[Rushtalk] New Media Push: "Give Up" on Constitution
notmyname at thatswaytoomuch.info
Tue Jan 1 22:34:47 MST 2013
At 11:33 PM 1/1/2013 -0500, John A. Quayle wrote:
>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:
Lets Give Up on the Constitution
By LOUIS MICHAEL SEIDMAN
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 nations 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 Amendments 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
Constitutions 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 presidents 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 cant 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.
notmyname at thatswaytoomuch.info
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