The Constitution is SO 200 Years Ago, You Guys

Blowhard, Esq. writes:

constitution-burning1

Georgetown University law professor Louis Michael Seidman, author of the forthcoming book On Constitutional Disobedience, recently had an op-ed in the NYT titled “Let’s Give Up the Constitution” that’s so egregiously stupid and poorly argued that I feel a response is necessary. OK, a response from me isn’t that necessary, but I’m barreling ahead anyway. FULL DISCLOSURE: I got a C in con law so you should probably ignore everything I say. Assuming you’re not wise enough to go elsewhere, following is the op-ed in full interspersed with my sarcastic ranting studied commentary.

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.

So the financial crisis wasn’t caused by the unholy alliance of Washington and Wall Street that’s been widely documented by commentators on the Left and Right, it was caused by excessive fidelity to the Constitution. And the Constitution has “evil provisions.” Uhhhhh, OK. Provocative thesis. Let’s see what evidence he musters.

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?

Wait — Article I, Section 7 is one of those “evil provisions”? For reference, the relevant text reads: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Is he seriously arguing that Congress’ inability to solve the fiscal cliff shit, to reach some sort of compromise, is due to that sentence?

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.

How exactly has the Constitution “kept us” from debating any issue? Examples, please. Maybe the good professor and his colleagues debate Madison’s original intent when Congressional tax cuts come up, but as far as I can tell, the general public argues pretty vociferously about “what is to be done” about such issues without reference to The Federalist Papers or anything else Madison wrote.

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?

Jesus H. Christ, this tired argument. Right, b/c the Founders were white men who owned slaves, they can’t possibly have anything meaningful to say to us more enlightened folk. The idea that we may be morally superior to the Founders regarding slavery, but intellectually inferior and less mature when it comes to politics, is apparently a point too subtle for some to grasp. Need anyone be reminded that those same Evil White Men also wrote the Bill of Rights?

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.

Alright, sometimes a legal framework doesn’t work and a new one is necessary. I can get behind that general principle.  Last time I checked, though, Article V was still in the Constitution.

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.

Yes, the president through our history has frequently exceeded his authority when it was expedient or advantageous to do so. Good point. It is the nature of those in power to accrue more power. But this is a problem endemic to any system of government and not at all unique to our Constitution. See: The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics

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.)

Let’s go back to the original argument: “But almost no one blames the [real] culprit [of our dysfunctional government]: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.” His only evidence so far of our alleged slavish obedience is found in the 2nd paragraph. Every other example he’s offered is of our leaders disobeying the Constitution. His evidence is undercutting his thesis. It seems the problem is not following the Constitution too much, it’s not following the Constitution enough.

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.

See previous remarks about overreaching executives.

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.

My favorite example of this is Griswold v. CT, the 1965 case in which the Supreme Court established the right of privacy. At issue was a Connecticut law that prohibited the sale of contraceptives. In one of the most hilariously bad majority decisions ever, Justice Douglas, who clearly missed his calling as a contortionist, said the right of privacy, while not explicit in the Constitution’s text, could nevertheless be found implicitly in its “penumbras” and “emanations.” In his dissent, Justice Stewart said the CT law was “uncommonly silly” yet constitutional.

In a stroke of the pen, Justice Douglas created a right where none previously existed, that is found nowhere in the Constitution’s text. Again, this is an example of elites disobeying the Constituion, not following it. I still don’t see how this evidence supports the proposition that the reason the federal government doesn’t work is due to too much adherence to the Constitution.

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.

Who says originalism and living constitutionalism need to be reconciled? Only idealogues are bothered by a lack of across-the-board doctrinal consistency.

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.

Yeah, people say a lot of things. So what.

Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

I dunno, I guess. Might be more accurate to say the country has grown in spite or irrespective of such flagrant disregard.

This is not to say that we should disobey all constitutional commands.

Oh, that’s a relief. Nice to know the rule of law is still a thing with this guy.

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.

Empty rhetoric. Yes, laws should be followed “out of respect, not obligation” but people cannot always be trusted, can they? Enforcement mechanisms are necessary. Has this dude ever studied international law, where such enforcement mechanisms don’t exist? Compare how governments react to UN resolutions v. people or businesses subject to threat of fine, arrest, or lawsuit by another party.

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.

