Louis Michael Seidman, a professor of constitutional law at Georgetown University, has a simple plan for getting the U.S. back on track: Let’s give up the Constitution.
No, really. That’s the title of his New York Times op-ed. His basic argument is that America is not in a perilous financial crisis because of simple, vapid, and dishonest little men. The U.S. is in trouble because of our unreasonable adherence to an outdated document.
“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,” writes Seidman.
An example of “evil” provisions? The insistence on the part of some that all spending bills originate in the House and not in the Senate.
“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?” he asks.
Tell me more!
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.
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?
All the buzzwords are there: White, land owners, men, etc. Actually, now that we think about it, it’s rather remarkable that after teaching constitutional law for 40 years he thinks this “white propertied men” argument is original.
Seidman goes on to argue that the Constitution was born of rebellion and that the founders violated it regularly, including John Adams who supported the Alien and Sedition Acts and Thomas Jefferson who believed that “every constitution should expire after a single generation.”
“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,” he writes.
“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,” he adds.
Seidman disagrees with the idea that digression from the document will lead to chaos, noting that “our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.”
He does, however, note that there are certain things reaffirmed in the Constitution that we should never digress from, including freedom of speech, freedom of religion, and equal protection under the law, adding that these things should be observed out of respect and not “obligation.”
“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,” he writes.
“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,” he adds.
So what’s his argument going forward?
“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,” he writes. “And as we see now, the failure of the Congress and the White House to agree has already destabilized the country.”
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.
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.
And that, Blaze readers, is his argument for why we should give up the Constitution. Sound like a plan?
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