Keeping the Constitution

This is, unsurprisingly enough, from :

Let’s Give Up on the Constitution

By Louis Michael Seidman1 | Published: December 30, 2012

AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate? 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.

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?

Actually, yes, it is reasonable that the official should at least consider changing his mind. But Dr Seidman’s formulation is in error: his point is not about policy, but about our system of government, as set up by the Constitution.

The Framers, who were clearly wiser men than the idiots in our government today, were wise enough not to think that what they had created was perfect, and ought never to be changed; that was why they included a procedure to amend the Constitution.

Nor did the states which originally ratified the Constitution believe it was perfect: our Bill of Rights exists precisely because several of the states passed ratification resolutions which asked for such amendments.2

The good professor appears frustrated that our system, under the Constitution, can be balky and inefficient. But, while the professor favors democracy, what is frustrating him is exactly that, democracy. The voters elected a Democrat to be President, and they also elected Republicans to be in the majority in the House of Representatives.

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 find this a wholly naïve statement. We have had many attempts, by both parties, to restrict the freedom of speech. In a situation where the Constitution specifically protects the freedom of speech, we still cannot seem to keep those who believe they know what is best for us from trying to restrict it; why would anyone believe that this wouldn’t happen, even more egregiously, if our rights were protected only by respect, not obligation? In a situation where the Constitution specifically protects the freedom of religion, we have our government trying to compel people to violate their religious beliefs.

In Canada, and in most of the other developed democracies, there are all sorts of restrictions on the freedom of speech, whether penalties for “hate speech,” the criminalization of Holocaust denial, or belonging to a neo-Nazi party, all are illegal in some parts of the developed, free world. In some countries which supposedly protect freedom of religion, it is considered hate speech to advocate certain tenets of some religions, such as condemnations of homosexual activity.

In the United States, we have all sorts of good people, well-meaning people, who would impose what they think are just common sense restrictions on speech, and on the right to keep and bear arms. Cobble together 51% of the legislature, and the will to trample on the rights of the minority has often been found in our country, despite our Constitutional protections.

There is a considerable amount more of Dr Seidman’s article, but I find it a prescription not for efficiency, but for chaos.
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  1. Dr Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book “On Constitutional Disobedience.
  2. In something virtually inconceivable today, those states agreed to ratify the Constitution before that Bill of Rights was added. The first ten amendments were written by the First Congress under the Constitution.

17 Comments

  1. In his opening sentence Professor Seidman acknowledges that we’re teetering at the edge of fiscal chaos, yet strangely instead of an examination of economic solutions, he immediately jumps to the conclusion that the current crisis represents an opportunity to abandon the republic’s foundation document and move toward a more European form of government.

    Well, la de da, and, how do you like them apples? If Seidman wasn’t identified as a Professor of Constitutional Law at Georgetown U, I would have assumed he was an Administrative Assistant to Rahm Emanuel or one of Saul Alinsky’s disciples left over from the departure of Van Jones and now working in Valerie Jarrett’s White House Office.

  2. I suggest we give up on the New York Times instead. If the Professor doesn’t like the U.S. Constitution, why he is a Constitutional scholar? I suppose he prescribes to that “living document” nonsense. If he doesn’t like the Constitution, he should move to a country whose laws better fit his own viewpoints.

    And those “hate speech” laws are ridiculous.

  3. But, while the professor favors democracy, what is frustrating him is exactly that, democracy. The voters elected a Democrat to be President, and they also elected Republicans to be in the majority in the House of Representatives.

    Nope. As of November 7 2012, 53,952,240 votes had been counted as cast for a Democratic candidate for the House and only 53,402,643 had been counted as cast for a Republican — meaning that Democratic votes exceeded Republican votes by more than half a million (at that point).

    The voters did not vote a Republican majority. Gerrymandering, mainly by Republicans, connived a Republican majority from the voting map.

  4. The Phoenician echoed Democratic talking points:

    Nope. As of November 7 2012, 53,952,240 votes had been counted as cast for a Democratic candidate for the House and only 53,402,643 had been counted as cast for a Republican — meaning that Democratic votes exceeded Republican votes by more than half a million (at that point).

    The voters did not vote a Republican majority. Gerrymandering, mainly by Republicans, connived a Republican majority from the voting map.

    Our system is not one of proportional representation, but of single member districts. There are, unfortunately, some districts, primarily heavily black, urban districts, in which the population votes about 90% Democratic, and that skews the overall numbers; there are no 90% Republican districts.

    More, the creation of such districts are required under Section 2 of the Voting Rights Act of 1965; that law was passed by a Congress controlled by Democrats, and signed into law by President Lyndon Johnson, a Democrat.

