We have here in Washington a constitutional law professor who would like to do away with the constitution. No, not that constitutional law professor; rather, it’s Professor Louis Michael Seidman of, sigh, Georgetown University’s law school. His New York Times op-ed from a few weeks ago asks us – as a nation – to consider “giving up” on the constitution. Why? To get things done. In order to really have a country ruled by We the People, Seidman says, we have to liberate ourselves from “the shackles of constitutional obligation”, since, well, that dusty old document penned by “a group of white propertied men who have been dead for two centuries” just really gets in the way sometimes.
The op-ed, which is breathtakingly one-sided, tells us not to be afraid of releasing ourselves from constitutional bondage because, well, we’ve already done it! As he points out, “the two main rival interpretive methods, ‘originalism’ (divining the framers’ intent) and ‘living constitutionalism’ (reinterpreting the text in light of modern demands), cannot be reconciled…. Whichever your philosophy, many of the results — by definition — must be wrong.” So, one side or the other is ignoring the constitution. And we know this is happening because “dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore…”
It’s not just the men in robes, either – Presidents have ignored the constitution, too:
In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation.
All of this means, to Seidman, that hey, we’ll be fine if we get rid of the constitution. As we can see from FDR and Roe v. Wade, “Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.” There are two obvious problems here: a) how do we know that it was the flagrantly-ignoring-the-constitution and not the other side’s efforts to preserve the constitution (whichever side that is, of course – as though we can group originalists and revisionists in the same camp when it comes to their efforts to continue on using the constitution) that led to the growth and prosperity?, and b) er, it’s at least a teeny bit controversial to say that the New Deal and abortion rights equate to “growth and prosperity.”
Not done yet, though. Seidman thinks that, even though we shouldn’t bind ourselves to the whims of the dead propertied men, by golly, they did stumble on a few good ideas that we can hang onto:
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.
Oh dear. So, some matters we should leave settled, but it’s not clear which ones or by what standard they should remain settled, once we’ve thrown out the document that established those settlements. Also, why on earth would the president be checked by the states? What precious few powers are left to the states are entirely protected by the constitution and nothing else; surely the federal government, unshackled from its hitherto constitutional obligations, will not restrain itself. (Seidman knows this, having just told us that FDR was happy to drastically increase federal power even with constitutional strictures.)
And goodness. There’s something to be said for an elite body that can “impose its views of political morality on the country”? I’m sorry – there is? And also, can we please locate that description of the Supreme Court in the constitution? (Remember, this is in the list of things Seidman would like to keep.)
But perhaps the clearest reason to keep a constitution can be found across the ocean, in Egypt’s ongoing struggle for self-rule. Samuel Tadros’ lengthy piece, “What is a Constitution, Anyway?” gives us an interesting glimpse into what kinds of fights a society can have without a crusty old document laying out the parameters. I’m happy to endure the admittedly annoying Beltline bickering over tax cuts rather than face struggles for the right to build a house of worship, which is a luxury afforded to us only because our constitution has guaranteed the latter to us for over 220 years. So for now, I’m going to cast my vote with the dead white men, or rather, with the rule of law and system of government they laid down.