America's Unwritten Constitution: The Precedents and Principles We Live By (13 page)

Two factors explain the parchment’s later ascendancy. First, repeated reprinting of the September 28 print resulted in increasing numbers of discrepancies due to compounded printers’ errors; yet no single copy of the print had been preserved as an official touchstone. As a result, the parchment increasingly came to serve as the definitive standard. Second, in the late 1870s the State Department brought the hand-signed engrossed parchment of the Declaration of Independence, fresh from its famous public display in Philadelphia as part of America’s first World’s Fair in 1876, into the same depository as the hand-signed engrossed parchment of the Constitution. The centennial magic of the Declaration apparently rubbed off on its constitutional counterpart.
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In effect, the parchment Constitution was gilt by association. In popular folklore it became
the
Constitution, the icon of a nation desperately in need of unifying symbols in the wake of the Civil War. This time, it was the September 28 print that was forgotten in the excitement. In 1878, the parchment was reproduced under the direction of Congress as the
apparent official text of the Constitution. Since then, this copy has become the dominant one, reprinted routinely in congressional manuals and in the United States Code. The engrossed parchment has been on grand display alongside the engrossed Declaration for most of the past century, and the printed archetype has faded into the mists of history.
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WILL THE REAL WRITTEN CONSTITUTION
please stand up? Which precise piece of prose should count as the official text of the Founders’ supreme law?

If we narrowly read the hand-signed parchment and the September 28 print as two self-contained texts, the parchment fares rather well: Although each document repeatedly refers to
itself
as “this Constitution,” only the parchment can boast the actual attesting signatures of George Washington, Benjamin Franklin, and dozens of other notable framers.

But if we read these texts more broadly and understand the importance of the enactment process outside the text, the parchment must yield pride of place to the print. Clearly, “this Constitution” was designed to be “ordained and established” not by Washington and his fellow notables, but by “the People” at large, who would legally enact the text via “Ratification of the Conventions of nine States.” The iconic parchment never came before the people. Only the September 28 print did, and this was the particular piece of prose that was in fact ratified by all the state conventions—eleven in the initial enactment process of 1787–1788, and two more thereafter.
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For almost all legal purposes, the variance of punctuation and capitalization between print and parchment should make no difference whatsoever.
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As John Marshall recognized in
McCulloch
, Americans enacted the Constitution as a whole, and faithful interpreters should thus aim to make sense of the entire document. Sensible readers should hesitate to place great weight on syntactical specks and grammatical nits if such minutiae run counter to the Constitution’s general spirit and structure. In short, we must never forget that it is “a Constitution”—and not a clause or a comma or a capital letter in isolation—we are expounding.

This reminder has special bite because in at least one spot a printer’s error slipped into the official September 28 print. Article I, section 8, empowered Congress to constitute as many “tribunals inferior to the supreme court” as Congress saw fit, and Article III’s opening sentence likewise referred to the possibility of several “inferior courts.” In the very next sentence, however, the plural “s” got dropped by the printer, with the official September 28 print referring to “the judges, both of the supreme and inferior court”—an obvious goof. A few state ratifying conventions caught the typo and corrected the blunder in their official instruments of ratification.
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(For what it’s worth, the iconic parchment consistently used the plural “courts.”)

For some, the glitch in the formal text might be cause for great concern. The official clause says “court” and not “courts”—and for an ultra-strict and clause-bound textualist, that’s that, and we are stuck with the singular noun whether it makes sense or not. But once we reject this extreme approach and embrace a more holistic and commonsensical view of the entire document—as a text that was meant to be read and enacted by ordinary citizens, not supersleuths with magnifying glasses and microscopes—we are free to admit that this one clause contains a simple printer’s error, and move on. Typos happen, and faithful readers who seek to honor and preserve the text as a workable whole should place no weight on what is obviously an isolated and meaningless misprint.

