Patterico's Pontifications

2/6/2013

Should We Give Up on the Constitution?

Filed under: General — Patterico @ 7:17 am

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.

90 Responses to “Should We Give Up on the Constitution?”

  1. Ding.

    Patterico (9c670f)

  2. We already have.

    We’re a nation of people living in blissful ignorance, convinced that Uncle Sugar will take care of us and we don’t need to know how.

    http://news.yahoo.com/alabama-hostage-rescue-why-secrets-remain-bunker-213339752.html

    creeper (c3230a)

  3. I think he really doesn’t know the difference;

    http://scholarship.law.georgetown.edu/fwps_papers/132/

    narciso (3fec35)

  4. It reveals the Will to Power of the leftist, as well as the common leftist contempt for the rule of law.

    SGT Ted (506d69)

  5. Sure. That works. Then we will take Seidman and toss him into a gulag because he no longer has the COTUS to prevent him being tossed in jail for speaking his mind. While we’re at it his family will be required to work in Arkansas lead mines, and to save money on basing costs all his extended relative will have soldier living with them and they are responsible for feeding those as well.

    JP Kalishek (6652ba)

  6. I recognize the value of this discussion but Louis Seidman is a sad excuse for a Con Law professor.

    DRJ (a83b8b)

  7. It just also reveals the leftist objective to undermine the Constitution, because it stands in their way.

    They used to not openly say this. Now they do.

    From my cold, dead hands, as the saying goes. I took an oath to defend the USC from domestic enemies too. I was never released from that oath.

    SGT Ted (506d69)

  8. I recognize the value of this discussion but Louis Seidman is a sad excuse for a Con Law professor.

    I’d much rather have a professor who makes all his arguments — and then knocks them down.

    Since his school is failing its students in that regard, let’s educate them here!

    Patterico (9c670f)

  9. I agree with Chesterton when he said…

    “Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to that arrogant oligarchy who merely happen to be walking around.”

    That’s why our constitution has generally worked. It takes into account the wisdom of the past in a way that is at least partially binding on the present. In general, i don’t think the constitution is a significant barrier to needed reforms, although I think the amendment process is somewhat too rigorous.

    Joe (56a8fe)

  10. The “old, dead white men” meme is a common refrain from the progressive left used to undermine Constitutional rights they don’t care for.

    SGT Ted (506d69)

  11. when you entrust your constitution to the custody of a tittering pervert like John Roberts you’ve pretty much already given up on it I think

    happyfeet (ce327d)

  12. Seriously, this is considered his innovation;

    Seidman is well known for his contributions to constitutional legal theory, principally his theory of unsettlement put forward in his book Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (Yale 2001). Drawing from the critical legal studies indeterminacy thesis, Seidman argues that because constitutional law cannot settle fundamental political disputes, constitutional legal discourse and judicial review instead act to “unsettle” them. Rather than resolving conflicts definitively, the temporary resolution of any controversy in constitutional law through judicial review leaves open the possibility that the losing side may make an equally plausible alternative constitutional argument. In this way, both the prevailing and losing sides in a dispute recognize their positions as unstable and subject to revision within the recognized standards of legal argument. As a result, both winners and losers have reasons to continue their debate within the framework of constitutional law, thereby keeping all parties at the table and consolidating the legal system.

    narciso (3fec35)

  13. The Founding Fathers created the Constitution in order to limit the government’s ability to impose and infringe upon the citizens. On the other hand, left wingers idealize a utopia where citizens are increasingly imposed and infringed upon by the state.

    Therefore, it makes complete sense that left wingers want to marginalize the Constitution.

    Elephant Stone (5d58ea)

  14. It is not at all surprising that the left would arrive at the idea of dispensing with the constitution. The central question being asked by the constitution is “How do we deal with the problem of concentrated power’s effect on the liberty of the people?”. The constitution’s answer is: limited, enumerated powers, separation of powers, federalism, subsidiary, A bill of rights (phrased as negative rights). This answer is incovenient for the “planner” class, whose “solutions” the constitution was designed to thwart in a general sense. Am I implying some sort of unpatriotic motive in the left? Yes, actually.

