Jewish ultranationalist (and founder of the Jewish Defense League) Meir Kahane, whose Kach party was disqualified on grounds of racism from seeking seats in the Israel’s Knesset, used to say to his fellow Israelis “I say what you think.” After publishing this op-ed in today’s New York Times, Georgetown law professor Louis Michael Seidman might find himself saying much the same thing to his fellow progressives who would have preferred his remaining silent.
A lot of progressives really do think what Seidman (and only a few others) are willing to say: “Let’s give up on the Constitution.” Although Seidman’s declaration is startling to us, early progressives were often explicit in severely criticizing the Constitution. It was, they insisted, an eighteenth century document wholly unsuited to the circumstances of twentieth century life.
In 1908, future President Woodrow Wilson (my own ancestor in the McCormick chair in Jurisprudence at Princeton, but not, I hasten to add, in philosophy) constrasted the “Newtonian” vision of the American founders with a “Darwinian” understanding of government which was, in his view, much to be preferred.
When the public could not be sold on the idea of ditching their Constitution for a progressive alternative, the progressives sought to accomplish by creative reinterpretation of the old Constitution what they could not (or not fully) accomplish by formally altering it by the constitutionally prescribed processes. And so progressive jurists and legal scholars came up with the idea of a “living Constitution”—a Darwinian wolf in Newtonian sheep’s clothing. Professor Seidman is willing to ditch the disguise.
December 31st, 2012 | 7:44 pm
Only anecdotal, but the people I have disagreed with on freedom of religion and the right to bear arms don’t care to say so, but they really don’t see the point of the Bill of Rights — or at least not THOSE rights. They would be happy to bypass them, because they don’t happen to like them. Whereas I came to support the second amendment long ago, although I don’t have a gun and don’t want one, because as a journalist I believed in freedom of speech. One day I realized that most journalists I knew were very much against the second amendment while hewing to the first, and I decided that I should attempt to be consistent — so I gave the second amendment some thought, did some research, and decided I would be a hypocrite to insist on one and despise the other. The point of the second amendment is quite clear: It’s for people to be able to form militias if they need to, because they are (or are allowed to be) armed. Forming a professional army and police force does not change that, it actually makes it more necessary to have arms available in case the standing army and highly trained police force decided to take over, as they have done in many other countries.
January 1st, 2013 | 10:33 am
“This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.”
Respect for what? And for whom? What if we lose our respect—do those freedoms still count, or can we ditch them for whatever the popular kids are doing?
January 1st, 2013 | 12:55 pm
We have a way of changing the Constitution and have used it a number of times. Seidman seems to ignore that or does he recognize that he cannot persuade the necessary numbers to make the changes he wants? Is democracy all about what Seidman and those who agree with him want? Or is the entire idea allowing many differing opinions while keeping the peace? Maybe he should have taught history instead. Then he might see the minority rule so common in the past offers little if anything over the limits of American Constitutional democracy.
Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
January 1st, 2013 | 12:58 pm
Hmmm. Is this guy saying what y’all think?
http://www.rawstory.com/rs/2012/12/27/italian-priests-christmas-flyer-women-incite-violence-with-cold-dinners/
How about we assume, just for the nonce, that Seidman is representing himself and not all ‘progressives’?
January 1st, 2013 | 2:56 pm
“What has preserved our political stability is not a poetic piece of parchment,”
he’s part of the “It’s just a piece of paper” school.
He reminds me of those Anglican clerics who lose their faith but won’t give up their position.
January 1st, 2013 | 5:06 pm
Kahane may have claimed to say what fellow Israelis were thinking, but they repudiated him. Professor Seidman doesn’t claim to be speaking for fellow progressives, and I don’t understand why there is any reason to claim he’s saying what they are actually thinking. It seems to me that for those of us who believe in our Constitution, the appropriate response is to rebut Seidman, not to claim embarrassed some secret alliance of progressives who only pretend to believe in American constitutional government.
January 1st, 2013 | 7:47 pm
The belief in a “living Constitution” was always a smoke screen to ignore the text and implement, by raw judicial mandate, that what could not be constitutionally enacted. This was enabled by the fact that judicial power in our Constitution is the most open-ended, and that fact is a major flaw in our self-governing democratic system. Progressives simply took advantage of this flaw in our Constitution to implement their agenda.
January 1st, 2013 | 7:56 pm
Glad to hear that, as a group, progressives do not agree with Seidman. So, can we hear your opinions as to the meaning of the Constitution?
