Louis Michael Seidman, a professor of Constitutional law at Georgetown University, wrote one of the most inane articles on the Constitution to be be published in a major newspaper. Yet, perhaps because of his credentials, in combination with the vacuousness of his message, it was published by the New York Times. The opinion piece was entitled "Let's Give Up on the Constitution." One might wonder why such an op-ed is worthy of a response at all, and one could easily argue the best response would be to ignore his nonsense. The real reason to respond to the words of the Georgetown professor is not just because of the level of wrongness in his argument, but because his ideas unfortunately actually represent the wider liberal view of the Constitution. It is critical to realize that this is not just one opinion article, but a largely held viewpoint among so many in the liberal sectors especially in academia, let alone the media, politics, and elsewhere, when it comes to the Constitution. In order to rebut Seidman, I shall quote him directly in the portions of his column most worthy of addressing. To rebut every inanity would fill volumes, but central pillars of his argument easily crumble upon a cursory examination.
An "Evil" Constitution?This member of one of the most prestigious centers of higher legal learning opens by pompously declaring that our nation's fiscal woes are due to "our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions." The Constitution today contains not a single evil provision. The professor does not point to one because he cannot point to one. Do the various protections of the Bill of Rights fall under that description? Or is it only the limits on government intended by our Constitution that meet that description? Perhaps it's the structural checks and balances the Founders intended for us? In truth nothing in the Constitution comes close to meeting a single adjective that this columnist arrogantly authors.
How do I know that? Consider only the example he provides immediately thereafter. He asks, "Why should a lame-duck House...have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?" Firstly, according to the Constitution, “the Congress may at any time by Law make or alter such Regulations” regarding matters such as the date upon which Americans vote in federal elections, such that they could eliminate lame-duck sessions should they so desire. The Constitution provides no obstacle to this. Right off the bat a Constitutional law professor attacks the Constitution while exhibiting an astounding ignorance of it.
Further, this argument attacking the bicameral legislature that is Congress would never have been put forth if those he agreed with maintained all majorities. What he is taking issue with at heart is the existence of both a House and Senate, especially when under opposing control. The professor would do well to look back to Federalist William R. Davie who explained the purpose of having both a House and Senate at the North Carolina Ratifying Convention in 1788. Davie explained, "In order to form some balance, the departments of government were separated, and as a necessary check, the legislative body was composed of two branches. Steadiness and wisdom are better insured when there is a second branch, to balance and check the first. The stability of the laws will be greater when the popular branch [House of Representatives], which might be influenced by local views, or the violence of party, is checked by another [Senate], whose longer continuance in office will render them more experienced, more temperate, and more competent to decide rightly." And regardless of any preferred outcome, the "fiscal cliff" deal itself shows that this vision remains the case today. In order to avert the cliff a Senate compromise was required. Those elected to the House face elections every two years, and are thus more accountable to the electorate in the short-term. A popular branch and a higher branch of legislature are precisely there to check each other’s excesses; one to make sure legislation does not devolve into the law of the mob, the other to make sure it does not become the rule of nobility.
Furthermore, the Senate is certainly malapportioned, but it is precisely in order to allow States with lower populations to be equally represented in the making of our laws. In fact, prior to the 17th Amendment Senators were selected by State legislatures, such that the State governments had a very substantive check on the Federal government. While this was (unfortunately) altered, it remains the case that California, New York, Florida, and Texas should not be able to legislate for our entire broad land, with so many other States with their own interests needing representation.
Seidman continues arguing that “[o]ur 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." Actually, our Constitution has done no such thing. If we are a divided nation it is because we have an ideologically opposed citizenry, with the contrasts in ideals more stark than they have ever been. And the Constitution provides for checks and balances such that one side cannot control the entire government with ease. This is a function of our Constitutional system, not a dysfunction at all. The extreme hubris of this ivory tower teacher in thinking he understands liberty and tyranny better than James Madison should be enough to disqualify him. The fact is that our nation was founded on ideas fought for in a revolution, the principles finally enshrined in a fully functioning Constitution. Not abandoning the American Revolution for the whims of the day will keep America free and prosperous, and it is only forgetting them that has allowed for the opposite to take place.
