts. And that isn’t because any one American is too stupid to understand the Constitution. It’s because the Constitution wasn’t written to reflect the views of any one American.

The problem with the Tea Party’s new Constitution fetish is that it’s hopelessly selective. As Robert Parry notes, the folks who will be reading the Constitution aloud this week can’t read the parts permitting slavery or prohibiting cruel and unusual punishment using only their inside voices, while shouting their support for the 10th Amendment. They don’t get to support Madison and renounce Jefferson, then claim to be restoring the vision of "the Framers." Either the Founders got it right the first time they calibrated the balance of power between the federal government and the states, or they got it so wrong that we need to pass a "Repeal Amendment" to fix it. And unless Tea Party Republicans are willing to stand proud and announce that they adore and revere the whole Constitution as written, except for the First, 14, 16th, and 17th amendments, which totally blow, they should admit right now that they are in the same conundrum as everyone else: This document no more commands the specific policies they espouse than it commands the specific policies their opponents support.

I do, however, wonder if reading the Constitution just gave them an opportunity to mark the parts they want to edit or delete, and the parts they want to leave in.

On one hand, I don’t entirely agree with Lithwick’s assertion that the Constitution is always going to raise more questions than it answers, but not because any one American is too stupid to understand the Constitution. Part of the reason we’re having this discussion is that there are people who are too stupid to understand the Constitution.

Some of them run for office.

Some of them get elected.

Some build entire movements around being too stupid to understand the Constitution.

When a member of Congress has to be told that the Constitution both established the body in which she serves, and empowered it to pass legislation, there is a fundamental ignorance of the Constitution, what’s in it, and how it works. Likewise, when a Senate candidate doesn’t know what the first amendment says, etc.

And usually I end explaining what I thought we all learned in our eighth grade civics classes, if not over our Saturday morning cereal. Article I of the Constitution establishes Congress as a legislative body, and in Section 7 lays out the process by which legislation passes both houses of Congress, makes its way to the president’s desk, and … Well, you know how it ends if you saw that first video.

Granted, I’m not constutional law scholar, but that pretty much makes sense to me. That we have a legislative body at all kinda makes it obvious that it’s expected to, well, legislate. Otherwise, Michelle Bachman can pack up and go home, and Joe Miller can try to get a refund on his undistributed campaign signs, because there’s no point in them coming to D.C. There’s no need for them to vote on anything because “if the it isn’t in the constitution we can’t do it.” So there’s nothing for them to vote on anyway.

After all, why’d the Constitution establish a legislative body if it’s not supposed to legislate when all legislation was effectively supposed to stop 223 years ago last week, when the constitution was adopted on September 17, 1787? Wait, make that 219 years ago this coming December 15th. Apparently that was when the first 10 amendments, known as the Bill of Rights came into effect in 1791, after being ratified by the state. Of course, this is assuming that 1791 is as far back as they want to go.

But seriously, am I overestimating people here? I can’t be the only one who understands the above. And surely even people on the right acknowledge that the genius of the founding fathers was that they created a system of government that would be constrained by the limits of their imaginations and things they could or could not envision we would face more than 200 years later.

On the other hand, I think some conservatives understand the Constitution perfectly well. It just doesn’t serve their purposes. So they ignore what it says and what it means, or shirk the difficult work of interpreting an open-ended document. I don’t think conservatives necessarily believe the Constitution reflects their point of view, to the exclusion others. I think it’s more likely that they intend to make it do just that.

In that sense, I was shocked (but not surprised) that the GOP had such a problem reading the three-fifths compromise. After all, it’s pretty much an affirmation of what they apparently think the constitution should reflect. No, I don’t mean that conservatives want to bring back slavery. (A surprising number of them, however, do seem oddly obsessed with defending and/or justifying slavery.) But many do seem to want to turn back time, to a long lost "golden era of freedom," when the Constitution protected white, property owning males — as originally intended — and everyone else was somewhat less free.

Now, they don’t often come out and say as much. Or at least that used to be the case. More and more frequently you hear from the same people who profess their reverence for the Constitution, just which part of it need to be changed. What used to be "unsayable" is shouted in the street and broadcast in the media. (The first amendment is still working.)

Sometimes it’s explicit, like when the president of Tea Party Nation suggests returning to allowing only landowners to vote.

