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January 01, 2013

Fisking Professor Seidman's NY Times Proposal To Abandon The Constitution

I've spent two days trying to figure out how to comment on this piece. Ultimately, I find it necessary to take it apart point by point rather than just pull out a point or two for consideration. And let me say this is all the more necessary because the author, Louis Michael Seidman, is a Constitutional Law professor from one of most prestigious educational institutions.

AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Archaic? Well, yes -- in the sense that the document is, in fact, old. Idiosyncratic? To be sure, given it was written long ago with certain provisions made to deal with issues that existed at the time. But evil? Which provisions does Seidman consider to be evil? He never bothers to tell us that. Presumably we'll get that in his forthcoming book, On Constitutional Disobedience (Inalienable Rights). Oh, yeah -- you don't find out that Seidman has written a book on this subject until the end of the piece, at which point you find out that this column is nothing but a long advertorial.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

Of course, you know the reason for that provision. It is one of those archaic provisions that dates back to when the Senate was elected by state legislators and the House was elected directly by the people. Probably that provision ought to be amended away. But apparently you think it takes too much time to follow the Constitutional method for doing that, so you prefer to ignore two provisions of the Constitution rather than follow them both. And as for why "a lame duck House" and "malapportioned Senate" get to decide the nation's fate -- well, the system we have established tells us that is who gets to make the decision, and failure to follow the document that establishes our government delegitimizes any outcome that another method might produce. After all, the Constitution is the document that establishes and defines the legitimacy of the American government. There is a legitimate method for making changes provided by the Constitution itself -- but you recognize that there is neither the will to make these changes nor the likelihood of some of them being accomplished, so you instead propose an illegitimate means for making change.

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

Of course we would be concerned with what Madison and others involved in writing and adopting the Constitution wanted and would have done -- after all, as the authors and adopters of the document, theirs is the source of its original meaning. And since the Constitution is a contract of a sort, that matters.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Let's flip that around. Why should we accept any judgment by one of those government officials to carry out a course of action that the Constitution does not allow for? After all, the document is designed to limit government power and to hamper the ability of the national government to act so as to preserve the sovereignty of the states.

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

True -- but you ignore one important fact. While what we now call the Constitutional Convention exceeded its mandate, the Confederation Congress did, in fact, submit the new Constitution to the states for ratification. As such, the adoption of the Constitution was legitimate -- especially given that all thirteen of the states parties to the Articles of Confederation eventually ratified the new document

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

Well, let's consider these for a moment. Yes, John Adams signed the Alien and Sedition Acts -- which he viewed as war measures during the conflict with France that was underway at the time. And while elements of those bills do offend our modern conceptions of freedom of speech and freedom of the press, one does have to ask why our view of the extent of those freedoms is clearer than that of the generation who wrote both the First Amendment and those laws.

As for Jefferson, his representatives negotiated a treaty that was ratified by the Senate pursuant to the Constitution -- he did not simply agree to the purchase and spend money not appropriated. It is therefore reasonable to argue that Jefferson actually honored the Constitution rather than exceeded it.

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

Lincoln used his power as commander in chief, which is again a Constitutional grant of authority. He did so to put down an insurrection, which was also a part of his constitutional power. And it is even arguable that the irregular manner in which the Thirteenth Amendment was ratified was itself a war measure -- to the degree that there had not been legitimate elections held to create governments loyal to the union rather than insurrectionist bodies, there was no basis for allowing the states of the Confederacy representation. The reconstructed legislatures, on the other hand, were legitimate bodies loyal to the United States and its Constitution, and therefore could legitimately ratify the emancipation amendment.

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.

You quote FDR -- but he was simply wrong. While the Constitution is certainly an aspirational document, it is also a document that imposes obligations upon those federal officers empowered to act by it. And while you are right about FDR's willingness to stretch and warp the Constitution to his own ends, I would suggest to you that his doing so (and the subsequent following of his precedent by his successors) is part and parcel of why our government and politics have suffered gravely in the decades following World War II, as the generations raised with fidelity to the Constitution have passed away and been replaced with new generations, like the new pharaoh mentioned in the first chapter of Exodus, "knew not Joseph". And as for Justice Jackson's position on Brown, I'd argue that he was, in fact, wrong -- for as the elder Justice Harlan noted in his famous dissent in Plessy v. Ferguson, our Constitution does not know distinctions based upon race or color.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.

And therein lies the problem. One side argues that the Constitution means what it says and says what it means. The other prefers to make things up as they go along, the text and history of the Constitution be damned. It should be obvious which of these two schools of thought is correct and which judges and justices are violating their oaths of office. The fact that they have done so does not legitimize their infidelity or their philosophy.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

And no doubt there are those who argue that their marital infidelity has made them happier and strengthened their marriage. That ought not be viewed as making a good case for encouraging extramarital affairs. Indeed, the better argument is that the disregard for the Constitution has brought us to the current impasse and political gridlock.