The professor asks if “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?” Firstly, what is wrong with white propertied men? I certainly have no ingrained prejudice against white men who own property, let alone white propertied men who were the greatest men of the Enlightenment who pledged and risked their livelihoods and very lives to remove a repressive king and establish responsible self-government based on the principle of all men being endowed with natural rights by our Creator. And did they really know nothing of our present situation? Is government tyranny a bygone phenomenon? Is protection of fundamental rights a thing of the past? What is it about, in the words of Thomas Jefferson, “bind[ing] [government] down from mischief by the chains of the constitution” that is passé? It is supremely rational to believe that actual adherence to the Constitutional compact inevitably leads to the lessening of government oppression. And given that the Constitution provides for a government of laws, bound by laws, not of men and their momentary passions, it is certainly critical that lawmakers adhere to the supreme law of the land. If they disagree with it, then they should campaign to have it amended, as the Constitution explicitly provides for in Article V. The same goes for the law professor. If Professor Siedman sees flaws in the document as it exists today, let him contribute to his field of education by explicitly pointing out provisions that particularly vex him, and writing about amendments that would fix what he sees as current problems resulting from the document that defines the role of our government. But to call for the Constitution to be abandoned is mindless drivel more than serious thinking.
Does American History Render The Constitution Irrelevant?Explaining his point about the Constitutional Convention “acting illegally under existing law” Siedman states that “[i]n fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.” But he leaves out the fact that the Continental Congress did not balk at the members of the Convention stretching their mandate. On September 28, 1787, the Continental Congress said: “Resolved, unanimously, That the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures, in order to be submitted to a Convention of delegates chosen in each state, by the people thereof, in conformity to the resolves of the Convention made and provided in that case.” Further, non-ratifying States were not to be bound by the new compact, though of course eventually all the States joined the new agreement.
This legal light continues, “No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech.” How exactly does an example of abandoning the Constitution in order to trample on freedom of speech lend itself toward an argument for complete abandonment of the Constitution? It was by referencing the First and Tenth Amendment that men like James Madison and Thomas Jefferson were able to wage their campaign against President Adams. In response to the Sedition Act of Adams which criminalized criticism of his administration, Madison in his Report of 1800 explained that under the Constitution "[i]n the United States the case is altogether different. The People, not the Government, possess the absolute sovereignty. The Legislature, no less than the Executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other... They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws."
Siedman states that Jefferson "believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers." This is an overly simplistic history, and perhaps Siedman should stick to teaching established legal rules rather than oversimplified past events. A more accurate history is that Jefferson no doubt had serious reservations, but there were others who argued otherwise and eventually convinced Jefferson. Secretary of the Treasury Albert Gallatin (who was certainly from the same school of Constitutional interpretation as his boss) wrote President Jefferson, “But does any constitution objection really exist? The 3d Section of the 4th Article of the Constitution provides: 1st. That new States may be admitted by Congress into this Union. 2d. That Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States... [T]he existence of the United States as a nation presupposes the power of every nation of extending their territory by treaties, and the general power given to the President and Senate of making treaties designates the organs through which the acquisition may be made... To me it would appear: 1st. That the United States as a nation have an inherent right to acquire territory. 2d. That whenever that acquisition is by treaty, the same constituted authorities in whom the treaty-making power is vested have a constitutional right to sanction the acquisition.” Thomas Paine made a persuasive argument to Jefferson: “The cession makes no alteration in the Constitution...it only extends the principles of it over a larger territory, and this certainly is within the morality of the Constitution.” Historian Forrest McDonald wrote “[t]hat cut to the heart of the matter, and in that spirit Jefferson abandoned his reservations.” Furthermore, Jefferson’s constitutional scruples were largely regarding the organization of the territory, not about the purchase itself. In January 1803 when Secretary of State James Monroe was being dispatched to France, Jefferson had written Gallatin that “there is no constitutional difficulty as to the acquisition of territory; and whether, when acquired, it may be taken into the Union by the Constitution as it now stands will become a question of expedience.” The fact that Jefferson took the Constitution so seriously that even when it came to something as important as the Louisiana Purchase he sparked a debate within his administration is not an argument against the Constitution. It is an example provided by one of the Founders himself of not allowing expediency alone to countervail against Constitutional considerations.
