America's 10 Biggest Constitutional Myths

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A parlor game for a summer of crisis

Constitutional argumentation is a means Americans employ to keep from killing each other. Ridiculous claims about the Constitution, then, may often be a sign of political health rather than sickness.

So it's not surprising that, as we lurch toward summer, the national air is filled with claims about the "plain meaning" and "clear intent" of the Constitution; it's also not surprising that the "plain meaning" asserted isn't usually to be found in the actual text, and the "clear intent" supported often has no foundation in the actual history.

That experience taught me to be suspicious of grand claims about the secret meaning of the Constitution

But even so, the last time I remember hearing so many dangerous and bogus claims about the Constitution, I was a boy in the segregated South listening to my elders explain that the Commonwealth of Virginia had the power to pass a statute "nullifying" Brown v. Board of Education. That experience taught me to be suspicious of grand claims about the secret meaning of the Constitution (such as the eerily familiar claim, advanced earlier this month in federal court, that the Commonwealth of Virginia has the power to pass a statute nullifying the Patient Protection and Affordable Care Act); it also taught me that at some point, constitutional arguments may lead to, rather than prevent, blood in the streets.

The constitutional bosh propounded by charlatans like James J. Kilpatrick during the Civil Rights era was aimed at convincing the nation that racial equality was unconstitutional--instead of being, as the Thirteenth, Fourteenth, and Fifteenth Amendments make clear, commanded by the amended Constitution. Those arguments live on under the surface of the bilge peddled by figures from Glenn Beck to Tom Coburn.

But the current far-right campaign is aimed at an even broader target: it seeks to convince us that the Constitution somehow forbids the United States from becoming a modern nation-state, with an integrated economy, a rational health-care system, a unified national citizenship, an open electoral process, and a system of bedrock civil and political rights.

This summer, I will be posting a series of short essays on what I consider to be the most dangerous unfounded claims about the Constitution currently floating around the airwaves and legislative halls. Each of us, I suppose, could make his or her own list of constitutional myths. The ones I list below are my top ten. I invite nominations from readers of their own.

Nominators should bear in mind that "you are a liberal and therefore you don't count," "even to suggest that idea is outrageous," "my civics teacher taught me the opposite in 1978," and "you teach creative writing and so you should shut up" don't (how can I put this politely?) qualify, in the strictest sense, as constitutional arguments. Beware, too, of any argument that includes the phrase "no amendment can change," unless you are referring to the rule of equal suffrage in the Senate. And don't try "everybody knows what the founding fathers were really thinking," unless you can find and cite some pretty dog-nab convincing evidence in the text and the actual historical record.

I'll be posting explanations of each of my top ten while listening to yours. In constitutional terms, it seems to me silly to wish everyone a good summer. Make no mistake: We are the midst of a very dangerous political crisis. Gridlock in Washington is pushing the United States toward a first-ever default on payments on the national debt. Conservative judges are champing at the bit to strike down the most important piece of progressive legislation since the 1970s, the Patient Protection and Affordable Care Act, on the invented excuse that it somehow "regulates inactivity," a prohibition mentioned nowhere in the Constitution and never really detected in it by anyone until the day after the passage of the Act. Angry conservative majorities in state capitols are rewriting the social compact, chipping away at federal authority over interstate commerce, reasserting the old Confederate doctrine of state control over American citizenship, and, most alarmingly, creating new and frankly partisan restrictions on the very right to vote.

So if we accomplish nothing else, let's at least have some fun, discussing the Constitution to divert ourselves from disaster, like Boccaccio's characters, who told stories of love and adventure while the plague raged outside the villa's walls.

Here are my top ten:

  1. Conservatives believe only in "original intent" and others believe in a "living Constitution," meaning whatever they want.
  2. The Founders wrote the Constitution to restrain Congress and limit its powers.
  3. The "Unitary Executive" means all unclaimed federal power flows away from Congress and to the President.
  4. The Constitution does not provide for separation of church and state.
  5. Corporations have precisely the same First Amendment rights as natural persons.
  6. The Second Amendment was "intended" to make government "fear the people."
  7. The Tenth Amendment and state "sovereignty" allow states to "nullify" federal law.
  8. The Fourteenth Amendment was written solely to address the situation of freed slaves, and has no relevance today.
  9. Election of Senators is unfair and harmful to the states.
  10. International law is a threat to the Constitution and must be kept out of American courts.
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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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