Does the Constitution even matter any more?
A relatively recent opinion piece in the New York Times by Louis Seidman says we should scrap the Constitution:
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.
. . . .
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.
I fell asleep last night listening to Seidman on my new favorite podcast, EconTalk with the liberty-loving Russ Roberts. As I listened to Seidman and Roberts debate whether it’s worthwhile to have a Constitution, I determined to throw open the question, as it is a convenient way to re-open a discussion about the rule of law that I began to have in the comments recently with my commenter Leviticus.
Because I do think Seidman’s argument misguided and indeed foolish, it’s tempting to dismiss it with a sneer. It is, in fact, tempting to dismiss Seidman as part of the cabal attempting to destroy the values that make this country great — and whether he thinks so or not, I believe he is. But in this country, where we believe in the First Amendment (yes we do, Mr. Seidman!), we believe that challenging our most fundamental assumptions can be healthy, because it causes us to re-examine our core beliefs to ensure they are sound.
So let’s talk about it, with respect towards each other. It’s not necessary for you to read the op-ed linked above to weigh in, nor is it critical that you listen to the podcast I referenced — but the best discussion will be one that takes note of Seidman’s arguments as made in those venues and others.
To get the discussion started, let me just raise some issues, with pointed questions that are directed to both sides of the debate:
- Do you believe in the rule of law? Does this mean you believe you are subject to laws or Constitutional principles that you disagree with?
- Is our government legitimate — and if so, what makes it so?
- Do you believe the People should set any limitations whatsoever on the ability of politicians to pass laws that affect the individual?
- How should such limitations, if any, be placed on governments — and how should those limitations, if any, be enforced?
- Is there, in the final analysis, anything about the United States that sets it apart from other nations?
I plan to have much more to say on this topic — far more than I can pack into a single post that I am tossing off before I go to work. For now, let me say just a few things.
On the podcast, Seidman argues that other countries do fine without constitutions, and that it is authoritarian to tell citizens: I win the debate, not because I have persuaded you that my position is best, but because a piece of paper in the National Archives says that some dead guys say I’m right, end of discussion, shut up.
I think Seidman fundamentally misunderstands the structure of our government. The whole point of the Constitution is that the People are in charge, and that they fundamentally gave their consent to be governed through the Constitution. Not to follow the Constitution is to discard the rule of law in favor of rule by men.
In our previous discussion, Leviticus and I began to explore the issue of how we could have consented to be governed by the Constitution if we never gave our explicit consent. (Some of us, including me, have sworn to uphold the Constitution — but not every citizen has.) Nothing is new under the sun, and John Locke explored this issue long ago. A summary:
Locke’s most obvious solution to this problem is his doctrine of tacit consent. Simply by walking along the highways of a country a person gives tacit consent to the government and agrees to obey it while living in its territory. This, Locke thinks, explains why resident aliens have an obligation to obey the laws of the state where they reside, though only while they live there. Inheriting property creates an even stronger bond, since the original owner of the property permanently put the property under the jurisdiction of the commonwealth. Children, when they accept the property of their parents, consent to the jurisdiction of the commonwealth over that property (Two Treatises 2.120). There is debate over whether the inheritance of property should be regarded as tacit or express consent. On one interpretation, by accepting the property, Locke thinks a person becomes a full member of society, which implies that he must regard this as an act of express consent. Grant suggests that Locke’s ideal would have been an explicit mechanism of society whereupon adults would give express consent and this would be a precondition of inheriting property. On the other interpretation, Locke recognized that people inheriting property did not in the process of doing so make any explicit declaration about their political obligation.
One could say: maybe we should not impose upon people our understanding that they have tacitly consented to our system of government by living in our country, using our public services, participating in our system of government by voting or contacting representatives, etc. Maybe we should require that people explicitly consent — if, of course, they wish to. Make everyone take a citizenship oath at the age of 18 — maybe at the same time they sign up for Selective Service.
OK. But what if they refuse? A country would be within its rights, I suppose, to toss them out of the country. I suppose Seidman would call that “authoritarian” as well. Or, we could just make it totally voluntary, creating a class of citizen that rejects the Constitution and our laws, gets to live here, but has a get out of jail free card — because if they break the law, hey, they didn’t agree to follow it.
I guess that wouldn’t be “authoritarian.” But I don’t think it would work too well.
I do think, however, that a society that no longer cares about the principles of the Constitution cannot well rule itself under the Constitution — and is increasingly likely to discard its principles, as we see Obama doing today.
Which is why I think this is an important discussion. If the Constitution is being shredded, should be care? If we should, we should be able to say why.
P.S. When I am seeking respectful discussion, I often ask people to treat others with respect. While I would like to see that, I want to make a related point. Some people will probably be disrespectful: but if you are, that makes you less persuasive. Nobody gets persuaded by getting knocked over the head by someone calling them an ass.