Wednesday, January 16, 2013

Louis Seidman: Is the Constitution Outmoded??

After the electoral stomping that President Obama gave to a hapless Mitt Romney as well as the slow transformation of once solidly red states into purple or even blue states, many people on the political left are chafing at limits on Presidential and/or majoritarian power. Whether it's Al Sharpton and Rachel Maddow getting their talking points from the White House and dutifully coming out against whatever the "evil Republicans" are doing or immigration rights activists urging the President to meet their goals through executive orders or law school deans jawboning the Supreme Court to not invalidate a law because the President really wanted it, some folks aren't fond of limited government or separation of powers, at least as long as their guy is in charge.

There's an unseemly amount of outrage, among the Right and the Left that the other side is able to thwart their goals by using procedural mechanisms built into our system of governance. This is currently most obvious among the Left but that's just because the Left is politically ascendant while the Right is still slightly better at unified opposition-or at least it was until the fiscal cliff deal.

If you ever took a civics or political science class, you know that we have three co-equal branches of government. The President doesn't get to make law, only enforce it. The courts can interpret but have no enforcement capacity. Congress can withhold money and write law but can't tell the executive branch what to do. So theoretically, each branch can prevent the other two from carrying out unlawful or unconstitutional actions. And human nature being what it is each branch tends to be jealous of its powers and prerogatives. Purely from spite one branch may oppose another branch and limit its options. This rivalry and jealously should work to the citizens' advantage as there is no all powerful centralized government which can create, enforce and interpret law all at once.

That's the theory of our Constitution.

But reality is quite different. There has been, almost from the beginning, a tendency for the President to stretch his authority and break rules. Sometimes there are strong people in Congress and the Courts to, figuratively speaking, throw something high and inside to make the President stop hogging the plate, so to speak. Sometimes, however, there aren't. Often, majorities don't see why they shouldn't win on everything.

There have been increasingly loud mutterings on the Left about getting rid of the Senate filibuster, having the President raise the debt ceiling unilaterally, dropping the electoral college, eliminating the Senate, ignoring the rule that spending bills must start in the House, and urging Presidential executive orders on every hot button issue that twists their knickers. 

Recently Louis Seidman, a Georgetown law professor, wrote that the time had come to junk the Constitution. Unfortunately he didn't say what to replace it with or, in my view, make a cogent argument about why the Constitution was bad. Seidman made the by now obligatory ad hominems that the Founders were long dead white men, had no idea what challenges we faced today, and were often racist slave owners. That's all true and all in the context he was using, completely irrelevant. Those same dead white men also placed freedom of speech and the right to jury trial in the Constitution. It seems a bit, well, difficult to blast something that you don't like as coming from evil white slaveowners and then keep quiet about things you do like but which came from those same evil white slaveowners. 
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. 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.
The professor assumes that everyone agrees that the Constitution is preventing progress and must be changed. I don't agree. It's frightening that he thinks the laws and constitutional restrictions against government taking of life, liberty or property should be followed just because we respect them, not because they're the law. We're supposed to have a legal system based in law, not fleeting respect. Respect is an arbitrary thing. As the country becomes ever more diverse it is critical to have baseline rules everyone understands. Seidman gives short shrift to the fact that there is a process both to amend the Constitution and to even start from scratch. The problem from Seidman's pov though, is to do that requires agreement from a wide variety of people with different viewpoints. The results might not be what he was expecting. I think Seidman is high on his own supply. But he may have a point that we need to change some things.

So give it a shot. You are Willy F***** Wonka and this is your chocolate factory! You are King or Queen for a day. The below questions are only examples. Don't let them limit you.


You and you alone can rewrite the Constitution. What stays or goes?

Free Speech? Commerce Clause? Police Searches? Presidential Authority on War?

Get rid of state authority completely? No private ownership of guns?

Place abortion rights and equal pay for women in the Bill of Rights?

Ignore the rules about being able to confront witnesses at trial?

Allow 15 yr olds to vote? Prevent people on welfare from voting? Have intelligence tests for voting?

Ban all forms of affirmative action? Make hate speech unprotected by First Amendment?

Eliminate standing armies? Get rid of the Federal Reserve?

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