Bro, I thought you were arguing that the Constitution is holding us back? Now you’re telling me that parts of it are OK? Who gets to decide which parts stay? Perhaps it would be better, I dunno, to amend the parts we don’t like? Or — I know this is radical, but this thought just occurred to me – maybe we should take the powers not delegated to the federal government by the Constitution, nor prohibited by it to the States, and reserve those powers to the States respectively, or to the people? Crazy, I know, but think about it!

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.

I agree that we should not have an all-powerful president, but I don’t see Congress or the states doing much to reign in his power. And I’d still like to know how casting off the Constitution would make that task easier.

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.

I’m not sure what “political morality” is compared to plain ‘ol “morality” but I have to reach for the air sickness bag when I contemplate nine type-A, overachieving, Ivy League assholes dictating anything beyond whether a piece of legislation or executive action is constitutional. As the professor points out, they’ve done a bad enough job at their supposed job over the years, so I dunno why he wants to give them broader power.

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.

The War Powers Clause states that only Congress has the power to declare war. It seems to have abdicated that responsibility. Besides, Obama, Bush, et. al. have always justified miliary action, the arguments were just bullshit.

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.

What’s abstruse about “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”?

The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

Or, y’know, it could point to the Tenth Amendment. Or the Supreme Court could say, “Wow, that brand new right you just invented 15 minutes ago is so awesome. But it’s not in the Constitution.”

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.

So far, all I’ve seen is that you can’t argue your way out of a paper bag, dude. You still have provided virtually no evidence that adhering too closely to the Constitution has “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.

Right, but their traditions are not our traditions. What works for Britain and New Zealand might not work here. How’s that democratic flowering going in the Middle East, by the way? Do you think that example might hold some lessons?

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.

*makes universal jerk-off motion*

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.

I’d like to point out, yet again, that the only evidence he’s offered that rigid Constituional adherance has brought us to this point is found in the second paragraph re: Article I, Section 7. Every other example is of some leader flouting the Constitution.

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.

As a law professor, he should know that statutes are intentionally drafted in broad language because the drafters cannot anticipate every sitution. Thus, they leave it to the courts to elaborate the rules on a case-by-case basis. This is a key difference between the Anglo-American common law tradition and Continental statutory law.

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.

Who’s being “forced” to give up such judgments? Good Lord, does this guy have the slightest clue about how to support his assertions?

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian.

Yes, with a population of 300 million plus, such a dream might be unrealistic.

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.

Or we could just extricate ourselves from overpaid con law experts who have managed to elbow their way onto opinion pages to engage in shoddy trolling.

A Facebook friend who works in Washington D.C. said this piece isn’t meant to be taken seriously, Seidman likely wrote it to make a name for himself in the Georgetown social scene. She said, “I have never been to one of those parties but my impression is that people don’t go there to have fun. They go there to feel superior to their friends and relatives who don’t get invited and to try to make yourself look smarter, hipper, wealthier etc. than the other guests.” Sounds like a dreadful gathering for dreadful people.

More:

LMS

About Blowhard, Esq.

Amateur, dilettante, wannabe.
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15 Responses to The Constitution is SO 200 Years Ago, You Guys

  1. Paleo Retiree says:

    Excellent Fisking. I wonder what Kate Upton has to say about the topic …

    Like

  2. Days of Broken Arrows says:

    If this was written just to be provocative, the writer doesn’t have an original enough point of view to make it work. I agree the “white propertied slave owners” is really cliched. What’s ironic is that the same people who decry such things have no qualms about product from China or South American sweat shops being sold in our country. Some slavery is more equal than others, it seems.

    Like

    • infovore says:

      Seidman only said “white propertied slave owners” because most people wouldn’t understand what he really wanted to say, which was “dumb goys”.

      Like

  3. dearieme says:

    “Some slavery is more equal than others”: well, real slavery is less equal than figurative slavery.

    Like

  4. Fabrizio del Wrongo says:

    The funny (or, I guess, not funny) thing about slavery is that it’s been the norm for most of human existence. So if we’re going to disregard all of the ideas and innovations had and made by people who supported slavery in some way, we’re going to have to disregard just about all of human history. If you read an old novel like ROBINSON CRUSOE, you’ll be shocked by now accepting the characters are of slavery. Crusoe is enslaved a couple of times, and he just takes it as something normal — bad, to be sure, but certainly not unexpected or even necessarily wrong. And the first thing he does upon being freed is rustle up his own slaves.

