Venerate, Amend . . . and Violate

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Oren Gross

Many regard the Constitution as part of the holy trinity of American secular religion. A venerated document, it is often referred to in religious terms. A “kind of Ark of the Covenant of the New Israel that is America,” this “most wonderful instrument ever drawn by the hand of man,” was “divinely inspired,” and ought to be safeguarded with a “holy zeal.” A President and a Chief Justice exhorted the teaching of the principles of the Constitution in terms that in the Jewish prayer book referred to divine commandments: “[T]each them to your children, speak of them when sitting in your home, speak of them when walking by the way, when lying down and when rising up, write them upon the doorplate of your home and upon your gates.” The Constitution is the most recent chapter in a continuous “concatenation of covenants” stretching from Abraham to modern-day America. In a way reminiscent of the renewals of the biblical covenants between God and the people of Israel—done by public reading of the sacred text—members of the House of Representatives recited aloud the constitutional text in the opening sessions of the 112th and 113th Congresses (on January 6, 2011 and January 15, 2013, respectively). The symbolic, and political, significance of such recitation was not lost on anyone. “Constitution worship” was on the minds of those in the GOP and Tea Party supporters of the public reading. At the same time, Rep. Jerrold Nadler (D-NY), decried the “ritualistic reading” and objected to the “reading [of the Constitution] like a sacred text . . . You read the Torah, you read the Bible, you build a worship service around it . . . You are not supposed to worship your constitution.” In sounding such objections Nadler followed Thomas Jefferson’s famous mocking of men who “look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched.” Jefferson rejected the view that the document drafted by “the men of the preceding age” was “beyond amendment.” On the other hand, James Madison invoked the very notion of constitutional reverence in order to reject “frequent appeals” to the people, i.e., to amend the Constitution, since such appeals “would, in a great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” Indeed, not only “frequent” appeals, but “every appeal to the people would carry an implication of some defect in the government.”

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