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.
- Donald Douglas: Des Moines Register Columnist Wants Mitch McConnell and John Boehner Lynched
- William Jacobson: Extra-constitutional power is what they’ve always wanted (Update — blaming those ancient “white dudes”)
- The Lonely Conservative: NYT Column: Scrap The Constitution
- The Pirate’s Cove: NY Times Op-Ed: Scrap That Pesky Constitution
- Dr Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book “On Constitutional Disobedience.” ↩
- 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. ↩