THE PARTS WE SKIP: A TAXONOMY OF CONSTITUTIONAL IRRELEVANCY.

• Author: Beck, Peter

1. A "VERSION" OF THE CONSTITUTION

   On January 6, 2011, for the first time in the history of Congress, the Constitution was read out loud on the House floor. (1) "We hope," said Rep. Bob Goodlatte, who organized the event, "this will inspire many more Americans to read the Constitution." (2) There are millions of pocket-sized Constitutions in circulation; millions of Americans could have taken Goodlatte's advice and followed along in their copies of the text. (3) Speaker of the House John Boehner began the reading: "We the People of the United States, in order to form a more perfect Union . . . ." (4)

   In a show of bipartisanship, the reading alternated between Republican and Democratic members. After Boehner finished the Preamble, House Minority Leader Nancy Pelosi took over: "All legislative powers herein granted shall be vested in a Congress of the United States . . . ." Then Rep. Cantor, "No person shall be a Representative who shall not have attained to the age of twenty-five years and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen." For those following along at home, everything seemed all right. But then Rep. Cantor continued: "The actual enumeration shall be made within three Years...." Even just listening to the reading, something sounded off: "The actual enumeration . . ." What enumeration? For readers following along, it was even more jarring. A whole sentence had been skipped, as Rep. Cantor jumped from the requirements for Representatives to the establishment of the census. The missing sentence apportioned taxes and Congressional representation according to state population, "adding to the whole Number of free Persons . . . three fifths of all other Persons." (5) The three-fifths compromise, included in the Constitution to appease slave states during the Framing, must be one of the most famous clauses in the document. (6) Why had it been skipped over?

   The reading continued. Rep. Hoyer read the original number of Representatives for each state; Rep. McCarthy read the establishment of the Senate: "The Senate of the United State shall be composed of two Senators from each State for six years." Again--something was wrong. This awkward-sounding sentence was missing a whole clause after "each State": "chosen by the Legislature thereof." (7) Another missing phrase between Reps. Rothman and Conaway (Senate recess appointments) (8) and a whole sentence gone between Reps. Poe and Weiner. (9) Rep. Keating read the clause enshrining the slave trade until 1808, and Rep. Schiff read the Fugitive Slave Clause, but a whole paragraph about the electoral system (10) was cut between Reps. Payne and Young, as was a paragraph about presidential succession (11) between Reps. Pallone and Griffith. What was being kept in and what was getting cut out? It was almost impossible to follow along. Rep. Fortenberry read the second 1808 clause of the Constitution, Rep. Matsui read about Confederation debt--Rep. Hirono even read the interlinear notes after Article VII, corrections from the parchment copy: "The word 'the' being interlined between the seventh and eight lines of the first page . . . ." Four Representatives read the signatories, but only from New Hampshire through Pennsylvania. By the time they got to Delaware, the Representatives had moved on to reading the rarely-encountered "Preamble" to the Bill of Rights. Part of the Twelfth Amendment was skipped, but the Fourteenth Amendment's reference to voting rights for "male inhabitants .. . twenty-one years of age" was included. Reps. Clarke and Ellmers read about Confederate veterans and debt, but the Eighteenth Amendment was skipped entirely. This led to even more confusion when Rep. Platts read the Twenty-First Amendment: "The eighteenth article of amendment to the Constitution of the United States is hereby repealed." The Representatives read the ratification dates for the Nineteenth and the Twenty-First through Twenty-Seventh Amendments, but only for those. Finally, after Rep. Fincher finished the Twenty-Seventh Amendment, Rep. Goodlatte concluded: "We have now completed the first reading aloud of the United States Constitution." Had they?

