NYT's left winger calls for scrapping the constitution

[Doc]

http://mobile.nytimes.com/2012/12/31/op ... tution.xml

Let's Give Up on the Constitution
By LOUIS MICHAEL SEIDMAN

Published: December 31, 2012

Washington

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?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment's guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency - the purchase of the Louisiana Territory - exceeded his constitutional powers.

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation - 150 years ago tomorrow - he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

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, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution - in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore - should give us pause. The two main rival interpretive methods, "originalism" (divining the framers' intent) and "living constitutionalism" (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results - by definition - must be wrong.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution's defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

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.

Nor should we have a debate about, for instance, how long the president's term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can't kick our constitutional-law addiction, we can soften the habit.

If we acknowledged what should be obvious - that much constitutional language is broad enough to encompass an almost infinitely wide range of positions - we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

If even this change is impossible, perhaps the dream of a country ruled by "We the people" is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book "On Constitutional Disobedience."

[Mr. Perfect]

They never didn't want to scrap the Constitution.

[monster_gardener]

http://mobile.nytimes.com/2012/12/31/op ... tution.xml

Let's Give Up on the Constitution
By LOUIS MICHAEL SEIDMAN

Published: December 31, 2012

Washington

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?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment's guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency - the purchase of the Louisiana Territory - exceeded his constitutional powers.

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation - 150 years ago tomorrow - he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

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, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution - in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore - should give us pause. The two main rival interpretive methods, "originalism" (divining the framers' intent) and "living constitutionalism" (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results - by definition - must be wrong.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution's defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

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.

Nor should we have a debate about, for instance, how long the president's term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can't kick our constitutional-law addiction, we can soften the habit.

If we acknowledged what should be obvious - that much constitutional language is broad enough to encompass an almost infinitely wide range of positions - we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

If even this change is impossible, perhaps the dream of a country ruled by "We the people" is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book "On Constitutional Disobedience."

Thank you VERY MUCH for the Thread, Mr. Perfect.

In an effort not get get vulgar or say Mr. Seidman is a fool, I will instead say that IMVHO he is an astonishing twit who does not understand the base nature of the Depraved Sinful Egotistical Chaos Monkeys commonly called human beings.

As someone who has taught constitutional law for almost 40 years,

To be fair to this twit, it sounds like he is getting old and may be getting senile........

There as so many things wrong with this essay but I am only going to have time to touch on a one or a two

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.

True.............

We should continue to follow those requirements out of respect, not obligation.

Incredibly naive or disingenuous and deceptive.......

We should do them out of respect but don't count on it unless there is also obligation and sanctions........

People should not rob, rape and murder each other out of respect for each other but it still happens..........

No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation,

Then don't do it.........

You might not get the paradise all your political wants are fulfilled which is what I suspect is the object of this essay .........

You might get a hell where your enemy's desires are fulfilled.....

NOTE: The safe way to get some of what you want is to do it amendment by amendment.......

[Huxley]

.

[monster_gardener]

MG,

That's right. This guy can't be serious.

Nor should we have a debate about, for instance, how long the president's term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. ...

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. ...

But who decides what is left settled and what is not? In the absence of a Constitution, Prof. Seidman's preferences are totally groundless and arbitrary. I say that Congress should be tricameral, the Supreme Court should have 99 justices who are chosen at random from the phone book, and freedom of religion should be respected always, freedom of speech sometimes, and the right to bear arms never, except in the case of my personal militia. Oh yeah, and the U.S. military is hereby abolished since I feel that Congress's power to fund the military is not really justified "on contemporary policy grounds." Did I mention that I have a very well-armed militia?

Thank you VERY Much for your reply and the Kind Words.

This guy can't be serious.

Maybe he is........

Based on what I am reading in his Wikipedia entry, I am being to wonder if he is literally a "lawless" man.......

During the Sonia Sotomayor confirmation hearings, Seidman also attracted attention as an outspoken liberal detractor,[5] writing a scathing response to Sotomayor's claims that she simply applies the law to the facts (arguing that this is impossible to do).[6]

Louis Michael Seidman, Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism, Cal. L. Rev

But OTOH........

Seidman has also recently intervened in the health care reform debate, defending the constitutionality of the single payer mandate against libertarian criticism on fora tv

http://en.wikipedia.org/wiki/Louis_Michael_Seidman

Sounds like he is trying to turn Georgetown University into GeorgeKlown University

Wondering if this Lawless Man got his way, the Warlordism, his Warrior Princess Relative Xena* tries to combat, would result........

*Lucy Lawless........

[Enki]

The Constitution was scrapped during the Cold War. Gotta keep you safe from Communists after all and those rights got in the way of big espionage.

[monster_gardener]

The Constitution was scrapped during the Cold War. Gotta keep you safe from Communists after all and those rights got in the way of big espionage.

Thank you Very Much for your post, Tinker.

War can be Corrosive of Civil & Constitutional rights......

A battlefield is not usually the place to hold elections or demand privacy or property rights........

The Romans knew this........

Would appoint a Dictator to run the war which hopefully would be a short as the one Cincinnatus won.........

And even the Dictator was supposed to confine himself to winning the war and not mess around with civic institutions and rules.......

Was supposed to be out in the field with the soldiers.........

IMVHO the Consititution has not be scrapped though there has been damage......

And while McCarthy was a drunken creep, sadly he was right that there were many Soviet spies and sympathizers in the Government and on the Upper Decks especially the Media Deck......

