Despising the Constitution

Russ Roberts, host of the significant and highly influential podcast show, Econ Talk, interviews this week Leftist law professor Michael Seidman. Seidman, you might remember, started off 2013 with this breathless piece in the New York Times (no doubt fulfilling one of that publication’s New Year’s resolutions) disputing the need for our Constitution and its principles of federalism, separation of powers, checks and balances, and the rule of law. Mike Rappaport responded here. A tenured law professor at Georgetown, Seidman maintains that “obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions . . . 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.”

We should, as it were, stop pretending “that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text.” Of course, as a professor of law Seidman has the unenviable task of teaching a legal subject, constitutional law, that he no longer really believes in. In effect, Seidman wants to trade in the many-storied mansion of our constitutional order, replete with its triumphs, failures, and redemptions, for the flattened barn of unlimited democracy. This is the effectual truth of Seidman’s drone strike on the Constitution.

We should use this occasion, however, to ask more broadly what is the point of constitutionalism in the progressive view of government that Seidman surely favors? Men locked into conversation about the public responsibilities of government would become strangely irrelevant. Instead an all-encompassing material equality, unmoored from America’s historical and philosophical founding, would ground political authority. The true charter of our constitutionalism would become the collection of milestones reached in social and economic rights. These become the constitutional touchstones reached by the historical moment, ratified by evolving consciousness.

Social Security, Medicare, Medicaid, and various other welfare programs would be lifted above debate in the public square. To question their existence, or even argue for the retrenchment of the size and scope of these programs, would be to question the constitutional order itself. Consequently, domestic politics becomes war-like.

As Ken Masugi recently underscored there is always more to do under an unbound constitutional project because of “the insistence on the identity of each individual good with the common good.” The Founders saw it differently. “The politics of freedom means conflicts over the common good.” Such conflicts and contests over the common good are not allowed to exist within progressive “constitutionalism”. The precise aim and working of political power now becomes the diminishment of uncertainty by the more or less even distribution of income, security, pensions, etc. But is there ever finally an acceptable rendering of security and results-based equality that satisfies the material passions of individuals once these have become the basis and measure of governmental action? Can government ever rest secure in the knowledge that it has adequately distributed the ever-lessening spoils of productive investment and labor?

Could this possibly be why Seidman so readily dismisses our written constitutional order? The purpose guiding the machinery of government is known and fixed, so why bother with the constitutional procedures that guide and channel the passions and powers that propel public argument.

Other disturbing questions emerge from Seidman’s formal rejection of the procedural constraints the Constitution imposes. How to limit the pride and passions of men, greatly exercised as they are in the pursuit of their self interest? How to limit the excitement generated by emergencies in those moments when so many want to strip away the binding nature of law so that their imperial will may govern and lead us to their destination? What might remain is merely man and the state, and the hub and spoke control of government power centers, unconstrained by law and right, imposing a monotonous will.

Reader Discussion

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on February 06, 2013 at 03:44:57 am

It is obvious that the Michael Seidmans of this world have a world view that they deem superior to most citizens views. And that the only thing that stands between their views and domination of the "average" man is an anachronism called the U.S.Constitution. This is a large amount of hubris on the part of Mr. Seidman who,in the American Free Market Economy, probably would have a hard time making an honest living. With that said,let us face the fact that the original intent of the Founding Fathers,in regard to the basic checks and balances of the original Constitution, has been so twisted,misinterpreted,changed and or ignored that the original intent is meaningless. In the end, America has devolved into a lawless nation controlled by a few very powerful men often from behind the scenes. This step by step slide into collectivism, that has taken place basically over the last 100 years,is about to reach the final stages of the destruction of the original American Republic. What America is on the cusp of reaching is a police state. The horror of it will be the implementation of modern technology to enslave the average American. In the final analysis,it really doesn't matter whether the Constitution stays or goes. The statists and collectivists of both the Left and the Right have achieved their goal of power of the few over the many. In essence almost no one pays attention to the Constitution anyway.

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libertarian jerry
on February 06, 2013 at 07:11:44 am

I tend to agree. I think the Constitution was a great document. It had it's flaws, any real-world document does, but on the whole, great. It's already history. We've already passed the point where they stopped obeying it, we're approaching the point where they stop pretending to obey it.

Even if we could, by some miraculous effort, restore constitutional government under the current Constitution, it wouldn't last long. The Constitution is like an old operating system, all of whose "exploits" are known in detail. It doesn't take a genius political hacker to subvert the Constitution anymore, an FDR. Any political 'script-kiddy' can do it. Re-implement the original Constitution today, and it would fall inside of a decade.

What we need at this point is a new Constitution, written with a cold eyed understanding of how the old one fell. Unfortunately, we'd need a different political class to get one. We're largely screwed at this point, we let things go too far.

I think the best we can hope for at this point, is to hold a constitutional convention. One of two things will happen: Either Congress will refuse to permit it, which is the sign that they've made an open break with the rule of law, and it's time for revolution. Or we'll get it and with it a much worse constitution, but perhaps one clear enough that it won't require quite the level of mendacity to deliver a modern welfare state that is needed with the original.

A Constitution which honestly called for the sort of government we have, could at least be staffed with honest statists, rather than the Orwellian monsters who run our government today. Then we can embark on the long hard job of rolling back, if that's even possible.

Either way, it's time to admit the Founders' work of art is dead, and hold a constitutional convention.

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Brett Bellmore
on February 06, 2013 at 10:09:10 am

After reading Prof. Seidman's article advocating we discard our Constitution one might find it useful to review French history circa 1789. With equality reigning, and blood running in the streets, they saw no need for structure to interfere with their new order. "J'accuse" sufficed.

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Greg Bedell

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