The professor's main attack on Abraham Lincoln consists of stating that when "the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)" Is Siedman suggesting that those States that left the Congress and created their own Confederate States of America, should have still have been considered a voting bloc within that Congress? General Robert E. Lee's surrender to Ulysses S. Grant at the Appomattox Court House took place on April 9, 1865. Lincoln had signed the Thirteenth Amendment on February 1, 1865. Once the Civil War ended does Siedman believe that the ex-Confederate States should have not been able to partake in its ratification? President Andrew Johnson, after Lincoln had already been assassinated, strongly recommended that the ex-Confederate states ratify the amendment. The point being made here by Siedman is incomprehensible gibberish, hardly to be taken seriously as an argument against the existence of our Constitution.
Michael Siedman writes that "Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations." But as legal scholar Roger Pilon of the Cato Institute writes, "Just so. And that treatment of the Constitution as 'advisory only' is what has brought us to the fiscal chaos we’re enjoying today."
The Constitution Has No Meaning?This Georgetown genius continues, "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. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong." That is not an argument against the Constitution, but an argument against one of the methods of interpretation. And one is wrong. Originalism is indeed the only legitimate method of understanding the constitutional text. I in fact strongly call on our nation to restore the lost Constitution and return to originalism rather than abandon the Constitution completely. One important step in that direction would be teachers of the Constitution who understand the importance of the Constitution.
Siedman gives the game away when he writes that it is "obvious" that "much constitutional language is broad enough to encompass an almost infinitely wide range of positions." This is utter and complete nonsense. James Madison wrote in Federalist 45 that "[t]he powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite." We may have moved far away from that original vision, but the argument made by Siedman about an "infinitely wide range of positions" is not a reflection of the Constitutional reality envisioned by those who adopted the document. In fact, it is an unchanged argument used by those Anti-Federalists who did not want to see the document ratified at all. Anti-Federalist Brutus argued that the new federal government would "extend the powers of the government to every case" rather than there being the limited and defined role argued by the likes of James Madison.
This leaves us with an important lesson. Our task is not to rehearse the arguments of those who opposed the Constitution's ratification as if they are unique modern innovations, but for the American people to loudly demand a return to the principles of the Federalists who ratified the Constitution and restore the federal government to its intended role. It is not in any way an argument for abandoning our nation's guiding charter completely.
ConclusionI will end not with my own summation, but by telling this professor he would do well to heed the words of a young Abraham Lincoln, at the Young Men’s Lyceum in Springfield, Illinois, on January 27, 1838:
"As a nation of freemen, we must live through all time, or die by suicide... But, it may be asked, why suppose danger to our political institutions? Have we not preserved them for more than fifty years? And why may we not for fifty times as long?... [One reason is that] the scenes of the revolution...must fade upon the memory of the world, and grow more and more dim by the lapse of time. In history, we hope, they will be read of, and recounted, so long as the Bible shall be read;—but even granting that they will, their influence cannot be what it heretofore has been. Even then, they cannot be so universally known, nor so vividly felt, as they were by the generation just gone to rest... They were the pillars of the temple of liberty; and now, that they have crumbled away, that temple must fall, unless we, their descendants, supply their places with other pillars, hewn from the solid quarry of sober reason. Passion has helped us; but can do so no more. It will in future be our enemy. Reason, cold, calculating, unimpassioned reason, must furnish all the materials for our future support and defence.--Let those materials be moulded into general intelligence, sound morality, and in particular, a reverence for the constitution and law."Tweet
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