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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.........
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."
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.........
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."
Wow--progressives are coming out of the closet. This piece is pure progressive anti-constitutional fallacy loaded with its contradictions and vague suppositions.
He opens with "As the nation teeters at the edge of fiscal chaos . . . almost no one blames the culprit: our insistence on obedience to the Constitution," but ironically fails to see that the fiscal cliff thingy is a result of disobedience to the Constitution.
He wonders "why does a grotesquely malapportioned senate get to decide the nation's fate?" And why should anyone care that the Constitution requires that revenue measures originate in the "lower" chamber, and why should that chamber "have a stranglehold on our economy?" He doesn't mention that the senate would not get to decide the nations fate so readily if the progressive 17th ammendment would not have given them so much power, and that the "malapportion" was a PROTECTION against the central government having supreme power over the states. Nor does he seem to understand that the "stranglehold on our economy" is a result of the unconstitutional transfer of power from the people to the central government. His whole thesis throughout his essay is an argument for and about central power. Their is no discussion of state sovereignty or the sovereignty of the people--only the unilateral decision of "reasonable" bureaucrats. He speaks as an elitist who deems that "our economy" should be in the hands of a central bureaucracy freed from constitutional restraint rather then in the hands of the people who are protected by the Constitution from that bureaucracy. He blames the Constitution for keeping us from debating the merits of devisive issues and inflaming our public discourse. He is, apparently secluded in his ivory tower, not aware of the ongoing debates on those issues that actually do exist, and that inflamatory public discourse derives from individual perspectives. He would quiet that discourse by more efficiently channeling the debate through discussion by select experts rather than by the freedoms reserved to the people by the Constitution.
He considers adherence to constitutional law to be "bizarre," then creates a scenario where "a" president or "a" party leader in congress "reaches a considered judgement that a particular course of action is best for the country" then "someone bursts into the room" and says that some dead white men who thought it was fine to own slaves, etc., might have disagreed with his course of action. He reduces the argument to absurd simplicity. He bizarrely attributes such absurdity to adherence to constitutional law??? All white men will eventually be dead as are all those white men who have disregarded the Constitution. And most of the founders did not think slavery was a fine thing, even many of them who owned slaves, but had to allow it in the Constitution to ratify it, and with its precepts and provisions that it would eventually be eradicated.
He then goes on about "the long history of disobedience" to the Constitution and how that has not produced chaos or totalitarianism but has helped us to grow and prosper. He does not explain how that prosperity was more likely a result of the constitutional liberty of the people rather than dissobedience to the Constituition, nor, indeed, how disobedience created our national bankruptcy and dwindling prosperity.
He, incredibly, then goes on about how we should not disobey ALL constitutional "commands," mentioning the most important ones which we should continue to obey out of "respect" not "obligation." And that we should not change the existence of the constitutional structures, but "the basis on which they claim legitimacy." That is, policy, not principle would be the basis for their existence. He seems to beleive that policy is a precept divorced from mere opinion. That one official's policy is, ipso facto, better than another's. That one bureaucratic expert's opinion/policy is better than another's and that all political policies created by elite politicians are superior to individual desires and the divided wills of the people. Policy by the elite shall rule.
He then goes on with the amazing juxtaposition: "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." WHAT??? He has admittedly throughout his piece pointed out that the Constitution is and has been disobeyed while at the same time we are obsessed with adhering to it. So which is it? Are we surviving because of disobedience or is the country destabilized because of it? Under the Constitution, the president executes the laws of congress, he doesn't negotiate them. Disobedience has made the president a co-equal, or more, legislator. And that unconstitutional condition is not the sole reason for destabilization. How about the disobedience of all branches of central government to adhere to their enumerated powers which would preclude them from creating the massive central bureaucracy that spends and controls beyond the power granted to them and even makes them ALL legislators--including the judiciary and the unconstitutional shadow government of regulatory agencies. If the bureaucratic, adminsitrative, unconstitutional state of central government that hovers over us is so beneficial, why is there this destabilization and fiscal cliff? Why is the Constitution, which is disobeyed, the problem?
