On the Teaching of Constitutional Law--Charles Pinckney our Teacher

The principal way in which my study of Charles Pinckney's role in drafting the US Constitution has helped me is that it has forced me to go back to the text of the Constitution and try to undestand each phrase, and to see each clause as the product of debate, discussion and often clashing philosophical expressions. The temptation among historians and the reality of life for the general public,is that history has a sort of "inevitable" nature about it. That is, most people don't really think of the myriad ways that Constitution could have come out differently from the way it actually came out of Philadelphia.

Because we accept the document "as is," we absolve ourselves of the responsibilty of having to do any work to understand why it says what it says. Only by reliving the quarrels, the different approaches to governance, by asking questions about almost every clause of the document do we begin to do justice to our most important founding document (after the Declaration of Independence). By not doing so we are lulled into thinking that we know something when, in fact, we know nothing. Let me illustrate by a story.

Studying Constitutional Law

The only two courses I have taken on the US Constitution were at law school (about a decade ago). Being a historically trained person, I hoped and expected that we would delve into the issues of the framing of the constitution along with the Courts' attempts to construe that document in the last two centuries. Well, here is what happened. The first day of class we were urged to "read the Constitution a few times" to become familiar with it. Then, as if the text itself was completely superfluous, we laid the Constitution aside and began to read case after case construing various clauses. When we got to the 14th Amendment cases in second semester, it was almost as if the Constitution completely disappeared. Dozens and dozens of cases construed the phrases "equal protection of the laws," or "due process" as if these two phrases were brooding omnipresences loosed from any historical rootage or meaning. In fact, we never studied the Constitution in "Con Law," we never wrestled with the text, we never tried to understand how the text was shaped, we never tried to parse the original meaning of the 14th Amendment. We treated cases as if they were sacred and the words of the "sacred" text as if they were inessential.

Why? Well, in general I think that professors teach as they are taught. And, law professors in general don't have much of a historical sense to them. Or, to put it differently, I would be hard-pressed to answer the question of whether law faculties are more historically or mathematically challenged. And yet, they consider themselves among the most brilliant of professionals, relying on their putative capabilities in reasoning and ferreting out information through analysis and cross examination of people and texts to establish their claim.

So all of this confused me as a student. It absolutely nonplussed me. I said to myself, "Isn't this like taking courses in Biblical Studies and never opening the Bible?" Don't we have confidence enough in the renewing and empowering nature of the text itself, enlightened by a rich historical understanding, so that we will let the text "speak to us" today? What are we afraid of, really?

Well, all my musings got me nowhere. I didn't argue with the professors or force them to become what I considered to be responsible readers of the Constitution because I wanted to be # 1 in the class (I confess, a bit to my embarrassment--I was # 1 in the class of '99, even though I didn't graduate until Dec. 1999--I would have been # 3 in the class of '00). So, I went along with the program, hating almost every minute of Con Law because it was taught as if we lived in a historical vacuum.

The "Right" Way of Studying the US Constitution

Charles Pinckney's Draft from the previous essay gives us a clue as to how we should properly study the Constitution. We should go phrase by phrase and ask ourselves what the various options were that could have been elected by the Constitutional Convention, before understanding why they chose the option they did. Sometimes they chose an option out of compromise, pure and simple. Other times it was one view "winning out" over another. For example, let's take Pinckney's phrase, quoted in the previous essay:

"The Power of impeaching shall be vested in the HD."

Recall that the "HD" is the "House of Delegates," which we now know as the House of Representatives. Well, it seems to me that we could ask many questions about the quoted clause. First, why should a Constitution (our Constitution) have a provision for executive impeachment? Does its presence mean we are inherently leery of executive power? And, if we have such a provision, why should the "power" be vested in the HD? Why not both houses? As we know, we have a system where the House originates impeachment proceedings against a President but the President is tried in the Senate. But that is a very sophisticated political compromise. Or, it reflects a very sophisticated understanding of how branches of government are to relate to one another and how even in one branch (legislative) the work is to be divided. The words of the Constitution, as finally approved, are these:

"The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment," Art 1, sec. 2, cl. 5.

Then, if you go a little further down Article 1, to the Senate's basic charge, you have:

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried (does that mean that other people may be impeached? Where does it stop?), the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present," Art. 1, sec. 3, cl. 6.

An interesting historical note is that when President Andrew Johnson was tried by the Senate in Winter/Spring 1868, Chief Justice Chase had to be present for the trial. Because of that, he couldn't preside over a scheduled treason trial of the former Confederate President Jefferson Davis (Why did he have to do it??), and so Davis languished on bail until Johnson, after being acquitted, pardoned him on Christmas Day 1868.

Conclusion

Well, now you see where I am going with this. A truly helpful study of the US Constitution would, like a good exposition of Scripture, provide a rich historical, literary and textual reading of the passage under consideration. It would rely on all sources possible for enriching the meaning. It would be attentive to the various choices that could have been made (why, for example, didn't Congress set up a "national university," which would have become the premier place for study in the US?; why, for example, didn't Congress abolish state governments? what does it mean that the Senators shall be on "Oath or Affirmation"? Didn't they already take an oath upon entry into office?). Only when this patient and responsible historical work has been done can one begin to read the cases decided under the clauses.

If you study the US Constitution in this way, a remarkable thing will happen. By the time you get to the "cases," the students in general will have developed their own "reading" of the Constitution, and you/they will see the cases in a fresh light. In most instances you/they will probably begin to develop an independence of mind vis-a-vis the Court interpretations of cases in such a way that we would have regular renewals in our understanding of the Constitution. By relying only on cases, however, we all become rather useless drones who can only repeat what the last case has concluded. We are philosophically weak, and we can say nothing.

Let all who read this essay who are interested in political theory take the suggestions to heart. If you do so, you will make a useful contribution, and you will do more to the renewal of this land than by doing almost anything else you can imagine.

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