American Epic
California Lawyer

American Epic

Reading the U.S. Constitution

December 2013

American Epic: Reading the U.S. Constitution
by Garrett Epps
Oxford University Press, 304 pages, $29.95, hardcover

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The business of interpreting the U.S. Constitution antedates the Constitution itself. The Federalist, the greatest didactic work in American history, was an eloquent and lengthy argument for what the Constitution meant, what it was going to do, and why Americans should ratify it. If you don't want to include The Federalist, you can search at least as far back as 1820, when Virginia's U.S. senator John Taylor published Constructions Construed, and Constitutions Vindicated. This not-so-compellingly-titled work was essentially an argument against McCullough v. Maryland (17 U.S. 351 1819), based on Taylor's interpretation of the Constitution, which leaned strongly toward states' rights.

Garrett Epps is a Renaissance fellow (novelist, poet) among constitutional scholars. His American Epic: Reading the U.S. Constitution is a short (274 pages) and sprightly ... exegesis? interpretation? explanation? exposition? textual analysis? ... of our government's formative document.

Professor Epps insists that he is discussing anything but the meaning of the Constitution, which is what keeps armies of lawyers (including this one) and all federal appellate judges in business. Each year, he explains, he assigns his law students at the University of Baltimore to read the Constitution. "They then arrive in class, expecting that I will now tell them what it means.

"They are disappointed when I tell them that I don't know the answer, and that other scholars and judges don't really know it, either."

"I don't want to explain the Constitution to you," Epps insists to his readers. "I do not want to tell you what it means. If I were to do that, you would then know something about what I think, but perhaps not so much about what the Constitution says."

The difficulty, as philosophers from Aristotle to Wittgenstein have written, is that what a statement says is what it means. It's impossible to write about the Constitution without discussing what it means, and Epps can't avoid this trap any more than anyone else can.

Some parts of the Constitution demand more interpretation than others. It is one thing to say that a close reading of Article I, Section 8 tells you Congress has the power to issue letters of marque and reprisal; and that (per Article I, Section 10) no state may do this. Not much interpretation needed there. It is another to parse "the embarrassing Second Amendment," the only amendment in the Bill of Rights containing its own preamble, and what problems that preamble has caused! The Supreme Court finally dealt with the preamble five years ago, ruling in District of Columbia v. Heller (554 U.S. 570 (2008)) that the right to possess a handgun was personal, and not contingent on any militia argument. Does that end the right-to-bear-arms debate? I don't think so, and neither does Professor Epps.

The author is hardly loath to engage in interpretation when it seems justified. For example, he states: "The very existence of Article V [prescribing how amendments may be made] suggests that the Framers knew that they might have made mistakes."

American Epic is entertaining, learned, and literate. Epps's favorite literary sources are Homer, the Bible, Walt Whitman, and Emily Dickinson, with nods to such disparate writers as Walt Kelly (creator of the comic strip Pogo (1948-73), the Doonesbury of its day) and Allen Ginsberg. This book is fun to read, full of history, and it will even help the attentive reader settle some bar bets. How many states have wineries? Every one of the fifty. What class of people born on U.S. soil aren't citizens? Children of foreign diplomats posted to the United States.

What American Epic does not do is what Professor Epps says he intends, that is, to talk about what the Constitution says and not what it means. It's a much better book for that failure. Anyone can read the Constitution. Almost everyone who does (well, every lawyer) has his or her idea of how it should be interpreted and how laws should be applied in consequence.

If this weren't the case, the United States Supreme Court could take its next term off and go surfing. You can imagine the nine justices now, lined up on the sand at Sunset Beach, each carrying a surfboard, except for Justice Thomas, who carries two: his own, and Justice Scalia's.

Ben Pesta is a white-collar and criminal defense lawyer in Beverly Hills.

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