He even advocates drawing on resources such as Britain and New Zealand who don't have written constitutions but have systems of parliamentary "supremacy" as models. Isn't Britain deeper into fiscal cliffs than we are? And yet he also likes their being "held together" by longstanding traditions and accepted modes of procedure and ENGAGED CITIZENS. Yet he calls our relatively young Consititution "ancient" as if that were a detriment. How old is the British unwritten constitution and longstanding tradition and procedure? And how old is the concept of centrally dictated, bureaucratic government? All are older and more "ancient" than our Constitution.
He speaks of "much constitutional language being broad enough to encompass an almost infinitely wide range of positions." That is the nature of language itself. Its functional purpose of entirely transferring thought from one mind to another is impossible, but the purpose of language is usually to do so. So if we pretend because of the imperfection of language that it is impossible to communicate concepts, then the idea of government would be impossible, as would most facets of society. Because of this, he relegates constitutionalism to " . . . a place for discussion . . . rather than as a tool to force others to give up their moral and political judgments." And, yet, isn't it, indeed, the Constitution that not only allows discussions but guarantees individuals their moral and political judgments. Is it not, on the contrary, the unconstitutional centralized administrative state that suppresses those judgments into a one-size-fits-all judgment?
He seems to have missed the point that not only has the Constitution, which guarantees individual liberty been disobeyed, which to him is a good thing, but that it has not been merely "a place for discussioin" that has ensued, but an entirely new system of government, one that limits our ability to "give real freedom a chance." And by force of the power which it has usurped from the People, caused them to be less "engaged citizens" in self-government and more dependents of that central government.
All of this Fiscal Cliff nonsense is nothing but a dog and pony show to keep the public distracted and muddy the already molasses-thick waters that is our bloated and corrupt federal budgeting. Neither Congress nor our President have a sense of fiscal responsibility to anyone except those that pad their pockets.
Senator Coburn from Oklahoma said: "If We Raise Taxes, We're Just Going To Use It To Grow Government." While he was correct in that aspect, he then voted Yea for a bill that increases the tax burden on Americans.
I recently read a statement: "Today, the only difference between Democrats and Republicans is how they'll spend the money they steal from you."
Quote:
Originally Posted by scottw
I knew you'd like that...
I think he mentioned that he teaches or taught Constitutional Law ...apparently the same version as our President...
Those who best know and understand the law are also best-suited to exploit it. There was more than one major push last year by our lawmakers to completely stomp on the Constitution. The biggest offense was National Defense Authorization Act for Fiscal Year 2012 which could have subjected American citizens in the country to indefinite detention, a-la the Chinese government.
He seems to have missed the point that not only has the Constitution, which guarantees individual liberty been disobeyed, which to him is a good thing, but that it has not been merely "a place for discussioin" that has ensued, but an entirely new system of government, one that limits our ability to "give real freedom a chance." And by force of the power which it has usurped from the People, caused them to be less "engaged citizens" in self-government and more dependents of that central government.
First off, I think this may be the longest sentence you've ever written.
Second, I think the tone of this opinion was very successful in gaining your attention. I'd suspect that the headline and opening salvo was meant to be taken a bit tongue in cheek.
Third, the opinion to me at least simply says we're using the Constitution as a divisive tool rather than a constructive tool and on this point I'd have to agree.
Perhaps the author's message is this...try and figure out what's the right thing to do, then look to the Constitution for guidance rather than just looking to the Constitution for the solution. I've read the damn thing so many times I know I can't tell for sure what it's all about...especially that pesky Second Amendment.
First off, I think this may be the longest sentence you've ever written.
Nah, I've written longer ones. Besides, it's actually two sentences. There's a period in there amongst all the words. But I hate that almost every time I type a word ending in ion I manage to add an extra "i" as in ioin. Can't always manage to catch and edit out the extra "i"s since so many words end in ion and I write such long winding and pompous sentences. Gotta work on that shorter, punchy, style.
Second, I think the tone of this opinion was very successful in gaining your attention. I'd suspect that the headline and opening salvo was meant to be taken a bit tongue in cheek.
Spot on. Not only the tone, style, shading, intent, and progressive view of govt. got my attention. Above all, his blatant, if not refreshing honesty. I don't think he meant any part of it to be taken as tongue in cheek.
Third, the opinion to me at least simply says we're using the Constitution as a divisive tool rather than a constructive tool and on this point I'd have to agree.