    Consider this: According to many historians, the Slavic peoples are so named because, during the middle ages, the Vikings and other Europeans used them as a slave stock, trading them out to Islamic peoples and others. At that time the Slavs weren’t Christian, so their European neighbors didn’t feel particularly guilty about enslaving them. They were destined for hell anyway.

    Also, as DOBA mentions, it’s worth thinking about exactly who qualifies as a slave and who doesn’t. Plenty of people in the modern world aren’t slaves in the technical sense, but they might as well be given their working conditions and their relationship with their government. In fact, I think a lot of this “America is bad due to its history of racism” stuff derives from Soviet propaganda…which is funny considering the kind of totalitarian police state the Soviets favored. (Hey, if you’re stuck in the Gulag system for years on end because your neighbor has identified you as a “wrecker,” I guess you can take solace in the fact that you’re a valued member of the Socialist Republic and not just another effin slave. Solzhenitsyn believed that the entire gulag system was maintained, in part, so that the Soviet leadership had a slave workforce at its disposal.)

    Here’s a provocative post on this sort of thing:

    http://esr.ibiblio.org/?p=260

    I have no idea how valid his “memetic warfare” idea is, but the list of propaganda memes favored by communists is a hoot. This one has cropped up a lot in the wake of the Sandy Hook/gun control debate:

    “For a virtuous person, violence and war are never justified. It is always better to be a victim than to fight, or even to defend oneself. But ‘oppressed’ people are allowed to use violence anyway; they are merely reflecting the evil of their oppressors.”

    Like

  5. Toddy Cat says:

    Actually, it’s good that our elites are coming right out and saying this. I mean, we all knew that they felt this way, but its good to have all of the cards on the table. If the Left wants to run on a “Lets abandon the Constitution” platform, let ‘em. We’ll see how that flies…

    Like

  6. epiminondas says:

    Those of us who are descendants of the Founders start to REALLY get itchy trigger fingers around people like Seidman.

    Like

  7. Pingback: Assorted links

  8. The constitution deliberately disenfranchises me. As a resident of California, my voice in the U.S. Senate counts about 1/76th as much as that as a resident of Wyoming. This is tyranny. It’s reason enough to abandon the constitution. Though ur right, the original argument is totally full of shit.

    Like

    • Toddy Cat says:

      No offense intended, I’m sure you’re a great guy and an ornament to the Republic, but given the mess that California is in right now, I’d say that ratio is about right. If you want your vote to count for more, move to Wyoming, you’d probably like it better anyway.

      Like

  9. chuck martel says:

    OK, maybe the Constitution has been a positive for the ordinary American. But, if it’s a “social contract” I’m not on the bandwagon because I’ve never signed it, as if signing something actually has any meaning anyway.

    Like

  10. Fenster says:

    Seidman writes:

    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?

    I am not sure I get this. For one, there was an original rationale to the idea that revenue measures should originate in the House. It was held to be closer to the people and less likely to spend on aristo fancies–which is kind of what the current situation is. But then Seidman introduces the notion of the “malapportioned” Senate. What is he saying? The fact that the Senate is “malapportioned” would seem to add weight to the notion that the framers got it right in the first place. Beyond which, the Senate poaches on this territory anyway, as indeed it did last week. The House went into gridlock after the failure of Boehner to get Plan B past the tea partiers and the action shifted to the Senate, where the compromise on taxes by Biden and McConnell created leverage forcing the House to act.

    Like

    • Blowhard, Esq. says:

      >>But then Seidman introduces the notion of the “malapportioned” Senate. What is he saying?

      I didn’t understand that either. Given the very nature and raison d’etre of the Senate, to give smaller states a voice, is he saying he has a problem with the very idea of a counterbalance to the House? Isn’t only logically possible for the House to “malapportioned”? The dude isn’t making any sense (or I’m obviously missing something).

      Like

      • Joe says:

        It screamed insecurity to me. Maybe the article was a response to someone critiquing his book at a party? Creates insecurity, writes op-ed. But my instinct (which by definition was based on literally zero mental energy) is he’s trying to defend the point of some stupid girl hes trying to sleep with. i don’t know why i think that. Maybe its the deflection? The Hobbesian projection I think. It kind of sounds like the BS that I spew to my friends who cant argue properly when i made a far-too-bold statement i cant back in conversation where I’m trying to impress someone. You know what i mean, just to win the argument. Cause I’m pretty sure I’m always right? Like Louis Seidman.

        Like

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