Georgetown Law Professor: "Let's give up on the Constitution"

Nearly a week ago, a professor of Constitutional Law at Georgetown University Law Center (Professor Seidman) wrote an Op-Ed for the New York Times where he asserted that one of the main reasons the government is "broken" is due to our "insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions." Before I cite some of the several rebuttals to his arguments, let me quote some of the article:

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?
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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.

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.

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The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.

If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

Wow. Lots to take in there. There is more in the actual article itself.

My general reaction without attempting to counter every single argument he makes (though there is much to refute) is that this article displays a lack of appreciation for what we have gained by adhering to the Constitution. He discusses the ongoing debate between "textualism" and a "living Constitution" which are essentially opposing schools of thought regarding how the Constitution should be interpreted in judicial opinions. Professor Siedman argues that there is simply no reconciliation of these views. However, I think at least what is acknowledged in both of these views is that the Constitution is a paramount document that serves as a premise for all judicial decisions. Without this document, the judiciary would essentially make decisions based on either personal opinion or current public opinion, both of which do not guarantee the liberties provided for in the Constitution. While some things remain vague and there is continued debate (such as the true extent of the Commerce Clause), other issues are clear and only adhered to because they are spelled out in the document (freedom of speech, for instance). Before we go burning the Constitution, it is important to remember that despite the ongoing debates, what it has given us is much more important than what might be found wanting.

Here are some key quotes from among the many who disagree with his assertions:

Professor Adler of Case Western University -

Seidman suggests that liberal constitutional values such as the freedom of speech and religion, equal protection, and due process “are important, whether or not they are in the Constitution” and that “we should continue to follow those requirements out of respect, not obligation.” But our political history shows quite clearly that the political process is more than willing to trample such principles, often with substantial popular support even with a constitutional obligation to respect. Yet the whole point of a constitution is to prevent such abuses and constrain popular majorities.

Seidman writes that if we followed his advice: “The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.” So supreme court opinions would be nothing more than policy briefs and appeals to moral principle? It seems to me that is a recipe for undermining the legitimacy of judicial review and ultimately relegating all such questions to the political process — and producing quite a few results I doubt Seidman would much like (e.g. greater limits on expression, lesser protection of criminal defendants, and more expansive national security authority). There are reasonable arguments for constraining (or even eliminating) judicial review — I don’t agree with them, but I think they are reasonable — but I don’t take that to be Seidman’s argument. To the contrary, he seems to want to keep judicial review, but just for those constitutional provisions he likes, but that’s hardly the basis for a principled argument for “constitutional disobedience,” as such.

John J. Vecchione of the National Review -

What he more seriously proposes, the radical rejection of binding any polity, is not only silly but unworkable. But we should take a small step in a very small universe and test it anyway: Get rid of tenure, and job security more broadly, at Georgetown Law. Every year, nay every minute, each faculty member should be judged on how they are doing at that instant of time. If they are found wanting by the standards of the hour they should be fired. Surely deep, radical thinkers like Professor Seidman and his confreres at Georgetown would not sacrifice the new and untried for the old, stolid, and hidebound edifice that is tenure? Why should current students suffer under the methods that were deemed acceptable by a faculty panel 30 years in the past, all of whom abjured same-sex marriage and none of whom used the Internet?

Joel Griffith of Policymic.com -
The professor goes on to state that we should continue to follow “out of respect, not obligation” the freedom of speech and religion, equal protection of the laws and due process.
But without a court which ascertains whether or not laws violate these constitutional freedoms, how is the majority stopped from impeding the rights of the minority? Are we to trust judges and legislators to enact laws on these matters as they seem fit? What ultimate recourse does the public then have against a legislature intent on eroding these fundamental liberties? Are justices to be a law unto themselves?

Notably, the professor does not even mention the prohibition against government seizure of private property without just compensation. Nor does the professor even indicate the slightest regard for the ultimate protection against terror and tyranny — the right to self-defense guaranteed by the Second Amendment. Without a judiciary foresworn to guarantee these rights, what reliance do we have that our legislators will remain impotent to usurp these natural rights?

Roger Pilon of the Cato Institute:
And just who is “forcing others to give up their moral and political judgments”? Is it Georgetown University, whose officers are objecting to being forced by Obamacare to subsidize Sandra Fluke’s contraceptives? Is it the taxpayer, who’s now being forced to subsidize everything from green energy to NASCAR to Bacardi rum? Or is it, instead, those who’ve read the Constitution as saying that “we’re all in this together”—and therefore that nearly every aspect of life is to be subject to political ordering, as if we all aspired to the life of dependency depicted in the Obama campaign’s “Life of Julia.”

Plainly, “at the broadest level” we do not all embrace the Progressive vision. Today, in fact, we’re a fundamentally divided nation. Many of us believe in individual liberty, a vision starkly different than the Progressive’s, which is all about politics. Why leave things in the private sector, the Progressive asks—education, retirement security, health care, energy production—if we’re all in this together. “Perhaps the dream of a country ruled by ‘We the People’ is impossibly utopian,” Seidman laments at the end. No, it’s not utopian. It’s just that “We the People” were never meant to rule over everything. The Constitution enumerates only a few objects of federal concern, leaving “We the People” otherwise free to plan and live our own lives, in freedom.