On Huffington Post’s Live channel this afternoon, Georgetown law school professor Louis Michael Seidman took up the case he made in the New York Times last weekend that the US should (as the Times piece title had it) “give up on the Constitution.” In the Times piece, Seidman wrote:
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….
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?
Seidman argues that what he calls “constitutional disobedience” is not radical or new but has been applied over and over in the nation’s history. “No sooner was the Constitution in place than our leaders began ignoring it,” he wrote in the Times. He cites several big examples, beginning with the writing of the Constitution itself, when national leaders chose expediency over fidelity to the sacred document.
On HuffPo, Seidman the non-radical was met mainly with skepticism from left and right, from defenders of civil liberties as well as from Cato Institute grandee Roger Pilon. The latter said something I actually agree with, that Seidman was getting it “exactly backwards,” suggesting a political solution when our politics is precisely what’s gone wrong. But I think Pilon’s faith in the document is misguided, as I think anyone’s faith in it is.
I do think Seidman is right that it’s counterproductive to believe the key to 21st century problems lies in discerning what was in the minds of the 18th century agrarian slave holders who set the rules of the game we still supposedly play. But I think he’s totally wrong to argue that we can solve any of the root problems impeding our national progress if we don’t scrap, along with the document itself, the dysfunctional institutions the Constitution and history created to make, execute and adjudicate our laws.
The problem with the Constitution–as with any constitution–is that it was written by the powerful to maintain their power over everyone else. I’m not saying they did this with malicious intent. Nevertheless, we like to pat the founders on the back for taking such care with checks and balances and bills of rights, but the upshot of their work was to put in power members of the class who wrote it, in perpetuity, in all of branches of government. Our Constitution then created the system by which it measured the consent of the governed for it, then claimed that this very imperfect measuring tool provided evidence of the consent it sought and let that speak for each generation after, down to now.
If we were to put up for vote the idea that we consent to being governed by this government as it governs, I’m not at all sure it would pass. Our political class might flatter itself to think we offer our consent every election when we vote to fill our political offices, but the voter participation in the US, particularly when the much-hyped presidency is not at stake, is among the lowest of all democracies, which doesn’t speak very highly for our electoral enthusiasm, does it? What would turnout be like if citizens were allowed to vote their confidence in the system itself? Would Americans now vote to hold onto the Electoral College? Would they vote to accept Supreme Court justices with terms for life? Would they vote to have their Congressional districts realigned every ten years by political partisans? When you get right down to it, would they vote to keep the Congress as it is or throw all the bums out and start from scratch? I think the outcome is not so certain, especially if the vote on consent for the Constitution were to last as long our campaigns for president.
Imagine you had that chance. How would you vote? Here’s your chance below. I hope you’ll give it some thought before pulling the lever. And please let me know why you voted as you did–or if you chose not to vote, why not?
Really interesting ideas here, I need to read the full article on HuffPo. I think that as much I would love to see major changes happen in terms of how the document is viewed and interpreted, I would not vote to scrap it without seeing and being able to evaluate what would replace it. (Egypt, anyone?)
I do think that we need some ways to have more of a public voice in interpreting the ideas, and particularly the Amendments, but simply scrapping it all and starting over sounds like a recipe for chaos.
Thanks very much for your thoughtful comment.
I think in a real world scenario, there would have to be some alternative in place. I agree, ditching the paper and the institutions alone would invite chaos, and into that vacuum, who knows what would arise?
I would propose as an alternative a decentralized system on the lines of the internet, in which the constitution that guides it is edited as needed by any of those under it, along the lines of wikipedia. (Steven Johnson proposes something very much like this in his book Future Perfect, which I recommend.)
I expect to write more about this on this blog. I’ll certainly be thinking about it as well.