Do you consent to being governed by these people?

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. Continue reading →