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Transcription of Garrett Epps during his September 16, 2013 invite to speak at Washington, D.C.'s National Archives.
Garrett Epps reads the U.S. Constitution and details what he considers the ambiguities, omissions, and incongruities that mark the text as well as the sex the constitutions language.
Thank you for that generous introduction and thank you to the National Archives for inviting me here to be so near the actual Constitution and thanks to everybody for taking their lunch hour to come out and listen to me talk. (September 16, 2013) This is the 226th anniversary of the U.S. Constitution and I am reminded of an occasion on the 200th anniversary of when the National Magazine asked the Novelist E.L. Doctorow to read the Constitution from start to finish and write up his reactions. Doctorow didn't enjoy the assignment, "it is 5000 words long but reads like 50,000" he said, "it lacks high rhetoric, and shows not a trace of wit, it uses none of the tropes of literature to create empathetic states in the mind of the reader". Now, those of you who have read Doctorow’s work know that he is one of our finest writers and understands American history very well but on this occasion, I think he missed the story. One thing, just the pendem he has to say, he missed a third of the US Constitution, which is 7,500 words long. Apparently, he quit when he got to the end of the original part under the common American misconception that the amendments don't count. Even reading the 1787 document, he, I think missed some truly high rhetoric, some literary tropes, and maybe not wit but a certain amount of irony.
Like E.L. Doctorow, Americans love the Constitution, we know it is important and we enjoy arguing about it but for a lot of us actually reading it is boring. We know it's important but we aren't sure that the importance really lies in what's written down on the page. There is a meaning somehow other than that and that is an American intellectual trait because our country, which has given many wonderful gifts to the world, has never produced a painting of the caliber of Leonardo’s Last Supper. We have however produced the Da Vinci Code and the meaning there is that for Americans if the Last Supper is simply an immortal deeply human work of art depicting a central moment of the story of Jesus, boring. However, if it has a secret message and if that message is about the relatively obscure dynasty of Frankish kings that vanished from the earth 1200 years ago, now you are talking, now we have something interesting. Never mind what the Last Supper is, many Americans are more interested in what it means. Similarly, the meaning of the Constitution often seems to trump the Constitution itself and that meaning we express in a terms such as, "what the framers intended". That original intent is our national Da Vinci Code or to put it another way, I am drawing on the 16 years I lived in the Pacific Northwest, original intent is to the Constitution what Sasquatch is to the Cascade Mountains; eagerly believed in, obsessively sought, relatively seldom actually seen pages.
I teach Constitutional Law for a living and a lot of people asked me, they come to me with concerns about clause or another and they ask, "What did the framers intend?". They do not like my answer because my answer is they intended to write the words in that clause and have us interpret them. That just doesn't seem right it, doesn't sit well. Too a lot of Americans the words on the parchment seem less important than what the framers thinking when they wrote them. If we knew those thoughts then our present-day constitutional difficulties with vanish. The best-selling novelist William Martin wrote a Dan Brown style thriller in fact entitled "The Lost Constitution". The Lost Constitution is about a draft of the Constitution at Philadelphia that in a break (when Washington says take five minute break and the delegates are up and stretching) and then they start saying, hey, let's make some notes on this Constitution. The publisher says that the founding fathers annotate this draft. The drafts marginal notes spell out in shocking detail the founder’s unequivocal intentions. The unmistakable meaning of the Bill of Rights pedaled and purloined. Trafficked and concealed for over two centuries this lost Constitution could forever change Americans history and its future. Therefore, the idea is that the words on the Constitution that are upstairs in the parchment, those are not clear but if we could get hold of some other that those same people wrote that would make everything clear; freedom of religion, state sovereignty, the right to bear arms. These other words are so powerful in the loss Constitution that people are willing to kill for them and if we could just get our hands on these words we would finally be able to read the words we do have. Original intent, original meaning, and original understanding whatever you call this idea it is worth asking why it is so important in our National dialogue.
