The American Spectator : An Editor as Framer

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An Editor as Framer

By Jeremy Rabkin from the December 2009-January 2010 issue

Seth Lipsky assumes that the words of our Constitution have real meaning.

The Citizen's Constitution: An Annotated Guide
By Seth Lipsky
(Basic Books, 336 Pages, $25.95)

This is an improbable book. But Seth Lipsky seems to specialize in improbable projects. In the 1990s, he revived a hundred-year-old Yiddish-language newspaper by creating an English-language version of it. Between 2000 and 2008, he revived the New York Sun, defunct for half a century by then. While it lasted, Lipsky made it a daily reproach to the inadequacies of the New York Times.

As with these previous Lipsky projects, The Citizen's Constitution starts with an inherently plausible concept. His "guide" simply goes through the Constitution (and all its subsequent amendments), line by line, offering an explanatory note on every clause or phrase in it. It's such a sensible idea that a similar project was launched by Princeton professor Edward S. Corwin as early as 1920.

Corwin's book was so successful that he was induced to keep updating and revising. He produced a 12th edition in 1958. The publisher then handed the book on to younger scholars, who produced 13th and 14th editions in the 1970s, the latter of which was reprinted (for the seventh time) as recently as 1998. The Library of Congress has produced a more massive reference work, known as the "Annotated Constitution," which was started by Corwin and has been kept up to date by many hands since then.

But these works are not well known to law students today, not even to young legal scholars (as I confirmed by asking my younger colleagues). In the age of the Internet -- and laptops that afford full-time access to it -- there's no great need for a single-volume reference work. So who needs Lipsky's version today?

Lipsky adds something you won't find on the Internet, however: a skillful and judicious editor. There are 310 separate notes, running to 275 pages in all. So each individual note is relatively concise. The last updating of Corwin's text (in 1978) ran to nearly 600 pages, while the Library of Congress version runs to more than 2,000 pages.

Lipsky does a lot more than abridging the sorts of expositions available elsewhere. For one thing, he offers a lot of material that legal commentators wouldn't think to include, but an experienced news editor must have relished. As he says in the preface, "a career's worth of reading and reporting the news at home and abroad" equipped him for "marbling the constitutional cake...with a newspaperman's batter."

Take the note (No. 165) on the clause in Article II, Sec. 1, which limits eligibility to the presidency to a "natural born citizen." That clause raised concerns in the 2008 presidential campaign -- about the eligibility of John McCain. He was born in the Panama Canal Zone, when his father was there in the Navy. An Arizona law professor who researched the issue found that federal law at the time did not clearly indicate that children of American citizens born in the Canal Zone would automatically become U.S. citizens -- which was why Congress subsequently amended the relevant law to clarify this point. But that was after McCain's birth and the law was not made retroactive. The New York Times carried a story in 2008, reporting the professor's conclusion that it might seem "preposterous" to question McCain's eligibility, but "this is the constitutional text that we have."

Or take the note (No. 144) to the clause in Article I, Sec. 10, prohibiting states from making "anything but gold and silver coin a tender in payment of debts." Lipsky reports on discussions in several states about allowing contracts to specify that payment will be in gold or rather in "electronic gold currency." He acknowledges that "enthusiasm for such efforts is restricted, at least for the moment, to monetary gadflies" but directs readers to the Internet for more information.

Apart from his eye for intriguing tidbits, Lipsky does a good job at highlighting central issues. What does the First Amendment mean when it prohibits Congress from making any law "respecting an establishment of religion"?

Lipsky offers some historical background, drawing on recent scholarship. He then provides an excerpt from a sharp dissenting opinion of Justice Antonin Scalia, contrasting the circuitous paths of recent rulings with the clear (but much more limited) demands of the original meaning.

Perhaps the best quality of The Citizen's Constitution -- and its most distinctive quality -- is that it addresses the Constitution from the perspective of a sober citizen, rather than a sophisticated --
or jaded -- lawyer. Corwin called his book "The Constitution and What It Means Today." The title implied that "what it means today" might have little connection with what it was understood to mean when ratified or even with what would seem most reasonable for it to mean. But that title also implied that the separate question of "what it means today" could be answered quite reliably, because the meaning "today" would be the meaning established by courts.