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

But why shouldn't we discard whatever is momentarily inconvenient. You certainly provide no principled basis for fidelity to any portion of the document. Indeed, we have seen freedom of speech and freedom of religion undermined by demands for hate speech laws and the birth control/abortion mandate in ObamaCare. Equal protection of the laws is a farce when we have affirmative action laws that distribute benefits and burdens based upon skin color. And why should life, liberty and property be respected if they interfere with the "considered judgment [of an official] that a particular course of action is best for the country."

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

But if the principle that the Constitution can be ignored is to be embraced, why not ignore those provisions as well? Why shouldn't we ignore the two term limit for a president, given that it was adopted in a fit of pique over FDR's electoral success? And you've already indicated that the structure of the Senate is problematic -- an executive order making an change in how states are represented there should be sufficient, rather than a constitutional amendment. And as for the Supreme Court having "the power to impose its views of political morality on the country", I'd like to suggest that its having done so in ways contrary to both the text of the Constitution and the will of the people has had a serious role in creating our current political problems.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

Now that first sentence is correct, up to a point. I'd argue that what would change is the legitimacy of the existence of the institutions themselves. After all, if we can ignore parts of the Constitution, why not? Imagine Congress calling a new presidential election to replace an unpopular incumbent following a midterm election -- or a president calling new congressional elections because his popularity is high and that of Congress is low. If we are not bound to follow the text, the argument against these is non-existent. Heck -- while you argue that the Supreme Court "could quit pretending that it decisions. . . were rooted in constitutional text", where is the legitimacy of the Supreme Court to make any decision if we are to reject the Constitution itself as having legitimacy as the lodestone of our system of government?

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

Except, of course, the traditions of the British are rooted in the British monarchy and aristocracy. The political traditions of New Zealand draw upon that same root. We rejected those nearly a quarter of a millennium ago -- and have instead defined political legitimacy as being related to fidelity to the Constitution. You propose doing away with that foundation.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.

Actually, Professor, what you have proposed is not a recipe for political stability. Instead, your porposal will result in political fragmentation. Consider the percentage of the populace that was willing to publicly support secession in the wake of the recent presidential election. One of the key arguments against it was the post-Civil War constitutional consensus rejecting secession. No binding Constitution, no consensus -- and no United States.

If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

You know, I might have agreed with this paragraph if it were not at the end of a piece insisting that the Constitution really is not binding and can be abandoned. Unfortunately, all that comes before leads me to reject it. After all, it is of course a reasonable view that there are a multiplicity of positions and option that the language of the Constitution can accommodate in making policy. Of course most of those positions do not involve violating our that which is at the core of our Constitution -- limited government and individual liberty. But those which do are not merely unconstitutional -- they are, in the truest sense, unAmerican. As are proposals to uncouple our government from the constraints of this -- or another -- written constitution.

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

But don't you see, professor, that a government not constrained by the Constitution cannot be properly ruled by "We the People", and that the belief that it can be is itself impossibly utopian? After all, the Constitution provides the boundaries and constraints of the "mature and tolerant debate" which you argue. Extricating ourselves from those constraints does not further freedom -- it opens the door to the very sort of democratic excesses that the Founders rejected as inimical to liberty when they chose instead to establish a republic with limited government. If you find the Constitution which has been handed down from generation to generation to be too constraining, then exercise your freedom of speech to propose we adopt another one, your freedom of the press to publish your proposal and advocate for it, and your right to petition for a redress of grievances to urge our political leaders to act on that which you suggest. Do not, sir, simply suggest that we unmoor our nation from the document which establishes our government, for to do so is to unship the anchor which keeps our nation from going adrift in uncertain and unsettled political seas and foundering upon the rocks totalitarianism and shoals of anarchy which have claimed many a nation in the past.

OTHERS COMMENTING ON PROFESSOR SEIDMAN'S COLUMN: NewsBusters, Hot Air, JoshuaPundit, Right Wing News, MoonBattery, Volokh Conspiracy, Allergic to Bull (MUST READ!), InstaPundit, NY Sun, Wolf Howling, Legal Insurrection.





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Wow! Great article. Your third paragraph pretty much sums it up. That is when accountability went away in a feel good amendment that let the voter elect Senators directly.Now, they report to no one once they get there, and they are paid for life. How long will we tow the line and say"Hell yeh" I like it, give me more of that crap sandwich. We must, we keep electing these idiots.

|| Posted by JO, January 4, 2013 06:18 AM ||

Great stuff here, Greg. Superb read.

|| Posted by Hube, January 5, 2013 03:15 PM ||
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