The Constitution, Just A Suggestion

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.

21 thoughts on “The Constitution, Just A Suggestion

  1. John Burgess

    If the alternative is to have a rule book drawn up by a committee of law profs, I’m definitely sticking with what those dead white guys wrote.

    And yes, it would indeed be wonderful if the government could learn to love and respect the Constitution as much as you or I.

    Even though it was mostly just a stunt, there was a certain merit to the proposal that all new laws state their legitimacy under the Constitution.

  2. Dr. Sigmund Droid

    Holy crap, the referenced law professor sounds like a real winner (or maybe, more on point, a real whiner) . . .

    And this post brings up all sorts of questions and thoughts in my head like, first and foremost, uh duh, isn’t there already a well-defined process for Wheeze the People™ to add to, delete from, and modify any and all portions of the current instantiation of the U.S. Constitution?? A jack-legged lawprof is gonna decide what part of the Constitution is good for us, because he knows better than Wheeze the People™?? WTF??

    I’m not exactly sure how this quote fits into this discussion, but I do know it is applicable, “We need a revolution every 200 years, because all governments become stale and corrupt after 200 years.” – Ben Franklin.

    We’re a few decades past due – this, according to founding father Benny Frankelbaum . . .

  3. SHG

    Even though it was mostly just a stunt, there was a certain merit to the proposal that all new laws state their legitimacy under the Constitution.

    Yesterday, a commenter asked what the “legal theory” was behind a law, a remarkably silly question and treated as such.  If an act was passed in the Senate by 51 votes, there may be 51 reasons why. Some will be good. Some will be foolish. Some will be pragmatic and some will be idealistic. Who knows?  The legislative branch does not need to explain itself, and if it did, it would be worthless words directed to making its law palatable to the public and exalting those who voted for it for being the most deeply caring yet brilliant polticians ever.  The law would cure whatever ails us, and in the vaguest of terms, bring us closer to perfection.

    Does this add anything? Nah. I doubt we need more opportunities to be played for fools and made stupider in the process.  On the other hand, we could pay a lot more attention to what the people we vote for do with themselves once in office.  And when they do something unconstitutional, we could think really hard about it, act upon it and support others who make the effort to stop it.

  4. pml

    I wonder since he admits to wasting 40 years teaching what he now says is wrong will he give his salary back to the school and quit in disgrace?

    Shouldn’t all those lawyers he taught be due a refund for his admitted fraud?

  5. Meagan

    I was impressed with the NYT running something that is genuinely provocative. I think the author would have done well to stick with the history lesson and the point that we’ve gotten to where we are in large part because of a fake fealty to this very imperfect document and leave it up for discussion.

    Instead, his solution reads like a poorly-thought-out conclusion written in haste and tacked on after an editor told him that if he was going to criticize the Constitution, he must have a solution. So then his solution turned a provocative idea worthy of thought and discussion by more than just us lawyers who read law blogs for fun into a watered-down wahhhn-waaahhhn op-ed assuring people not to worry, that not that much would change.

    For example, one of the arguments I find most salient is that our system of representation, built as a mechanism to ensure slaveholders could continue to own human beings, is outdated and should change as it is not representative, even in the way that representative democracy means representative. But don’t worry guys, it can stay, because–why? I wasn’t so clear on his division of what could stay because it’s what we’ve got and we might as well stick with it, to what should go because it was only justified by the Constitution anyway.

  6. SHG

    Excellent point. The beginning was interesting (whether or not one agreed with it), but it devolved quickly into nonsense.

  7. Bruce Coulson

    Back in the 1950s, some students, as an experiment, made up petitions to enact the Bill of Rights. Many of those who looked at the petition suspected the students of being anti-American; they were clearly promoting a seditious set of laws…

    “…and thought it was fine to own slaves…” Some of them did, yes; but all of them realized that slavery existed, and if they wanted a government system that everyone join, that reality had to be taken into account. The Founders were, at heart, pragmatists; get a government formed that would survive and endure. That meant making compromises and adjustments, both in writing the Constitution and later. Yes, they made mistakes: but overall, we inherited a much better government than most other peoples have. But it’s up to us to keep it going.

  8. John Neff

    If a popular vote and the bill of rights does take place there is no need to include the 8th amendment because it has been deleted as far as I can tell. In fact you did not mention it in your edit.

  9. SHG

    If anything, the public would vote that punishments aren’t cruel and unusual enough.  Whatever happened to the Iron Maiden?

  10. Dr. Sigmund Droid

    Oh, The Iron Maiden?? They’re still rockin’ hard. In fact, they just played in your neck of the woods back in June . . .

    Viva la Iron Maiden!! . . .

  11. John Burgess

    Yes, I understand that a legislature can do any damn thing it wants, until pulled by by adverse court decisions. That’s a dumb way to run a railroad, though.

    It would be nice — Panglossian nice, perhaps — to hope that Congress paid at least lip service to the document that provides for their office, however.

    For a bunch of lawyers, the US Congress seems particularly ignorant of the Constitution.

  12. SHG

    To some extent, they do, but it’s arguably their job to push the envelope and see how far they can extend their power despite the Constitution.  As a cop recently wrote, his job is to nail the bad guy, not worry about playing fair. It’s our job to keep the cops honest. Each of the branches of government has a purpose, and they aren’t entirely consistent, so it’s not surprising that each seeks to fulfill its purpose at the expense of another branch.

