Seth Lipsky | ‘A Ghastly Waste of Time?’ Considering the Constitution

Members of the 113th Congress are set to start reading the 8,000 or so words of the American Constitution into the record today. It is the second time the full document will be read aloud on the House floor, a tradition begun in 2011 when the House was won by the Republicans, who hope the reading will become a tradition. When the document was first read aloud, it was met with an uproar. The New York Times issued an editorial calling it a “ghastly waste of time.” A blogger for The Washington Post suggested the Constitution “has no binding power,” before rowing back the claim. Salon headlined its piece “Let’s stop pretending the Constitution is sacred.” While things have been more subdued this year—aside from the recent op-ed in the Times arguing that it is time to “Give Up on the Constitution”—here are five clauses of our founding document to cock an ear for as it is being read today:

The Commerce clause. This celebrated clause says that Congress shall have the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” These 15 words have been deemed by one of the 20th century’s most famous constitutional scholars, W.W. Crosskey, the most important of the nonmilitary powers in the whole document. Some of the best legal minds in the nation reckoned the court would use this clause to sustain Obamacare. It was a lead-pipe cinch.

In the event, the justices concluded the commerce clause could not be used as a basis for Obamacare. They preferred, instead, the taxing power. The court didn’t take this line, but consider this: if the clause could have enabled Congress to reach into a state and require an individual to purchase health insurance, would it have enabled Congress to reach into an Indian reservation to do the same thing. Or into a foreign country—say, France?


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