Lipsky assumes that the words of the Constitution have real meaning. The meaning may be disputed -- and he summarizes many such disputes -- but the meaning isn't whatever anyone wants it to mean nor simply what judges want it to mean. So he often reports what Court decisions have said but doesn't reduce the meaning to what judges have said in the most recent cases. A lot of legal scholars will find this approach naïve. But it is more serious about the Constitution than most legal scholarship today, because it keeps the focus on the Constitution rather than on its interpreters.

The book ends with a note on the last amendment, a closing note that is extremely fitting. The Twenty-Seventh Amendment prohibits congressional pay increases from taking effect until after an intervening election for the House. It was drafted by James Madison and proposed to the states in 1789. It was not ratified until 1992. According to Lipsky's last note, an undergraduate at the University of Texas first revived interest in this leftover from the Founding after he came across it in a library book in the early 1980s and began writing state legislators about it. Like so many ideas from 1789, it still made a lot of sense to Americans more than 200 years later.

So if you want to know what any clause means, Seth Lipsky's annotations are a very good place to start. They won't provide enough citations for a lawyer's brief in a pending constitutional case. But they usually provide enough background to get the reader thinking. As Lipsky says in his last note, the Constitution is "accessible and inspiring, beckoning the learned and the student alike to sit down with it and start thinking."

topics:
The Citizen

About the Author

Jeremy Rabkin is professor of law at George Mason University School of Law and the author of Law without Nations? (Princeton University Press), The Case for Sovereignty (AEI Press), and Why Sovereignty Matters (AEI Press).

Letter to the Editor View all comments (33) | Leave a comment

Gerald Stephens| 12.16.09 @ 7:29AM

THE RULES...

The Constitution are the rules of the game. Only the very foolish would participate in a poker game without a knowledge of the rules.

If you do not have an understanding of the rules, there is every probability you will be cheated.

Mr. Lipsky's work will be most appreciated by those who abhor being cheated.

Gerald Stephens
Hartford,CT

Jimmy Lee| 9.29.10 @ 6:18PM

Seth,

I somewhat agree with Gerald about the Constitution being the "rules of the game" but it it more than that.

It is also a roadmap, a guide to how our forefathers envisioned life in the U.S. should be.

Lipsky's book sounds like one I'd really like to read and I will look for it.

Corwin's book sounds good too, as does the LOC's "Annotated Constitution".

I thank you for bringing these to my attention.

I can't help but wonder, however, if people in this day and age can really explain what was written over 200 years ago.

Thank you nevertheless, the Houston Locksmith

Margie| 12.16.09 @ 3:21PM

I'd love to read what Lipsky had to say about the 1st Amendment, and Scalia's opinion as well. Especially because this Amendment has been so twisted by the Left for so long. So many of our young people today sadly actually believe that it means the reverse of what it really means. They think it means that politicians and people in general shouldn't include God in what they do because that would be "violating the "Separation of Church and State"". which of course is not in the Constitution at all.
The Left has successfully used and abused this twisted fallacy for decades to promote their anti-God agenda.

brown| 3.4.10 @ 3:59AM

The city constitution is an amazing as well as a near fictional book. I say fictional because the ideologies behind the book seem to be impractical. The guide reveals the Constitution and all its minor improvements, line by line, giving a note of explanation to each and every word in it! The book ends majestically with the closing amendment which makes it extremely fit to read! Those of you who haven't tried it yet I suggest you should have a look! Masters Badges

fwb| 12.17.09 @ 1:55PM

Nice intro and maybe the book has some worth but not if the rest of it has "notes" in the same vein as those presented above.

1) Congress cannot define "natural born citizen". No power over defining concepts was granted AND if one allows that Congress may determine the meaning of any one word or phrase then Congress would carry the authority to define any and all parts of the Constitution making the document, as a set of rules to control government, moot. Ditto for the supreme Court.

2) All government entities are subordinate to the Constitution and thus have no authority to determine the extent of or define the meaning of any part of the Constitution. Do YOU have the authority to define the authority of YOUR boss?

