Is the Constitution the Real Problem?

is the  300x300 Is the Constitution the Real Problem?

You’ve probably heard the old politically conservative aphorism: government is not the solution to our problems, but is in fact the cause of our problems. The root of that statement is the notion that small government is good and big government is bad.

But Louis Seidman, a constitutional law professor at Georgetown, seemed to take that argument in a new direction recently when he asserted in the New York Times that our Constitution is the real cause of our problems, and that we should get rid of it. Or, at least change it in fundamental ways in order to allow us to govern ourselves (whether with a large or small federal government) since the Constitution is making that impossible. It’s a provocative piece, and one driven more by frustration with politics than by a real desire to toss out the document itself. But Seidman does point out some facts about our history that any lawyer (or any thoughtful citizen) should confront.

First things first: Seidman doesn’t hate the constitution and doesn’t want to get rid of it. Not an anarchist, but a progressive, he gives himself away early with this endorsement of “living constitutionalism”:

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?

So what really is upsetting Seidman is not what the Constitution says (or doesn’t say), but the fact that there are appellate court judges that believe that it does not allow for the federal government to do what Seidman thinks it should. Once you understand that, there’s a lot to be gained from what comes next: a recitation of a number of examples of when the Constitution was defied or ignored because of a crisis, or when politicians (or judges, or both) felt that justice required it. For example:

  • Abraham Lincoln freed the slaves despite the Constitution’s acceptance of slavery.
  • Franklin Roosevelt tried to “pack” the Supreme Court after it struck down much of the New Deal.
  • A lot of Civil Rights legislation’s constitutional basis was the Commerce Clause—civil rights were not what the Founding Fathers were thinking of when they drafted that clause.

Seidman should have mentioned at least one more:

  • George W. Bush’s response to 9/11. And Barack Obama’s. Remember Gitmo? It’s still open. And the justification is essentially the same one Lincoln used to free the slaves—the president’s powers as commander-in-chief of the armed forces.

Then, (before descending into a vague description of how a sort-of post-constitutional United States might save the good parts of the document) Seidman asks two thought-provoking questions:

If “originalism” and “living constitutionalism” cannot be reconciled, and if the Constitution allows for such radical differences in interpretation, why are we stunned to find ourselves in political gridlock, unable to even agree collectively on something as straightforward as the notion that we should pay our debts?

And if we have ignored the Constitution in times of crisis, and survived, are we really as dependent upon it for our political survival as we thought?

(image: view of capitol building from Shutterstock)

Lawyering Skills, Legal News

  • http://lawyerreviews.com Matt

    This professor needs to be investigated by the grievance committee of the bar for which he is admitted. The Op-Ed is manifest treason and seditious activity outside the protection of the first amendment. An attorney who took an oath to defend and upheld the Constitution should be disbarred for promoting the disemboweling of the Constitution.

    • Andy Mergendahl

      Even if Seidman is admitted to practice, which I seriously doubt, tenure would save his job even if the bar authorities think like you do. Tenure allows scholars to toss out their wildest ideas for discussion without having to worry about who might think them “treasonous.” It’s the same concept that drove the Founding Fathers to make Article III judgeships lifetime appointments.

      • Matt

        A sworn oath of the highest duty [and honor] is not voidable, nor can one hide behind academic privilege and betray his oath to his country and profession.

        • http://lawyerist.com/author/samglover/ Sam Glover

          I didn’t take any oath never to criticize the law or the Constitution. I pretty sure Seidman didn’t, either.

  • Gyi

    The Constitution isn’t the problem. It’s not, and has never been, set in stone. On the other hand, it should not be ignored. And in at least one of the instances you mention, it seems that its resistance to change was the driving force behind it being ignored.

    It seems to me that the people have become distanced from governance itself.

    I’m not saying we toss baby with bathwater, but this idea that governing documents and/or principles are beyond review/change is just plain silly.

  • http://www.practiceprocedure.com Andrew Nettleman

    There are some fundamental problems with basing the governance of a country on a document more than 200 years old, but I also agree that throwing the baby out with the bath water is the wrong approach. The simple fact of the matter is that at times the courts have bent over backwards to “interpret” the Constitution in manners in which it was never intended to be used.

    Some of these things turn out to be good, i.e. The Civil Rights legislation, some of them not so good. Almost anyone who has studied the founding fathers would likely agree that they all, with the possible exception of Alexander Hamilton, would be shocked to the state, size and reach of the Federal Government today. Whether that is good or bad is open to interpretation. The use (or abuse, depending on your viewpoint) of the Commerce Clause to justify the Federal Government’s control of almost every aspect of modern commerce can be a problem and when the Commerce Clause cannot be invoked, the Feds are able to coerce the States into falling in line simply through the power of the purse.

    It is a shame that during the Summer of 1776 no one happened to think that the passing of time would cause different needs to be addressed by the Government and by the people and thus no one thought to implement a way for the Constitution to be changed to address those needs. Oh wait, they did think of that. We have just chosen to ignore that process because it is difficult and time consuming and would require our elected representatives in Washington to take clear stances on very important issues and to go back to their constituents to help make substantive changes to the basic foundation of our governmental system.