Constitutional Relevancy

On December 30, 2012, the New York Times published an op-ed by Louis Michael Seidman, professor of constitutional law at Georgetown University, titled Let’s Give Up on the Constitution. The main premise of Seidman’s article is that “The American system of government is broken” because of “Our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.” “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.” Ironically, his comments and examples prove the opposite to be true.

As part of his argument, Seidman states “No sooner was the Constitution in place than our leaders began ignoring it.” He goes on to list numerous constitutional abuses starting with John Adams and going all the way up to the middle of the 20th century, which he uses as evidence to support his proposition that we should abandon it. Incongruently, his argument that we are now in our present situation because we followed the Constitution is negated by his numerous and accurate examples of constitutional abuse throughout our nation’s history. This argument for abolishing the Constitution is equivalent to a person who is caught embezzling from the government and when convicted complains that it is an irrational adherence to laws that has caused his condition and if we discarded those laws there would not be an issue.

He further argues “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 begs the question if it has in fact helped us grow and prosper, then why are we in our present condition about which he is complaining? If our nation has grown and prospered from breaking the supreme law of the land, it has done so in the same way crime syndicates have grown and prospered from their activities. Paradoxically, it is the very lack of constitutional discipline that has brought us to where we are today. The biggest drivers of US debt, Social Security, Medicare and Medicaid, would never have passed in Congress if Congress had followed the Constitution.[1] Like a 1,000 tiny cuts of a knife that finally causes a victim to succumb to his wounds, so is our nation dying a similar death.

Seidman reasons we should violate the Constitution because the creation of the Constitution set the precedent for abrogating rules and procedures. He states, “in violation of their mandate, they abandoned the Articles [of Confederation], wrote a new Constitution and provided that it would take effect after ratification by only nine states [instead of all thirteen], and by conventions in those states rather than the state legislatures.”

In this his logic is unsound, although his examples are accurate; it is not a precedent for violating our nation’s supreme law. The alternative ratification process gave every citizen the opportunity to voice their opinion on the Constitution and every State the choice of accepting it or not. Although, it only took nine States to ratify it, it was only binding on the States that did, and nothing was imposed upon the others. As a matter of fact, when George Washington first took office, North Carolina, Rhode Island and Vermont still had not yet ratified the Constitution and neither were they required to. So if Seidman is proposing the abrogation of our nation’s supreme law by allowing each State to choose if they want to be subject to the “new” way of doing business or be exempt from the new way, then I would agree, but his proposal is to allow others to make that choice for us by empowering politicians to make up whatever rules they deem necessary for the “good” of the nation.

Seidman also goes on a diatribe about the modern irrelevancy of the founders’ original intended meaning to each constitutional clause. He asks “Is it even remotely rational that [a government] official should change his or her mind because of [constitutional original intent]?” One could equally ask is it even rational that we follow rules in playing sports? Why not instead allow players to make up their own rules during the game as they see fit, ostensibly to make the game more entertaining for the spectators? Contrary to what he proposes, it is completely rational that we would expect our elected and appointed officials to play by the rules as we do our athletes.

Another one of his examples proves just how far our nation has drifted from constitutional original intent. He explains in his proposed new system “The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief.” In this he identified a problem that adherence to original intent would resolve. Original intent mandates the President is not the Commander in Chief until Congress calls up the armed forces and that only Congress has the authority to declare war.[2] This was done to prevent a President from seizing dictatorial power via unrestrained use of the military.  If our nation actually followed the Constitution, the President would have to plead his case to Congress if he wants to use military force against any nation including our own. It is, therefore, not disobedience to the Constitution we need, but dogmatic obedience to it.

Sadly, Seidman characterizes the authors of the Constitution as “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.” This is not only inaccurate, but disrespectful and unpatriotic as well. The number of constitutional convention delegates who thought it was fine to own slaves were very few in number, so it is completely inappropriate to paint all of them with such a broad stereotypical slander. In this statement, he also insinuates that because they could not foresee our current situation, they are somehow responsible for creating it.  Just like the creator of the board game Monopoly is not responsible for how future players would potentially manipulate the rules and end up ruining it for others, neither are the founders responsible for future generations not upholding the law and ruining our nation.

As the foundation for the validity of his proposition, Seidman uses a false appeal to authority; his forty years experience teaching constitutional law. No matter how credentialed he is as a constitutional law professor, just because he claims something to be true does not make it true. Yet, within his article he asks questions to which a first year Constitutional law student should know the answer. For example, he asks why we should care that the Constitution requires revenue measures originate in the lower chamber. Constitutional law experts should know this is a check on government power. Members of the lower house are elected or re-elected directly by the people from their district every two years, so if they inappropriately spend the nation’s money they can be swiftly turned out of office and this is why house bills originate with them.

Other than unwittingly proving the opposite of his intended point, the only good thing one could say about his article is that at least he admits “The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.” In this statement he has verified the Supreme Court pretends to uphold the Constitution while basing their decisions on criteria other than the Constitution. This is not to debate the efficacy of past Supreme Court opinions, but if entities at the national level do not have to follow the law then everyone should be allowed to do whatever they think is right in their own eyes and we can become a social darwinistic country.

His solution to our nation’s problems is to give up self-government and submit ourselves the “good-faith” of elected officials.  It is odd that he speaks out against totalitarianism, but then indirectly advocates it. What he does not understand is that the more self-government each of us has the less external government all of us need.

The problem with our nation is not a strict adherence to the Constitution, it is the abrogation of responsibility and laws that begins with every individual and extends to our national government. The Constitution is still relevant, because it was written to restrain greed, jealousy and other defects in human nature that have not changed in 6,000 years of human history. We are the only nation in the history of the world to exist under the same constitution for as long as we have and in spite of constitutional abuses we have managed to prosper, but those abuses have finally caught up to us.

If the Constitution has not stopped Congress from spending its way into our current situation, as constitutional original intent would have, then what would they do without any laws to restrain them? The resolution to our current situation is for Americans to uphold constitutional original intent in their lives and demand elected and appointed officials uphold in our government. Only then will we be able to restore what we have lost.

[1] American Founding Principles, Who is General Welfare?,  October 15, 2012.

[2] American Founding Principles, When is the President the Commander in Chief?, October 22, 2012.

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3 thoughts on “Constitutional Relevancy

  1. Excellent article. A Constitutional Law professor is in most cases the farthest thing from an expert on the Constitution. He is an expert in case law and the opinions of the black robed deities of the Supreme Court who have illegally re-interpreted the Constitution to coincide with their own view or the special interests they represent, but he is grossly ignorant of the Original Intent that was recorded during the ratification debates at the state conventions, leaving a massive paper trail available for all to see. We are seeing the consequences of many years of effort to break down the Constitution, God, and the Family. The Constitution is already effectively dead…Seidman got his wish, and he may regret it soon enough.

  2. Thank you Liber Natio, I agree. As I was reading what Seidman wrote I could not stop thinking his constitutional approach was completely based on case law to the point where he had either completely ignored, forgotten or had never read the origin text at all.

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