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.