About fifteen years ago Rush Limbaugh did a skit about Montana. The joke was that when you entered Montana they gave you a black robe, a shotgun, and a fill-in-the-blank copy of the Constitution. The skit ended with the narrator shooting a questioner and saying “I always knew he was a trilateralist.”
There was a lot going on in that little skit, but one of its points was the danger of people rewriting constitutional norms to suit their momentary passions. Enter Seidman who writes:
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?
Imagine if “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,” but that Obama appointees on the Supreme Court would strike down the products of this “considered judgment.” Should these leaders allow the Court to use power granted to it by a document drafted by a group of white propertied men who have been dead for two centuries? Would this government official and associated party leaders be justified in removing those Supreme Court Justices by simple majority votes in both houses of Congress rather than using the procedure spelled out in the Constitution?
I suspect that such an approach, if taken by the “wrong” people for the “wrong” policy purposes, would be wrong. Hidden under the idea that we should choose to ignore some portions of the Constitution, is the other idea that there should be an informal Higher Constitutional Moral Authority that will tell the rest of us when we should ignore and when we should obey this or that provision of the Constitution. This higher authority would not be the electorate if the voters should have elected a Marco Rubio as president and Rubio-friendly majorities to Congress. It certainly wouldn’t be a “government official” if that official were Rubio or John Boehner. The higher post-constitutional authority would be an amorphous group whose members would include the New York Times Editorial Board, The primetime hosts of MSNBC and whatever list of academics the Democratic party could scrape together to sign petitions in favor of why we should contemptuously ignore/slavishly obey constitutional provision X.
There is of course no reason why anyone who doesn’t share Seidman’s policy preferences would go along with whatever rewriting of the Constitution that he and his confederates dream up. In the event that Seidman’s approach to constitutional norms is broadly accepted, the greater government power granted by those… flexible norms will someday be used and further rewritten by people who disagree with him for purposes that horrify him. He might find that an explicitly post-constitutional right was not a price worth paying for whatever momentary benefit he thinks he will get.
December 31st, 2012 | 4:44 pm
[...] About fifteen years ago Rush Limbaugh did a skit about Montana. The joke was that when you entered Montana they gave you a black robe, a shotgun, and a fill-in-the-blank Source: Postmodern Conservative [...]
December 31st, 2012 | 5:37 pm
Brilliant analysis. It is as if leftists have completely forgotten the Bush years now that they have friends temporarily in control of the executive branch and a portion of congress.
December 31st, 2012 | 5:48 pm
The only thing is, we have the constitution we have, there is only one way it is going to change, and that’s the way it’s always changed, and any attempt to make law, or set policy that violates it will end up in the courts for adjudication, just like it always has.
So, as far as I can see, it really dosen’t matter what Professor Whosis thinks of it. And “supporting” the constitution means acceding to the judgment however wise, prudent, or fair we think it, until such time that the issue reappears in the courts. Just as we always have. All of us.
But “supporting the constitution” does not mean ceasing to publicly point out that any such court decision remains unwise, imprudent, or unfair for any reason that may suit us. Nor does it mean coming to some definitive bipartisan agreement about any such issue.
It means doing what we have been doing since 1789 and there is no serious indication that we are going to be doing anything else.
December 31st, 2012 | 6:15 pm
[...] About fifteen years ago Rush Limbaugh did a skit about Montana. The joke was that when you entered Montana they gave you a black robe, a shotgun, and a fill-in-the-blank copy of the Constitution. The skit ended with the narrator shooting a questioner …and more »How Rush Limbaugh Is More Self-Aware Than Louis Michael SeidmanFirst Things (blog)About fifteen years ago Rush Limbaugh did a skit about Montana. The joke was that when you entered Montana they gave you a black robe, a shotgun, and a fill-in-the-blank copy of the Constitution. The skit ended with the narrator shooting a questioner …and more » Go to Source [...]
December 31st, 2012 | 6:29 pm
[...] How Rush Limbaugh Is More Self-Aware Than Louis Michael … Go to this article [...]
December 31st, 2012 | 6:45 pm
Seidman: “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.”
I think the framers understood that these requirements needed to be enshrined in the Constitution because not everyone will follow them out of respect.
Seidman: “As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken.”
He needs to reread what James Madison had to say about factions in Federalist #10. I think Madison’s observations are astute in that they capture the reality of the tension between liberty and unified political action.
December 31st, 2012 | 9:21 pm
One should take Louis Michael Seidman’s comments very seriously. The New York Times is the unofficial voice of the Democrat Party. Now that we have skidded over the fiscal cliff, and no crisis being left to waste, what is the next thing to come. Perhaps Obama intends to govern by executive order alone. Perhaps he intends to ignore the Constitution altogether.
Louis Michael Seidman does seem to be sending up a trial balloon. Shall it be government by diktat or by the Constitution. Shall the Government be limited or shall it be unlimited. It does appear to be tending to the latter. (The 10th Amendment is already dead letter. The 2nd Amendment may soon be the same.) Yet fire arms are now more in demand than ever before. I suggest we are now entering a period of Cold Civil War. And Mr. Seidman may find that he as set light to something neither he, Obama nor the Government can control.
December 31st, 2012 | 10:02 pm
Its comical how the liberals complained about Bush “shredding” the Constitution (and I think they made a few good points) and now they’re turning around and calling for us to get rid of the Constitution just a few years later. Do these people have amnesia?
It all just fits in with a theory I’ve got: Obama is Bush. Just look at the parallels. Bush was a divisive president who barely got re-elected against a flip-flopper from Massachusetts and disastrously mishandled foreign policy (the major issue of his presidency). Obama is a divisive president who barely got re-elected against a flip-flopper from Massachusetts and disastrously mishandled economic policy (the major issue of his presidency). Bush was actually quite willing to act like a member of the other party in the realm of economics (the Medicare expansion). Obama is actually quite willing to act like a member of the other party in the realm of foreign policy (the Arab Spring, which was based on the neoconservative premise that spreading democracy is a desirable aim of American foreign policy). Obama occasionally pays lip service to his party’s foreign policy views, just as Bush sometimes paid lip service to his party’s economic views (the Bush tax cuts). Likewise, both Bush and Obama played up their respective side in the culture war to political advantage. I hope Obama ends the same way Bush did and I hope the 70-year-old Democratic nominee in 2016 is as successful as the 70-year-old Republican nominee in 2008. I also hope for a better President who can end the interminable culture war and bring to an end the failed interventionist foreign and economy policies that the Bush and Obama administrations supported so strongly. More likely, we’ll just get more of the same and our country will continue its decline.
January 1st, 2013 | 7:37 am
You are not properly interpreting Seidman. He is pulling a slight linguistic fraud but speaking an old truth.
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