While the U.S. Constitution, as originally written, left it to the states to determine who is allowed to vote, Phillips contends that the colonial tradition of allowing only landowners to vote may not have been such a bad thing. As reported by Devin Burghart and Leonard Zeskind at their site, Tea Party Nationalism, Phillips offered this:

"The Founding Fathers originally said, they put certain restrictions on who gets the right to vote. It wasn’t you were just a citizen and you got to vote. Some of the restrictions, you know, you obviously would not think about today. But one of those was you had to be a property owner. And that makes a lot of sense, because if you’re a property owner you actually have a vested stake in the community. If you’re not a property owner, you know, I’m sorry but property owners have a little bit more of a vested interest in the community than non-property owners."

Now, it’s a little unfair, as some sites have reported, to say that Phillips was advocating that position for the present time. He was, as I hear it, saying that restricting voting rights to property owners "made sense" for the time, in his view. Which is troubling enough.

But when DeGerolamo suggested that voting be reserved today as a right for those "who pay taxes," Phillips seemed to be totally down with that.

It’s important to note what Tea Partiers mean when they talk about those who "pay taxes" — they generally mean income tax. If that’s what DeGerolamo means, what he’s saying is that poor people, who pay payroll taxes for their future Social Security and Medicare, would not be allowed to vote, because their earnings fall below the line of taxable income.

It’s even more explicit when legislators move to repeal birthright citizenship.

A group of Republican state lawmakers said Wednesday they hope to trigger a Supreme Court review of the Constitution’s 14th Amendment or force Congress to take action with legislation they’ve drafted targeting automatic citizenship granted to U.S.-born children of illegal immigrants.

…Thomas Saenz, president of the Mexican American Legal Defense and Education Fund, called the efforts an assault on the Constitution.

The news conference coincided with the opening day of the 112th Congress, in which Republicans have control of the House and Democrats have a slimmer majority in the Senate than they had last session. Democrats failed to approve any immigration reform legislation last session while they controlled both chambers.

The citizenship proposals are an attempt by the lawmakers to avoid trying to alter the Constitution, which is more difficult. They are part of an attempt by some states to have a greater role in enforcing immigration laws, following the lead of Arizona, which passed a controversial law last year giving police greater powers to question people about their citizenship or legal status.

It’s worth noting that the "three-fifths compromise was superseded by the 14th amendment, after the 13th amendment (outlawing slavery) rendered it moot. Now, I haven’t heard any conservatives call for repealing the 13th amendment, but what they’re proposing for the 14th amendment is cause for concern, at the very least.

Even if their legislation is "targeted" at children born to undocumented immigrants, it means changing a fundamental understanding of citizenship: Being born here no longer sufficient to make you a citizen. Think of it as editing this:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

To read more like this:

Not All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

If being born in the United States is no longer enough to make one a citizen of the United States, then on what basis is citizenship to be determined? My guess is that the bills proposed by the new GOP majority in the House would allow that being born here is sufficient to make one a citizen, so long as one’s parents are citizens by birth, naturalization, legal immigration, etc.

Not to be alarmist, but I don’t think that closes the question of what determines citizenship if one is no longer a citizen by birth. In fact, it opens the door to more reasons to call someone’s citizenship into question. Now, I’ll grant that Rep. Steven King (R-Iowa) — who introduced legislation targeting birthright citizenship on the first day of the new Congress — was probably joking (at least a little) when he suggested deporting a liberal for ever undocumented immigrant given amnesty. But at least one Senator (Joe Lieberman) wants to expand the circumstances in which government can revoke citizenship, and allow it to be done without due process.

Lieberman’s proposal would apply to Americans who are "apprehended and charged with a terrorist act," and allow them to be "deprived of their citizenship and therefore be deprived of all rights that come with that citizenship." All that’s required is that they be "apprehended and charged with a terrorist act."

Charged. Not convicted. I’m no expert in criminal law, but I know that the a criminal charge come before a conviction, and that bar is considerably higher for the former. Criminal charges are merely a formal accusation that one has committed a criminal act.

A criminal conviction requires more than a mere accusation.

The outcome of a criminal prosecution which concludes in a judgment that the defendant is guilty of the crime charged. The juncture of a criminal proceeding during which the question of guilt is ascertained. In a case where the perpetrator has been adjudged guilty and sentenced, a record of the summary proceedings brought pursuant to any penal statute before one or more justices of the peace or other properly authorized persons.

The terms conviction and convicted refer to the final judgment on a verdict of guilty, a plea of guilty, or a plea of nolo contendere. They do not include a final judgment that has been deleted by a pardon, set aside, reversed, or otherwise rendered inoperative.

The term summary conviction refers to the consequence of a trial before a court or magistrate, without a jury, which generally involves a minor misdemeanor.