There is a history here, it is particularly American, "We The People" for the past 200 or 300 years have had a more intense relationship with the Christian Bible than probably any other people in history. That biblical tradition is where the idea of original intent, as something that can be discerned and known, originated itself. Christians have been reading the Bible for nearly 2000 years but there have been many ways of reading it. Throughout Christian history some have read it as an allegory of divine love, some said that it was a set of parables that they were to teach us how to live by reading these stories, others said it was what's called an Anagoge which meant a hidden key to events in another world that could be understood only by those who had gained mystical access to God through meditation or divine grace. The idea that the Bible has a single literal intended meaning and by which I mean a meaning available to discernible by any literate believer without the need for priestly interpretation or mystical revelation, that in Christian terms is a relatively new idea. It gained primacy only during the Protestant Reformation. Jaroslav Pelican, the great religious historian who taught at Yale for many years wrote in 2004 that Luther and the other reformers believed that "Scripture had to be not interpreted but delivered from interpretation to speak for itself", Pelican continued, that what mattered to Luther was "the original intent and census literalist (meaning literal meaning of the words)" and Pelican saw, as I think perhaps you may, in Luther’s Biblicisms a direct forebear of the way Americans interpret the Constitution. The general Protestant notion of original intent became even stronger in this country over the past century.
It is almost exactly 100 years ago, between 1910 to 1915 a group of American Evangelical Theologians and scholars published a set of theological essays on "The Fundamentals of Christian Belief". These very influential essays gave rise to the Christian movement we call fundamentalism in honor of this series of pamphlets. In large part, fundamentalism was a revolt against a certain style of Bible reading; against the 19-century scholarly movement, we called the higher criticism. Higher Critics were scholars of a kind we would all I think recognized today, they applied recognized secular techniques of analysis to the text of the Bible. They viewed some books of the Bible as blends of other books including sound that came from outside the Hebrew tradition. Some of the parts of Genesis they thought actually just began by describing other near Eastern Deities like Baal or Dagon. They did not take stories like the deliverance of Egypt or the age of the earth or the raising of Lazarus. They did not regard these as historical fact, they interrogated the text like historians, like linguists looking for contrasting and confirming evidence and they were very skeptical about the idea of miracles such as making the sun standstill.
Fundamentalist reacted very violently to the Higher Criticism they felt that this method of reading the Bible threatened the entire enterprise of the Christian religion. They wrote that the Bible is not to be studied like ordinary historical writings it is the word of God and that means that all parts of it are inspired, created directly by the breath of God into the human soul and that inspiration is not general, it's not a set of ideas it's verbal. God has fix for all time not just the ideas in the Bible but the words themselves and these words are in errant and infallible, there are no mistakes in the Bible nothing it says it's false. The Bible is true; we know it is because it says it is true. We know it is true because the prophecies of the Old Testament have been fulfilled in the new. In addition, to read the Bible without accepting beforehand its divine nature is not to read it at all. Every word has a meaning, that meaning is fixed, that meaning is not affected by historical context, that meaning is never subject to re-examination in light of moral and social change and those meanings fit together into one divine whole. How does that sensibility play out in contemporary Christian thought? Well to begin with, when Americans talk about the constitution they often mean something more than the document itself. There is a kind of biblical cannon of constitutional materials. We have the book of Genesis, which is the Declaration of Independence. We have the Law and that's the Constitution itself but we also have the Prophets or the founding fathers. A wonderful mythological term that the historian Jill Lepore recently pointed out that that term was coined in 1920 by the profound constitutional thinker Warren G Harding.
The words of the Prophets are collected in Madison's notes of the Philadelphia debates. Madison never thought of these notes as having any sort of official status, they are now a key part of the American Bible. We have our 10 Commandments as we call them the Bill of Rights. That sacred number 10 by the way is a coincidence, Madison originally proposed 13 amendments. Two of them got lost and one took 200 some years to be to be ratified. The 13 Articles of The Bill of Rights sounds different and I always recall the scene in Mel Brooks History of the World Part 1 for those of who have seen it were Moses comes down from Sinai with three tablets and says the Lord Jehovah has given us these 15, one of them falls over breaks, these 10 Commandments for all to obey. So, there's a certain accidental quality due to the canonical nature of the Bill of Rights. The Christian Bible has the apostles of St. Paul and Americans have our own epistles the Federalist or what we like to call the Federalist Papers and their status in the Canon is also accidental. The late Pauline Maier wrote a wonderful book that I recommend highly called "Ratification: The Peoples Debate, The Constitution 1787 to 88. The first book length account of ratification". She explains that the Federalist were circulated almost nowhere except New York, the essays written to procure ratification by the New York Legislature. It was by no means a dispassionate analysis of the Constitution, she says. It is signed pueblos but written by Hamilton, Madison, and Jay. Madison had attended every day of the Philadelphia convention. Hamilton got there when he could, he was a busy guy. Jay was not a delicate at all. Maier says, the authors of the Federalist had no time to show each other their essays before handing them to the printer, in fact, sometimes they couldn't even reread their own work before it was put into type. That there is every reason to believe that the authors did not themselves believe some of the things that they wrote. Jefferson wrote Madison a letter consoling him for having to write the Federalist and he said, with regard to the Federalist in some parts it's discoverable that the author means only to say what may be best said in defense of opinions in which he does not conquer. However, by our time, the Federalist has become divine inerrant and timeless.
