Please, please, please, will someone at the next Obama press conference (surely there will be at least one of these before March Madness commences) ask him the following question?
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?
That’s from the text of this NYT op-ed by Louis Michael Seidman titled “Let’s Give Up on the Constitution.” Or maybe the question could go like this:
Mr. President, as a former scholar of constitutional law, and as the primary public face of the American Republic, do you repudiate the views of Louis Michael Seidman, a law professor at Georgetown University, who said, and I quote, “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.”? If so, Mr. President, could you take a few minutes here to use your office to explain to the American people, and without any superfluous rhetoric, why they should reject Professor Siedman’s views? And could you explain why, for example, your actions on immigration law, contrary to common conservative opinion, illustrate your commitment to follow the Constitution to the letter? And will you commit today to demand that the next Democratic Party platform contain a sentence repudiating the views of Dr. Siedman?
But of course he would find a way to squirm his way out of answering the question. That is one skill of presidential leadership that we demand above all else, whereas as for the skill in educating the citizenry about their Constitution…we’ve almost forgotten what it consists of.
So how about another gotcha question, this time posed to the president of Georgetown University:
Mr. President, Professor Seidman recently wrote in a NYT editorial, “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.” By “all this,” he meant government actors evaluating whether their actions would be constitutional or not. The remainder of his essay, while making noises of wanting to search out a criteria for appropriate “constitutional resistance,” which apparently is the project of his recent book, did not fundamentally qualify its shocking title: “Let’s Give Up on the Constitution.”
Now, granting that it is impressive, as your website indicates, that “After graduating from Harvard Law School in 1971, Professor Seidman served as a law clerk for J. Skelly Wright of the D.C. Circuit and U.S. Supreme Court Justice Thurgood Marshall,” do you not think that a professor who professes that he no longer believes his area of expertise matters, should be obliged to step aside? How can constitutional law be seriously taught by a man who thinks it is a kind of “divination?” Surely you are aware that along with Carl Eric Scott, there are 5,631 eager young professors without tenure in the nation capable of teaching constitutional law, both conservative and liberal ones, who nonetheless all think that the subject is a real one? That one can arrive at a genuinely wrong or right answer as to whether something is constitutional? So if you will not call upon the law faculty to fire Dr. Seidman, and replace him with Carl Eric Scott or another of those 5,632 (much less expensive, incidentally) professors, can you explain why you won’t? Is Georgetown University in the habit of handing the teaching of key subjects over to those who think they are worthless ones?
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Oh, but what a fantastical mood I am in today. The simple point is this: what our nation needs perhaps more than anything is liberals who seriously believe in the Constitution, or at least in our for-the-sake-of-future-civil-peace duty to only alter it according to its own provision.
I.e., we need:
Liberals who will relieve their fellow center-right Americans of their sincere long-term fear that, when push comes to shove, when crisis permits, or when after 40 years of professing otherwise, their liberal public servants, the same who sang such lovely odes of praise to Lincoln, Madison, and the framers of the 14th back in the day, will toss the Constitution aside like so much worthless garbage, to be “resisted” or “developed” at will.
Liberals who will denounce the likes of Seidman.
Liberals who will explain why Seidman is WRONG to say that In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined…
Or, if any such explanation is implausible, liberals who will be willing to say that, insofar as that is a fair characterization of FDR’s attitude towards the Constitution, it is not their own and no longer an acceptable one for liberal public servants.
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But one other thing would be a lesser evil than the current situation of so much faux liberal reverence for the Constitution, and that would be liberals who would simply admit, to us and to themselves, as Seidman does here and as the key progressive thinker Herbert Croly did back in the early 1900s, that they wish in large part to take us beyond the Constitution. Read the whole piece for Seidman’s discussion of how an intelligent liberal might say that, and how dedication to the aspects of the Constitution liberals like, such as key provisions of the Bill of Rights, could remain central to such a liberalism.
But Polly-annish me, I continue to hold out hope for, and intend to continue to demand public expressions of allegiance to, Constitution-Bound Liberalism.
Liberals, choose. Openly denounce Seidman, or openly praise him.
December 31st, 2012 | 12:07 pm
[...] Please, please, please, will someone at the next Obama press conference (surely there will be at least one of these before March Madness commences) ask him the following question? Imagine that Source: Postmodern Conservative [...]
December 31st, 2012 | 12:49 pm
Wow, Sandra Fluke really had some great professors teaching her over at Georgetown Law School, didn’t she
December 31st, 2012 | 1:54 pm
Carl, take a deep breath!
I’m not sure very many ‘liberals’ (Democrats, progressivists, Marxists of whatever stripe) have much respect for the Constitution, federalism, or any element of republicanism. This antipathy is one reason we can not engage these people in the dialectic.
While the so-called ‘radicals’ of the left (Chairman Obama’s mentors, for example) plan to either convert people like you or systematically destroy you in the concentration camps and gulags of the not so distant future, it will be but a short time when the vast Democrat middle, already attuned and accepting of systemic slaughter, will take up the call for extermination. It’s inevitable.
Re-read Dostoyeski, Bukofsky.
