By Seth Lipsky, Basic Books, New York, N.Y. 336 pages, $25.95
What is a book expressly written for the lay reader doing in the review column of a newspaper published for lawyers? Just a glance at a page or two of “The Citizen’s Constitution” will answer the question. Seth Lipsky, an experienced journalist and editor, offers a wealth of information about and insight into our national charter, material of the sort that most of us never knew or had long ago forgotten.
To begin at the beginning, take the preamble. It starts, “We the People of the United States.” It will astonish most readers that those words, revered today as close to Holy Writ, generated controversy at the Constitutional Convention in 1787. They caused some delegates, including Patrick Henry, to oppose ratification. Many of those who came to Philadelphia expected only to improve the loose union of sovereign states set up by the Articles of Confederation, not to establish a centralized national entity. For a beginning, “We the states” would have suited them better.
By no means does Lipsky let it go at that. He takes his readers through the document article after article, section after section, offering comments on almost every sentence. Rarely does he lapse into tediousness. Citing and quoting from U.S. Supreme Court decisions on almost every point, he demonstrates the diligence of the scholarship invested in his book.
As he proceeds, the author does more than offer factual illuminations. He engages as well in substantive commentary. Section 1 of Article I, for example, limits the authority of Congress to legislative powers “herein granted.” The articles dealing with the executive and judicial branches, Lipsky points out, contain no such limitation. Thus our history is crowded with instances where the president and the courts have exercised powers beyond those explicitly conferred by the Constitution.
As a human creation, the original Constitution fell short of perfection. Most readers will agree with the author that the instrument’s recognition, indeed enforcement, of human bondage incorporated in our national charter “America’s greatest failure.” Acquiescence in slavery, he explains, was the price, to many a bitter one, that the North had to pay to keep the South in the union.
The fugitive-slave clause (“one of the blots on the founding document”) and the sanction of the slave trade for the next two decades stand out as the most prominent features of the bargain thus struck.
In addition, Section 2 of Article I, apportioning seats in the House of Representatives according to population, counted a slave as three fifths of a person. According to Lipsky, it was the North that insisted on this provision. Slave states would have enhanced their representation by counting slaves as full-fledged humans.
The need for 27 amendments, all more than the crossing of T’s or the dotting of I’s, provides further evidence of the imperfection of the original instrument. The author has something to say about each of the 27.
High on the list of those most important stands No. 13, which by abolishing slavery throughout the country, finished what President Lincoln had started with his Emancipation Proclamation. The amendment took effect in 1865, but Mississippi ratified it in 1995, prompting one commentator to quip, “Better never than late.”
Those who would apply the Constitution in strict conformity with “original intent” may have trouble with the book. More than once the author points out that different persons involved had different understandings of the clauses they were enacting.
Thus, the First Amendment prohibits Congress from making any “law respecting an establishment of religion.” Those words today are deemed an enactment of Thomas Jefferson’s “wall of separation” between church and state. At the time, however, the clause meant to some that Congress would not disturb the established churches installed in several states.
As a non-lawyer, Lipsky does not show a total mastery of legal terminology and technicalities. Yet such few errors as appear in his book are either too obvious or too trivial to detract from its value.
“The Citizen’s Constitution” is not a treatise that lawyers will consult or cite in fashioning an argument on a constitutional issue. Rather it provides instruction, if only a refresher course, on areas of law most practitioners never encounter in their careers. It is worthwhile as well as enjoyable reading.
Walter Barthold has retired from the practice of law in New York City.