Give Up on the Constitution?

Undoubtedly editorialists sometimes write things to be provocative.  There are times when I must keep telling myself that, times when I think if one of them really meant what he wrote, I'd wonder how anyone could be that stupid.

On December 30, 2012 the New York Times ran a piece by Louis Michael Seidman, a professor of constitutional law at Georgetown University, titled "Let's Give Up on the Constitution."  I pride myself on a vocabulary more extensive than possessed by most people with the same level of education as I, but most of the words that came to mind as I read Professor Seidman's column were not acceptable in polite company.

Seidman's thesis is that our nation's principal governing document was created by a bunch of propertied white men who thought slavery was OK and could not have any idea what life would be like two centuries later.  What relevance could - or should - such a document have for us?  It is, he insists, full of "archaic, idiosyncratic, and downright evil provisions."

It is true that the Framers could not come up with a way of ridding the new nation of the "peculiar institution" of African slavery, and so there are provisions dealing with the slave trade, which Congress was denied the power to prohibit until 1808, and the return of fugitive slaves to their owners, and the counting of a slave as three fifths of a person for purposes of determining a state's number of representatives in the House.  Notably, we fought a war that had the effect of eliminating the evil of African slavery, and the Constitution was amended to specify just how the freed slaves were to be treated.  Offhand, I cannot identify any other provisions of the original Constitution that meet my definition of evil. (Later revision, however, is a different matter, as each spring I find myself thinking the Sixteenth Amendment's provision for direct taxation of individual income is evil.)

Aside from "evil," it is entirely plausible that some provisions of the Constitution might be viewed as "archaic" or "idiosyncratic."  Article I is about the legislative branch of the national government, and it describes a bicameral Congress along with the qualifications for office, the manner of election, and the scope of authority and responsibility, as well as the limits on power.

Nowadays many people think one needs a college education to be an effective Member of Congress.  In the 18th century the country didn't have the system of education we have now.  Should a college education be a necessity?  Isn't it "archaic" to have the only requirement be one of age (25 years)?  The terms of Representatives are two years long, with no limit.  And six years for Senators, again with no limit.  Why not four years for both, and why not a limit of 12 years total?  These days most people seem to favor term limits.  Aren't the original specifics "idiosyncratic?"

Seidman isn't interested in changing any of that.  He does, however, make particular mention of Section 7's requirement that bills for raising revenue originate in the House (rather than the Senate).  The Framers thought the chamber with more democratic representation should be the prime mover behind taxation.  That isn't "archaic" or "idiosyncratic."  It makes sense.  But Seidman doesn't like it.

He also notes that the fuss over whether Barack Obama was born in the United States existed only because the Constitution says the president must be a "natural born Citizen."  Why should we care about that?  Well, apparently we do care.  We've had more than two centuries to think about it, and we've had the occasional foreign-born citizen (such as Henry Kissinger or Arnold Schwarzenegger) sufficiently popular to make people reconsider it.  But we have left this requirement unchanged.  And it's not as though we haven't taken notice of how important it is what the Constitution says about the office of president.  It took a century and a half to discard the precedent set by George Washington and elect a president to more than two terms.  Then, having done that, we amended the Constitution to make sure we didn't do it again.

Congress cannot pass a law declaring me a criminal.  Neither can it pass one making something I did last year illegal, turning me into a lawbreaker retroactively. Such laws (a bill of attainder in the first case, an ex post facto law in the second) are prohibited by Article I, Section 9.

When I go to Capitol Hill to visit my Congressman, the Capitol police cannot arrest me for bothering him.  In September, 2005, thousands of people held a rally on the lawn of the Capitol to draw attention to the need for greater focus on the problems of our nation's system of emergency medical care.  The Capitol police required that we let them know what we were up to, and granted us a permit, and we had to be peaceable.  But they couldn't tell us we weren't allowed to do that. Nearly a hundred times now I have sat down with my computer and written essays for this blog.  The government cannot prohibit my doing so, even though I am often critical of it.  We are guaranteed all of these liberties by a single sentence in the Constitution (the First Amendment).

Seidman doesn't say we shouldn't have these liberties, just that we don't need the Constitution to guarantee them:

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 cannot begin to imagine how a professor who has taught constitutional law for nearly four decades can write such a thing.  Respect?  Can we really think the government will respect our liberties if they are not guaranteed against infringement by a document that exists in part to restrain government?

Has Seidman ever taken a look at the national debt?  As of this writing, it is rapidly approaching $16.5 trillion.  We have a government that does not grasp arithmetic reality, let alone political philosophy.  How many of the 535 members of the House and Senate do you think have read John Locke, when they legislate as if they don't know what the debt clock says this week?  Seidman questions who should have the power of the purse and says it might be Congress, but that should be determined on contemporary policy grounds and not by the Constitution.  OK, I'll grant that Congress spends like so many drunken sailors (with apologies to those drunken sailors who rightly note that they quit spending when they run out of money).  But is someone else going to exercise more restraint?

Seidman says,

...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. 

Now I am definitely losing the thread of his argument.  The people inside the beltway cannot play nice even when they have rules to follow, but if we just drop the rules altogether, relying on "accepted modes of procedure and engaged citizens," all will be well.  The last time I looked, Georgetown was a Jesuit institution.  Are its law professors really allowed to indulge in hallucinogens?

Seidman asserts that presidents from Adams and Jefferson to Lincoln and FDR have flouted the Constitution.  The implication seems to be that if such noncompliance suited them, we could do just fine without the traditional constraints.  We can just hope that freedom of religion, the right to due process and jury trial, protection from unwarranted search and seizure and from cruel and unusual punishment will remain ours in perpetuity even with no guarantees of "our political stability" by the "poetic piece of parchment" he so casually disparages.

That "poetic piece of parchment" is not immutable.  We can change it.  Even after we added the Bill of Rights, we amended the Constitution seventeen times.  It's easy to find out how: just read Article V.

Seidman's forthcoming book is titled On Constitutional Disobedience.  I can hardly wait.