In 2010, the scholar Anthony Peacock in the introduction to a pamphlet entitled how to read the Federalist papers wrote "use of a single pseudonym pueblos, suggest that the Federalist possessed a uninformative intent, the Federalist was to be read as the work of one mind not three and was coherent throughout," and he adds, "the Federalist is intended to be true for all times and all places.” Martin Luther could not have described the Bible better. Therefore, when even scholars are under the sway of this semi religious mystique, how can we expect citizens to be immune? At the literal view I think may keep us from seeing everything that is in the Constitution. Because the Constitution is not coherent, it is in fact confusing and ambiguous in many places. It may also keep us from noticing what is not there, because the Constitution is incomplete.
There is a second problem with original intent as a source of law, if by that, we mean the thoughts of the framers. It is this, the Constitutional convention doesn't sit, It's members are dead, so are the members of the ratifying conventions that approved it and so in fact all but a few of those who took part in writing and ratifying the 27 amendments that have been added to it since it was originally drafted. We can't revise what they wrote without great effort. Why should they're long-ago intent or understanding bind us, the living, today. Well, if their intent was to write the words they wrote, fair enough, our job is to interpret them but if their intent was that we should not apply the Constitution for ourselves. That we should stand on tip toe in the dark hoping to hear their voice. Then their intent was undemocratic, immoral, and just plain silly.
The final advantage/disadvantage of the quest for original intent or original meaning or original public understanding is that it is a highly technical search involving etymology of words, the evolution of language, the intellectual history of Anglo-American law and society. if we except that as determining the meaning of the Constitution, then the people don't govern themselves anymore and we are handed over to those like historians who have special knowledge of these things or even worse, judges, who usually have virtually no knowledge of these things but believe they do and remember their 8th grade civics class quite vividly. Ordinary citizens however have no standing to engaging constitutional interpretation. If the Constitution is binding, not because of its pedigree but because we the living pledge our allegiance to it maybe what should matter is what the words say to us the living today; our intentions and our understanding matter far more than those of the dead. Now I developed this view over a number of years concentrating on the text of the Constitution itself. As a legal scholar, you start out by reading Mulberry versus Madison, which is very exciting. You read a bunch of cases then you read articles about the cases then you read articles about the theory of law in the articles about the cases but sometimes you just skip the text altogether. but what happened to me was this, you know like every professor Walter Mitty, for those who recognize the reference, I dream of writing a best-selling book and retiring to the Bahamas drinking rum through a straw forgetting the whole thing and not long ago I spent a year and a half trying to do this. I was writing proposals for real blockbuster books I thought some of them are pretty good, "the founding fathers quick weight-loss diet" I thought had money in it but none of them ever got past the agents desk much less to the editors. Then one day I had a thought, because I was getting more frustrated and it was this, you know, I remembered my days as a starving novelist and freelancer and I thought, dude, you have every writers dream. You have an indoor reasonably well paid job that you can't be fired from, where it's okay to write on office time and you even get to take the big pens and take them home. I had a moment as if the one experienced by William Faulkner years ago, he wrote later, "one day, one day, I seem to shut the door between me and all publishers’ addresses and booklist, I said to myself, now I can write”. So I decided to write, as if what I wrote would never be published anywhere. For nearly 2 years I read the constitutions text every day and wrote for my own satisfaction, alone, an analysis of what it really says, article by article, clause my clause, amendment by amendment, section by section. It was the most satisfying work I've done since I got into law teaching more than 20 years ago and that it ended up being published by Oxford as American Epic. It is still astonishes me because really, no one should be paid for having that much fun.
