There is something exhilarating about watching a national election pivot on the hinge of a pocket Constitution.
Last month, Khizr Khan, a naturalized American citizen who appeared before the Democratic National Convention with his wife, Ghazala, taunted the Republican presidential nominee Donald Trump by pulling out a well-thumbed pamphlet and asking, “Have you even read the United States Constitution? I will gladly lend you my copy.” The resulting counterattack by the short-tempered nominee seems to have marked a tipping point in the apparent collapse his campaign so far.
Intriguingly, Trump never actually responded that he has read the Constitution. It is apparent from his earlier suggestion that the document contains 12 articles (correct answer: 7) that he probably has not.
As Khan suggested, any American can perform this act of citizenship in a few minutes. And the evidence suggests that many are. Right now, the pocket Constitution is number one on the Amazon list of books about the United States; pocket Constitutions of various editions occupy spots 1 through 5 and 7 through 12 on the “constitution” bestseller list. The American Civil Liberties Union’s pocket volume is now on back order.
People could do worse than follow Mr. Khan’s advice in how to read it, too. In an interview with NPR, Khan was asked to read aloud his favorite passage. He recited Section One of the Fourteenth Amendment, apologizing that “I lose my composure when I read these words.” Quoting the phrase “equal protection of the laws,” he said, “Try to understand the impact of these four, five words in our life.”
It is a good place to start: Section One is the center of the U.S. political system and scheme of individual rights. Reading the Constitution is an important exercise; but knowing how to read it is essential to the work.
In that respect, alas, the publishers of the best-selling pocket Constitution fall short. It’s an outfit called the National Center for Constitutional Studies, a conservative “think-tank” headquartered in Malta, Idaho. Some years ago, I enrolled in an NCCS Constitution “school” to discover what these indefatigable “constitutionalists” were teaching eager Tea Party patriots. The lessons I “learned” were disturbing—here’s the summary I gave at the time:
The Constitution is based on the Law of Moses; Mosaic law was brought to the West by the ancient Anglo-Saxons, who were probably the Ten Lost Tribes of Israel; the Constitution restores the fifth-century kingdom of the Anglo-Saxons. . . Social Security, the Federal Reserve, the Environmental Protection Agency, the Civil Rights Act of 1964, hate crime laws—all flatly violate God’s law. State governments are not required to observe the Bill of Rights; the First Amendment establishes “The Religion of America,” which is “nondenominational” Christianity.
The NCCS pocket Constitution, however, does faithfully reproduce the text. Readers should concentrate on that, ignoring the questionably relevant quotations in the pamphlet from “the Founding Fathers” and the document at the end, in which George Washington apparently asks each of us to sign a “pledge” drawn up by NCCS—a document he never saw.
But texts do not read themselves. If the NCCS is not a proper guide, then what is?
A reader could do worse than start with small books by two very fine historians. Jack Rakove, a masterful writer who has spent 30 years analyzing the quest for “original meaning” of the Constitution, is the editor of The Annotated U.S. Constitution and Declaration of Independence. Although published by a university press, it is fully accessible to ordinary readers. Rakove has his own views, but he is a scrupulously honest scholar, and provides proper context for these two founding documents, without any reference to the Lost Tribes.
Slightly shorter, although no less trustworthy, is The Penguin Guide to the United States Constitution, a similar annotated guide by Richard Beeman. Beeman, a historian at the University of Pennsylvania, is also the author of a brilliant history of the Constitutional Convention, Plain, Honest Men: The Making of the United States Constitution. Of course, none of the “plain honest men” who gathered in Philadelphia thought of their own subjective “intentions” as a source of law; the Constitution became law after a careful process of ratification by popular conventions. Ratification: The People Debate the Constitution, 1787-1788, by the late Pauline Maier, is the first history of that process, inviting and surprising as it outlines the bare-knuckle politics that consumed the nation in the months after Philadelphia.
Reader should be aware—Rakove and Beeman make clear—that the Constitution that governs the U.S. today is not, as the NCCS pamphlet claims, the work of “Delegates of the Constitutional Convention.” That gathering of 55 eminent white men ended its work in 1787, while the work of building the Constitution has gone forward. The “delegates” did not write the Bill of Rights; even less did they write the 17 Amendments that have followed it, remodeling everything from the meaning of citizenship to the election of Senators, the qualifications of voters, and the increasingly limited powers of state governments. For a fine guide to the full context of today’s Constitution, read The Words We Live By: Your Annotated Guide to the Constitution by the scholar Linda R. Monk, which labors to provide inclusive context, including materials on “outsiders” to the Constitution such as Native American people.
Whichever of the above you read, for heaven’s sake, do not read it the way a lawyer would.
Much NCCS-style Constitution-worship views the document as a sort of unchanging, eternal biblical document. In fact, however, much of the exhilaration of truly studying it is seeing how, over more than two centuries, it has renewed itself. The Yale scholar Akhil Amar provides a readable and exhaustive account of these changes in America’s Constitution: A Biography, which will require some determination simply because it is nearly 700 pages long. But it is worth the effort and free of unreadable jargon—and also provides a valuable reference volume. Another such volume, written from a conservative point of view, also sits on my shelf—The Heritage Guide to the Constitution, which includes short articles on all the sections, and other topics, by scholars.
For those who want more background on the Framing and subsequent development, two marvelous online resources are The Founders’ Constitution, an exhaustive compilation of the sources of the original Constitution and Amendments I to XII, and The Congressional Research Service Annotated Constitution, maintained by the Legal Information Institute at Cornell University. A new edition of the Annotated Constitution is in the works, with input from Michael Gerhardt of the University of North Carolina School of Law.
Whichever of the above you read—even if it is only the 7,500-word text of the Constitution itself—for heaven’s sake, do not, repeat do not, read it the way a lawyer would. We lawyers are trained to analyze a butterfly by tearing off its wings; most “constitutional law,” as practiced in front of courts, consists of random fragments ripped out of the text and then applied, without any particular historical context, to sketchy and usually inaccurate “fact” patterns. Even if that mode of analysis is useful in some contexts, it is useless as a civic exercise. Instead, read for the overall scheme, and note that the document itself has a moral arc, which, to remix Martin Luther King Jr.’s phrase, bends fitfully toward justice.
If you’ve been meaning to do this reading for a while, now really is the time to do it. Many people—including me—think the United States is facing at least the possibility of a constitutional extinction-level event with the 2016 presidential election. The more Khizr Khans there are—the more citizens who take seriously their roles as stewards of our fundamental law—the less likely it becomes that the values of due process, equal protection, civic equality, and self-government can be obliterated by the screams of an angry mob.