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January 29, 2010

A Citizen's Guide to the Constitution

By Rick Richman
An important book for two groups: those who are conversant with the Constitution and those who are not.

Seth Lipsky's new book, The Citizen's Constitution: An Annotated Guide, is an essential volume for an educated citizenry. Equally erudite and entertaining, it annotates each provision of the Constitution, often explaining the significance or history of multiple words within a single provision. It provides an education most citizens did not receive the last time they read the document back in high school or college, and one they need now -- for reasons described below.

By the end of the volume, with its 310 easily readable annotations, a reader has not only a new understanding, but also a profound appreciation for one of the most remarkable political documents in history -- and the constitutional background necessary to address any number of current political issues.

Lipsky does not get three words into the Constitution before he attaches his first annotation. The opening words of the Constitution are "We the People of the United States," and Lipsky annotates the word "People." Here is the first paragraph of his three-paragraph annotation:

1. As opposed to the states. Said Samuel Adams: "I confess, as I enter the Building I stumble at the Threshold. I meet with a National Government, instead of a Federal Union of Sovereign States." Arguing against ratification in Virginia, Patrick Henry demanded: "Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation."

The annotation goes on to quote James Wilson at the Pennsylvania ratifying convention, addressing the meaning of those opening words. Wilson argued that the Preamble was not simply flowery introductory language, but a profound statement of principles:

[Wilson] insisted that the Preamble "is not an unmeaning flourish. The expressions declare, in a practical manner, the principle of this constitution. It is ordained and established by the people themselves; and we, who give our votes for it, are merely the proxies of our constituents. We sign it as their attorneys, and as to ourselves, we agree to it as individuals."

Needless to say, the roles and relationships of the people, the states, and the federal government to each other are still an issue 230 years later, and they are the subject of numerous other provisions of the Constitution that Lipsky annotates in an equally interesting fashion.

When he gets to Section 8 of Article 1, which sets forth the powers of Congress, Lipsky has no less than five annotations for the power to "lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States." One of the most interesting discusses the history of what the casual reader would never notice -- what follows the word "Excises" is a comma rather than a semi-colon:

81. One of the wiliest of the founders, Gouverneur Morris, plotted at the Convention in Philadelphia to change this comma to a semi-colon. He wanted to alter the meaning of the sentence to create, in the clause following this comma, a separate and unlimited spending power. In the sentence as it currently exists -- its original form -- the grammar is that the words following the comma are not a general grant of power to spend but a limitation on the taxing power. Had Morris won his semicolon, the spending power would be separate and without limitation. His plot to change the text by adding a dot point over the comma was discovered and foiled by the other founders, a point on which Albert Gallatin testified to the House of Representatives in 1798. "Rarely has so much rested on so small a point," is how Philip Hamburger has described this contretemps. In the event, the Supreme Court has, over the decades, essentially permitted the Congress to exercise a general spending power without limitation, despite the grammar.

That missing semicolon still has relevance today in the debate over the federal government's role in health care legislation. Some opponents of ObamaCare argued that it is unconstitutional, falling outside the enumerated powers of Congress. Supporters have responded that the legislation is within the power of Congress to legislate for the "general welfare" of the United States. That old argument from 1798 still resonates: Does Congress under this provision have a general power to legislate anything it deems to serve the "general welfare," or does this provision provide only the power to collect taxes, imposts, and excises and spend them for that purpose?

In other words, can Congress -- under this provision -- require that every individual in the country engage in a specified private transaction (in this case purchase specified insurance from an insurance company)? The missing semicolon might provide some insight into the intent of the founders regarding the power in this provision. (Lipsky later addresses the Commerce Clause, the other provision that supporters of ObamaCare argue authorizes health care legislation.)

One of the other enumerated powers of Congress in Section 8 is to "establish Post Offices and post Roads." Can anyone think of a more boring provision? But Lipsky's annotation on this provision runs three pages, and it is a fascinating one. Lipsky quotes Thomas Jefferson writing to Madison in 1796 about it:

I view [this provision] as a source of boundless patronage to the executive, jobbing to members of Congress & their friends, and a bottomless abyss of public money. You will begin by only appropriating the surplus of the post office revenues; but the other revenues will soon be called into their aid, and it will be a scene of eternal scramble among the members, who can get the most money wasted in their State; and they will always get most who are meanest.

The scenario Jefferson feared quickly extended far beyond postal roads, and 230 years later, we certainly know what "boundless patronage" for the president and Congress to dispense means, not to mention the "eternal scramble" Jefferson feared. The annotation goes on to describe Jefferson's own role in implementing this provision after he became president -- a little-known tale that serves as a caution today.

This is a small description of only three of the 310 annotations in this book, but perhaps it is enough to give a sense of the remarkable task Lipsky has performed: providing context, history, and relevance for every provision in the Constitution.

After he published the book, Lipsky discussed it with a prominent federal judge, who told him that the first annotation -- the one occurring three words into the document -- actually came four words late. The first annotation, the judge said, should have come after the title of the document -- "Constitution." The annotation would have noted that the United States is one of the few countries in the world with a written constitution. England and Israel, as two examples, do not have one. Some countries have written ones, but they are just words without effective means to enforce them and a citizenry alert to guard them.

Today, we are awash in Constitutional issues: the power of the president in war and foreign affairs, the rights of free speech of corporations and individuals, and the limits of the right of privacy discovered by later Supreme Court justices in the "emanations" and "penumbras" of those express rights set forth in the document (which eventually led to a right to abortion and to sexual rights that were probably beyond the contemplation of the founders but may have been inherent in the rights they did set forth -- which raises another debate about the principles of constitutional interpretation, now in its 230th year).

In order to discuss these issues knowledgeably, the citizens for whom Lipsky has written this book need to read it. We are the "posterity" the founders dreamed of, the beneficiaries of all these small provisions in a document that led to a great nation and guards it still. The least we can do -- not simply out of gratitude for the efforts of the founders, but as a duty they contemplated, we would assume, for our own posterity -- is to understand better the document that has governed us for 230 years. For providing both a reminder of that duty and the education to help fulfill it, we owe a great debt to Seth Lipsky.

Rick Richman is regular contributor to Commentary magazine's group blog "Contentions" and the author of numerous articles in American Thinker.
on "A Citizen's Guide to the Constitution"