Professor Seidman, Liberals, and the Constitution

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.