    Joe (56a8fe)

  15. Seidman is correct that the government is broken. However, as to how that occurred he does not seem to have clue. To quote Seidman: “As someone who has taught law for almost 40 years, I am ashamed it took me so long to see how bizarre this is [Our obsession with Constitution]. …” http://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-the-constitution.html?pagewanted=all&_r=0

    Seidman blames the broken government on the Constitution, when in fact the government is broken because, from its inception, little by little, there has been disregard, misinterpretation and misapplication of core principles of the Constitution. See the law review article How the Judiciary Stole the Right to Petition (2000) by attorney John Wolfgram (inactive)- http://www.constitution.org/abus/wolfgram/ptnright.htm ; and The South Dakota Amendment E Piece Slate Magazine Refused to Publish (2006) by attorney Gary L. Zerman
    http://www.sd-jail4judges.org/GaryvBrandenburg.htm

    No wonder Seidman has no idea what he is talking about, as he clerked for Skelly Wright and Thurgood Marshall, both proponents of ignore the Constitution and instead reason from result backward constitutional/legal philosophy. Further, since graduating from Harvard law in 71 Seidman has been in the D.C. swamp and has been on the faculty of Georgetown since 76 “teaching” law. http://www.law.georgetown.edu/faculty/seidman-louis-michael.cfm#

    One can only shudder to think how many legal students have had their minds filled with his nonsense and are now spreading it across America and the world.

    Gary L. Zerman (3b960d)

  16. The Constitution is akin to the lock on the henhouse. And the left wingers are the proverbial foxes pleading with Farmer MacGregor to do away with the locked door at night.

    Says the fox to the farmer, “Farmer MacGregor, do we the hens really need a locked door at night ? Think of how much easier it would be for me to get in for the hens to have total freedom to wander in and out into the barnyard if there was no locked door at night. I only have the best interest of the hens, in my stomach heart !”

    Elephant Stone (5d58ea)

  17. And so Mr Seidman having uprooted the Constitution and destroyed it root trunk and branch, when the evildoers come for you, where will you hide? Remember, no first amendment to protect your right to freedom of speech, no right to assemble, and no right to arm yourself, have a nice day in the work camp. And don’t forget what Mao did to the professors.

    glenn (647d76)

  18. I dunno, maybe I’m just a dyed in the wool Luddite.

    Let’s learn to take a risk:

    http://batshitcrazynews.com/2013/02/batshit-crazy-love/

    gary gulrud (dd7d4e)

  19. I’m just a layman but I was under the impression the Constitution was the contract under which our governments worked at our pleasure.

    Guess thats mythology?

    gary gulrud (dd7d4e)

  20. I guess the oath I took for the Air Force in 1981 didn’t mean anything.

    Good luck with trashing it.

    The time is getting closer and closer….

    Kevin P. (1df29c)

  21. As Franklin said at the conclusion of the Constitutional Convention: “It’s a republic, if you can keep it.” There are some who would prefer not to keep it.

    To say that the Constitution is the product of dead white men ignores the ability of present citizens to change it though either of the methods in Article V. The only thing they likely cannot change is the equality of states in the Senate.

    If it is so bad, why have there been so few amendments in 225 years? I have seen amendments happen in a few months (e.g. 18 year old vote) when the will was there. Seidman’s rant seems to echo the frustration of would-be despots of every stripe: a Constitution makes imposing your will on the people too hard.

    Kevin M (bf8ad7)

  22. Kevin P – it’s *worse* than that. In each of the three jurisdictions where i’m a lawyer, I had to swear an oath to protect and defend the US Constitution.

    Seidman doesn’t appear to be registered in any of the jurisdictions i’m registered in, but it seems likely to me that the jurisdiction of whose bar he *is* a member, also requires such an oath.

    aphrael (efbf91)

  23. Prof. Seidman acknowledges that he is quite fond of the First Amendment (for him and his pals, of course; his students, maybe not so much), and I would harbor a guess that he supports Amendments III through VIII, XIII through XVI, etc. As to the Articles, no doubt he would pick-and-choose among which ones he thought were worthwhile and leave the rest of them subject to negotiation.

    And that’s what I object to. There is no doubt that if we were to “give up on the Constitution” and subject everything to a robust debate, the media-academic complex would very quickly seek to dominate the proceedings and force their utopian visions upon us all by invoking their alleged moral and intellectual superiority. Regrettably, I think they will have conned enough Americans into going along with them. Rather than the ideal republic where issues are dispassionately discussed until consensus is arrived at, we will further balkanize into a Texas vs. California sort of society, just on a whole grander scale.