This point can also be cast into the framework of the preceding chapter, which focused in part on background rules of legal construction against which the Constitution’s explicit text should be read. Much as laws should be construed so as to avoid absurd results not foreseen or intended by the legislature, so, too, obvious scriveners’ errors in official legal texts—errors that escaped the eyes and would frustrate the basic purposes of the enacting lawmaking body—should be disregarded.

IT IS POETIC
that the Constitution’s official text consists of a typeset print rather than a handwritten, hand-signed parchment. The parchment is unique—truly one of a kind. The print is democratic, precisely because each copy was not one of a kind, but one of an infinitely replicable set. All prints were created equal, with no one person’s typeset copy different
from, or superior to, anyone else’s. With a printed version, a vast multitude of ordinary Americans across the land could literally read from the same page. The parchment was a ceremonial artifact made for show—to be preserved for the ages in pristine form. (Today it is kept safe in a magnificent museum in argon gas under bulletproof glass, untouchable by ordinary human hands.) The print was a legal workhorse made for use—to be read and reread by ordinary Americans at their convenience. Inexpensive and abundant in 1787, printed copies could be annotated, underlined, rolled up, folded, and passed from hand to hand. Whenever a given copy became too worn or scribbled over, another identical copy would presumably lie within easy reach.

In our starstruck world, the signatures at the bottom of the parchment make the engrossed original a national treasure: What other artifact—besides, perhaps, the parchment Declaration of Independence—contains the autographs of so many famous people in so tight a cluster commemorating so momentous an occasion? (Tellingly, during World War II both parchment documents were brought for safekeeping to Fort Knox, the legendarily secure storehouse of other national treasure.)

But precisely because the Philadelphia framers’ autographs were so personal, some obvious questions arise concerning the legal significance of the signature section. Indeed, the opening words of the signature section have sparked a sharp debate among modern authors and activists. Some argue that these opening words are imbued with deep legal meaning. Others seek to dismiss the parchment’s finishing flourish as irrelevant—a modest literary touch at most, or merely an eighteenth-century commonplace of no deep significance.

Here is what all the shouting is about. Immediately below the single sentence of Article VII and above the thirty-nine attesting autographs, the parchment contains the following words: “done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names.”

On one side of the debate stand those who claim that these words prove that, legally speaking, America is a religious nation and indeed a Christian country. On this view, the written Constitution acknowledges the Lordship
of Jesus Christ in the phrase, “in the Year of our Lord.” If this rather sectarian exemplar of government-sponsored ceremonial religion is permissible—indeed, part of the Constitution itself!—then surely other, more ecumenical references to God by government are also appropriate.

This argument took center stage shortly after a federal appellate court opinion in 2002 deployed the First Amendment’s establishment clause in a particularly aggressive fashion to limit governmental endorsement of religion. Congress responded with a statute whose preface blasted the appellate decision by name and pointed directly to “the Constitution’s use of the express religious reference ‘Year of our Lord’ in Article VII.” According to the statute’s preface, a strict insistence that government should not invoke God would render the Constitution itself unconstitutional—an “absurd result,” huffed an outraged Congress.
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On the other side of the debate stand those who seek to minimize, or dismiss entirely, the parchment’s reference to God. First, they note, contra Congress, that the “Year of our Lord” phraseology is not part of Article VII itself, but is rather the opening provision of a distinctly separate attestation section. This section, they claim, contains no operative legal rules akin to those found in virtually every other part of the Constitution. Second, these debaters suggest that the word “Lord” should not be read as a strong constitutional endorsement of religion in general or Christianity in particular. Had the parchment simply used the date, “1787,” virtually no one would think twice or suggest that the mere use of this common-era dating system itself made any strong theological statement. The same would hold true had the parchment said “
A.D.
1787” or even “
1787, Anno Domini
.” Surely, the argument runs, the mere translation
of Anno Domini
into English should not be seen as a grand religious gesture. In both England and America, before and after the Revolution, it was common practice to use the words “in the Year of our Lord” in official legal documents.
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Each side in this debate makes some valid points. But both sides miss the biggest points: The words “in the Year of our Lord” do not merely lie outside of Article VII. They lie outside of the official written Constitution—that is, the legal one—altogether. Nevertheless, these words are an important part of America’s unwritten Constitution and as such need not be read in a manner that drains them of all religious significance.

