Progressive jackassery asymptotically approaches treason

The New York Times has always been a danger to The Republic,
but they have now jumped the shark: Let’s Give Up on the Constitution.
(For those of you who refuse to honor the NYT with a visit, I’ve posted the article BTF.)

NYT Op-Ed BTF: »

Let’s Give Up on the Constitution
By LOUIS MICHAEL SEIDMAN
Published: December 30, 2012
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.

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?

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?

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.

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.)

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.

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.

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.

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.

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.

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.

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.

Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book “On Constitutional Disobedience.”

Four major points:
1. The US Constitution is a contract between the Federal Government and the People and States of the Union.
The Federal Gov’t was created by the stroke of a pen by that contract — it is not the creation of any god, nor is it a state of nature — and it has no legitimacy outside that contract.
2. The US Constitution contains within itself the means to be amended — to adjust, alter, or remove any provision which the people and States agree are inadequate, outdated, or obsolete or to add new provisions — but Progressives do not propose amendments.
3. The only thing that stands between the people and tyranny, between governing and ruling, between being a citizen and being a subject, is the government’s adherence to the constitutional contract.
4. If the US Constitution is abandoned or ignored, then the fundamental principles of the Declaration of Independence apply; and the natural rights noted therein may be re-established by any means necessary.

The historical examples Seidman cites as justification for abandoning the contract are the same examples conservatives use for re-establishing and enforcing the contract. He 180-degrees out of phase.

Whining that the Constitution makes governing haa-ard *sniffle* [stomps foot] is no justification for abandoning that contract.
As a matter of fact, it’s the whole. friggin’. point !

9 Comments!

  1. PeggyU
    Posted December 31, 2012 at 12:32 pm |

    I went and read it at the New York Times page, just to see if there were comments following. That is not a feature. Not going to follow it on Twitter or Facebook, though. I was curious to see how many people would comment in support of what the douchebag wrote.

    What is wrong with our government isn’t the Constitution. It’s undisciplined, unprincipled people like Seidman who fail to grasp that contracts actually mean something, and that ignoring them has repercussions. What does the asshole want? Anarchy? At least that would put him out of a job.

  2. Posted December 31, 2012 at 1:00 pm |

    I think you spelled “asymptotically” worng.

  3. John A
    Posted December 31, 2012 at 1:25 pm |

    The USSR constitution, under which Stalin ruled (and as Party Secretary helped write) was a very pretty thing with lots of guarantees of freedom and other things we might approve: it’s just that it was only paper. At least ours is parchment, right?

  4. Jess
    Posted December 31, 2012 at 2:18 pm |

    Our constitution is much different. It has the second amendment in the Bill of Rights. It’s the fail safe clause and those seeking power are wetting their pants knowing it’s there and the citizens are preparing.

  5. dick, not quite dead white guy
    Posted December 31, 2012 at 4:29 pm |

    The problem is that the government is breaking the contract by operating outside the bounds placed on it by the Constitution. Seidman is not only 180° out of phase, he is inside out, upside down and a pseudo intellectual asshole to boot.

  6. Old Reliable
    Posted December 31, 2012 at 5:04 pm |

    What Jess said.

  7. Fred Jameson
    Posted December 31, 2012 at 7:24 pm |

    “support and defend the Constitution of the United States against all enemies, foreign and domestic”.

    That’s what I swore to do. Seidman seems to fall into the latter camp, as would any elected politician who followed this advice.

  8. Steve Skubinna
    Posted December 31, 2012 at 11:39 pm |

    So let me see… the politicians, who are elected to their positions under the rules of the Constitution, and who swear an oath of office to uphold it, are not really bound by it?

    Leftist logic at its most lucid.

  9. Posted January 1, 2013 at 8:26 am |

    In 1975, I swore an oath to Protect and Defend said Constitution, from all enemies, foreign and domestic.

    I have never unsworn that oath.

    Jim
    Sunk New Dawn
    Galveston, TX