    On the other hand, if ditching the Constitution means no more jobs for blowhard con law professors like Louis Seidman. . . .

    JVW (4826a9)

  24. What is the alternative?

    The only alternative to the rule of law is rule by force, which is even more authoritarian. Whether the rule of force is by physical force and violence, economic limitations, or whatever.

    Really, what other alternative is there?

    The only rational question, it seems to me, is how best to structure a government by rule of law and make it function. The original Constitution, as Kevin M. points out, included a mechanism by which it could be altered, if enough of the people wanted to. As aphrael and kevin P. point out, it has been the custom that people in official government positions pledge to uphold the Constitution.
    What Seidman is saying, of first implication, is that those promises should be held meaningless, let alone not enforced.
    The only person who wants to change the rules of the game (any game) unilaterally is one who has to gain from it.

    So, we’ve gone from the concept that human rights are given by God and the role of government is to protect and not infringe on those rights, to the idea that rights will be what some group of people will decide them to be, without my input.

    I will now stop and await someone to try to show how Seidman’s position is not morally and intellectually bankrupt. Of course, when one rules by “this is what I want”, morality and intellectual honesty don’t apply.

    Lord of the Flies meets Animal Farm.
    Where does one sign up to be one of the animals more equal than others?

    But in one way this is not surprising. After all, we’ve allowed someone to be sworn into the office of president twice now whose past words and behavior indicated he doesn’t mean it when he says it, and no one else says a thing about it.

    MD in Philly (3d3f72)

  25. Historically, what is the alternative to rule by law?

    Monarchy or some equivalent, yes?

    MD in Philly (3d3f72)

  26. What we need is a real educational system which teaches how the Constitution forms the U.S. the “last, best hope of mankind.” Although I consider myself fairly well read, I did not understand the philosophical underpinnings of the Declaration of Independence and its (eventual) spawn, the Constitution until long after I was out of school. Shame on school.

    Just because no one uses a room in the basement is not a good reason to tear it down. Good chance that it houses a load bearing wall. Prof Seidman ought to spend some time in some basements looking at how they support the whole house.

    ChrisB (9dccdd)

  27. Our obsession with the Constitution has … kept us from debating the merits of divisive issues and inflamed our public discourse.

    Oh, really? The Constitution has prevented Congress and the President from debating issues on their merits?

    Should we laugh or cry at such?

    MD in Philly (3d3f72)

  28. For example (my last comment for now), just what part of the Constitution has prevented the President and Congress from passing a budget the last few years?

    MD in Philly (3d3f72)

  29. @happyfeet: CJ Roberts was right in that the individual mandate is unsupportable by the already pretzel-twisted Commerce Clause, but it is likely as a tax. The only real flaw in his logic is that the penalties (which make the mandate a “mandate”) were not presented as a tax, except as a last ditch effort. In short, the administration knew that the Commerce Clause argument was not sustainable, even though the whole house of cards was built on it. Hence they tried a weak, last minute switch by calling the penalties a tax. Lo, and with much surprise, Roberts accepted the new basis and ruled on it. In essence, you can blame him for properly ruling on the wrong question.

    ChrisB (9dccdd)

  30. What else would you expect from the Times.
    They are truly the mouthpiece of the New Tory Party.

    askeptic (b8ab92)

  31. O/T, but related to Constitutional Issues:

    I see that Assemblyman Philip Ting of San Francisco, has introduced AB231, to require gun-owners in CA to purchase liability insurance to pay for the gun-violence that their weapons cause.
    Will he require all internet users to purchase libel/slander insurance too, or churchgoers to purchase blasphemy insurance.

    We are truly ruled by Fools!

    askeptic (b8ab92)

  32. What type of liability insurance is Peter Ting taking out to insure himself for the damage he does in emitting hot air ?

    Elephant Stone (5d58ea)

  33. Many good comments on the thread. Professed America hater Anwar al-awlaki and his son did not live here, but were both natural born citizens. As is Nadil Hassan. The whole issue of applying Constitutional rights for all “citizens” regardless of their base of operation or their professed goal to kill as many innocent Americans as possible is further complicated for me (at least psychologically) by noting the well publicized activities of a few recently naturalized citizens. (People who apparently desire to avail themselves of lifestyle opportunities, the freedom to operate here, the financial entitlements and the benefits of Constitutional protections of American citizenship– but prove to be wholly insincere about upholding their half of the bargain which is supposedly engendered in the citizenship oath they took to respect the laws and be loyal contributers to their new land.)

