Clearing the Fog
in the
War of Words


  logomachy--1. A dispute about words. 2. A dispute carried on in words only; a battle of words.
logomachon--1. One who argues about words. 2. A word warrior.



A Constitution for People Who Don’t Read

A couple of weeks ago, my brother, Vincent, visited his East Coast relatives from North Dakota, and we took my son, Colin, down to the National Constitution Center.

The center is in Old Town Philadelphia, just off Independence Mall, where Independence was Declared and the Constitution itself was drafted. The center’s architecture does not blend with the modest Georgian structures like the neighboring Independence Hall. It is post-techno governmental monumentalism, the successor to the New Deal’s neo-classical Fascistic governmental monumentalism. The vast, empty atrium takes up most of the first floor. Other than some flags suspended from the ceiling, there is nothing even remotely decorative except the second-floor balconies and a wide stairway. Perhaps it would have been impressive with some decoration—some marble and gilt. But unfinished concrete is simply vast and empty.

The show—or lesson—actually begins in a toroidal waiting hallway, where ticket holders listen in on imagined street conversations circa 1787 as various stereotypical citizens expound on the issues facing the delegates. At the appointed time, visitors are required to climb the bleachers of a techie amphitheatre that makes most high school gyms seem homey, where they are prepared spiritually and emotionally for the exhibit by a booming half-hour long sound and light show narrated by a booming live actor. Thence up the steps into the exhibit hall.

The metered admission ensures that the one-room exhibit hall is not overcrowded. No one came around to shoo us out before the next show, but I doubt that would ever be necessary. The extent and depth of material are nicely calculated to ensure that museum fatigue clears the floor in a timely manner. As I went through the exhibit, I was reminded of a grad school professor’s observation (he was on the staff of the Hagley Museum and Library), that museums are the only places where we expect people to read and learn on their feet. Adding to the museum fatigue is the incessant cacophony of talking exhibits, bangs, and repeated music tags. Colin took his place at a lectern so that through the miracle of electronic dissimulation he was merged into a video and became the “President” being sworn in by the Chief Justice. Colin was unimpressed by the solemnity of the oath of office. To the amusement of onlookers, he rubbed the Chief Justice’s bald head and pulled his nose. We got him away while the crowd was still amused.

My brother’s comment applied equally to the intellectual level of the exhibit and the media, “This is intended to teach the Constitution to people who don’t read anything”.

Indeed. If all you knew of U.S. Constitutional history and theory was what you learned at the center, you would have not just a forgivably superficial and conventional understanding, but a distorted one. As the exhibit describes the legislative process, Congress passes a bill, the President signs it, and the Supreme Court does or does not allow it to become law. The center accepts that the Federal judiciary is a sort of super-legislature charged with the care and keeping—and the expansion—of the Constitution. (My brother jokingly asked one of the docents where they kept the “living Constitution”. She either didn’t recognize the phrase or didn’t realize it could be used jokingly.) At the center, you learn only by implication, if at all, that all three branches are responsible for defending the Constitution, and that the Legislature and Executive exercise Constitutional checks on and balances to the Court, such as the President’s appointment power and Congress’ power to limit the Court’s appellate jurisdiction (Art. III, 2, 1). The latter has been little used, so the center’s historical case approach skims over it.

The focus on the Constitution’s history as written in the headlines also leaves untouched its sources. There is no mention of the Founders’ deep study of the classical democracies, and how they drew from Athens and Rome the lesson of the dangers and weaknesses of an overweening legislature that also exercises executive and judicial authority. What one takes away from the exhibit is that they were reacting only to the experienced deficiencies of the Articles of Confederation.

Curiously, the approach of telling the Constitution’s story as one of Constitutional problems and judicial responses makes no mention of the greatest problem with U.S. Constitutional jurisprudence. Supreme Court Justice Antonin Scalia has spoken extensively [PDF file] on the fact that we have a Constitutional legal system being adjudicated within a common law judicial tradition. Other countries with constitutional governments have separate constitutional courts, and more to the point, special training centers for the constitutional judges. A constitution should be applied, with the assumption that it means what it says. As Bill Buckley has put it, “when the Constitution says ‘Congress shall make no law’, it means that Congress shall make no law”, not that nobody shall make any law.

Common law judges, on the other hand, make law. They concoct and apply non-constitutional principles such as the “reasonable man” standard, the “exclusionary rule”, and the Incorporation Doctrine. Harry Blackmun may have invented a Constitutional right to unrestricted abortion in Roe, but he did not make up the “emanations which form penumbras” wherein he claimed to find the right. “Emanations” and “penumbras” are terms of art from Cicero, who used them in describing how (common law) judges must always seek to extend precedents, stretching the coverage of the law a bit here one day, and a bit there the next day. That was M. Tullius Cicero, the great orator, barrister, and senator of the Roman Republic, which the Founders regarded as a cautionary example rather than a model.

Thus, the only context is the conventional wisdom of today’s liberals. In some cases, though, the bald description of the Court’s decisions will lead the alert reader to a heterodox conclusion. One interactive exhibit steps you through a decision ( Katz v. United States (1967)) that found a police listening device near a public phone had violated a bookie’s Fourth Amendment right to be “secure” in his “person” “against unreasonable searches and seizures”. The exhibit commentary acknowledges that the decision “extended” previous applications of the amendment. Balance would have required including a dissent or commentary pointing out that the decision is based on a facile distortion of the way person is used in the amendment, but the blatant absurdity is there for all to see.

The National Constitution Center is not a complete loss. The center’s Web site is varied and rich in reference resources, if not exactly the virtual National Original Constitution Center one might wish for. But the physical building is a exercise in glitzy miseducation. Justice Scalia has lamented that the Supreme Court and the Federal judiciary are “day by day, case by case, busy designing a Constitution for a country I don’t recognize”. You can see that “Constitution” at the National Constitution Center.



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