January 1st, 2013 | 9:22 pm
TITLE SHOULD READ: Progressive Ditches His Disguise
January 1st, 2013 | 10:24 pm
Could someone please define progressive for me? If someone asked me to explain where I stand politically, it would not really occur to me to say, “I’m a progressive.” If all it means is “liberal,” I am not sure why Robert George just doesn’t say liberal.
January 2nd, 2013 | 5:26 am
Say democracy one more time! One more time!
Republic people, we live in a constitutional republic. It is vastly different from the mob-rule of a democracy.
Sheeesh.
Ok, I’m done.
January 2nd, 2013 | 9:58 am
Mike Melendez –
Like David Nickol, I don’t think I’d classify myself as a ‘progressive’ – and the ‘meaning of the Constitution’ is kind of underspecified. Do you mean ‘what the text signifies’ or ‘how important is the Constitution to our government’ or ‘how important is the Constitution to a sense of American identity’ or what?
Contra Seidman, I think there is real value in having written ground rules that define the basic framework of our government, and are very hard to change or ignore.
Some interpretation and elaboration is going to be necessary, though. Take, for example, the Fourth Amendment. The text says people are to be “secure in their persons, houses, papers, and effects” from unreasonable searches and seizures. True, the Founders had no inkling of computers or the Internet. But does that mean that the Constitution really only protects ‘papers’? That the government can’t snoop on a printout without a judge’s signoff, but it’s free to peruse the same file on a computer? Protecting such files seems entirely natural to me.
(And I still don’t understand how asset forfeiture can possibly be justified in light of the Fourth Amendment, either.)
Nor do I think the document as written is perfect, or even close to optimal in many ways. I’d prefer something like the Borda count or approval voting for our elections, to take one example.
But we need those rules, which should be very hard to change or ignore – otherwise politics has a tendency to devolve into Calvinball.
January 2nd, 2013 | 1:47 pm
It seems to me that in order to claim to accept and revere the Constitution, one has to accept to a very large extent what the Supreme Court has decided about what is constitutional and what is not since Marbury v Madison. It would be rather difficult, it seems to me, to claim that the Constitution is the great guiding document for the country but that starting in 1803, or starting in 1930, the country and particularly the Supreme Court went seriously astray and ceased to correctly abide by the Constitution.
To put it another way, I think we have to judge the Constitution by the way it has worked. Of course, most people who pay attention to these things will have cases that they felt were wrongly decided and other disagreements with the direction of certain aspects of constitutional law. But it doesn’t make sense (at least to me) to revere the Constitution and claim we stopped abiding by it some time decades (or more) ago. It seems to me that is really to say that the Constitution stopped working.
January 2nd, 2013 | 6:45 pm
As to the Constitution no longer working, I am willing to bet that if, to pick just one aspect of constitutional law, the Court had respected the notion of federalism, within the constraints defined by the Constitution, we would be better off today.
And to head off just one objection, the issue of slavery was not necessarily supported by the Constitution, Dred Scott notwithstanding. Self-government is messy business, not to mention “unworkable,” with no clear, well-defined path to the best outcome . . . that is why throughout world history oligarchy and monarchy were almost exclusively the basis for government.
Progressive, leftist, liberal. Liberal is no longer an accurate term for those on the left. And progressive is the term used by those of the left, when liberal unfortunately became a term of derision early in the 20th century, used by many of whom consider themselves “liberal.”
January 2nd, 2013 | 6:50 pm
David, The word “progressive” as a synonym (euphemism?) for “liberal” came into general use in the mid 1980s when American liberalism had become discredited by two decades of social, political, and economic disaster. If you prefer “liberal,” well, I say tomato; you say tomahto.
January 3rd, 2013 | 7:20 pm
We, as Americans, are descended from the best of Western liberalism. It is tragic that liberal has become a term of derision. Today, “Liberals,” or more accurately Progressives, are ideologically of the Left, and have no resemblance to the liberalism of our founding. And we are paying the price for it today.
I believe that progressive became a term of description much earlier than the 1980s, more like the first two decades of the 20th century, when the term liberal, morphed into leftism, and became political dynamite. A change in terminology was politically necessary.
Self-proclaimed “liberals” today have no trouble legally mandating all manner of regulation at the state and national level, denying basic freedoms to individuals, and they have no problem doing so. They will mandate it non-democratically through judicial mandate if they must. This is the behavior of the Left, not of liberals.
Links
Blogs
Find Us
Contact