SACHA PFEIFFER, HOST:
The U.S. Constitution is being tested these days in all sorts of ways. And NYU Law School professor Melissa Murray is concerned that many Americans lack a basic understanding of this foundational document.
MELISSA MURRAY: In the last 20 years, we’ve really divested ourselves of civics education. There’s a whole generation of kids who probably haven’t read the Constitution in full. And the whole point of the Constitution was that it was a document meant to be read by the people it served. It was meant to be debated, to be grappled with. And we’ve really become untethered from that.
PFEIFFER: So she has a new book out aimed at making the Constitution accessible and understandable and teaching Americans what their government is allowed to do. It’s called “The U.S. Constitution: A Comprehensive And Annotated Guide For The Modern Reader.” And Murray says modern readers need to realize that some of today’s challenges are parallel to what Americans were dealing with centuries before.
MURRAY: Although we talk about the framers and the reconstruction amendments, there’s a whole series of amendments from the late 19th century and early 20th century that are literally driven by the people. The people decide that they’ve had it with certain things that the government is doing. You know, for example, they were very angry about the consolidation of wealth and the rise of oligarchy at the – in the middle of the Gilded Age. And they were especially concerned that the federal government’s principal means of raising revenue was tariffs. They felt that tariffs were deeply regressive and disproportionately borne and impacted on the working class. And so they wanted a progressive income tax.
And so the people got together and they agitated, and they ultimately created the momentum for the 16th Amendment, which amended Article 1 to allow for a progressive income tax, and that’s where we get the income tax to this day. So it’s not just about lawyers making claims on the Constitution. The people can do this too, and we’ve lost sight of that.
PFEIFFER: Is there one part of the Constitution that’s your favorite or that most interests you that you could zoom in on for us a little?
MURRAY: Again, the whole idea that the people have something to say about the Constitution, I think, is just really, really apparent, especially in those amendments that are passed during the Gilded Age. And one that I’m thinking of specifically is the 17th Amendment. Most Americans don’t realize that the popular election of senators is a relatively recent phenomenon. That came about with the 17th Amendment. Before that, state legislatures picked their senators, and they were often subject to real corruption because the senators were so deeply bound to corporate interests at the state legislative level. And so the shift in the 17th Amendment to make senators popularly elected was about ridding Congress of corruption and giving the people a voice.
PFEIFFER: What part of the Constitution most frustrates you?
MURRAY: The Electoral College.
PFEIFFER: (Laughter) Why? Because they created it at all?
MURRAY: I mean, these were elite guys, and they thought that, you know, it was fine to have popular representation in the House of Representatives, but they really worried about the people, many of whom were not as educated as they were, weren’t property, weren’t gentry. They worried about the kind of impact that those people might have on democracy, on democratic engagement. I mean, it is actually kind of ironic when you think about it. And so the Electoral College is kind of a hedge against that. We don’t popularly elect the president. It’s done through this electoral system. We’ve changed that, certainly with regard to senators, and I think it’s probably time that we changed it with regard to the presidency.
PFEIFFER: The Constitution was written in broad terms that left it open to interpretation in some ways. And that has created legal fights that continue to this day. Does that mean the Constitution was written too broadly?
MURRAY: I think one of the things the framers were trying to do was to make a document that was written because they wanted people to read it. But again, they wanted people to read it. So they understood TL;DR well before we had an acronym for it. And they understood that if they enunciated everything, if they enumerated everything, this would become more like a legal code and no one would read it. And so they painted in broad brushstrokes, and part of that, too, was recognizing that they did not have a monopoly on wisdom. They couldn’t foresee what was coming around the corner. And so they drafted, in some cases, in very broad terms.
PFEIFFER: You referred to the writers of the Constitution as a group of elite guys. Someone I work with made the point of wondering how much faith should we put in a document that was written by people living in a very different era long ago? As my colleague said, half jokingly, it was written by a bunch of guys in the 1700s who didn’t always brush their teeth. So what – how do we approach it knowing that?
MURRAY: Well, one, I think we have to approach it knowing that that’s actually not true. The original Constitution was written by a bunch of guys in wigs who maybe didn’t brush their teeth, but that’s not all the Constitution is. We have the reconstruction amendments. That’s a whole generation later with very different commitments and very different aims for the document. The reconstruction amendments are meant to entirely renegotiate the relationship between the federal government and the states and the federal government, the states and the people.
Then we have the Gilded Age amendments, which are entirely generated by the people. And then there are a whole spate of amendments from the 1950s going forward. So to say that the whole Constitution is written by these guys who didn’t brush their teeth is to continue the overveneration of the original framers at the expense of the other people who also poured into this document and made constitutional meaning as well.
PFEIFFER: Melissa Murray is the author of “The U.S. Constitution: A Comprehensive And Annotated Guide For The Modern Reader.” Melissa, thank you.
MURRAY: Thank you. Transcript provided by NPR, Copyright NPR.
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