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Friday, October 23, 2009

The Original Documents by the Original Artists

11th_Amendment_25027th_Amendment_170
Left: The 11th Amendment looks like an upturned contestant nametag from "The Price is Right." Right: The top staffer at the National Archives went wild with red ribbon and signed his name in big loopy cursive on the 27th Amendment.

Check out an online exhibit created by the National Archives: Charters of Freedom. There are wonderful high-resolution images of the Declaration of Independence, the original Constitution, and all of the amendments. To paraphrase the K-Tel record company – These are the original documents by the original artists. 

Some of them are awe-inspiring. The 13th Amendment, for instance, signed by Abraham Lincoln, is deeply stirring. 

Many of the documents are visually remarkable. The colors of the original Constitution remain vibrant after 222 years. And the 11th Amendment, signed by John Adams, appears on a funny kind of six-sided paper. The Bill of Rights, however, is sadly faded almost to the point of illegibility.

There are also a few substantive insights to be gained. Perusing the faint script of the Bill of Rights, you are reminded that our cherished First Amendment – what Charles Evans Hughes called "the very foundation of constitutional government" – was not intended to be first at all. In the original list of 12 amendments, our First Amendment was listed third, coming after two proposed amendments that weren't ratified at the time: one limiting congressional pay raises and the other prescribing ratios of population to members of the House of Representatives. 

And then some of the collection is, to my mind, kind of funny. 

Before our current era of sealing precious documents in humidity- and pressure-controlled encasements filled with inert argon gas, the Charters of Freedom received somewhat indelicate treatment. For instance, if you look at the 26th Amendment, you will notice that in 1971, an officious government worker kerplonked a "RECEIVED" date stamp on the front of the original. Thus, the document giving 18-year-olds the right to vote appears to have been treated with all the dignity of a Selective Service postcard. 

Contrast that with the pomp accorded the next amendment, the 27th. This amendment, limiting congressional pay hikes, is what would have been the first amendment if it hadn't taken 203 years to ratify.  

When it finally came in from the cold, the National Archives laid out the 27th Amendment with sumptuous typography on paper bedecked with a glorious gold seal and a generous length of dark red ribbon. The document is truly resplendent. It could make your law-school diploma turn green with envy. 

The funniest bit of all is probably the 21st Amendment – the repeal of Prohibition. It's not the paper itself that is remarkable. It's the fact that it is included in the National Archives' Charters of Freedom exhibit. From the context in which it is presented, we can confidently say that it is the official position of the National Archives that the document supplying America with the right to drink is a "Charter of Freedom."

Reading these original documents, I suppose, has limited usefulness. It allows smart-alecks like me to deride the original Constitution for sloppy penmanship. Other than that, seeing our cherished freedoms reduced to ghostly, fading words on fragile pieces of parchment is a reminder that our civil rights and civil liberties, if they are to endure, must be the subject of never-ceasing vigilance by our citizens and lawyers. 

Or, as the Beastie Boys said – perhaps having in mind one Charter of Freedom in particular – "You've got to fight for your right to party."

Posted by Eric E. Johnson on October 23, 2009 at 11:44 AM in Constitutional thoughts, First Amendment | Permalink

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NPR program "Fresh Air" rebroadcast parts of a multiple interviews with Maurice Sendak this weekend, in connection with a movie version of one of his children's books.

He made a somewhat stirring tirade against the adult fetish with autographs, which he stepped back from doing because they scared young children who didn't understand them.

There is a parallel reason to be concerned about undue focus on original legislative documents in law, generally, and in constitutional law, in particular. Suppose that it turns out that with advanced imaging techniques or some such, that courts and legal scholars have misread a marginally legible word in the Bill of Rights or Constitution for the past couple of centuries. Should this be legally significant?

Does the actual physical document and true contemporaneous intent of the drafters really matter more than the carefully reasoned and argued collective understanding of the document that has evolved over the intervening two centuries and become the living law?

These moments are not unprecedents in Biblical scholarship, where a copy or translation error can often be pinpointed to a particular generation of copies at a certain time and place. At least one such moment played an important part in the dispute between Trinitarian and Unitarian theologies.

Should our nation's fate be decided by archivists or those actively involved in its public offices for a couple of centuries?

Posted by: ohwilleke | Oct 26, 2009 2:00:04 PM

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