Constitution Worship

The Constitution of the United States has been much in the news of late. Members of the Tea Party movement express reverence for the original language and meaning of the document, while others look upon the Constitution as a document intended by the Founders to adapt to meet the changing times. Jill Lepore's article in the January 17 issue of The New Yorker, "The Commandments: The Constitution and Its Worshippers," comes down on the side of those who believe that the Constitution has been and must be subject to interpretation by the courts and by the citizenry:

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 Frankfurther 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.

"We'll keep clinging to our Constitution, our guns, and our religions," [Sarah] Palin said last spring, "and you can keep the change." Behind the word "change" is the word "evolution." In 1913, Woodrow Wilson insisted, "All that progressives ask or desire is permission--in an era when 'development,' 'evolution,' is the scientific word--to interpret the Constitution according to the Darwinian principle; all they ask is a recognition of the fact that a nation is a living thing." Conservatives called for a rejection of this nonsense about the "living Constitution."

Lepore is a Professor of American History at Harvard, and she treats her readers to a brief but compelling history of the physical Constitution starting with its signing in Philadelpha in 1787. Three delegates would not sign, but the rest did and their signatures appear "at the bottom of the fourth page." The original document was written on parchment, and then the text was "made public, printed in newspapers and broadsheets, often with 'We the People' set off in extra-large type." The original was carried to New York to be presented to Congress, which was meeting at City Hall. Congress forwarded the Constitution to the states for ratification. What happened to the document?

The original Constitution was simply filed away and, later, shuffled from one place to another. When City Hall underwent renovations, the Constitution was transferred to the Department of State. The following year, it moved with Congress to Philadelphia and, in 1800, to Washington, where it was stored at the Treasury Department until it was shifted to the War Office. In 1814, three clerks stuffed it into a linen sack and carried it to a gristmill in Virginia, which was fortunate, because the British burned Washington down. In the eighteen-twenties, when someone asked James Madison where it was, he had no idea.

In 1875, the Constitution found a home in a tin box in the bottom of a closet in a new building that housed the Departments of State, War, and Navy. In 1894, it was sealed between glass plates and locked in a safe in the basement. In 1921, Herbert Putnam, a librarian, drove it across town in his Model T. In 1924, it was put on display in the Library of Congress, for the first time ever. ... It spent the Second World War at Fort Knox. In 1952, it was driven in an armored tank under military guard to the National Archives, where it remains, in a shrine in the rotunda, alongside the Declaration of Independence and the Bill of Rights.

It is worth noting that Herbert Putnam was more than just "a librarian"; he was the first individual with professional library experience to serve as Librarian of Congress; he established an interlibrary loan system; and he introduced the Library of Congress classification system, which libraries around the world use to this day. He also served two terms as president of the American Library Association. Putnam was a graduate of Columbia Law School, and what a thrill it must have been for him to have the Constitution in his keeping, if only for a short period of time!

Lepore's article is a fascinating read. I particularly enjoyed the section on originalism which amounts to about half of the article.

Iceland rewrites its constitution: radical democracy

Iceland has a current Constitution conveniently posted to the Internet in English by its government. It is a pretty good looking document to my untutored eye, with 79 Articles in seven roman numeral sections. The Constitution sets Iceland up as a Republic, with a democratically elected government. It lays out the powers, duties and limits of power for the President, the judiciary and the Althingi, the world's oldest elective legislative body which has roots in ancient Icelandic history, founded in 930 AD. Section VI sets up the Evangelical Lutheran Church as the official state church, entitled to state support (surprise!), but also provides in Article 63:

...the right to form religious associations and to practice their religion in conformity with their individual convictions. Nothing may however be preached or practised which is prejudicial to good morals or public order.

(Article 64) ... Everyone shall be free to remain outside religious associations. No one shall be obliged to pay any personal dues to any religious association of which he is not a member.

A person who is not a member of any religious association shall pay to the University of Iceland the dues that he would have had to pay to such an association, if he had been a member. This may be amended by law.

In section VII, there are a list of human rights guaranteed by the Icelandic Constitution. I don't know what (if anything) in the Constitution has caused the Icelanders to decide, but they are rewriting this document. I found a very nice statement from the Icelandic government webpage describing the history of constitutions and rewriting them, amending them, in Iceland:

Icelanders were given their first constitution in 1874 when Iceland was still part of the Danish kingdom. Though it may be said that it is still valid in some respects, it has since been significantly amended. The first important change was in 1903, when Iceland was granted Home Rule, which went into effect in 1904. Considerable changes were made in 1915 when voting rights were expanded and women were granted the right to vote for seats in Althingi, the Icelandic parliament. A new constitution went into effect in 1920 following the recognition in 1918 of Iceland as independent of Denmark, though still in a personal union with the Danish king. This version of the constitution remained in force virtually unchanged until 1944 when the Republic of Iceland was founded.