December 31st, 2012 | 4:20 pm
Liberals have proven quite definitively since January 2009 that they couldn’t care less about the Constitution, and that every single one of their whines about George W. Bush trampling on civil liberties was nothing but a fraud. Some of them, like this joker, are more open about it than others, but every Dem who tried to articulate a defense for Obamacare, for example, showed conclusively that Constitutional limits mean nothing to them.
December 31st, 2012 | 4:49 pm
[...] Liberals and the Constitution – Carl Scott, First Things/PoMoCon [...]
December 31st, 2012 | 6:17 pm
Why? As I pointed out in another post what Mr. Seidman thinks, constitutional scholar or not, is completely irrelevant to what we have been doing since at least Marbury vs. Madison–which is allowing the courts to arbitrate its meaning, however unwise or imprudent we think their actual decisions, and amending it by state ratification in the way the constitution itself provides.
And the mere fact that all of us repeatedly, loudly, and clearly disagree with one particular judgement or another is also irrelevant to what we actually do about the constitution.
I certainly don’t agree with Mr. Seidman, but I see no reason to “denounce” him. The constitution is certainly in no danger from him nor from anybody else who is willing to accept the decision of the courts until such time as they review the matter again. If any “liberals” have failed to do that in any way beyond mere expression of opinion, I have yet to hear of it.
If you happen to be so worked up over him, you can do all the denouncing that’s required. I am content merely to disagree with him, much as I might disagree with you, and obey the law as the courts have determined it, without, however, relinquishing my right to disagree with the courts as well.
I seriously doubt the constitution needs more support than that.
January 1st, 2013 | 1:52 am
I actually agree with Seidman, but would point out that he is engaging in Article I section 8 Clause 8 copyright. That is he is fixing a certain opinion which has a modicum of creativity in a tangible medium of expression.
Also contra Cheeks someone like Seidman is precisely what you need to carry on and sharpen the dialectic against the “living constiution”. In my own reading of the law, it is certainly my opinion that the thinking of J. Skelly Wright is the right place to ground the critique. That Seidman claims some measure of authority by virtue of having clerked for Wright is interesting.
I think we can absolutely agree with Seidman given the way he has framed the question presented that the answer he wants us to give and the answer we should give if such “mere copyright” or persuasive writting represents fact is a resounding: Absolutely Not!
i.e. “Is it even remotely rational that the official should change his or her mind because of this divination?”
No it is not.
“And will you commit today to demand that the next Democratic Party platform contain a sentence repudiating the views of Dr. Seidman?”
Absolutely not! I will in fact request that the next Democratic Party platform contain a sentence endorsing and embracing the courageous and well written views of Judge Skelly Wright.
In fact Judge Skelly Wright is the founder of many concepts which have probably saved the country from a quasi-Marxist triumph of Capital. I like Hobson v. Hansen, I like his handling of unconscionability in Williams v. Walker-Thomas Furniture Co. and I like the implied warranty of Habitability in Jarvins. While he may have had some faults he also had uncommon moral sense and feel.
I actually don’t really care what Seidman himself says, albeit perhaps he has some wisdom. Because he is not a judge Seidman’s views and opinions do not represent constitutional law. Within the framework of Georgetown law they represent constitutional law, but this is only in so far as such views help advance the alienation of a specific body of knowledge, fixed in a tangible medium of expression and authenticated in some measure by the policies and procedures Georgetown has decided upon for handing out grades(authenticating knowledge). There is no real possibility that Seidman or any other professor of Constitutional law could be possessed of knowledge the like of which they could alienate to me which would ensure a genuinely right or wrong answer as to whether or not something is constitutional (albeit they could do so within the closed confines and parameters of a class itself(since in this market they are judges, and absent grade disputing mechanisms essentially the court of last appeal.)
The same applies to the study aids peddled by corporations such as the Washington Post et al. They sell right and wrong answers within the confines of a particular bar examination test, not the right answer in the actual venue of the Supreme Court itself at some future date, and with a real and non hypothetical issue in controversy. Failure to understand such contractual relationships and the qualities of the property being alienated are in fact foundational elements of the jurisprudence of Judge Skelly Wright, and go to an understanding of unconscionability.
January 1st, 2013 | 9:34 pm
A constitutional scholar that doesn’t believe in the constitution. Perhaps he inspires to be president or a Supreme Court justice one day.
I guess theology, philosophy, and sociology aren’t the only subjects where Georgetown hires scholars that dismiss their disciplines.
January 3rd, 2013 | 12:46 am
Carl, I think you’ll like this blog post by Jack Pitney on Seidman’s article: http://www.bessettepitney.net/2012/12/give-up-on-constitution.html
Pitney seems as upset at Seidman as you are; he even invokes St. Thomas More against him!
January 3rd, 2013 | 2:02 am
i don’t think i would give serious consideration to any lawyer who has a Georgetown degree hanging on his wall.
January 3rd, 2013 | 8:30 am
[...] about Seidman’s piece. There’s also a good old-fashioned rant about it here. And Carl Scott has a question for Georgetown Law School regarding Seidman, the very same one I’d like to ask [...]
January 31st, 2013 | 6:28 am
Many things in the constitution are vaguely worded. In one era, “Freedom” might mean not being killed by the British, or the right to quarter your horse on the village green; in another, it might mean the right to own a gun, or look at pornography, or be free from computer surveillance.
Do you REALLY want to assert that it means only the right to keep your horse on the village green, say? (An actual case, by the way).
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