    States are permitted and sometimes required to create new majority-minority districts under the Voting Rights Act to avoid diluting minority voting strength during redistricting. States with significant minority population growth over the course of the last decade, for instance, may need to create new majority-minority districts to ensure that redistricting plans comply with the requirements of Section 2 of the Act. Plans that dilute minority voting strength by failing to create feasible majority-minority districts may be quickly challenged following adoption. Since Section 2 litigation can be both costly and time- consuming, officials in many states set out to draw plans that fairly reflect minority voting strength at the beginning of the redistricting process. The need to comply with Section 2 of the Voting Rights Act to avoid minority vote dilution can serve as a compelling justification for both preserving and creating new majority-minority districts, which helps protect these districts from constitutional attack.

    In 1990, I lived in the 1st Congressional District in Virginia, in which Representative Herb Bateman, a Republican, just barely won re-election. Following the 1990 census, Virginia gained a congressional district, and due to population patterns, it was going to be placed around our area. The Democrat-controlled state legislature came up with the reconfigured 3rd District, designed specifically to get State Senator Bobby Scott, a black Democrat who had lost narrowly to Mr Bateman in 1988, elected to Congress, and in the 1992 election, that is exactly what happened. Of course, Representative Bateman was also re-elected, because the reconfigured First District lost the heavily black areas in Newport News and areas going northwest along the James River, all the way up to Richmond, and picked up some majority white areas along the Eastern Shore. The redistricting created a majority black district in Virginia, just as the Voting Rights Act required, but it also turned the previously competitive First District into a safe Republican district. I did some work for Thomas Ward, the Republican candidate for the Third District (I still lived in the First District at the time) in the 1994 election; Mr Ward was the perfect Republican candidate: handsome, well-to-do, with a good amount of money to put into the race, and politically moderate for the GOP, and he won a whopping 21% of the vote in a year in which Republicans overall did extremely well. The gerrymander was in, OK, but it was a racial gerrymander, required by a federal law passed by the Democrats.

    That redistricting also turned the Fourth District from a somewhat competitive, Democratic district into what became a safe Republican district. Representative Norman Sisisky (D-VA) held that seat for the Democrats until 2001, when he died. Mr Sisisky was a conservative Democrat, one of the so-called “Blue Dogs,” but once he was out of the picture, State Senator Randy Forbes, a very conservative Republican, won the seat, and has held it by large margins ever since.

    You want to complain about “Gerrymandering, mainly by Republicans,” but there was little choice: the federal Voting Rights Act requires states to create majority-minority districts, where reasonably possible, leaving other districts more heavily white, and, according to the 2012 exit polls, Mitt Romney carried 59% of the votes cast by whites.

  5. Gerrymandering benefits Democrats far more than it does Republicans. For proof, I give you this 2012 county-by-county election map. For those who seek the Truth (that would leave the New Zealand Socialist and the soon-to-be-banished Delaware threatener out), click on that link. Look at how much of Washington, Oregon, California, Illinois, Ohio, Florida, Pennsylvania is Republican, and how comparatively little of the US is Democrat.

  6. You cross the US from the Pacific to the Atlantic without traveling through multiple Republican counties, but it is exceedingly easy to do so without ever stepping foot in a Democrat county, using multiple routes.

  7. Your numbers are meaningless, Pho.

    Ever watched a baseball game? You will note the scoreboard tracks runs, hits and errors, but of the three, only one counts – runs.

    Such as it is in Congress. It doesn’t matter the total number of votes given for Congressmen as a whole, only the number of Congressmen actually elected to Congress. And the Republicans still hold the House by a pretty decent margin.

    Them’s the facts. Deal with it.

  8. Just finished reading anotherarticle on this subject. What it all comes down to is the current constitution puts restraints on the the Government and what it can’t do to the people. Although you watch those in Government and they are putting restraints and burdens on the people anyway. What this Professor of alleged Constitutional law is pushing isa new Constitution restricting the rights of the people and giving the Government the upper hand more or less like it is going now.

    The irony of this professor is he had a likely part in teaching Sandra Fluck of the Government owes me crew. Now I wonder where she could have gotten such an idea.

  9. Gun Opponents Should Learn What The Founder’s Meant When They Wrote The Second Amendment

    Every individual with a sense of humanity detests seeing families destroyed, innocent children sacrificed, and promising lives snuffed out, as witnessed at Sandy Hook School. The argument that reducing the number of guns will produce a safer society beguiles the public, promotes politicians, and fails to hold the perpetrator accountable for their actions.

    Disarming innocent people does not make innocent people safer. Yet, the mob is even willing to punishing innocent people for the acts of the wicked.