How do you use the Constitution as a divisive "tool" except by claiming that it stands in our way? Divisions of political opinion exist naturally outside of it. The Constitution unites divided opinions within a structure of government that allows those differing opinions to coexist. But its structure "divides" government powers in order to check and balance those powers against the tyranny of an undivided, unitary central government. It unifies the nation and guarantees the union of sovereign differences by dividing its own power. That is what makes it a constructive "tool" rather than a divisive one. Those who wish to eliminate the "divisive" checks and balances, as progressives do, in favor of a central power that acts in unison will impose favored opinions against the unfavored, and will be divisive of society.
Perhaps the author's message is this...try and figure out what's the right thing to do, then look to the Constitution for guidance rather than just looking to the Constitution for the solution. I've read the damn thing so many times I know I can't tell for sure what it's all about...especially that pesky Second Amendment.
-spence
Often the problem is not just the right thing to do, but who is to determine that right thing. The Constitution doesn't create solutions, it determines who is responsible for those solutions. Why we so often go astray and why it is so often hard to determine what the Constitution means is that power is expressed by those who do not have constitutional authority to express it. That is determined by the structure and language of the Constitution, and that is not vague or indeterminate. The problem with the progressive view of government is that ultimately a central group of experts have nearly unlimited authority to express and enforce power.
Last edited by detbuch; 01-01-2013 at 05:10 PM..
Reason: typos
The problem with the progressive view of government is that ultimately a central group of experts have nearly unlimited authority to express and enforce power.
which explains why Spence has "read the damn thing so many times I know I can't tell for sure what it's all about"
It's all disgusting to me. We've all seen how past voting records have been used as weapons in elections. There is not one member of Congress that isn't weighing that, partisan politics, and their own pocketbook into their vote. Accountability and "transparency" are actually working against getting the right thing done here. I say lock them in a joint session until they get an agreement, no media, and have a non partisan arm such as the Supreme Court be the vehicle to deliver the voted bill to the president's desk. Maybe then we could get these jackwads to do something without the fear of culpability to their party and those they "owe."
The Fiscal cliff and the Debt Ceiling are but two minor annoyances compared to the real problem facing us: The Total Fiscal Liability of our country. Take every last dollar everyone in the country earns this year and it does not solve the problem.
[QUOTE=nightfighter;977475 There is not one member of Congress that isn't weighing that,
partisan politics, and their own pocketbook into their vote. [/QUOTE]
And threrin lies the problem, NOT the Constitution, but the current elected officials sworn to uphold it.
The Constitution was a pefect document set up by the founding fathers to keep our freedom and liberty,
to be upheld by true statesmen who's sole purpose was to represent the people with honor and integrity.
Sorry to say, men like that don't exist anymore.
Nah, I've written longer ones. Besides, it's actually two sentences. There's a period in there amongst all the words.
And indeed it is. I was starting to prep for dinner and perhaps not giving your post my full attention.
Quote:
Spot on. Not only the tone, style, shading, intent, and progressive view of govt. got my attention. Above all, his blatant, if not refreshing honesty. I don't think he meant any part of it to be taken as tongue in cheek.
The idea that a Constitutional professor of 40 years would suddenly advocate ripping it up resembles a literary hook more than anything else.
Quote:
How do you use the Constitution as a divisive "tool" except by claiming that it stands in our way? Divisions of political opinion exist naturally outside of it. The Constitution unites divided opinions within a structure of government that allows those differing opinions to coexist. But its structure "divides" government powers in order to check and balance those powers against the tyranny of an undivided, unitary central government. It unifies the nation and guarantees the union of sovereign differences by dividing its own power. That is what makes it a constructive "tool" rather than a divisive one. Those who wish to eliminate the "divisive" checks and balances, as progressives do, in favor of a central power that acts in unison will impose favored opinions against the unfavored, and will be divisive of society.
While I'd agree with your description I think that's also a central argument made by the Opinion...perhaps you and the author share more than you'd care to admit?
Quote:
Often the problem is not just the right thing to do, but who is to determine that right thing. The Constitution doesn't create solutions, it determines who is responsible for those solutions. Why we so often go astray and why it is so often hard to determine what the Constitution means is that power is expressed by those who do not have constitutional authority to express it. That is determined by the structure and language of the Constitution, and that is not vague or indeterminate. The problem with the progressive view of government is that ultimately a central group of experts have nearly unlimited authority to express and enforce power.
