Last Friday we celebrated the Fourth of July, which is remembered as the date the Declaration of Independence was signed. But while the Declaration has more flowery language and lots of ringing phrases, it’s the Constitution that actually does the work, day after day, of making the country run. (Or at least, it used to . . . these days, it seems somewhat unsteady, given the many extra-constitutional things that seem to be going on.) Still, with Independence Day just passed, it seems an appropriate time to point out some less well-known points about our foundational document — however shaky that foundation might seem:
• The only part of the Constitution most people remember from civics class (do they still teach civics class?) is the Preamble (“We the People of the United States, in Order to form a more perfect Union. . .” etc.) Ironically, it’s also the least important part of the document, because it says nothing substantive; it’s more like the dedication of a novel. It also contains a glaring error in that first sentence. The word “perfect,” like “unique,” expresses an ideal: Something is either perfect, or it is not. But something cannot be “more perfect” than it was before, even a nation.
• Despite the assertion by some people that ours is a “Christian nation,” the Constitution is astonishingly secular, particularly so for an eighteenth century document. Religion is mentioned only three times in the Constitution, and only once in the original text: twice in the First Amendment (first prohibiting government support of any specific religion, then protecting freedom to worship). And finally, buried in Article IV is a clause that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” — a radical innovation in an era when many states still required someone be Protestant to vote.
• Although there are a number of passages dealing with slavery in the original Constitution (before the first ten amendments were added), neither the word “slave” nor “slavery” appears in the document — an odd political correctness at a time many when some people thought it fine to buy, sell, and hold human beings in bondage, but then used euphemisms to describe the practice. The famous “three-fifths clause,” for example, counted the number of slaves as three-fifths of their total population for determining representation in the House of Representatives. But that clause refers to slaves only as “other persons not taxed.”
• The notion that slaves were considered “three-fifths of a human being,” by the way, is an old canard. Do you know who wanted slaves to be considered 100% human beings? The slave states. But the free states didn’t want them counted as people at all; it was a fight over seats in the House of Representatives. So the “three-fifths” clause was a compromise over Congressional apportionment.
• The word “slavery” finally shows up in the Thirteenth Amendment, adopted in 1865, months after the end of the Civil War. That amendment also happens to be part of an ironic constitutional twosome. Most of the Constitution concerns itself with either the organization of government, or placing limits on that government by guaranteeing various rights. Only two provisions deal with purely private conduct: the Thirteenth abolished what had been private property (i.e., slaves); and the Eighteenth Amendment prohibited the manufacture, sale, or transportation of alcohol.
• Curiously, the Thirteenth and Eighteenth Amendments each also left unfinished business that had to be dealt with by later amendments. Though the Thirteenth abolished slavery, there was some lingering doubt about the legality of simply wiping out a whole class of property. This was cleaned up in an obscure clause in the Fourteenth Amendment, which provides, “neither the United States nor any State shall assume or pay . . . any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” (Clearly this was written by a lawyer, as it says the same thing three times.) Similarly, the widespread crime, unpopularity, and — perhaps most important — loss of government revenue resulting from adoption of the Eighteenth Amendment made it the only amendment to be repealed, just 14 years later.
• Finally, something that isn’t there. Most everyone knows that the Supreme Court has the ability to declare federal or state laws unconstitutional if it concludes such laws conflict with the Constitution. But nothing in the Constitution itself gives the court that power. In 1803, in Marbury v. Madison, the court simply declared it had that authority — a point that, in the 200-plus years since, has simply come to be accepted.
Even though there’s not a word about that power in the document itself.
Frank Zotter Jr. is a Ukiah attorney.
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