What House Republicans left out when they read (parts of) America's founding document.

The law, lawyers, and the court.
Jan. 6 2011 7:13 PM

Constitutional Whitewash

What House Republicans left out when they read (parts of) America's founding document.

(Continued from Page 1)

There is only one official, canonical version of the Constitution—and most of the folks who read today, Republicans and Democrats alike, have a copy in their offices, if not their breast pockets. The suggestion that there is some other, agreed-upon, document, whose "portions [were] superseded by amendment" is simply untrue. As CBS News Capitol Hill Correspondent Bob Fuss pointed out, the "redacted" version as read this morning had no coherent logic. They skipped over the three-fifths compromise but included the constitutional clause referring to the preservation of voting rights only for males over the age of 21—a provision superseded by the 26th Amendment. They skipped the 18th Amendment (Prohibition) then read the 21st (repealing Prohibition). Andrea Stone at AOL News picked up on the fact that they "read 14 words from Article I, Section 9 about taxation. Under a strict reading of the ground rules, though, it likely should have been excised because of the later passage of the 16th Amendment that legalized the federal income tax."

In other words, in addition to taking it upon themselves to whitewash past constitutional errors, House Republicans today compounded the sin by inventing a choose-your-own-ending document they tried to pass off as official.

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Even those parts of the Constitution that are superseded by amendments are still the Constitution, and they are still there for a reason. When the states (with a handful of exceptions) amend their constitutions, they delete and rewrite them. When we amend a statute we delete it and start again. The U.S. Constitution is never "rewritten" though. It is amended. In his wonderful book The Invisible Constitution, Prof. Laurence Tribe explains why the Constitution is written "only in a forward-moving manner that never backspaces to erase a word that went before." To this day, Tribe notes, the document still contains the language about the three-fifths compromise. Why do we preserve the language of the Constitution, even after we've amended or repealed it? "By keeping even textually superseded language (like that of the 18th Amendment) intact and fully visible in each circulated copy of official text, we undermine efforts to sanitize or otherwise rewrite our troubled history as those in power throughout the world are wont to do with theirs."

Tribe likens this to the lines in Omar Khayyam's The Rubaiyat: "The moving finger writes and having writ, moves on. Not all your piety nor wit shall lure it back to cancel half a line, nor all your tears wipe out a word of it."

It's not merely that the instrument isn't sacred and wasn't ever meant to be. It's that the document is all the more majestic for showing its work. The signatories put their names to the instrument as written, not the bowdlerized version read aloud today. For Republicans who want to restore this country to the sanctity of the Constitution as written, and to show reverence for the men who wrote it, today's exercise in putting forward an official "new and improved!"version was a truly baffling first step.

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