I tried to read the Bible all the ways I knew how; I was freed from the need of trying to tease out the answers to modern legal problems. I wasn't doing that, I was just reading the constitution it didn't matter, who cared what I thought and I used all the ways of reading that I knew. Bible reading was a very strong part of my childhood I grew up in the south and went to Christian school. I'm trained as a lawyer I have learned specific techniques for interpreting statutes and wills and contracts. I also was folklore major many years ago in college, studied epic poems like The Odyssey & the Iliad and finally I read the constitution as lyric poetry. Whether Doctorow saw the poetry or not I did. I've written poems since I was very young. One of my first career aspirations was to be a poet. I've actually published a couple poems over the years and I began to find my poetic interest reflected in the text. I learned something from each way of reading. Some parts of the Constitution are Homeric, some are biblical, some are as dry as the statute of frauds and others are as elusive as a poem by Emily Dickinson; delicate, suggestive, offering empty spaces that we are invited to fill with meaning. Just as one example consider a poem written by Emily Dickinson in 1865. Now today, people think of Emily Dickinson as a kind of private poet of the kitchen and the garden and the drawing room but the truth is she was like all great poets a very powerful instrument for detecting what was happening around her and expressing anyways different from those that others do. 1865 was the turning point in what James McPherson and others call the second American Revolution the surrender at Appomattox, the assassination of Lincoln, The final approval of the 13th amendment, the beginning of the Reconstruction Congress and Dickenson detected what was going on. 1865, by the way was her most productive year as a poet, whether there's any synchronicity of that or not I don't know but it is a moment when all the American society was changing becoming something radically different and she felt a burst of energy during that year. Consider one poem she wrote that begins like this, "revolution is the pod systems rattle from, when the winds of Will are stared, excellent is bloom. In this stanza, she uses natural image to illuminati a complicated social concept. She takes social revolution and just supposes it with the image of the seedpod. In winter we've all seen, dried up waiting for spring rains and wind to break it open and spread new seeds to bloom in the following summer. Those 17 words do a lot of work.
Now consider a text that holds a prominent place in the American imagination. A well-regulated militia being necessary to the security of a Free State. The right of the people to keep and bear arms shall not be infringed. This is 10 words longer 27 words like the Dickinson poem it doesn't explain, it suggests by using images. It evokes the image of a militia then wedges that image to two important but ambiguous concepts. On the one hand, a Free State and on the other, the people and their rights. What is the Free State? Is it the state of Maryland of the Commonwealth of Virginia which by maintaining a militia can resist federal tyranny or is it a state in the international law sense, is it the United States which must have a strong militia as part of its national defense. Who are the people? Are they the villagers gathered on the Town green to use town issued muskets during training day or they solitary frontiersman toting home forged rifles for protection against bears and cougars. Even if you put a gun to my head, I'm not stupid enough to tell you that I know what the Second Amendment means. I do know that as I read it, I respond on many levels. As a Bible reader, I respond to the negative commandment language that, thou shalt not, which suggests to me that I'm in the presence of something sacred. as a lawyer, I'm reminded that Englishman's right to bear arms for their defense stemmed from the Bill of Rights, the 1689, which explicitly recognize the power Parliament, to define and limit that right, as it choose. As a reader of epic, I think of the theme in Homer of the Great Assembly. The Assembly is a very important theme in all of Epic, where warriors gathered to determine what shall be done and each one has a voice because and only because, he is able to bear arms during the concert warfare of Bronze Age Greece.
Finally as a reader of poetry, I hear some fairly complicated verbal interrelationships. security is as important as right. for example, regulation is as important as arms. even the words themselves contain their own contradiction. Take regulated, now in our time that word seems to have pretty established meaning means: governed, run, put in order. We are in Washington, were all familiar with regulators, saving the presence of who are here, we frequently flee them. Because we, regard them as powerful beings who are able to prescribe rules. It meant that in 1790, but it meant something else. It echoed with a long forgotten meaning of the word regulator. This meant to those people, a member of the self and violent vigilante gang that was fighting the local government. In the Constitution itself, the militia is tightly held under federal control. However, in the amendment guaranteeing the right of the people to bear arms, the words may also echo with revolt against established authority.
