Ours is one of the oldest written constitutions in the world and the first, anywhere, to be submitted to the people for their approval. As Madison explained, the Constitution is “of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed . . . THE PEOPLE THEMSELVES.” Lately, some say, it’s been thrown in the trash. “Stop Shredding Our Constitution!” Tea Party signs read. “FOUND in a DUMPSTER behind the Capitol,” read another, on which was pasted the kind of faux-parchment Constitution you can buy in the souvenir shop at any history-for-profit heritage site.
At some forty-four hundred words, not counting amendments, our Constitution is one of the shortest in the world, but few Americans have read it. A national survey taken this summer reported that seventy-two per cent of about a thousand people polled had never once read all forty-four hundred words. This proves no obstacle to cherishing it; eighty-six per cent of respondents said that the Constitution has “an impact on their daily lives.” The point of such surveys is that if more of us read the Constitution all of us would be better off, because we would demand that our elected officials abide by it, and we’d be able to tell when they weren’t doing so and punish them accordingly.
The document’s learnedness and the changing meaning of words isn’t the whole problem, though, because the charge that the Constitution is too difficult for ordinary people to understand—not because of its vocabulary but because of the complexity of its ideas—was brought nearly the minute it was made public. Anti-Federalists charged that the Constitution was so difficult to read that it amounted to a conspiracy against the understanding of a plain man, that it was willfully incomprehensible. “The constitution of a wise and free people, ought to be as evident to simple reason, as the letters of our alphabet,” an Anti-Federalist wrote. “A constitution ought to be, like a beacon, held up to the public eye, so as to be understood by every man,” Patrick Henry argued. He believed that what was drafted in Philadelphia was “of such an intricate and complicated nature, that no man on this earth can know its real operation.”
A great deal of what many Americans hold dear is nowhere written on those four pages of parchment, or in any of the amendments. What has made the Constitution durable is the same as what makes it demanding: the fact that so much was left out. Felix Frankfurter once wrote that the Constitution “is most significantly not a document but a stream of history.” The difference between forty-four hundred words and a stream of history goes a long way toward accounting for the panics, every few decades or so, that the Constitution is in crisis, and that America must return to constitutional principles through constitutional education. The two sides in this debate are always charging each other with not knowing the Constitution, but they are talking about different kinds of knowledge.
Consider the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Historical evidence can be marshalled to support different interpretations of these words, and it certainly has been. But the Yale law professor Reva Siegel has argued that, for much of the twentieth century, legal scholars, judges, and politicians, both conservative and liberal, commonly understood the Second Amendment as protecting the right of citizens to form militias—as narrow a right as the protection provided by the Third Amendment against the government’s forcing you to quarter troops in your house. Beginning in the early nineteen-seventies, lawyers for the National Rifle Association, concerned about gun-control laws passed in the wake of the assassinations of Martin Luther King, Jr., and Robert F. Kennedy, argued that the Second Amendment protects the right of individuals to bear arms—and that this represented not a changing interpretation but a restoration of its original meaning. The N.R.A., which had never before backed a Presidential candidate, backed Ronald Reagan in 1980. As late as 1989, even Bork could argue that the Second Amendment works “to guarantee the right of states to form militias, not for individuals to bear arms.” In an interview in 1991, the former Chief Justice Warren Burger said that the N.R.A.’s interpretation of the Second Amendment was “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”
Originalism is popular. Four in ten Americans favor it. Not all Tea Partiers are originalists, but the movement is fairly described as a populist movement inclined toward originalism. The populist appeal of originalism overlaps with that of heritage tourism: both collapse the distance between past and present and locate virtue in an imaginary eighteenth century where “the people” and “the élite” are perfectly aligned in unity of purpose. Originalism, which has no purchase anywhere but here, has a natural affinity with some varieties of Protestantism, and the United States differs from all other Western democracies in the far greater proportion of its citizens who believe in the literal truth of the Bible.
The Constitution is ink on parchment. It is forty-four hundred words. And it is, too, the accreted set of meanings that have been made of those words, the amendments, the failed amendments, the struggles, the debates—the course of events—over more than two centuries. It is not easy, but it is everyone’s. It is the rule of law, the opinions of the Court, the stripes on William Grimes’s back, a shrine in the National Archives, a sign carried on the Washington Mall, and the noise all of us make when we disagree. If the Constitution is a fiddle, it is also all the music that has ever been played on it. Some of that music is beautiful; much of it is humdrum; some of it sounds like hell.
