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Saturday, December 10, 2016

The word “Constitution” gets tossed around a lot. Pols invoke it as a crucible to challenge opponents’ patriotism. Cable news guests bandy it to batter each others’ points. Just say “First Amendment,” full stop — as if that’s an argument. Who has actually read the whole thing, and who claims to understand its meaning fully? 

As law professor Garrett Epps demonstrates in American Epic: Reading the U.S. Constitution, “meaning” can be a pretty elusive thing. His book is a close reading of every last word, and if listening to a legal scholar parse the Constitution article by article, section by section, sounds dull as dishwater, it is to Epps’ enormous credit, then, that American Epic is a brisk, sly, even humorous read. Epps take obvious and infectious delight in unpacking the supreme law of the land, subjecting it to a battery of literary and legal analyses, bringing to the table a bevy of historical context, and giving it the shrewd, lyrical gloss of a book review. (The troublesome ambiguity of the Second Amendment, for instance, is “as delicate and suggestive as a poem by Emily Dickinson, offering empty spaces we are invited to fill.”)

In negotiating the tangle of contexts and connotations that make up the Constitution, the spirit and letter of the text, and the bottomless well of interpretations and implications, Epps proves to be a charming and authoritative guide.

You can purchase the book here.

“We the people.” Whatever it is, it is not a statement of fact; and whatever else it is, it is also a distraction.

Many Americans remember nothing of the Constitution’s Preamble but those words. They burst into the mind; they tell us we are reading no ordinary document, indeed not even an ordinary law. We are being addressed by ourselves, looking into our own faces; we are being welcomed to a party where we are not only honored guests but also hosts. Who remembers what is said at a party? Often we don’t even remember the occasion—was it a birthday, a wedding? What we remember are smiling faces, warmth, and the feeling of belonging.

There are two problems with these words. First, the Constitution may not be in fact our party; and, second, in this context, both the occasion and the speeches matter as much as the glow of fellowship. The claim that “we” wrote the document is false. Someone has written a Constitution, and done so for specific reasons. We need to understand both hosts and occasion.

What is meant by “we the people”? In no real sense was the original Constitution written by the people. As every American schoolchild learns, the authors were a group of some fifty-five men, distinguished in the new nation by their wealth and prominence, meeting in the Pennsylvania State House in Philadelphia between May 25 and September 17, 1787. The “United States” already existed as a society and an independent country. In fact, the Convention was held in the eleventh year of Independence, the sixth since Britain had recognized American freedom as an accomplished fact.

The Convention assembled under conditions of strictest secrecy. The “people” were to take no part in the drafting; indeed, they were not even represented there. The delegates were sent by their individual state legislatures, and each state, whether tiny Delaware or mammoth Virginia, had one vote. The people had not summoned them; the convention had been called by the Congress, a body in which again the states, not the people, were represented. The people had no notice that the meeting would write a new constitution in their name; the formal purpose of the meeting was to “propose amendments” to the existing constitution, the Articles of Confederation.

No one was told that these men might, in contemporary terms, “go rogue” and write a new fundamental law. And when their work was done, they instructed (in Article VII) “the people” to approve or disapprove. No changes; no amendments. Just a simple “yes” or “no.”

Nonetheless, they presumed to speak in the voice of “the people.” The choice may have been adventitious.  The first draft of the Preamble, reported by a committee on August 6, 1787, read, “We the people of the States,” then listed each by name.

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That has a very different sound. More modest? Perhaps—though equally false. Not every state named in the draft was even present in Philadelphia. (Rhode Island scorned the Convention, and later was slow to ratify the Constitution.)  Beyond that, what of those places that were not yet states? Would the Constitution have established an order of precedence, a sort of First Family of states, with others implicitly inferior? Would it have spoken as powerfully as it does to the people of Vermont, then independent, or Kentucky or Ohio, then being formed, or Louisiana or Oregon, undreamt of? The words “we the people” have a contemporary sound; in 1787 they were positively futuristic. The words, “we the people of the states” would instead have been archaic on the day of publication and would emphasize to any contemporary reader the historical distance between the Framing and today. Whatever impulse led the drafters to make the change has led to profound consequences, certainly in rhetoric and probably in politics. It was an inspired act of ventriloquism.

But it was more than pretense. It was aspirational. The Constitution is not a prayer—prayers are addressed to someone, a superior, either an earthly king or a divine lord, and great care is taken to name the addressee and less to characterize the speaker. The Preamble does the reverse. The speaker is “the people,” the words are addressed to the world at large. But if not a prayer, what? Consider these words: “Goddess, sing the rage of Peleus’ son, Achilles . . .” Or these: “Tell me, Muse, how it all began.” These sound like prayers, addressed to Calliope, the Muse of poetry, who was herself a goddess. But they are in fact, just like “we the people,” a deceptive claim of authorship. It is not I, the poet, who brings you the tale of Achilles and Hector, but Calliope herself. I did not see Aeneas’s meeting with Dido in Hades, but Calliope surely did. In epic poetry, the poet speaks the Goddess’s words; in constitution-making, the drafters speak to us in our own voice.

“We the people” are thus not precisely impersonated but invoked. The act is not one of imposture but of aspiration—let me speak in the voice of the Muse, let me give voice to the spirit of the people.

From American Epic: Reading the U.S. Constitution, by Garrett Epps. With permission from Oxford University Press USA, © Garrett Epps 2013

If you enjoyed this excerpt, purchase the full book here.

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