So a while ago, somebody claiming to be a professor of “constitutional law” put forth for our consideration a radical, completely new proposal:
He shoots his own argument in the foot with his very first paragraph…
AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.
Really? That’s what caused the problem? Too many politicians insisting too strenuously on obedience to the constitution? Hm. To laugh, or to cry? Which is right?
Being a “professor,” Mr. Seidman cloaks his argument in many, many words. Being a “progressive,” Mr. Seidman carefully uses only those historical examples he thinks aid his argument while ignoring the many that didn’t work out so well. For example:
[Thomas Jefferson] believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.
In arguing that politicians should not be hobbled by the constitution, everybody cites the Louisiana Purchase. Jefferson is reported to have agonized over that decision, and openly admitted he didn’t have the constitutional authority to approve it. But even with the glorious clarity of hindsight, it was clearly a very smart thing to do.
Yeah, everybody cites Jefferson and the Louisiana Purchase. Nobody cites Jefferson and the Embargo Act of 1807, which was every bit as unconstitutional, at least as consequential, and nowhere near as smart.
(Jefferson has always been a thorn in my side, as a freedomista. He wrote so beautifully, like such a lover of freedom. And he ruled as if he’d never bothered to read his own writings. Part of me really hates Jefferson.)
I don’t fetishize the constitution. My view on the document is summed up very beautifully by Lysander Spooner himself, who said,
“… whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”
(Mr. Seidman, oddly, omits any reference to Spooner, even though they argue to the same effect. I wonder why?)
And Seidman isn’t entirely wrong, you know. He points out, quite correctly, that the Constitutional Congress of 1787 was essentially a bloodless coup – that the “Framers” had no more authority under law to draw up a new outline for a strong central state than the “Founders” did to rebel against the King. This is perfectly true, and we are not without justification in doubting their motives in doing so.
So away with the constitution, cries Seidman. And yet! Whom shall we trust with it? Seidman certainly isn’t arguing for the abolition of the strong central state – his complaint is that it isn’t strong or central enough. I don’t want the decisions left in his hands, or in those of anyone whom he would approve.
Getting back to Seidman’s core complaint: “our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.” Is that really what has so damaged this country? Too much adherence to the constitution? I suggest – and this is also hardly original – that the opposite is true. More and more, Americans are at each others’ throats. More and more, the principal cause of the conflict is that there are some who think we are ruled not enough, and some who think we’re ruled too much. It’s the ones in that first group who want the constitution abolished or ignored, and with those people I have nothing at all in common. I do not consent to be ruled by them – either with or without lip service to an old scrap of parchment.
H/T to Claire.