February 1, 2013

Seidman v. The U.S. Constitution

CBS news recently aired the opinions of Georgetown Professor Louis Michael Seidman, available at the link below:


The article is short, and summarizes a 176-page book, but I think it lays out Seidman’s key points. His advice, in brief, is that we dispense with the US Constitution as a law and consider it only as an “inspirational” document.

Seidman argues:

“…most of our greatest Presidents -- Jefferson, Lincoln, Wilson, and both Roosevelts -- had doubts about the Constitution, and many of them disobeyed it when it got in their way.”

This is true, but it hardly seems a compelling reason to abandon the Constitution. FDR, for example, ignored the Constitution by interning Japanese Americans without due process, and attempted to subvert the Constitution by packing the Supreme Court with additional Justices. Is Seidman arguing that, because history portrays FDR as a great man, that such draconian actions were good things – and that they should have gone unimpeded? Is he arguing, in other words, for a rule of men (or women, as the case might be) over the rule of law?

He continues that, while the Constitution offers much that is inspiring…

“…the Constitution also contains some provisions that are not so inspiring. For example, one allows a presidential candidate who is rejected by a majority of the American people to assume office. Suppose that Barack Obama really wasn't a natural-born citizen. So what?”

In the first place, who is Seidman to determine for the rest of us that the presidential birth status is irrelevant? It is not an egregious limitation to individual freedom to exclude a naturalized citizen from the presidency. It is reasonable to require that the president not be unduly attached to some other nation or culture. The criterion is not perfect in assuring such attachments don’t exist – but neither is the legal driving age a perfect assurance of adult responsibility.

On the matter of the Electoral College system, there is already a slow but growing momentum to amend this by the normal Constitutional process. The Constitution has been amended twenty-seven times. Nothing I’m aware of has fatally undermined the amendment process. In any case, the purpose of the framers was not to create a popular democracy, but to create a system which balanced a number of competing interests, including the sovereign status of the states themselves. One can make the argument that a direct popular vote would be better, but one can’t just take it as a given that this is so. Popular majorities have voted for some very nasty things, and are not infallible themselves.


“…But what happens when the issue gets Constitutional-ized? Then we turn the question over to lawyers, and lawyers do with it what lawyers do. So instead of talking about whether gun control makes sense in our country, we talk about what people thought of it two centuries ago.

Worse yet, talking about gun control in terms of constitutional obligation needlessly raises the temperature of political discussion. Instead of a question on policy, about which reasonable people can disagree, it becomes a test of one's commitment to our foundational document and, so, to America itself.

This is our country. We live in it, and we have a right to the kind of country we want. We would not allow the French or the United Nations to rule us, and neither should we allow people who died over two centuries ago and knew nothing of our country as it exists today.”

One has to wonder how Professor Seidman imagines such issues would get resolved in the absence of a Constitution. One can almost smell the “national conversation” phrase bubbling up from underneath. Unless you are one of a select few, you would not be invited to that sort of discussion. In practice, what would happen in the absence of a restraining body of laws is not a mass meeting of the public in which everyone would get to weigh in and have his or her interests fairly considered, but the triumph of the strongest political faction. In de Tocqueville’s time you would have gotten a tyranny of the majority; today, we would be lucky to get a result even that agreeable.

The Constitution, as it actually functions, has little to do with making society perfect. It has everything to do with preventing ambitious leaders from abusing their power. It is true that the founders knew nothing about nuclear weapons, gay marriage, or many other features of modern society. The Constitution, however, is neither a weapons treaty nor the Defense of Marriage Act. The founders’ achievement was not to forecast technology or social mores, but to understand, with remarkable if not quite perfect clarity, the dangers posed by unbridled political power. Seidman is making the case that, ultimately, he and people like him know what’s best for you, and can be trusted with unlimited authority over your life.

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