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.
Oh hell, here we go. Let’s get rid of this nasty ol document as it’s stifling our government from doing the right things for the people.
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?
Uhh… well, it’s called representation and the real problem is that our representative are more concerned about being reelected than doing something of any substance. Let me be clear (thanks O), We The People (that would be us) tend to not give a shit about substance but rather we make our decisions more on flash. Ok, so maybe there’s ‘us’ and ‘them’, which unfortunately seems to mean that around 50% of the voters are pretty much brain dead.
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.
Our (the 50% that aren’t brain dead) obsession with such a ‘dysfunctional’ system is that some of us realize that man is greedy and power hungry at heart and that there should be some pretty strict limitations on those who would lead this country… lest they become all powerful (lack of limitations of power) and do as they please. Guys like Hitler, Mussolini, Stalin, Mao, Pol Pot, Chavez and others like them would say much of what this ‘professor’ is trying to say. Mursi is another good example in Egypt, he needs to assume total power so he can do the right things for the country. It’s always for a good reason…theirs.
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. (There’s a reason you are confused bub) 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?
Oh my, suddenly after 40 years the good professor has become enlightened, “our founding fathers had slaves, they couldn’t be too smart”. These guys saw first hand what it’s like to live under the iron hand of a monarchy saddled with a dictatorial church apparatus that was deeply ingrained within England and most of Europe. Again, the oppressed recognize oppression where the oppressor sees their actions as just…all in the name of: __________.
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.
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.
Implied and partial arguments about very specific but minor thinking of some of the framers. Jefferson and Adams were both stout backers of a Republic with strong state powers.
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.)
Make no mistake, the birth of a nation is an often turbulent and violent time, often occupying centuries until the Republic is stable. In our case it has been so for over 30% of our recent history Better stated, changes have been few over the last 50 years. The repeated references to slavery are a thin veiled attempt at proclaiming our imperfections as man however the very essence of the Constitution is that man is flawed and that basic guidelines as to how Government should function should be made to protect the common man. Even still the 2nd Amendment was written to protect those rights when some men see it fit to alter the Constitution by their own means, legal or not.
In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. (It’s always nice to able, as President, to proclaim just how close we should adhere to the Constitution) 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.
And just like that, social programs were born, big government birthed and we ventured down the path towards Social Security, Medicare and Medicaid and more. Funny how those aspirations turn in to legislation and new taxation…. all by your liberal Democrat brethren.
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. (Damn right it should, just because they ignored the Constitution doesn’t make it right) 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.
How about literalism there bub? As in, read it literally, not as how you interpret it . (yeah, I created the word literalism..I think)
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.
Prosper? How so? Economically, philosophically, intellectually? All of the above? Oh wait, just tossing that judgement out there is good enough.
This is not to say that we should disobey all constitutional commands. (Just the ‘commands’ that we don’t agree with) 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.
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.
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.
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.
But to do so would be impossible my leftist Utopian citizen as those before you have chosen to create a radically dependent state of affairs via social programs, unionization and general entitlement. To radically alter our form of government would necessitate readdressing these very things which were born not of national necessity but rather of political necessity. Give it a whirl and see what happens.
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.
Shackles of constitutional obligation? Utopia, man without laws…wait, that’s anarchy isn’t it? Oh no, wait a minute, he means we should be lead by those that are the illuminated, appointed intellectuals such as hisownself, the crowned Professor.
If we acknowledged what should be obvious (to him of course) — 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 (he said it) of a country ruled by “We the people” is impossibly Utopian (and again). 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.
Seidman is/was an acknowledged legal professor but seems to base his theories on Judicial review of settled Constitutional context based society, solely based on the fact that the Judicial branch refuses to respect Constitutional law. Maybe if the Judicial branch’s feet were held to the fire of Constitutional law instead of interpreting it and legislating from the bench then the Founding Father’s ‘intent’ wouldn’t be called in to question. Blame those who do not follow the Constitution, not the framers. Me thinks his views are really accommodations of his internal and whimsical views of government and man and not, by his choice, what the Constitution says, no more, no less.
Once again this is another example of the ‘intellectual left’ thinking they know better and should lead the way for the rest of us knuckle draggers. Our founding fathers recognized the need for LIMITED government and that such limitations should be spelled out briefly and succinctly. My view is that we should quit monkeying around with the Constitution and go back to the basics, start over from scratch using the Constitution as our literal and non interpretive guide to governing. In my view the framers didn’t reinforce the limitations of the federal government and the powers of the states near enough.
A true Constitutionalist Party is needed to give those who desire a limited federal government who’s States handle the real day to day governing of society as a whole but generally leave the people to live their lives. In my oh so humble opinion.
Take a second and read the opening paragraph of the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government…
Thanks to the NYTimes for publishing this piece, it shows their intent to be as unbiased as any ‘news’ outlet can possibly be. ~Patriot