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.