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)