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Monday, December 31, 2012

Give Up on the Constitution?

In The New York Times, law professor Louis Michael Seidman says that we should give up on the Constitution:
Our obsession with the Constitution 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.
His argument is incoherent.   On the one hand, he writes: "No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech."  But a few paragraphs later, he says: "Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper."  It is hard to square this statement with the violations of civil rights and civil liberties that have marred our history:  not just the Alien and Sedition Acts, but Woodrow Wilson's authoritarian actions during the First World War, and the internment of Japanese Americans in the Second World War, among others.  One would think that such examples would inspire greater devotion to the Constitution, not less.

Similarly, he starts by questioning the structure of government:  "Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?" Then he  says, "never mind."
Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.
So we should have an all-powerful Supreme Court instead of an all-powerful president?

Seidman would cut down the Constitution to get the political results he wants.  A Man for All Seasons offers the definitive rebuttal: