Georgetown Law Professor Michael Seidman says in the New York Times that we should conclude, “the American system of government is broken” not because of political divisions, but because of the Constitution “with all its archaic, idiosyncratic and downright evil provisions.” Accordingly, he thinks America should abandon the Constitution.
Seidman first looks to our nation’s “fiscal cliff” debate as an example of the Constitution’s failure—blaming its requirement that all revenue-raising bills originate in the House and not the Senate for the lack of a deal (the “Origination Clause”). As he says, “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?”
Rather than deal counterarguments,Seidman breezes past his rhetorical questions. Doing so allows him to conveniently ignore the very democratic nature of the Origination Clause—that only those representatives who are closest to the People both in terms of proportional representation and in frequency of election can initiate a new tax on them. Had Seidman considered this tacit victory for self-government, he might have endorsed the Clause’s wisdom because it prevents exactly what he contemporaneously criticizes: “a grotesquely malapportioned Senate” getting “ to decide the nation’s fate.” Seidman might also have wrestled with the reality that the Supreme Court already pared back the Origination Clause’s relevance with no corresponding increase in governmental efficiency, as in Flint v. Stone Tracy Co. where the Court affirmed the Senate adding a tax increase to a House bill, or in Rainey v. United States where the Court affirmed the Senate adding a tariff to a House bill.
Perhaps the professor’s most bombastic criticism comes here:
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.
This is untrue. As Yuval Levin astutely pointed out, quite a lot gets done in Washington—and almost all of it is done without any regard for the any Founder’s desires or the Constitution’s manifested restraints. The past decade alone has seen an overhaul of Medicare, an overhaul of the federal government’s role in education, the creation of a new federal department (Homeland Security), the Patriot Act, financial accounting reform (Sarbanes Oxley), a bailout of America’s major financial institutions, a bailout of the American auto industry, an overhaul of banking regulations (Dodd Frank), a massive federal stimulus program, and of course, an overhaul of the American health care system—which also included the nationalizing of the student loan industry. It would be a very narrow definition of a functional political system that didn’t consider these legislative achievements “doing something,” regardless of their respective merits.
To the extent divisions do prohibit Washington from “doing something,” especially in the context of fiscal reform, they speak to deep divisions in our country over the nature of the individual’s relationship to the government. A division that has only been encouraged by the very type of “Constitutional disobedience” the professor lauds—contorting the Constitution to allow for government action it would have prohibited if its provisions were understood in line with their text’s meaning.
What Seidman really rejects, and why his argument cannot escape the radicalism he tries to downplay, is the concept of intergenerational government—that prior generations should be able to bind subsequent generations to a form of government. To sum up the professor’s argument: the fact that “a group of white propertied men who have been dead for two centuries” disagrees with the conclusions of today’s leaders is not even “remotely rational” to consider relevant in debating what’s good for the country.
The rest of his examples are ripe with other convenient omissions that prove the Constitution’s lasting wisdom. It was appeals to the broader notion of free speech contained with the Constitution that prohibited future “Alien and Sedition” acts, just as the Fourteenth Amendment gave Congress the power to prohibit the types of racial discrimination at the state level that the Constitution already prohibited federally. Even the types of “Constitutional disobedience” Seidman seems comfortable with, such as when the Supreme Court protects rights “whether or not they are within the Constitution,” is couched in the language of Constitutional compulsion. Why, for example, would organized political groups pursue lawsuits to argue for a constitutional right to abortion or to abolish the death penalty if not to ossify their wishes into an unchanging law like the Constitution? If the Constitution has only been treated as a “suggestion” throughout history like Seidman argues, than attempting to rigidify one’s political goals into its provisions would be nonsensical. Yet, these political groups pursued such a strategy precisely because Seidman’s historical account is incomplete: the Constitution does in fact determine what our government does and does not do, even after numerous efforts to undermine it.
At this juncture is where Seidman’s argument transforms from simply radical to incoherent. After mischaracterizing originalism as a quest to derive the inner “intent” of the Founders, he then says that we should nevertheless obey certain parts of the Constitution – mostly the parts where the Supreme Court engaged in the most contortion about the rights those provisions protect. Since Seidman spent the first page and a half of his op-ed attempting to dismantle any principled justification for Constitutional obedience by the three branches of government, it appears Seidman thinks ipse dixit is a stronger argument instead. To him, the President will remain “checked” by Congress and the states simply because, well, he will be, and so forth with the other branches.
Apparently, the mere possibility that American politics discusses “real issues” with less concern for Constitutional niceties is more valuable than the numerous historical examples of tyranny that came when government lacked formal constraints to have its actions weighed against. “To thine ownself be true” is not a governing philosophy that will preserve self-rule, and Seidman seems okay with that. Take this quote from his conclusion: “If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate.” As Prof. Siedman reveals his true colors, he also reveals the wisdom of this quote from President Calvin Coolidge on the 150th anniversary of the Declaration of Independence. t could just as easily be said about the Constitution and its detractors:
It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning cannot be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.