   Rep. Goodlatte insists that they read (and have continued to read in recent Congresses (12)) "the Constitution as it currently operates." (13) In an email from his Communications Director, Goodlatte elaborated: "Members read the version of the Constitution printed by the Government Printing Office . . . omitting those sections the GPO version brackets-off as superseded .... They do not read inoperative clauses . . . ." (14) It might be a surprise to learn that there are versions of the Constitution in the first place. Immediately after the reading concluded, the commentary began. Rep. Clyburn called the editing of the Constitution "revisionist history," (15) a senior vice president at the NAACP called it "sanitizing history," (16) and Rep. Jackson inserted lengthy critical remarks into the Congressional Record. (17) Adam Serwer at the Washington Post argued that the "superceded text" helps "remind us that the Constitution . . . was not carved out of stone tablets by a finger of light," (18) while Adam White at the Weekly Standard said that "to call the three-fifths clause and other superseded provisions part of the current 'Constitution' is silly." (19) Jack Balkin blogged that reading the whole Constitution would have been "a way of reminding ourselves that the Constitution is always a work in progress," (20) and Matthew Franck at the National Review went further: "When parts of [the Constitution] are amended, or even explicitly repealed, they remain a part of the document .... They're still there, and in a true copy of the Constitution, should not only be present, but should be unmarked by italics, brackets, or asterisks." (21) But what is a true copy of the Constitution? One that reflects all the provisions with legal force today--and only those provisions'? One that includes every word added to the document--and not a single annotative word in addition? Or one that includes all the words--and notes (or, online, hyperlinks) to clarify what has been "superseded" or revised?

   The text of the Constitution is short, and every word matters--people notice when they are cut. But parts of this legal document are indeed legally inoperative, some more obviously than others. But which parts are they? Did Rep. Goodlatte pick the right ones; can anyone? Should we be paying more attention to these parts? How should we pay attention? Should they be legally "operative," in any sense?

   Justice Scalia had a test for identifying plain meanings in debated words: Could you "use the word in that sense at a cocktail party without having people look at you funny"? (22) Similarly, the rough test for which parts of the Constitution are really without legal force today would be: Could you rely on that clause in a court of law without having the judge look at you funny? Sometimes the answer is obvious: you cannot rely on the Eighteenth Amendment (Prohibition) in court. But other times the answer is not so clear: Could you rely on the Preamble's guarantee of "the blessings of liberty"? Can you cite to the 1808 clauses, or use the ratification dates in an argument?

   For such a short text, (23) the number of frequently-skipped clauses is striking. Rep. Goodlatte had his version of what should be ignored; the academy has its version. (24) Constitutional law classes "have long had the same relation to the Constitution as the Elgin Marbles have to the Parthenon," (25) writes Mary Ann Glendon. "The student sees the professor's prized collection of fragments, but the well-proportioned structure in which these treasures once had their appropriate place is nowhere on display." The Supreme Court has warned us against this kind of blinkered approach to the document. Chief Justice Marshall declared in Marbury v. Madison, "It cannot be presumed that any clause in the constitution is intended to be without effect . . . ." (26) Or in Sturges v. Crowninshield: "[E]very word and sentence was the subject of critical examination, and great deliberation." (27) And in Holmes v. Jennison: "[N]o word was unnecessarily used or needlessly added .... No word . . . can be rejected as superfluous or unmeaning...." (28)

   Even if there are parts of the Constitution without legal force, they should not be ignored. At minimum, we should study them to know where they are--and not just take Rep. Goodlatte's word for which parts are operative and which are not. Every year, thousands of students and citizens encounter the Constitution for the first time--they need to be told which parts are still in force and which are not. But furthermore, they should be studied because maybe they are not entirely inoperative, after all. Maybe, in a laconic document like the Constitution, even phrases without legal force can be rich with meaning and utility. "The document is short," writes David Strauss. "[E]ven shorter than it appears, if we leave out provisions that are never invoked today ... ," (29) But "we are in a better position to use the text as common ground if we can say that the whole Constitution is binding than we are if we routinely disregard parts of the Constitution and try to insist that only certain clauses are binding." (30)

   To study these routinely disregarded parts, we must first, then, identify them. But then we must also categorize them. Otherwise we are left with "an arbitrary list, like random items on the menu of an eclectic restaurant." (31) Taxonomies help us "think intelligently about law." (32) If we can sort all the ignored provisions of the Constitution into categories--a taxonomy of irrelevancy--then we can see which, if any, might still be useful to us today.

   Almost every clause that lacks legal force today can fit into one of four categories. The first is the category the...