The New House Majority and the Constitution: Through a Glass Darkly or Face to Face?

In his hilarious autobiography, My Life and Hard Times, humorist James Thurber recounted his four-year struggle to pass Biology at Ohio State.

Thurber was legally blind; but in those days before the Americans with Disabilities Act, the university made no adjustments to its curriculum for his condition. Biology was required; and to pass Biology, Thurber had to peer through the microscope and produce a sketch of living cells.

The problem was, he couldn't. For three straight years he saw only blankness. Then one day during his senior year, he suddenly began to sketch, producing "a variegated constellation of fleck, specks, and dots." When he proudly turned in his work, the professor lost his composure. "That's your eye!" he screamed. "You've fixed the lens so it reflects! You've drawn your eye!"

The Thurber story leapt to mind when I read recently that the new Tea Party-inspired members of Congress are arriving in the Capitol with pocket copies of a document they apparently believe no one else has ever heard of. Their newly adopted House rules require that every bill be introduced with a statement of its "specific Constitutional Authority."

The new House majority will underline its "the Constitution is back, and it's badass" approach by requiring (for apparently only the third time in history) that the entire document be read this Thursday in the chamber.

That's actually a good idea, and it would be especially nice if it could be read aloud by one of America's great actors--Sam Waterston, say, or Meryl Streep, or Denzel Washington. There is a kind of quiet music to the Constitution, not only in the exuberance of the Preamble but in the epic list of Congressional powers in Article I § 8, the surfer-dude vagueness of Article II, and the tight-lipped sobriety of the Bill of Rights. There certainly would be no imaginable harm in our lawmakers listening to the Constitution; when it comes to the document, I draw my motto from Dean Wormer of Animal House: Knowledge is good.

But we all know that House members don't gather to listen to non-politicians, or to each other; or, in fact, to listen at all. They come to the chamber to fulfill their primary duty, getting on television. So they won't be listening to a clear, coherent reading of the Constitution; instead, they are parceling it out among themselves clause by clause.

No one is likely to listen to the Constitution as a whole during this solemn pageant; and more's the pity. The "specific authority" rule is apt to spark some debates later in the session, as members challenge other members' constitutional interpretations. That in the abstract is all to the good (and actually a good deal less of a change from current practice than the new majority pretends). But it helps in such a debate if the participants actually have read the Constitution--read it as a whole, and with an open mind. So far the right wing of the new majority seems to have read the Constitution much the way Thurber read his microscope; it has produced a drawing that by a bizarre coincidence looks much like its own policy agenda.

Of course, this reading will not be the only opportunity for constitutional study on the part of the new members. We can all be heartened by the news that Rep. Michele Bachmann (R-MN) is going to hold a Constitution School for them. Rep. Bachmann's qualifications as a constitutionalist are suggested by the statement she issued last September for Constitution Day, which says (not making this up): "It was in the Constitution that our founding fathers penned the infamous words, 'We the People'." Even I am not going to pretend to believe that Rep. Bachmann regards the Preamble as containing words "of ill fame or repute; famed or notorious for badness of any kind; notoriously evil, wicked, or vile; held in infamy or public disgrace." I'm quite sure that she reveres the Constitution as much as I do; but her statement does suggest that she may have a slight problem understanding the meaning of ordinary words. Alas, understanding is essential to reading the Constitution. As for teaching it, we are told by our books of wisdom that if the blind lead the blind, the result may be suboptimal.

I've spent the past two years reading the Constitution carefully, with no legislative duties to distract me, and what I see in the Constitution is not something that should give comfort to small-government, state's rights, hard-money, no-internal-improvement conservatives.

Conservative Republicans tend to go on and on about how the Constitution puts shackles on Congress. Sen. Jim DeMint (R-SC) recently explained that "although the Constitution does give some defined powers to the federal government, it is overwhelmingly a document of limits, and those limits must be respected."

DeMint has, usually, a very clear view of his own eye. The intention to limit Congress is, to me at least, pretty hard to actually find in the Constitution itself. Article I, which sets up the House and Senate and lays out their powers, is the longest Article in the document. Its 2500 words amount to fully one-third of the Constitution, even today after 27 amendments. In Article I, about 450 words are devoted to specific powers of Congress; about half that many to things Congress can't do. And in case you begin, Ron Paul-style, to claim that Congress can do only what is in Article I § 8, please look carefully at Article I § 8 cl. 18, which gives Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." (Italics mine.)

If in fact you are Rep. Ron Paul (R-TX), please volunteer to read the specific text that gives Congress the power to conduct the kind of investigation of the Federal Reserve you plan. You can take the day off, Dr. Paul; it isn't there. To most readers, though, it is clearly implied--as are a lot of other powers Rep. Paul claims to find illegitimate, including the power to issue Federal Reserve notes instead of gold or silver certificates.

New members: Please don't leave the floor after George Washington's name is read either, because the Constitution has actually been changed since 1787. The following amendments all add to Congress's power: 13th, 14th, 15th, 16th, 19th, 20th, 23rd, and 24th. To the extent that you really care about the text, it's hard to discern Sen. DeMint's "overwhelming" list of limits.

There really are significant limits in the Constitution, of course--but the majority of them are limits placed on the states. The Constitution's text forbids the states from conducting their own foreign policy, printing their own money, taxing goods shipped in or out of their borders, or engaging in military operations. Many things they can only do by asking Congress's permission; states can't even negotiate among themselves unless Congress consents. In fact, the federal government retains veto power over each state's constitution, which must create a "republican form of government."

The idea that states have "rights," or that they are "sovereign," appears nowhere in the text of the Constitution.

I hope the members will listen carefully when their favorite amendment, the 10th, is read aloud. Conservatives like to sneak the word "expressly" into the amendment's statement that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It's not there. That's not an accident; the Articles of Confederation did have a similar provision including "expressly." Madison, a nationalist in 1789, pointedly omitted the word in his proposal for what became the 10th Amendment. And note that the amendment doesn't even "reserve" anything directly for state governments. The words "or to the people" mean something--they are not just another word for "state governments."

Listen carefully to these words as well, which are in the Constitution: "treaties . . . the law of nations . . . admiralty and maritime jurisdiction." These words refer to something called "international law," which was recently banned in Oklahoma but was a subject of much study for the Framers. Perhaps attempts to interpret the Constitution without it won't be accurate.

If the Members actually listen, they may notice that the document they are hearing is nationalistic, not state-oriented; concerned with giving Congress power, not taking it away; forward-looking, not nostalgic for the past; aimed creating a new government that can solve new problems, not freezing in place an old one that must fold its hands while the nation declines.

Of course, others may not read the Constitution precisely as I do; fair enough. But surely it will be all to the good if debates about its meaning begin with the actual text, rather than with faintly remembered folklore relayed by a long-dead civics teacher. Perhaps textualism will inspire the new majority to actually try to solve our nation's problems using the Constitution, instead of waving it about like great-grandpa's Confederate cavalry sword to demonstrate that we can't have health care, or environmental protection, or whatever other policy they oppose today.

I doubt that will happen, but it can't be ruled out; for in the books of wisdom we are also told that now we see through a glass darkly but will one day see face to face. The constitutional glass the Tea Party has peered through is dark indeed, and so far to me seems to reflect only their own angry eyes.

Garrett Epps is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.