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An Editor as Framer

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

By From the December 2009 - January 2010 issue

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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."

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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).