[Rushtalk] New Media Push: "Give Up" on Constitution

Paf Dvorak notmyname at thatswaytoomuch.info
Tue Jan 1 22:34:47 MST 2013

At 11:33 PM 1/1/2013 -0500, John A. Quayle wrote:

>Godfather Politics
>Media Push: "Give Up" on Constitution

Rather than allowing this above "Godfather" to do 
our thinking (or lack thereof) for us, we'd do 
well to read this well thought out and correct op-ed for ourselves:

Op-Ed Contributor

Let’s Give Up on the Constitution


For Op-Ed, follow 
and to hear from the editorial page editor, 
Andrew Rosenthal, follow <https://twitter.com/#%21/andyrNYT>@andyrNYT.

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.

Michael Seidman

Paf Dvorak

notmyname at thatswaytoomuch.info 
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