The present constitution dates from 17 June 1944, and has been amended six times since. These amendments have especially concerned setting constituency boundaries and guaranteeing equal voting rights, but the most important change was made in 1995 when the human rights section was reviewed and reworded to conform to the international agreements of which Iceland is a signatory.

(the government website credits: Iceland - The New Millenium Series, Carol Nord ehf. Text by Professor Sigurður Líndal.

Iceland has gotten a lot of notice in the blogosphere (and this Irish Constitution thread), and the Seattle Times) because their new Constitutional Assembly to rewrite the Constitution is open to all citizens, with many non-politicians, "plain" folk entering their names. When I looked for news stories more recent, and maybe straight from Iceland, I discovered that they have just held the elections for the Constitutional Assembly, and had a disappointingly low turnout. Iceland Review Online reports that it was the lowest turnout in their history, with only 36% of voter turnout, countrywide. The short article includes quotes from various experts who analyze the possible reasons for the poor turnout. They consider everything from voter fatigue to lack of political campaigning or coherent campaigns by candidates, to perceived lack of need for a new Constitution. From the Yahoo News piece,

(snip) Pressure mounted for action after the nation's economic collapse in 2008, an event punctuated by ordinary citizens gathering outside the Althingi, the parliament, banging pots, pans and barrels — a loud, clanging expression of fury. The meltdown was seen not only as a failure of the economy but of the system of government and regulatory agencies. Many came to believe a tighter constitutional framework — including a clearer division of powers — might have been able to minimize that damage, or even prevent it.

"It is very important for ordinary citizens, who have no direct interest in maintaining the status quo, to take part in a constitutional review," said Prime Minister Johanna Sigurdardottir. "We are hoping this new constitution will be a new social covenant leading to reconstruction and reconciliation, and for that to happen, the entire nation needs to be involved." (snip)

Icelanders debated their values and turned to questioning the foundations of their society, including those that had facilitated the boom. Anger grew as more instances of misdeeds and incompetence in the private and public sector were exposed. Icelanders woke up to the harsh fact that their country, which had consistently been at or near the top of the Transparency International anti-corruption index, was, in fact, steeped in corruption.

That was ultimately confirmed in a 2,000-page report following a special parliamentary investigation. That report showed that the foundations of Icelandic society were decayed and that a sweeping revision of the social framework was needed.

Sigurdardottir says a new social covenant can at least assist in "restoring the public's faith in the government."

The constitutional assembly will be made up of 25 to 31 delegates, the final number to be determined by a gender and equality ratio. It will be made up of regular citizens elected by direct personal voting. Anyone is eligible to stand for election, with the exceptions of the president, lawmakers and the committee appointed to organize the assembly.

The assembly will draft a proposed new constitution next year. They will use material from another extraordinary project earlier this year in which 1,000 randomly chosen Icelanders — aged 18-89 — offered their views on what should be in the constitution.

Now the race is on to be among the charter's authors, with 523 people in the running. Truck drivers, university professors, lawyers, journalists and computer geeks are all among the candidates. All have been given equal air time on Icelandic radio to make their platforms known.

Those elected will receive a salary equal to that of Iceland's lawmakers while the constitutional review takes place, and Icelandic employers are legally obliged to grant leave to any employees elected to the assembly.

The Yahoo News story goes on to interview 3 different candidates on their views, which ranged from enthusiastic, to a candidate who is running to prevent the Assembly. This last guy says it's not needed, and is a ridiculous expense at a time when the country is in economic crisis. He says the constitution had nothing to do with Iceland's bank collapse in 2008, which precipitated the country's complete economic meltdown. According to the article which is pretty much repeated in every Internet posting, Iceland has never written its own constitution until now, having previously just adopted Denmark's constitution pretty much wholesale and then tinkered on it. Whatever happens, it will be interesting to follow. Iceland is pioneering again in democratic actions.

Tip of the OOTJ hat to our colleague & former OOTJ blogger, Jim Milles, who also introduced me to Allthing history many years ago. The image is the Law Rock, at Thingvellir, (where the Allthingi met originally), showing the Law Speaker, another bit of Icelandic legal history, and (frankly) much more colorful than the photos of the current Allthingi building. Courtesy of Wikipedia article on the Allthingi, and credited as W.G. Collingwood "19th century Alþing in session."