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.

Bob Goodlatte. Click image to expand.
Rep. Bob Goodlatte

The House's public reading of the Constitution today opened with a brief but meaningful hiccup. When it became clear that the Constitution would be read in its "most modern, amended form" (i.e., without references to portions that had been superseded by later amendments, including the explicit language in Article 1 that classified slaves as three-fifths of a person for the purpose of congressional apportionment and taxation), several House Democrats raised objections to what was—quite literally—a constitutional whitewash.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Even before the reading could begin, Rep. Jay Inslee, D-Wash., was on his feet trying to determine why the reading would not include the original language of the document. After a moment of parliamentary debate, Inslee asked Rep. Bob Goodlatte, R-Va.—who was overseeing the reading—to clarify why language was being "deleted" from the reading. Goodlatte replied that he'd consulted with the Congressional Research Service and the Library of Congress which "actually maintains a copy of the Constitution which includes those sections that have been superseded by amendment, and so we are not reading those sections that have been superseded by amendment."

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Jesse Jackson Jr., D-Ill., stood up to say that it was very emotional for him—"given the struggle of African Americans and given the struggle of women to create a more perfect document  … to hear that those elements of the Constitution that had been redacted by amendment are no less serious no less part of our ongoing struggle to improve the country and make America better  … many of us don't want that to be lost." Goodlatte replied that in recognition of this concern, Rep. John Lewis, D-Ga., would be recognized to read the 13th Amendment.

Adam Serwer compared this "abridged" version of the Constitution to the new plans to release an edition of Mark Twain's The Adventures of Huckleberry Finn replacing the N-word with the word "slave." Serwer noted that reading a sanitized Constitution does violence to the very idea of an imperfect document drafted by imperfect men: "The reason to include the superseded text is to remind us that the Constitution, while a remarkable document, was not carved out of stone tablets by a finger of light at the summit of Mount Sinai. It was written by men, and despite its promise, it possessed flaws at the moment of its creation that still reverberate today."

Serwer quotes Jamelle Bouie writing about the Huck Finn controversy, "If there's anything great about this country, it's in our ability to account for and overcome our mistakes."

But the problem with this morning's constitutional whitewash transcends racial amnesia. Pick up any version of the Constitution, and you will find that the language casually deleted from this morning's reading is still there, in all its awkward black-and-white. Contrary to Goodlatte's suggestion that there is some quasi-official agreement about what the amended Constitution looks like, no such document exists. Inslee tried to make this point when he said that the issue of what has been amended by subsequent language has been left to the rest of us to interpret, not set in stone.

Indeed, as Prof. Akhil Reed Amar of Yale Law School explains it to me, that is where thinking about the Constitution really gets interesting. "We have to interpretively decide what supersedes what," he says. "The Constitution is a thread. Nothing is ever erased and nothing can be omitted. Nothing tells us specifically what it repeals." When you see versions of the Constitution that attempt to identify which sections have been modified by subsequent amendments, he says, those modifications reflect the editor's thoughts—not a legal consensus about what the Constitution says today.

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.

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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