3) Opinions, at like belly buttons, everybody has one and most are filled with lint. Court decisions that claim to "interpret" the intent or the historical meaning or what have you usually are wrong. First, who's intent are they determining? Did EVERYONE who voted for the item have the same intent? Nothing more can be said than exactly what the words convey. The Constitution is self-limiting and no clause can be read in such a manner as to negate the need for the existence of another clause. One must read the Constitution as a single document, comparing and contrasting ALL clauses with each other. Any other method results in taking things out of context and selectively understanding the purpose of the document.

fwb| 12.17.09 @ 2:00PM

Who's should have been whose. Missed during proof.

brown| 3.4.10 @ 4:00AM

The City Constitution is a book which is highly likely not true to happen. However Seth is someone who concentrates on projects which emphasizes on unexpected and apparently inauthentic events. The book starts with a concept that is apparently reasonable or probable without a reason being so and it seems to exist as a permanent or essential attribute of all her works.Masters Tickets

Richard Baker| 12.19.09 @ 9:25AM

fwb:
Can you clarify your statement below? Thanks.
2) All government entities are subordinate to the Constitution and thus have no authority to determine the extent of or define the meaning of any part of the Constitution. Do YOU have the authority to define the authority of YOUR boss?

Sydney M| 2.21.10 @ 2:35AM

A government to the constitution is something far different from an individual to his boss. These two entities cannot be compared, so i believe that point on that comment is totally invalid.
Anyways i believe the commenter can explain iot better himself.
Regards,
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Alan Brooks| 12.22.09 @ 7:51AM

"The Left has successfully used and abused this twisted fallacy for decades to promote their anti-God agenda."

The GOP is no longer pro-God, or pro-anything. It is anti-conservative. Even Rush Limbaugh, with all his intelligence and experience can't get that. How does the GOP uphold the Constitution if it isn't conservative?

The GOP, that is

brown| 3.4.10 @ 4:02AM

The citizens Constitution is an improbable book but Seth Lipsky being a person who specializes in improbable projects doesn't seems to find it so odd! She is quite famous for reviving a Yiddish language newspaper into an English version of it and if i could remember it right it was in the nineties. She also revived the New York Sun between 2000 and 2008 which did no longer exist for half a century.kasey kahne calendar

Alex Brook| 2.12.10 @ 1:32AM

First, who's intent are they determining? Did EVERYONE who voted for the item have the same intent? Nothing more can be said than exactly what the words convey. prune juice for constipation

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Dan Groves| 3.2.10 @ 1:08PM

The Citizen's Constitution - is an interesting point to reflect upon. Often we think of the Constitution as a document argued over by lawyers but it belongs to us all and we should resist any attempts by the Left or the Right to bend it to their purposes. Central Heating

Freddie| 3.11.10 @ 3:10AM

It is an interesting project to try and analyze the US constitution. Since it was first adopted in 1787, it has been amended 27 times and will always need updating somehow...
magicien

Sharpster| 3.12.10 @ 3:32AM

This book seems interesting. There is definately a need for a guide to clarify every aspect of the constitution. magician kent

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Magician London| 6.12.10 @ 7:07AM

I'm looking forward to reading Lipsky's book. I studied US Politics at university and used Corwin's original work as reference.

Why does Lipsky always choose such unusual projects?

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Entertainer| 6.27.10 @ 9:45AM

This book semms to take up all summer to understand and study. I'll use my spare time as an Entertainer in the USA - just for it.

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Sheila| 10.24.10 @ 10:31PM

James Madison's intention was as simple statement as saying that "law makers should create laws for the common good of the people not just to make a law in favor of his own advantage". increasing the salaries for law makers like himself is self serving and should only take effect when his term is over. This act of statesmanship is a good indicator in identifying good politicians.

Jeremy| 11.10.10 @ 1:41AM

I agree sheila, I believe that self serving should be stopped and I think that the act of statesmanship IS a very good indicator in identifying good politicians.

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Jeremy| 11.10.10 @ 1:42AM

I agree sheila, I believe that self serving should be stopped and I think that the act of statesmanship IS a very good indicator in identifying good politicians.

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Mat Betsy| 11.13.10 @ 4:51PM

This book seems to be quite interesting. There is a need for a guide to make clear every aspect of the constitution. There should be as little gap as possible between the public and the politicians
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Savs| 12.1.10 @ 1:14AM

I like the political views of Seth Lipsky, we really need to understand every aspect of whats the center is doing.

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Peter| 12.22.10 @ 3:39PM

yeah i have heard about that book its over 300 hundred pages so it takes a little time to read throw but its a decent book for the money.
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Sharat Jaswal| 2.4.11 @ 10:06PM

From its earliest drafts, the U.S. Constitution was always meant to be read closely for its meaning, context, and intent. Seth Lispky has now undertaken an unprecedented labor in parsing the details of the document, clause by clause, and has produced, with great insight and wit, an extraordinary book — that will help to ensure that our founding and sustaining document gets the respect it deserves. It couldn't be more timely.

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