What is the Second Amendment really say? Well, you have heard the words, "what does it mean", is a lifetime's quest. If the Second Amendment reads like a lyric poem, other parts of the Constitution read like epic. Article one: which creates and empowers Congress, is the heart of the Constitution. Section 8: the catalog of congresses powers is the heart of article 1 article. Article 1 section 8 reminds me of the most powerful poem in western literature, book 18 of homers Iliad. In book 18, the God Hephaestus’s smelts a new shield that the Greek hero Achilles will carry into battle and final victory over the Trojan hero Hector. Homer describes the shield as containing "a world of gorgeous immortal work, it depicts the entire civilization of Bronze Age Greece in the image of two cities. One, the city of Peace contains weddings, wedding feasts, athletic competitions, law courts, farmers tilling rich broad plow land, young girls crowned with a bloom of fresh garlands. The other city, the city of war is filled with combat, devastation, and death. A divided army glistening in battle year in a struggle where strife and havoc plunged in the fight and violent death. As that shining shield reflective the Greeks idea of their world, section 8 reflects the framers foreseen ideal commonwealth. Like Achilles shielded it depicts two cities, in this case we might call them the city of trade and the city of war. The first half of article of section 8 is taking up with matters of trade, congress has the power to borrow money, regulate commerce, grant monopolies to authors and inventors, establish rules for bankruptcy, establish a post office, coin and regulate money. the second half of article of section 8 is governed by war, Congress has the power to declare war, commission privateers, capture and punish pirates, seize prices on land and sea, establish and maintain Army and Navy and call forth and regulate the militia, even employing it if need be against the states themselves. In these two cities together, Congress is given a wide tapestry of powers. Section 8 suggests a legislative body with comprehensive authority in these two areas. Interestingly enough however, section 8 is not like an Achilles shield it does not comprise all of human life. Missing is any reference to what the 18th or 19th century mind would have called the separate sphere, the private realm of family, child rearing, and sexuality. There is no reference to education, to health, to morality, to what today we would call, the quality of life or the tone of society. That presents us with an interesting question to ponder.
What does this silence mean? The way we read the constitution may matter quite a bit here. Statutory readers may invoke the adage, "expressio unius est exclusion alterius", that is the only Latin in the whole talk, meaning to affirm one thing is to exclude all others. Fundamentalists I think often find prohibition and biblical silence. Other forms of reading might consider the entire text and context the general welfare and necessary and proper clauses. Note that other sections of the document occupy themselves with setting out limits, on congresses power explicitly. Perhaps, this section is not to be read as a set of limitations. The answer a reader reaches depends on that leader’s idea of America, on what that reader sees in Achilles Shield. Even though The Constitution contains many parts, I think it's our duty to read it as a whole. Our job is to read the entire text with our entire selves. Vladimir Nabokov once suggested that a good reader doesn't need critical theory or specialized training in English department, but does need a dictionary, some imagination, a good memory, and some artistic sense. When I read the constitution as this kind of reader, it says some interesting and surprising things to me. some of them it says in the words it chooses, some it says in the way it places those words and ideas in conjunction or separates them, some it says in the words it doesn't say in the places it doesn't say them. I am going to throw out, at the end, a few things that I find that the Constitution says. If any of these readings is surprising, perhaps I can explain when we come to questions in a minute.
Garret Epps: To me the Constitution says that its purpose is to create a powerful national government, not to restrain it. To me it says that its aim is to restrain state governments and not to empower them. It says to me that Congress remains the most important political institution in American life, not the president, not the state governments, and certainly not the Supreme Court. It says to me that the Constitution exists within a context of international law and that we are to use and apply international legal norms and concepts in our courts, in our legislature, in our states, and in our executive branch. It says to me that the right to vote has become central to our form of government. That right is mentioned five times in the Constitution more than any other right. At no point, does the constitutions text suggest there is a power in the Supreme Court to decide that Congress has protected that right too much or that access to the ballot has become too easy. I could go on, but my reading is my own. I am not Moses, I am not even Mel Brooks, and I am not here to hand out word from on high. If you may read the constitution differently and if you do, you have my respect. As long as you are reading this Constitution, not the articles of Confederation, not the Declaration of Independence, not Madison’s notes, not the Federalist, not second treatise on government, not Magna Carta, this Constitution, not common-law, this Constitution, not natural law, this Constitution, not divine law, and if you are a reader of this Constitution then I leave you with this quote Walt Whitman by our greatest constitutional poet, "Every Adam belonging to me, as good belongs to you". Thanks for your patience, I'll now take your questions.
Conclusion: This is just a quick prelude to Washington, D.C.'s current states of mind and positional role on the hill. These law school graduates who have been taught this ideology aren't accidentally running our country into the ground but with clear intent, have been taught how to rip the fabric of humanity to pieces. Law school students who learn these techniques are interpreters of the law of the land and with that education realize that all laws are open to interpretation. These techniques later make them masters of interpreting the law of the land then masters of understanding how to use the interpretation of the law to their advantaged in various situations with the results reflecting their original intent. In the circumstances of religious belief systems in reference to interpretations of laws, you can see here that we live in a world where the literal rules and laws of everyone's religious belief systems are being used to control the public at large. Welcome, to the real world.
Famous Quote Said On October 17, 1788:
"Wherever the real power in a Government lies, there is the danger of oppression."
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If there was ever a time to stand up and speak out, bearing testimony of what and who you believe in, now is the time. What do you think?