Let us put aside, for a moment, the iconic parchment, which is only a
ceremonial document, and focus instead on the official printed Constitution—the democratic one, the legal one, the one actually ratified by the people. The September 28 print sent out to the state ratifying conventions did contain a typeset list of the Philadelphia signatures, preceded by the very same dating words that have caused all the shouting.
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But are these words part of the legal Constitution itself, or are they actually something else, akin to other documents that accompanied the written Constitution yet were not part of it? Here we reach the crux of the matter.

Had we only the self-contained constitutional text to guide us, the answer might seem uncertain. Although the written Constitution clearly does refer to itself as a bounded text, it does not clearly define its own textual boundaries. The Preamble is certainly part of the written Constitution, for it says so in its very textual self-reference to “this Constitution.” Ditto for Article VII, whose single closing sentence contains the same self-reference. Obviously, everything between the Preamble and Article VII likewise counts as part of the written Constitution—and the words “this Constitution” recur repeatedly in this middle material.
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By contrast, a letter to the Confederation Congress signed by George Washington on behalf of the Philadelphia Convention, and dated September 17, 1787, is obviously not part of the written Constitution, but was merely designed to accompany the Constitution as added explanation and commentary. Tellingly, this letter does not use the self-referential phrase “this Constitution” but instead speaks of “the Constitution, which we now present” and “that Constitution which has appeared to us the most adviseable.” Yet another companion document dated September 17, 1787—the resolution of the Philadelphia Convention submitting the Constitution to Congress—likewise referred to “the preceding Constitution.”
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Is, then, the language after the single sentence of Article VII—the language containing the phrase “the Year of our Lord” and all the signatures—properly part of “this Constitution,” or instead merely companion language of personal attestation accompanying “the preceding Constitution”? The text of this section itself contains no references to the “Constitution” either as part of the same (“this”) document or as an entirely different (“that”) document.

Still, the text of this section does contain some tip-offs. It says that “We” the undersigned have “hereunto subscribed our Names” as “witness[es]”
to an act “DONE in Convention.” This is not at all the language of the Constitution itself. The Constitution speaks of “We the people” acting publicly—not “We,” a handful of delegates meeting behind closed doors. The Preamble looks forward to a formal legal deed of ordainment and establishment that the citizenry will “do,” not backward to an informal deed of draftsmanship already “DONE” by some notables who summered in Philadelphia. All these textual tip-offs suggest that the attestation-and-signature language below Article VII is not part of the official Constitution itself. Rather, this language is exactly like the accompanying Convention resolution and Washington letter—companion words of explanation framing the legal canvass but forming no part of it, strictly speaking.

Yet, unlike both the Convention resolution and the Washington letter, which were written on entirely separate sheets of paper in Philadelphia, the attestations and signatures appear on the ceremonial parchment itself. In the September 28 print, the attestation-and-signature language was not crisply demarcated as a distinct accompanying document. It was not printed on a wholly separate piece of paper, but rather appeared near the top of the final sheet of a four-page set. The sheet began with the final paragraph of Article VI and the entirety of Article VII, which was closely followed by the attestation-and-signature language, which was in turn closely followed by the Philadelphia Convention resolution, the Washington letter, and the forwarding resolution of the Confederation Congress. On this sheet, the attestation-and-signature section was thus tightly wedged between words that clearly were part of the Constitution and words that clearly were not—blurring the precise point where the written Constitution officially ended. It is therefore somewhat difficult to definitively determine the boundaries of the written Constitution based solely on textual analysis and visual inspection of the September 28 print.