In one of the truly rare op-eds that challenge a fundamental precept, Georgetown lawprof Louis Seidman argues in the New York Times that our adoration of the Constitution is, well, dumb.
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?
Ancient document from a time long since gone? But without it, won’t chaos and tyranny ensure? Seidman relates the American history of constitutional disobedience, showing that it’s not as if we’ve stringently adhere to the old gal, and yet we’ve survived.
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.
Of course, on those occasions when we, as a society, decided that extreme situations demanded turning a blind eye to the Constitution, we didn’t always grow and prosper. Japanese internment camps in World War II wasn’t such a high point. Many would argue that Schechter Poultry did us far more harm than good, and it’s not at all clear that the Alien and Sedition Act was our finest hour.
Seidman isn’t suggesting that we throw it all away, inexplicably arguing that we should retain the rules he likes while discarding the ones he doesn’t, making himself the bar for neo-constitutionality. For the rest, he contends that we will continue those institutions that society accepts as viable.
What would change is not the existence of these institutions, but the basis on which they claim legitimacy…
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…
While there is some merit to the arguments that we are hardly as devoted to constitutional fealty as we pretend, and that the strain of trying to shoehorn solutions to current problems into a constitutional paradigm stretches reason to the breaking point, Seidman fails to appreciate the big picture.
As a parent, we dictate rules to our children. We tell them not to play with matches, or jump off the roof to see if they can fly. When the younguns demand to know why, we respond: Because we say so. They hate that. Always have. But to keep them from doing boneheaded stuff, we don’t open up our every decision to debate.
At the same time, we know they will test our boundaries, and expect them to do so. We hope that the basic rules we instilled in them will serve as the parameters within which they will function, so that when they push the envelope, they won’t do anything too dangerous, too harmful. We know we can’t watch them every second of every day, and so we trust that we’ve given them sufficient guidance to protect them from the worst.
The same is true of our Constitution. It provides the fundamental rules within which our society is supposed to function. It’s not that regimes won’t push the envelope, test the edges of those rules or, on rare occasion, run full speed toward the cliff when someone believes it has to be done. It’s that we have a bottom line, a minimum, by which to judge such actions.
Without it, would we devolve into tyranny? Maybe. It’s happened to others, and it can happen here as well, since the government has a lot of weapons and whoever has the finger on the button gets to say when those weapons get used. Yet a poetic piece of parchment allows for a regime change every four or eight years without a single shot being fired. This is an astounding thing. Ponder it for a moment and appreciate its uniqueness in the history of mankind.
While it’s true that some of the rules may not be a whole lot better than their alternatives, it’s like the basic rule of the road, keep to the right. The right is not inherently better than the left, but without it, we would crash into one another. It doesn’t matter so much which side is chosen, but that a side be chosen. The same is true of our Constitution.
Edit: I regularly wonder what would happen if the Bill of Rights was put up for popular vote today. I’m quite certain that the Fourth would never pass, even if the Second was relatively safe. As for the Fifth and Sixth, I doubt they would get a lot of support as currently written, and the First wouldn’t stand a chance. One thing the Constitution does remarkably well is protect us from the tyranny of the majority, even though many would disagree. Without it, the notions of free speech and equal protection would be long dead, rather than merely crippled as they currently exist. Remember, bad as things may be, they can always be worse.
And frankly, it’s held up remarkably well. Not perfect, but even now, as we question and challenge the legislative decisions of the past month that ignore the rights preserved by this ancient document, we have something to turn to so that we can call out impropriety and fecklessness. As the minimum standards to which all acts of government are supposed to adhere, it is still relevant and well-suited to our demands for the preservation of our rights from an overbearing government.
Sure, it can sometimes feel as if it’s strangling us, particularly for those people whose expectations of government are to caress them and make all their fears disappear. But as the basic rules for the creation of a political system that can withstand the worst mankind has to offer, it’s proven pretty damn effective.
The Constitution? I’ll keep it. Now if I can just get the government to love it as much as I do.