    These are people like the Times Square bomber who clearly lied about his beliefs and his true reasons for wanting to become a U.S. citizen. One hopes these examples are few and far between but the long broken immigration system and the possibility of millions of future amnesty-type cases does not instill confidence that many more dangerous America haters won’t slip in to the citizenship rolls.

    On the other side of the coin, the potential for a nasty slippery slope should the rule of law and the Constitution continue to be systematically weakened by politicians and academics should not be ignored or taken lightly.

    elissa (a02170)

  34. “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?”

    - Patterico

    I think this is a fantastic, fascinating, and extremely productive discussion, and I’m really excited at the prospect of having it here. Class starts in five minutes (and I’ll be back when it’s done), but for the time being let me provide quick answers to the questions above that I hope can at least provide a clear starting point without seeming too flippant:

    1. Yes, I believe in the rule of law and I believe I am subject to laws or Constitutional principles that I disagree with (e.g. “money is speech”).

    2. Our government is legitimate because it is rooted in our Constitution – and (the more important question), our Constitution is legitimate because it implements time-tested, effective processes for popular government.

    3. Yes.

    4. I’m not sure, but I want to discuss further.

    5. Yes. We believe that Due Process is as sacred as secular things get. This links in with the drone discussion.

    Leviticus (1aca67)

  35. •Is our government legitimate — and if so, what makes it so?

    The fact that every person has a vote, and has the ability to vote out their local, state, and national government gives mroe legitimacy to our government than almost the entire world.

    People on the losing side of governmental elections feel disenfranchised.

    EPWJ (c3dbb4)

  36. •Do you believe the People should set any limitations whatsoever on the ability of politicians to pass laws that affect the individual?

    Yes its called the ballot box.

    EPWJ (c3dbb4)

  37. •How should such limitations, if any, be placed on governments — and how should those limitations, if any, be enforced?

    Vote them out of office

    EPWJ (c3dbb4)

  38. •Is there, in the final analysis, anything about the United States that sets it apart from other nations?

    Our productivity

    Our belief in God

    Our kindness, even unto our enemies

    Our sense of liberty, what nation on this earth right now is debating giving alien immigrants full rights?

    EPWJ (c3dbb4)

  39. The left loves the Bill of Rights to protect criminals. Can we drop the Right Against Self Incrimination, Search and Seizure, etc., if we drop the Constitution? No free right to counsel either.

    AZ Bob (7d2a2c)

  40. Comment by elissa (a02170) — 2/6/2013 @ 11:59 am

    Two Words:
    Tokyo Rose!

    askeptic (b8ab92)

  41. I don’t believe our government is 100% legitimate. I think there are too few safeguards on the legitimacy of the vote. We don’t even have the tools to do a proper statistical analysis to determine if there is an irregularity in the vote.
    I believe the US Constitution was and is a marvel of intellect and is a proper foundation to good governance. I think many of our current political arguments would be more representative of the people’s will if the governance were more locally centered. In other words, I believe the centralized Federal Government is too far removed from the people’s will and not in alignment with the tenth amendment’s delegation of limited powers to the Federal gov’t.

    bonhomme (275f23)

  42. Congress needs to be expanded, to reduce the size of Congressional Districts, the 17th-A needs to be repealed (another failed Progressive scheme), and it needs to be Part-timed, with a commensurate reduction in the size and scope of the Executive.

    askeptic (b8ab92)

  43. Bill Stevens just answered most of Pats questions

    Kudos to Ace’s contributor LauraW

    http://www.youtube.com/watch?feature=player_embedded&v=dhXPlCjr0Vw

    EPWJ (c3dbb4)

  44. I would say, absolutely, we could throw out out Constitution and replace it with a new Constitution. In doing so, you would also have to agree to the prospect of not every state agreeing to such a path.

    To answer the questions: Do I believe in Law, yes, it’s the basis for how people codify what is wrong and what is not wrong. That being said, I do believe our lawmakers have run rampant and make too many ill-advised laws. Those bad laws rarely get looked at again (they’re lawmakers…not law-destroyers). This leads to a situation like we have now, where it is humanly impossible for someone to understand the law code as a whole.