Lieberman’s proposal that the government could revoke citizenship immediately upon formally accusing someone of a terrorist act. No conviction required.

Loss of citizenship. then, means loss of a whole host of rights under due process.

Due process, in the context of the United States, refers to how and why laws are enforced. It applies to all persons, citizen or alien, as well as to corporations.

…Generally, due process guarantees the following (this list is not exhaustive):

  • Right to a fair and public trial conducted in a competent manner
  • Right to be present at the trial
  • Right to an impartial jury
  • Right to be heard in one’s own defense
  • Laws must be written so that a reasonable person can understand what is criminal behavior
  • Taxes may only be taken for public purposes
  • Property may be taken by the government only for public purposes
  • Owners of taken property must be fairly compensated

In other words, the protections everything from the presumption of innocence on down. On this side of the looking glass, loss of freedom and/or citizenship would be the rsult of a conviction, which would follow a trial in which the accused would have the protection of the rights of due process.

I can only guess that would mean anyone the government accused of a terrorist act would be treated as an unlawful combatant. What protections, if any, unlawful combatants have under U.S. law was the subject of legal challenges during the Bush administration, until the Supreme Court stepped in and ruled that unlawful combatants have a right not to be deprived of liberty without due process of law and the Geneva Conventions. (Tea Party Nation Prez Judson Phillips has a fix for that too: "rewrite" Article III of the Constitution, and make Supreme Court justices to a popular vote.)

In fact, conservatives’ love/hate relationship with the Constitution seem to be based on the question of whom it protects and whom it doesn’t. That’s also reflected in what they want to change. When they say they want to "restore" the constitution, they are saying they want to stop is protecting the "wrong" people; like Muslims and non-Christians, for starters.

The constitution, basically, doesn’t protect everyone. That’s especially true if you’re gay, a woman, black, etc., according to Supreme Court justice Antonin Scalia.

Justice Scalia is now getting attention for his outlandish view, expressed in an interview in the magazine California Lawyer, that the promise of equal protection in the Constitution’s 14th Amendment does not extend to protecting women against sex discrimination. Legislatures may outlaw sex discrimination, Justice Scalia suggested, but if they decided to enact laws sanctioning such unfair treatment, it would not be unconstitutional.

This is not the first time Justice Scalia has espoused this notion, and it generally tracks his jurisprudence in the area. Still, for a sitting member of the nation’s highest court to be pressing such an antiquated view of women’s rights is jarring, to say the least.

No less dismaying is his notion that women, gays and other emerging minorities should be left at the mercy of the prevailing political majority when it comes to ensuring fair treatment. It is an “originalist” approach wholly antithetical to the framers’ understanding that vital questions of people’s rights should not be left solely to the political process. It also disrespects the wording of the Equal Protection Clause, which is intentionally broad, and its purpose of ensuring a fairer society.

Fortunately, Justice Scalia’s views on women are not the law of the land.

Not yet, but Scalia could well be one of the justices who eventually has to rule on whether my husband and I have a right to be legally married. That’s not something our heterosexual neighbors have to worry about, because their rights are not subject to a majority vote.

We, as a gay couple, have no "inalienable rights," that are not subject to a majority vote. Pair Scalia with Phillips, and in their world we might not even have a vote, unless we were property owners. (And who knows what other qualifications they’d add, if they could.) Our equality is not a "natural right," but is determined by a majority that can vote for our equality one day and against it the next, depending on which direction and how hard the political winds blow.

Conservatives, particularly of the Tea Party variety, have started declaring their intention of "taking back their country" before Barack Obama took the oath of office. Their reverent and revisionist approach to the Constitution just means they intent to "take it back," too. Back to what they imagine it originally was and want it to be "again," as Josh Marshall so succinctly put it.

They are "taking it back" because it is not your or mine, but theirs alone.

This is not your country. Nor is it mine. That we were born here, along with our forebears hardly matters. This has been the message of the Tea Party since its incorporation — and of conservatism itself for more than a generation — to anyone who doesn’t fit their demographic, in terms of race, religion, politics, etc.

It is most often expressed by the Tea Party’s declared desire to “Take our country back.” This is not your country. Nor is it mine. It’s theirs, and they’re “taking it back.” This raises a few very important questions: “Who are they taking it from?”, “Who are they taking it for?”, and “How do they plan to take it?”

Who are they taking it from? Who are they taking it for? How are they taking it? They’ve answered all of those questions.

How far backwards will they take the country, the constitution, and us along with them? In the next two years? Not as far as they’d like. But it’s a start.


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