    While gun rights supporters assert that the right of the people to keep and bear arms, as found in the Second Amendment of our Constitution, is an individual right like the freedom of speech or religion, and has been supported by the Supreme Court of our nation. Gun opponents assert that the right pertains only to collective bodies such as the militia, the military, police or National Guard.

    The Washington Post asserts, as a gun opponent, that “[T]he sale, manufacture, and possession of handguns ought to be banned…[W]e do not believe the 2nd Amendment guarantees an individual right to keep them.”1

    Believing that our Constitution offers no protection for individual gun ownership, gun opponents therefore encourage efforts to restrict or ban citizens access to firearms, particularly handguns. Even United States Senator Diane Feinstein, (D-CA) in her forthcoming legislation is planning to outlaw 120 firearms.2

    Read more: http://freedomoutpost.com/2013/01/gun-opponents-should-learn-what-the-founders-meant-when-they-wrote-the-second-amendment/#ixzz2Glwfo8Qo

  10. Our system is not one of proportional representation, but of single member districts. There are, unfortunately, some districts, primarily heavily black, urban districts, in which the population votes about 90% Democratic, and that skews the overall numbers; there are no 90% Republican districts.

    Yes, that’s right, Dana – as I said, something other than a democracy/

    And I’m not surprised you ignore the gerrymandering by Republicans and try so hard to blather to cover it up – you’re a weasel through and through.


    But since the GOP not only flipped the House in 2010 but totally controlled 21 state governments, including Pennsylvania’s, it allowed the party to master post-census congressional redistricting around the country. On Nov. 6, Democrats won the popular vote by 500,000 votes nationally but took just 201 of the 435 U.S. House seats. In Pennsylvania, Republicans took hold of 13 of 18 congressional seats while being outpaced by 75,000 total votes. Mr. Obama won 53 percent of the state’s vote, but Democratic candidates won 28 percent of the seats.

    Pennsylvania is arguably the most distorted map in the country in terms of comparing the vote share and the seats won,” said Nicholas Goedert, a researcher at Washington University in St. Louis who focuses on redistricting issues.

    Feel free to explain to us how the Voting Rights act explains Pennsylvania’s distortions.

    And, Dana, YOU are the very very last person who should be trying to paint themselves as a defender of democracy, given that you’ve stated you support cheating if it helps your side win.

    No wonder America is so fucked with weasels like you pretending to be patriots.

  11. The Phoenician, as usual, doesn’t understand:

    Our system is not one of proportional representation, but of single member districts. There are, unfortunately, some districts, primarily heavily black, urban districts, in which the population votes about 90% Democratic, and that skews the overall numbers; there are no 90% Republican districts.

    Yes, that’s right, Dana – as I said, something other than a democracy/

    Nope, it’s straight representative democracy, just not the way you would define it. The Representative doesn’t represent his party; he represents his district. In the UK, which also has single-member districts, the MP is not required to be a resident of his district, and the party leaders are frequently assigned safe districts to represent, even though they don’t live there; in the UIS, members of Congress are required to be residents of the districts they represent. The states set the residency requirements, and in most cases the representative must have been a resident of his district — or state, in the case of senatorial candidates — for one year, though some states, like New York, allow shorter periods, which is how New York wound up with carpetbagger senators like Hillary Clinton and Robert Kennedy.

  12. The irony of this professor is he had a likely part in teaching Sandra Fluck of the Government owes me crew. Now I wonder where she could have gotten such an idea.

    You meant the government “owns” me crew, didn’t you?

    And bags of appetite like that fellowship with them is something to be desired? LOL

  13. The irony of this professor is he had a likely part in teaching Sandra Fluck of the Government owes me crew. Now I wonder where she could have gotten such an idea.

    You meant the government “owns” me crew, didn’t you?

    And bags of appetite like that imagine fellowship with them is something to be desired? LOL

  14. Ok, I see we are off to a good start with the new year comment boxes.

    This time, it doesn’t seem to be keyboard lag or entry-less typing problem. So no complaint on that score …

  15. York, here’s a few quotes from the Founding Fathers (plus 2 from more modern sources) They explain why the 2nd Amendment has such a prominent place in the Bill of Rights.

    Alexander Hamilton said, If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.

    James Madison said the Constitution preserves …the advantage of being armed, which the Americans possess over the people of almost every other nation … (where) the governments are afraid to trust the people with arms.

    Thomas Jefferson said, What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.

    George Mason warned that disarming the people, …was the best and most effectual way to enslave them.

    Adolf Hitler agreed with Mason, The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing.

    Even a liberal like the late Vice President Hubert H. Humphrey understood the issue, Certainly, one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizen to keep and bear arms. … The right of the citizen to bear arms is just one guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America but which historically has proven to be always possible.

    (These quotes are edited versions of ones lifted from Walter E Williams’ article at Townhall.com)

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