At the start of each legislative session, I usually stroll a few blocks from the capitol to Downtown Book Plus Toy, as I lovingly call it, to buy a Session Book. When the state senate decides to embark on protracted hours-long debate that triggers a late, late, late night/early morning chewing on an issue, I come down to our Capitol office and get my Session Book. I figure there is no reason to waste my time while they often are wasting theirs.
This year’s book is about the United States Constitution.
There was a time when the Missouri legislature had a lot more lawyers and a lot fewer constitutional scholars. It seems through the rosy hue of memory’s glasses that we got better-written laws and because of that we had fewer lawmakers complaining about lousy court decisions.
Today’s laws are being written in chambers that have a scarcity of people who have been trained in the law. The Senate roster shows only five of 34 members list themselves as attorneys: Minority leader Jolie Justus, Joseph Keaveny, Kurt Schaefer, Eric Schmitt, and Scott Sifton. Justus, Keaveny, and Sifton constitute thirty percent of the minority, Democratic, caucus. Schaefer and Schmidt constitute eight percent of the majority, Republican, caucus.
But that doesn’t keep several senators from regularly telling the Senate what the Constitution says. And, By God! It says what it says and that’s it!.
But literal interpretations of sections of the Constitution without context carry the same perils as literal interpretations of chosen scriptures without context.
I took the book to the Senate last night as it was thrashing its way to tentative approval of a tax credit revision bill–which finally happened about 3:30 a.m. today (Wednesday). I had given up on them at 1 a.m. because the alarm goes off in my house at 4:30 and after a short, blizzard-filled Monday night, the prospect of getting three hours of sleep was far more inviting than however much longer the Senate would have entertained itself.
But I did get started on the Session Book. It’s AMERICA’S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY, by Akhil Reed Amar, a Yale University law professor.
Early in the book, Amar writes, “Clause-bound literalism cannot provide the infallible constitutional compass we crave. Yet surely faithful interpreters should not simply toss the written Constitution aside or treat it as an infinitely malleable plaything. How, then, should we proceed?
“For starters we must learn to read between the lines–to discern America’s implicit Constitution nestled behind the explicit clauses. In short, we must come to understand the difference between reading the Constitution literally and reading the Constitution faithfully.”
A page later he says, “…No clause of the constitution exists in textual isolation. We must read the document as a whole. Doing so will enable us to detect larger structures of meaning–rules and principles residing between the lines. Often, these implicit rules and principles supplement the meaning of individual clauses. For example, although no single clause explicitly affirms a ‘separation of powers,’ or a system of ‘checks and balances,’ or ‘federalism’ the document writ large does reflect these constitutional concepts. This much is old hat. But as we shall now see, there are times when the document, read holistically and with attention to what it implies alongside what it expresses, means almost the opposite of what a specific clause, read in autistic isolation, at first seems to say.”
The main text is 485 pages long with appendices and notes afterward. This looks like an eminently entertaining and eminently informative thing to be using to while away the hours while the Senate jabbers on and on.
Maybe some Senate members might want to get their own copies and we can have an unofficial Senate One-Read effort. It never hurts to know what you’re talking about.