Constitutional law professor calls for trashing the Constitution

Louis Michael Seidman, a Constitutional law professor at Georgetown who has evidently grown very unhappy in his field, penned a New York Times editorial for New Years’ Eve entitled “Let’s Give Up on the Constitution.”  Seidman is very frustrated with the “fiscal cliff” drama, and blames that rotten old Constitution for setting up a clumsy system that gets in the way of well-intentioned Maximum Rulers with really swell ideas:

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.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

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.

Seidman then offers a long dissertation about how people mostly ignore the Constitution anyway, culminating in a howler that suggests he doesn’t pay much attention to current events: “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.”

It’s strange that Georgetown university professors would require remedial education in civics, but I have an efficient suggestion for educating Seidman: just have Hobby Lobby forward their $1.3 million per day fine for defying ObamaCare to the good professor, and let him pay the fine out of his own pocket, until he gains a new appreciation for “chaos and totalitarianism.”

I’ve noticed many online reactions to Seidman’s column along the lines that he must mean it as a joke, but I see nothing to indicate that he isn’t serious.  Quite telling is his assertion that some parts of the Constitution meet his approval:

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.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

This is a very old, very tired lament from “enlightened” authoritarians.  “The world is grown sick of parliamentary politics,” H.G. Wells lamented in 1932, in the course of a speech in which he would explicitly endorse fascism – headed by wise and benevolent socialist liberals, rather than militaristic madmen, of course – as the best way to organize society.

“What has preserved our political stability is not a poetic piece of parchment,” writes Seidman, “but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences.”  Doesn’t he understand that every single totalitarian ruler from the blood-soaked Twentieth Century has justified tyranny in exactly those terms?  Hugo Chavez and the Castros believe they possess a keen sense that Venezuela and Cuba are “one nation” whose people “must work out their differences,” too.  The same sentiment rings from loudspeakers across North Korea and Iran.

What Seidman has actually penned is a powerful defense of the Constitution, whose words and intent he correctly accuses our bloated, insolvent, dysfunctional, and increasingly totalitarian government of ignoring.  Freedom is not, and never can be, adequately protected by the current passions of the electorate.  The idea that the possibility of getting voted out of office would be, almost entirely on its own, an adequate check against ambitions of political leaders is hilariously naive and ignorant.  Constitutional order is a recognition that free people should not be ruled by anyone’s whims – neither those of the ruling class, nor those of their fellow citizens.

The American people have, for decades, been programmed with the belief that government power should not suffer “arbitrary” limits – if a majority (or really, a determined and politically cohesive minority) think something should be done, then it should be doable.  But this is just another way of saying that if a determined minority wants something, everyone else should be compelled to provide it.  If a strong political coalition wishes to impose some edict upon the rest of the populace, everyone else should be forced to obey.  The removal of Constitutional limits to this process – yes, including those “clumsy” legal structures that seem to function as speed bumps – produces a bloody feeding frenzy, not enlightened statesmanship and national unity.

One major reason for the ultimately anarchic nature of “unrestricted” democracy is that the State itself has interests, and in the absence of rigid Constitutional controls, it’s not difficult for it to cobble together agreeable coalitions of voters to press those interests upon everyone else.  Virtually no one outside of Washington really wanted ObamaCare, for example.  It was created by politicians with an appetite for power, and they secured just enough political clout to impose it on the rest of us, and protect it through an election that was also preoccupied with countless other issues.  The sort of unrestrained utopia envisioned by the liberal fascisti is populated by groups of citizens who dream up great ideas, then petition the government to make them happen.  In reality, the exact opposite is what generally occurs: political elites have ideas, which they enlist targeted groups of citizens to promote, and they don’t usually need 51 percent popular support to make them happen.

Another reason for the importance of Constitutional order – and one of the reasons we’re suffering so much from our lack of fidelity to it – is the driving principle behind “progressivism.”  Progressives believe each new usurpation of individual liberty is permanent; the growth of the State can never be reversed.  Each new appendage of the State quickly accumulates a large body of dependents who will act aggressively to protect it.  Thus far, history has proven the progressives generally correct… in the process making a powerful case for the Constitutional order we’ve lost, but may someday regain.  Because the Constitution provides the ultimate protection for the rights of future generations.  It should be extremely difficult to create programs that tomorrow’s children will never have a realistic chance of voting against.  It should be hard to take steps that can never be retraced, or to implement “solutions” that can never be neutralized, even when they collapse into intractable problems.

The parts of Seidman’s argument that make sense are the scary parts, because they remind us how close to an “enlightened dictatorship” we have already come.  The Constitution is not rigid and inflexible – it includes a mechanism for amendment.  Accumulating the political capital to make such amendments should be difficult.  But we already suffer beneath many disastrous errors that were imposed upon us without regard for the proper use of that mechanism.  We should have long ago been firmer on insisting that Big Ideas incompatible with the checks, balances, and protections of the American system should be revised, rather than seeking to short-circuit the system.  Those who prefer life under a benevolent dictatorship have plenty of other citizenship options to choose from.  Warning: once you have relocated to such a nation, you will probably find further relocation options extremely limited.