Some of whom were Privileged Punks* and Bitches * who aimed to do to Uz what Stalin had done Russia, Mao did to China, Pol Pot did to Cambodia and what the Kim Ill Devils do to North Korea.....

Since the Cold War ended things have gone South and East for those of Uz Down in the Black Gang.........

Seems that those VERY EVIL Soviets were good for putting the fear of the Black Gang in the Officers on the Top Deck........

"Good" for uz as long as they were overseas......... Even if they were VERY bad for the East Euroz, Chinese.....etc......

Perhaps it would have been better for Civil/Constitutional Rights in Uz to have had a Andy Jackson type like Harry Truman in power than a "Compassionate Conservative" like George Woodrow Wilson Bush..........

Someone who would have gone Delenda Est Carthago on Afghanistan by whatever means necessary and rapid after the Tallywackin' Taliban refused to turn over Osama bin Ladin even if it meant Afghanistan would have become the World's leading exporter of Trinitites

Rather than pass the Patriot Act and waste time, money and soldiers trying to nation build.....

But it might have been Worse for the World......... Even if we passed out Iodide tablets in India.......

IMVHO VERY Dangerous to let the Nuclear Genie out of the bottle again except perhaps to give wings to an Orion Rocket to get us off this madhouse planet.....

We could have also tried the Gospel of the Gun.........

IMVHO the Gun is Good News for the weaker among us like me.......

And relatives with abusive spouses.........

But how likely is that..........

We have lost some freedoms.........

But IMVHO there is still hope........

Maybe we can elect Rand Paul............

Notably from what I have seen, it is the Liberals and Progressives who hate and despise him the most while Conservatives will give him half credit........



*Bill "Prairie Fire Extermination Camps" Ayers and Bernadine Dohrn.... for example

[Zack Morris]

This article is primarily concerned with parliamentary technicalities and arguably, the Constitution is deficient in several areas. I think it is commonly agreed that the most important aspects of the Constitution, what FDR referred to as its 'aspirations', are the Bill of Rights, the system of checks and balances, and the definition of the branches of government.

It would be nice to re-draft it but I can't imagine anyone today who could be trusted with such an important task, neither in public service or academia.

[Juggernaut Nihilism]

The Constitution was scrapped during the Cold War. Gotta keep you safe from Communists after all and those rights got in the way of big espionage.

You've worn this path out...

"There were Constitutional violations during the Cold War, so stop talking about the Constitution. .. it's meaningless."

"If you believe in private property, you believe in a police state, so stop talking about freedom... it's meaningless. "

Etc etc...

[Demon of Undoing]

Also, there is something to be said for the fact that there really were communique trying to pull some pretty serious subversion and co- opting at that point. It's not like it was totally all smoke and no fire.

[Enki]

The Constitution was scrapped during the Cold War. Gotta keep you safe from Communists after all and those rights got in the way of big espionage.

You've worn this path out...

"There were Constitutional violations during the Cold War, so stop talking about the Constitution. .. it's meaningless."

"If you believe in private property, you believe in a police state, so stop talking about freedom... it's meaningless. "

Etc etc...

We we have three branches of government. The CIA, NSA, and FBI.

They do not check or balance one another.

They are not restrained by the constitution. None of them existed prior to WWII.

Can't wear out the truth.

[Juggernaut Nihilism]

The Constitution was scrapped during the Cold War. Gotta keep you safe from Communists after all and those rights got in the way of big espionage.

You've worn this path out...

"There were Constitutional violations during the Cold War, so stop talking about the Constitution. .. it's meaningless."

"If you believe in private property, you believe in a police state, so stop talking about freedom... it's meaningless. "

Etc etc...

We we have three branches of government. The CIA, NSA, and FBI.

They do not check or balance one another.

They are not restrained by the constitution. None of them existed prior to WWII.

Can't wear out the truth.

Then why clog my Facebook news feed with election-related posts in the months leading up to the ballot?

[monster_gardener]

This article is primarily concerned with parliamentary technicalities and arguably, the Constitution is deficient in several areas. I think it is commonly agreed that the most important aspects of the Constitution, what FDR referred to as its 'aspirations', are the Bill of Rights, the system of checks and balances, and the definition of the branches of government.

It would be nice to re-draft it but I can't imagine anyone today who could be trusted with such an important task, neither in public service or academia.

Thank You VERY MUCH for your Excellent Post, Zack Morris....

Not sure I agree with all of it but you IMVHO got this ABSOLUTELY Right!

I can't imagine anyone today who could be trusted with such an important task, neither in public service or academia.

Seconded!!


Nor in the Private Sector..........

Not even Down in the Black Gang..........

IMVHO We all tend to be Depraved Sinful Egotistical Chaos Monkeys at best barely saved by G_d's Grace....


We American Uz got VERY Lucky by G_d's Grace over 200 years ago.........

Given we are who we are.......

At best, amendments to the Constitution should be one at a time..........

[Heracleum Persicum]

.

Danger for American "constitution" does not come from LEFT .. biggest danger comes from American RIGHT

American RIGHT already has dropped American Constitution into toilet and flushed .. key "Constitutional Prerogatives" have been eliminated and seconded by perverted Supreme Court, things moving towards fascism on one pole and towards decadence on the other pole .. explained here


.

[Enki]

Then why clog my Facebook news feed with election-related posts in the months leading up to the ballot?

I ask myself the same question.