I'd disagree that the structure and language of the Constitution is always that clear. While the Founding Fathers were certainly remarkable it's not like those who have followed have all been inept. Interpretations over the last two centuries are just as much a part of the American fabric as are the original words or subsequent amendments.
The idea that a Constitutional professor of 40 years would suddenly advocate ripping it up resembles a literary hook more than anything else.
Professor Seidman's article "Let's Give up on the Constitution" is a culmination of his 40 years of study and thought on the subject. It is not a sudden opinion and the title is meant seriously, not as a literary hook. He is writing a book soon to be published on the subject which you might read and, I guess, find much if not all, to agree with. As for the article, I find very little with which to agree. His impetus to disagree with adherence to the Constitution stems from how he considers it so readily to have been disregarded, even by the founders. He mentions Jefferson believing that he had no constitutional authority to purchase the Louisiana territory on his own. While Jefferson had doubts about that, he was not necessarily right in his belief. To begin with, a treaty signed by the executive with a foreign power still has to be ratified by the senate and funded by congress if money is required. He had to make the snap purchase without congress only because Napoleon insisted on the immediate purchase or it might not happen. It was too beneficial in every respect not to do it, but there was no time to go through "proper" congressional procedure. The deal could still have been denied by Congress, but the majority saw that it was too good to pass on so they approved it, and all was, eventually, constitutionally confirmed. Maybe that's why Seidman says that Jefferson believed his action unconstitutional, rather than saying that it actually was. He mentions Lincoln's supposed unconstitutional acts in the Civil War. Those are also disputed as being unconstitutional, but the major irony is that the freeing of the slaves was the worm in the bud of the Constitution and that was corrected. The Adams Alien and Sedition Acts that he cites were undoubtedly mostly unconstitutional, and all but one of the four were soon abolished, constitutionally. Yes, there were attempts to circumvent the Constitution from the beginning, even by founders and, possibly, by the great Lincoln. But the founders understood that men are fallible and the people must be shielded against tyrannies, even by those they themselves would impose. Which is exactly why an instrument such as the Constitution was necessary to protect the people's natural liberties. To say that the Constitution should be abandoned because it has not always been followed, is, ultimately, to say that laws should be abandoned because they are broken. The founders believed the reverse, laws must be instituted because all men, especially those who govern, are prone to lawlessness, and must be restrained from that inclination even if not all such lawlessness can be avoided. Ultimately, they believed for that reason that freedom and the Constitution would not be possible if we as a people are not for the most part virtuous.
Seidman makes other false analogies, such as "In the face of the 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." Quite the contrary, constitutionalists don't fear a reversion to Hobbes's version of the state of nature. They don't believe such a state exists, rather they ascribe to John Locke's version of nature and natural rights. What they fear is the reversion to the ancient form of Hobbesian Leviathan, of the ruler's absolute authority as defined in the Stanford Dictionary of Philosophy:
"The Leviathan must be neither divided nor limited. The powers of legislation, adjudication, enforcement, taxation, war making . . . are connected in such a way that a loss of one may thwart effective exercise of the rest."
It is that consolidation of power that constitutionalists fear and for which the Constitution was instituted to prevent. And it is, indeed, the direction that disobedience to the separation of powers in the Constitution is leading us.
While I'd agree with your description I think that's also a central argument made by the Opinion...perhaps you and the author share more than you'd care to admit?
Actually, Seidman and I do not share what appears to be his argument for freedom from constitutional restriction. His argument for freedom from the Constitution is GOVERNMENT'S freedom from the Constitution. My concept of freedom is in accord with the Constitution's restraint of government's freedoms which are limited by those powers granted to it by the people, not the freedom of government "experts" deciding what the limits of our freedom are. The difference is fundamental, and the progressive thrust is toward the Leviathan.
Seidman's statement that "the deep-seated fear that such [constitutional] disobedience would unravel our social fabric is mere superstition" is an over-statement. We do not fear that it will unravel the ENTIRE fabric--much of which has more to do with cultural, religious, and natural heritage than with the Constitution--but that it will change the relation of the citizen to the State. And that portion of the fabric has been unravelling at a quickening pace which began in earnest with the progressive movement and especially with the constitutional disobedience of the FDR era. That is when disobedience, different in type of most previous disobedience, massively involved freeing the State to dictate to the individual in ways that the Constitution prohibited, and was done wilfully, as the FDR braintrust admitted. They knew their legislation and regulations were not allowed by the Constitution, but their progressive concept that government grants rights and must have the freedom to efficiently rule at will was ultimately for the people's benefit.