    Our government is legitimate because we willingly subject ourselves to it’s rule.

    Limitations should be subjected to lawmakers as to what they can do. The things the government does should be hard for them to do. Rights of individuals should be respected over the wishes of the many. For example, individuals should have the right to commit suicide (how can you be free without this right?)…no law should bar that, but you should be able to make laws where it is technically illegal to jump from a sky scrapper due to public danger and because someone has to clean it up.

    The one thing that sets the United States apart from most nations on this Earth…but not all…is the near total lack of historical tribalism. We don’t have Old fights to fight like Sunnis and Shiites or old land disputes like the Jews and Palestinians. It gives us a fresh start.

    All that being said (and there is a lot that can be discussed and reasonably be debated), this is not the time to throw out the Constitution. We do not have great minds leading us at the moment, nor are we in a position where great masses can compromise. If anything, I would say this country could be greatly benefited if we started cutting down on laws and revising past court decisions to find a proper equilibrium where we can exist in a modern harmony within the current frame work.

    I don’t even think that can be accomplished though. It would just be the same battles over again when it came to Roe V Wade, or Income tax authority, etc.

    NaBr (a094a6)

  45. If a government by the people is as sacred as people claim, then safeguards must be implemented and enforced in order to ensure (as best possible) the legitimacy and legality of each citizen’s vote.

    That means purging the voter rolls of the deceased and incarcerated, as well as those who have moved away.
    It also means requiring that Joe Jones of 123 Maple Drive, Anytown USA proves that he really is who he announces himself to be on election day—and that he only casts one ballot.

    All this nonsense about voter IDs being “racist,” as well as a burden to the uneducated lower classes is yet another way that the lefties attempt to undermine actual representative democracy.
    The lefties always lecture us about how we should be more like “utopian country X.”
    Well, guess what, just about every “utopian country” requires voter ID.

    Elephant Stone (5d58ea)

  46. Via Kimball at PJM:

    “Consider this passage from Cicero’s On Duties:

    Whoever governs a country must first see to it that citizens keep what belongs to them and that the state does not take from individuals what is rightfully theirs. … As for those politicians who pretend they are friends of the common people and try to pass laws redistributing property and drive people out of their homes or champion legislation forgiving loans, I say they are undermining the very foundations of our state. They are destroying social harmony, which cannot exist when you take away money from some to give it to others. They are also destroying fairness, which vanishes when people cannot keep what rightfully belongs to them. For as I have said, it is the proper role of government to guard the right of citizens to control their own property.

    It’s hard to believe that was written circa 44 BC, not the day before yesterday.”

    gary gulrud (dd7d4e)

  47. One recalls, that Catiline, who had a better military record, but the wrong viewpoint was a major foil of Cicero.

    narciso (3fec35)

  48. Cicero longed for the Republic that was Rome, but was slowly dying, and would disappear in 17 more years.

    askeptic (b8ab92)

  49. Comment by gary gulrud (dd7d4e) — 2/6/2013 @ 1:24 pm

    Marcus Tullius Cicero — original Tea Partier!

    When do you suppose was the last time Cicero was taught in a public high school?

    JVW (4826a9)

  50. The Social War, the Triumvirates, wore down the comity required for republican government

    narciso (3fec35)

  51. JVW, about as long ago as Latin was offered as a Foreign Language.

    askeptic (b8ab92)

  52. ‘Giving up on the Constitution’ sounds like a job for the POTUS and the Chief Justice.

    Icy (ecbc5a)

  53. askeptic, I took two years of Latin at my public high school. Thanks for making me feel old (though I suppose I am).

    JVW (4826a9)

  54. “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…”–Seidman

    We’re going broke trying to pay for all the unconstitutional government programs, ya dope. The reason there’s fiscal chaos is because we DIDN’T abide by the Constitution.

    Dave Surls (46b08c)

  55. 50. All I know of Cicero’s work is out of Penguins. I took Spanish in JHS and HS.

    But on reading the classics one is aware our historical provincialism as ‘Moderns’ is too laughable to convey to our contemporaries.

