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Time to Can the Constitution?

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Near the end of 2012, while Congress and the president were hashing out a deal to avert the “fiscal cliff,” Georgetown University constitutional law professor Louis Michael Seidman had this to say in a New York Times op-ed:

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.

It’s not hard to agree with Seidman that Washington is particularly dysfunctional. But is he correct that this dysfunction — and the “fiscal chaos” it has unleashed on the nation — is the result of a Constitution fetish? Let’s examine his reasoning.

First, Seidman is upset about procedural matters:

Consider, for example, the assertion by the Senate minority leader … that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? 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?

Seidman’s complaints about the lame-duck session and the malapportionment of the Senate can, in fact, be addressed by perfectly constitutional means. Congress could eliminate lame-duck sessions either by changing its own rules to prohibit them or by fixing the dates of congressional elections closer to January. It could also, with the consent of state legislatures, divide large, populous states into smaller ones, thereby giving individual voters in each state roughly the same voice in the Senate.

More important, why should Congress, no matter how perfectly representative of the people, “have a stranglehold on our economy” in the first place? A Congress that abided by the restraints of the Constitution would exercise so little power that whatever it did would have a negligible effect on the economy. As W. James Antle III of the Daily Caller observed,

Put simply, if the federal government only spent money on its constitutionally enumerated functions, there would be no fiscal cliff. No $1 trillion deficit. No $16 trillion national debt. No $84 trillion in unfunded liabilities for the major entitlement programs and other federal commitments.

It is the constitutional disobedience [Seidman] advocates that has the country perpetually on the precipice of financial ruin. He is merely complaining about a too-slow process of dividing up the spoils.

Indeed, it quickly becomes apparent that Seidman does not want merely to discard certain rules of order in the Constitution; he wants to be rid of the troublesome document altogether:

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.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. 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?

In short, Seidman believes that government should not be constrained by any rules whatsoever — except the ones he likes. He later remarks that “freedom of speech and religion, equal protection of the laws and protections against government deprivations of life, liberty or property” should be retained but “follow[ed] out of respect, not obligation.” But what if some government official decides that the best course of action for the country is to summarily execute all drug addicts? Why should he be prevented from pursuing this policy simply because a constitutional law professor objects? Written law certainly does not guarantee that such things will not happen, but it provides a powerful deterrent to them.

Furthermore, the idea that the rules are irrelevant simply because they were made by long-dead white males under far different circumstances is balderdash. Would Seidman care to play a high-stakes game of poker against an opponent who decided in midstream that his pair beat Seidman’s three of a kind — and enforced this rule at the point of a gun? To what could Seidman appeal? His opponent could point out that the rules of poker were invented by white men in the 1800s when the United States was an agrarian society, and how can one possibly “divine” what they really meant by those rules, especially since they were not even written down at the time? Why, then, should he now be constrained by some imagined “original understanding” of the rules of poker?

Seidman goes on to argue that since the government has violated the Constitution many times — a statement few would contest — there is no reason for it to obey that ancient parchment now.

Thomas E. Woods, Jr., author (with Kevin R.C. Gutzman) of Who Killed the Constitution? offers this rejoinder:

Couldn’t it just as easily be an argument for deciding, once and for all, to abide by the principles of republican government and actually obey the Constitution? Surely we wouldn’t say that the Soviet Union’s long list of atrocities became more legitimate over time because of customary practice.

Nonsense, says Seidman. “Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.”

Woods again:

One might cite the incarceration of the Japanese, the sedition decisions after World War I, and other obvious cases, or even the civil-liberties problems of today, but “helped us to grow and prosper”? FDR, who scarcely even pretended to follow the Constitution, gave us the slowest recovery from a depression in U.S. history. The post–Civil War growth in the U.S. economy was the most robust ever, and most Americans can barely name two of the presidents from that period.

“No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation,” Seidman avers.

In fact, it is very easy to predict the outcome: Simply take the federal government of today — which, as Seidman correctly observed, hardly obeys the Constitution anyway — and compound it a few times. All power — not just most of it — would be centralized in Washington, which would micromanage all — not just most — of our lives, run an even more enormous welfare state, abolish our remaining civil liberties, involve us in even more endless foreign conflicts, run up multi-trillion-dollar deficits, inflate the currency until it was entirely — not just mostly — worthless, and generally become an even greater menace to society than it already is.

Seidman deserves credit for his honesty. Unlike most progressives, he admits that he wants to ditch the Constitution in favor of an unrestrained federal government. However, should he convince others that doing so will, in his words, “give real freedom a chance,” he will have performed a great disservice to his country. The Constitution may not be perfect, and it may not even be much heeded these days; but to the extent that its existence forces politicians to keep their grandiose schemes somewhat in check, it is still a useful bulwark against tyranny.

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    Michael Tennant is a software developer and freelance writer.