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Let's Not Give Up On The Constitution

In a New York Times Op-Ed, Louis Michael Seidman, a professor of constitutional law at Georgetown, states that it may be time to give up our "obsession with the Constitution":

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.

In as succinct a summation as you'll read, Professor William Jacobsen at Legal Insurrection says, "Extra-constitutional power is what they’ve always wanted ... So it’s refreshing when they say it".

Lack of education and understanding of our founding documents is rampant these days (I'm looking at you, Piers Morgan). But it's one thing when it comes from someone from another country - it's quite another when it comes from a constitutional law professor who forsakes his entire profession.

Too bad Seidman can't make a better case. He relies on oft-repeated, oft-defeated arguments that times have changed, we're encountering unprecedented problems, and the Constitution just simply wasn't designed to deal with these strange new concepts of the 21st Century. Along the way, he sprinkles in a lot of ex post facto examples that are intended to demonstrate that "Constitutional disobedience" is not only a regular occurence, but that it is free of consequences and downright patriotic.

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?

Ah yes, the "white propertied men who owned slaves" argument. The idea that the Constitution was written by men of evil intent, and that it actually encodes the provisions of the slave trade. This argument is not new. It has, in fact, been advanced by the Democrat Party since the early 1800s, in one form or another.

In a speech given in Glasgow, Scotland in 1860, Frederick Douglass laid waste to this notion:

... the American statesmen [the Framers of the Constitution], in providing for the abolition of the slave trade, thought they were providing for the abolition of the slavery. This view is quite consistent with the history of the times. All regarded slavery as an expiring and doomed system, destined to speedily disappear from the country. But, again, it should be remembered that this very provision, if made to refer to the African slave trade at all, makes the Constitution anti-slavery rather than for slavery; for it says to the slave States, the price you will have to pay for coming into the American Union is, that the slave trade, which you would carry on indefinitely out of the Union, shall be put an end to in twenty years if you come into the Union. Secondly, if it does apply, it expired by its own limitation more than fifty years ago. Thirdly, it is anti-slavery, because it looked to the abolition of slavery rather than to its perpetuity. Fourthly, it showed that the intentions of the framers of the Constitution were good, not bad.

It has always been understood by Constitutional scholars that the original intent of the Framers was abolition, eventually. Those who argue otherwise merely engage in sophistry, relying on the general public's forgetfulness of our national heritage. Indeed, the 3/5 provision was inserted into the Constitution to give the Southern slave states LESS POWER in Congress. That this is not understood by someone who teaches constitutional law is disappointing, to say the least.

To the idea that slave owners - men of evil intent - were the people who wrote the Constitution, a contributor to my personal blog, 54°40’ Or Fight!, points out that the Framers actually put a poison pill into the Constitution to end the slave trade:

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.”  This provision was set to expire 19 years after our government started.  On March 2nd 1807, Thomas Jefferson himself signed a bill to abolish the slave trade on January 1st 1808, the first possible day under our constitution.

In any event, this is all mere noise designed to undermine the confidence of American citizens in their founding documents, all in the name of allowing the governmental class more power than granted to them by We The People. The core problem with Seidman's treatise is that he fails to acknowledge that limits on governmental power over the people are not only good, but timeless and universal.

Seidman goes on to cite examples of "constitutional disobedience" to back up his argument, but these examples only serve to undermine his own point. He fails to acknowledge that these disobedient acts, such as Franklin Roosevelt attempting to stack the Supreme Court to pass his unconstitutional New Deal legislation, have actually been rebuked by the very checks and balances provided in the document he says we should ignore.

And this is where Seidman reveals his political bias. He only wishes to circumvent the constitutional checks and balances system to pass legislation that he feels is urgent, necessary or politically acceptable. Indeed, he demonstrates this very flaw when he says, "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." The intellectual dishonesty in cherry picking the stuff he likes should be obvious, even to him.

Sadly, he persists. "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." How, exactly, would these checks be legal, if not based on the rule of law? Such a system that is not backed up by a document that is the foundation of our legal system would quickly break down as a president decides which laws he must follow and which he's free to ignore. What would the consequences be?

He engages in much more nonsensical sophistry, but the upshot of his treatise is encapsulated in this sentence: "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." Frankly, this statement is so absurd as to be completely inexcusable from a supposed intellectual. The entrenched institutions, habits of thought and sense that we are one nation were only made possible by the very document which he states we should ignore when convenient. In fact, I would make the case that, in the 21st century, in a nation of more than 310 million people and 37 more states than existed at our founding, having a foundational document upon which all citizens agree is more important than ever.

The ills that Seidman cites are nothing new, and their solutions are provided for in that foundational document. Arguing otherwise is the height of intellectual dishonesty.

Dragon35101's picture
Neal Dorris

Unfortunately quite a few people out there will see his work and end up believing it. If there's one thing that must be done, it's getting articles like this to much broader audiences.

D.G.'s picture
Don Gibson

Sounds like a liberal frustrated by gridlock. Our current gridlock is a product of the way the states manage districts, primaries, and elections. None of that is in the constitution. Maybe he wants it to be in there rather than being left to the states.