    It’s the other branches’ job to keep them honest. Not saying I necessarily agree with this, but that’s the theory.

  13. Ron Coleman

    We’d all agree to releasing ourselves from the weight of this dead hand… if we knew in advance which way it would go it we really started all over.

    But we don’t. It could be a lot better but it could be a l-o-o-o-o-ot worse.

    Predictability and stability are not for nothing.

  14. RP

    Let me play devil’s advocate and attempt to defend the concept behind the professor’s op-ed (though not defend his poorly-written arguments). I think the point is (or should be) that applying the language of the Constitution can end up being an arbitrary exercise and ultimately pointless. There are post-modern literary theorists out there (like Stanley Fish) who make the logical argument that the literal text of a constitution or a statute don’t exist apart from context (either historical context, or our shared culture, etc.) So, for example, we may claim that the Constitution “preserves” the “freedom of speech”; but what does that mean? It doesn’t mean I can defame you, because the First Amendment was written at a time when defamation law was already enshrined in our jurisprudence; but the defamation “exception” is not clear from the text of the Amendment. You could easily imagine a society where freedom of speech was deemed so important that we permitted people to freely defame one another as the “price” of freedom of speech; but that is not our society. How do we know that? Not from looking at the “text” of the Constitution; but only from looking at its historical and cultural context.
    Same thing with the banning of obscenity or things like child pornography. The First Amendment doesn’t exempt those things; we have “interpreted” it (rightly) in a way that reflects our values as a society. The professor would say that we have “ignored” the Constitution when it suited our interest, which is not that far off the mark. Where I think the professor is wrong is when he uses examples of politicians in the past like FDR “ignoring” the Constitution; but this is not how the politicians themselves would characterize what they were doing — they would say that they were merely “interpreting” the Constitution in a way consistent with our values (in some ways wrongly, as with the Japanese internment.)
    So, the long and short of it is that your “Constitution” gives you nothing more than what you already had in terms of your country’s shared history, values, belief system, etc. Maybe at most it’s a way of not forgetting those values, but it can’t grant them. (If you doubt this, consider how possible it would be for a restrictive or totalitarian society like North Korea to guarantee “freedom of speech” yet simply interpret in a different way.)
    If we got rid of the Fourth Amendment today, would we suddenly find police searching our bedrooms? No, our societal values wouldn’t permit it, and our courts would continue to employ the exact same type of cost-benefit “reasonable” requirement to gauge the legality of searches that you would find in any civilized society without a written Constitution.
    Tell me where I’m wrong.

  15. SHG

    Tell me where I’m wrong?

    Have I ever done anything that suggests to you that I’m required to debate with anyone who demands it? Your argument is a rather tepid rehash of Seidman’s. Not worthy of response, except to say that our societal values not only wouldn’t be an adequate substitute for a lost 4th Amendment, but they don’t give rise to any real concern for an extant 4th Amendment. Or in other words, meh. Sorry.


  16. Lurker

    that you would find in any civilized society without a written Constitution.

    There are very few “civilized” societies without a written constitution. As far as I understand, the British are the only one, and even they have a constitution, albeit it consists of the Acts and traditions which have, due to political tradition, received a status where they cannot be changed without supermajority. Even if a cabinet is formally able to make a change with a simple majority, this would be considered a coup d’etat.

    In the US constitution, there are similar informal constitutional rules. If the Senate would, by a simple majority, eliminate filibuster at the start of new Congress, this would cause a severe constitutional crisis, although the action would be formally constitutional. Similarly, the Posse Comitatus Act is usually considered inviolate, although it does not have formal constitutional character.

  17. SHG

    You make the common “outsider” mistake of seeing things out of context. But for the existence of a Constitution, there would be no “informal” rules for the maintenance of a filibuster in the Senate, for example. Sure. there are societal traditions, but that’s because there is a Constitution which has informed them, and when they are threatened (as they are from time to time), the Constitution remains the inhibiting factor on man’s worse nature.

    It’s impossible to conceive of how a United States would work in the absence of a Constitution, as our society has grown around it since 1789, and for all our poking at its edges, it has remained a bedrock in law and governance since. 

  18. RP

    The point is that you don’t have a 4th Amendment — in the sense of having something written down that stands apart from culture, history, shared values, etc. In other words, using logic, the words of the 4th Amendment mean nothing apart from the context in which we are interpreting them. Let’s suppose North Korea adopts verbatim our 4th Amendment today. Do you think they would magically change into a place that respects our right to be free from “unreasonable” searches (the way we commonly understand the term)? Of course not — they would interpret what is a “reasonable” search and seizure differently.

    It can be disconcerting to realize that something written down has no meaning apart from how we interpret it; but it is logical, sorry.

    P.S. Scott, you’ve probably been told this before, but the code you have to type in in order to post a comment is almost impossible to decipher many times.

  19. Dr. Sigmund Droid

    “A mind is a terrible thing to lose (or loose)” . . .

    Well, on second thought, it’s actually not that bad; it can be quite liberating . . .

    You know, eliminating the shackles of expectations and all that . . .

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