April 27th, 2015
Concerning Louis Michael Seidman.
In yesterday’s New York Times, Louis Seidman — a professor of constitutional law at Georgetown — made his case for abandoning the Constitution of the United States. He makes this observation after noting that “observers are reaching the conclusion that the American system of government is broken,” a startlingly original observation that no one in the history of this country has considered, thought upon, let alone realized over the past 263 years. The Swedish Academy should clear their desks and seriously consider rewarding the man their prizes for literature, medicine, physics, chemistry, and peace for making such a breakthrough. Anything less than this and a ticker-tape parade and a garland upon the head would demean this idea’s rightful station. Hail, hail, Mighty Idea!
That a man can pivot from defending judicial review to float the idea of abandoning the constitution altogether is enough of a head scratcher to give one a premature bald spot. Seidman’s own theory of “constitutional unsettlement” seems to back my basic point of reply, too (though I know I’m cheekily skipping past the idea that courts exist to prolong conflict and, therefore, create a common community as a result, enticing those on the ‘losing side’ to continue the argument): law ideally concerns thoughtfulness, so if someone tried to — as Seidman puts it in his op-ed — shut down the debate concerning a possible war with Iran by invoking constitutional powers, the thoughtfulness of law would churn to life. Look at Hamdi v. Rumsfeld, for instance, or Arlen Specter asking the Supreme Court to look at the lawsuits brought by the ACLU against warrantless wiretapping. Political forces and those interested in power aren’t foreign to this landscape, but — barring a clever idea — accepting them doesn’t seem to be too harrowing a prospect either.
It’s almost hard for me to tell if Seidman is positioning himself as a textualist, attacking textualism by example, or shimmying back and forth between textualism and a kind of aggressive libertarianism. In exploring the history of ignoring/disobeying the constitution, he cites the Alien and Sedition Acts, the Louisiana Purchase, the notion that the constitution protected slavery, FDR’s expansion of federal powers, Miranda v. Arizona, Roe v. Wade, and others.
He also says that Robert H. Jackson found that Brown v. Board of Education deviated from the constitution (“ … he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution …”), but seems to omit that Jackson said this in an unpublished opinion, as well as the precedent Warren cited in the published, 9-0 decision — Missouri ex rel. Gaines v. Canada, Sipuel v. Oklahoma, Sweatt v. Painter, and McLaurin v. Oklahoma State Regents.
The parts of the constitution he’d keep include “freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important … how long the president’s term should last or whether Congress should consist of two houses,” but — by implication — that means that legislative authority would be up in the air, as well as the age by which someone can be elected to the House of Representatives (six! fourteen!), whether or not taxes should be levied, how many Representatives each state should have, how many Senators each state should have, who calls an election and when, whether or not we should have post offices, roads, a currency, a navy, or an army, whether or not a state in the union can enter into a treaty and coin money of its own, or whether it’s legal or not for someone to set up a new state within an existing state. (“No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation,” he writes, but an inference this easy to make is telling enough.)
Seidman claims that “the deep-seated fear that such disobedience would unravel our social fabric is mere superstition …,” citing the UK and New Zealand as ideal examples of constitution-free countries and that things are a-okay and jim dandy over there because of “longstanding traditions, accepted modes of procedure and engaged citizens,” which are three things we’ve never heard of in this country, what, with lawyers building upon past cases, newspapers and blogs, people reading those newspapers and blogs, 4th of July celebrations kicking off in 1876, groups like the EFF, the ACLU, the AFL-CIO, the AARP, Emily’s List and others advocating for one cause or another, teachers holding Socratic dialogues in undergraduate and graduate classrooms (which really kicked into gear at law schools when Brandeis showed up at Harvard, if I’m recalling correctly), blues becoming rock and roll, New Orleans music at the turn of the century evolving into jazz, and that strange phenomenon where children become adults and have children of their own.
The essay seems to finish in a series of quick self-contradictions — that even though the constitution is “a place for discussion, a demand that we make a good-faith effort to understand the views of others,” it is also a “bondage” from which we must ‘extricate ourselves’; but then it isn’t “a place for discussion,” but, rather, “a poetic piece of parchment” that hasn’t preserved our political stability, and that that “place for discussion” is — instead — thanks to our “entrenched institutions and habits of thought,” some of which — of course — were set up by the Constitution of the United States. But the United States doesn’t have “entrenched institutions” — that honor belongs to the United Kingdom and New Zealand, which don’t have a constitution, which is why we shouldn’t have a constitution — except for a few things here and there, though — Seidman assures us — “I harbor no illusions that any of this will happen soon.”
Though the consensus view concerning fixing Congress seem to hinge on the thesis advocated by Lawrence Lessig, I will say this — Seidman’s take is the first of its kind I’ve encountered, and though I began writing this in a fit of sarcasm, I’ve now slid to a kind of amused, benign tolerance. Maybe the end of the year has put me in a good mood. Maybe it’s the fact that Bowie’s “Suffragette City” just came on over the speakers.
Maybe it’s something else entirely.
April 27th, 2015