I'd disagree that the structure and language of the Constitution is always that clear. While the Founding Fathers were certainly remarkable it's not like those who have followed have all been inept. Interpretations over the last two centuries are just as much a part of the American fabric as are the original words or subsequent amendments.
-spence
Jefferson would have agreed with you to the extent that, as he wrote in an 1816 letter "Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond ammendment."
It is not that those who have followed have been inept. They have been too ept. They have "interpreted" and sometimes ammended with a different purpose than that for which the Constitution was written. The original intent was optimal individual freedom, especially from central tyranny. The progressive intent has been to transfer that freedom from the individual to the government. So the interpretations and ammendments have made the government stronger and the individual weaker, more dependent on the strength of government. Though Jefferson did not see the Constitution as "perfect" which would be impossible for fallible men to create, he believed in ammendment not abandonment. He even recommended that it be periodically ammended to fit future generations. But he saw the structure of governement in the Constitution as one to be continued "so that it may be handed on, with periodic repairs, from generation to generation, to the end of time, if anything human can so long endure."
So, when Seidman ends with "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" he is speaking of government's freedom to rule with expedient and efficient discussion and opinion of "experts" not the citizen's freedom from government to rule as it wishes.
What he advocates, implicitly, is rule by men, not rule of law. He is an example of how law schools have produced judges who rule progressively rather than constitutionally. And the irony is that he doesn't seem to know how successful this has been. He talks about abandoning the Constitution as if it were the problem. The Constitution has already been abandoned bit by bit so that it is barely hanging on with the thread of what is left. The fiscal chaos to which he attributes the cause as clingling to constitutional formalities is none of that--it is the disobedience to the structure and intent of the Constitution to reign in the very extravagance that the Federal Government now has the power to exert. And the regulatory "experts" that have been spawned will continue to cast an over-arching web of control over us--for our own good of course. But it is they who have the power now, not us.
And, contrary to his "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," rather the almost infinitely wide range of positions are not expressed or commanded by constitutional language. What is circumscribed in the Constitution is that various types of positions are to be legislated, enforced, or adjudicated by various branches of gvt. so long as those types fit into the realm of enumerated powers. Types of positions which are not circumscribed by the enumerations or by the limitations of power granted to those branches are the province of the states or the people to debate or regulate. So-called problems of "interpretation" arise, usually, when legislators and/or judges wish to make laws/policies/positions fit the Constitution even when they don't. The logic and law must be twisted and contorted into positions that are barely recognizable by the concocted definitions that purport to describe them. The jurisprudence of constitutional disobedience has always been the wilful twisting, if not outright lying, of concepts--legal, moral, or social--to make legislation appear to fit constitutional construction. And they use various progressive judicial philosophies.
Seidman says "the two main rival interpretive methods, 'originalism' (divining the framer's intent) and "living constitutionalism' (reinterpreting the text in light of modern demands), cannot be reconciled." But the two rivals are more complex. Originalism is accompanied by formalism, textualism, strict construction, intent, as means to apply the actual constitution as written. "Living constitutionalism" is a hodge-podge of several methods of "interpretation" concocted by progressive theorists to escape from the actual Constitution and make of it whatever the judges wish--such theories as Monumentalism, Instrumentalism, Realism, Cognitive Jurisprudence, Universal Principles of Fairness, Rule According to Higher Law, Utilitarian Jurisprudence, Positivist Jurisprudence, Sociological Jurisprudence--theories that the Founders would have considered arbitrary whims of personal judgment and destructive to constitutional law-- are used to accomplish a "living Constitution" that bears little resemblance to the written one.
Such is the state of modern, progressive jursprudence which has effectively disobeyed the Constitution, such is the method taught in most universities and colleges. Apparently, Seidman doesn't recognize that what is utopian, is not a government of "We the People," nor one "of, by, and for the People," but one of "Us the Beneficent Government--of, by, and for the Government." He doesn't recognize that the disobedience he advocates is, for the most part, the current state of affairs, so he can't connect our broken system of government to that state of affairs and must then attribute it to a fictional over-concern for sticking to the Constitution.
Last edited by detbuch; 01-05-2013 at 11:39 PM..
Reason: many typos and additions
I knew you'd like that...
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