    Racism is better suffered.

    gary gulrud (dd7d4e)

  56. Well, I come from New Zealand which has inherited the westminster system. We have very few restrictions on government power, and certainly nothing like a written constitution. But in many ways we’re possibly more free than the US.

    My take: it doesn’t matter what the law is, ultimatly your government has to be willing to limit itself. If it sees itself as the servant of the people, you don’t need laws to restrict it; but if it sees the people as subject to the government’s whims and plans then no laws will (ultimatly) change that.

    They might provide a few more obstacles in the way, but at best these might delay a little.

    scrubone (e7e0ea)

  57. I think we should retain and reform the Constitution from collective wisdom, but as I have pointed out, not everybody is wise (like the liberal law professor who bashes it) or should participate in the reformation, for the unwise will merely destroy the good in it or amend the good out of it. As I see it, the law professor merely condemned it without offering cogent and rational improvements like these:

    Form a 4th branch to inform and advise, and police obedience to it by other branches and prosecute those who betrayers it and their oaths through subterfuge, power of office, etc.
    Forbid establishment of any public policy that defeats its obvious purposes
    Mandate a balanced budget except in the event of nationwide cataclysm like a world war.
    Mandate issuance of letters of marque and reprisal against terrorists, and encourage private enterprise to take them out external to the nation.
    Mandate the accommodation an unrestricted arming of militia groups by states and municipalities, not merely acknowledge them.
    Abolish all forms of direct taxation of the people, and establish that apportionment means tax the state legislatures
    Require state legislatures (not governors) to appoint US Senators and their replacements
    Specify the federal zone and the powers of congress and the executive and courts within the non-federal zone borders of states.
    Distinguish between and stipulate the rights and responsibilities of Elector Citizens entitled to vote in national elections, aliens/non-citizens, and citizen candidates (those born here or abroad of citizen parents, or not born here, both of who can become citizens upon fulfilling naturalization requirements)
    Limit suffrage to the demonstrably responsible, and require graduation from high school, self sufficiency, 2 years of service to government or militia), and passing a constitution competency exam to become an elector.
    Prohibit any law criminalizing rebellion by Elector-Citizens – rebellion is always the right of the electors if government will not respond to their needs/wants
    Identify “Treason against the Constitution” as an offense justifying claims against the bond, summary excision from government for life, and loss of all pension benefits and social security benefits – in other words mandate penalties for violating the oath or failing to enforce the guarantee of government structure and state/citizen rights.
    Mandate bonds for all government employees, the premiums for which they pay out of personal money, and a simple system for filing claims against those bonds by Elector-Citizens for malfeasance, abuse of authority, conspiracy, enforcing unconstitutional public policy, and oath violations. Non-elector-citizens may not file claims against bonds.
    Prohibit all forms of sovereign immunity by judges, or quasi immunity by prosecutors, sheriffs, marshals, etc.
    Clarify the meaning of Conservator of Peace and the general powers and responsibilities, and require law enforcers/conservators of peace to stop crime and personal injury when they see or hear of it happening.
    Stipulate that abiding in the land as Citizen, alien visitor, or alien resident constitutes acceptance of the powers of government as stipulated in the constitutions and laws pursuant to them.
    Mandate a national ID, with embedded rfid chips for aliens upon entry, convicted felons, the mentally unstable, and the mentally incompetent to enable monitoring their presence and behaviors.
    Mandate credential examination of all prospective government employees, whether hired, elected, or appointed, and deny applications of those not qualified.
    Eliminate inheritance, income, and wage tax , and institute VAT to balance exports/imports and make every consumer pay a fair share of the cost of government
    Establish a central bank owned by the federal government to print and lend the currency of government, and use interest income to replace income and wage tax – abolish fractional reserve lending, require all securitization to return a portion of earnings to the maker of the note, or abolish securitization of notes.
    Clarify that the prologue is not a provision of the constitution, but rather an explanation for what it intends to accomplish.
    End stare decisis and the rule of non-unanimous court rulings. Congress shall review all such contentious rulings and clarify or revise the law with a year thereafter to make law, and not court rulings, the law.
    Mandate separation of all bar members from government at every level, open practice of law to everyone, and pass regulation of attorneys (not practice of law) to the executive branch or legislature.
    Forbid all quotas for law enforcers and prosecutors
    Strengthen grand juries by giving them power over all prosecution of all felony crimes. Prosecutors no longer pick and choose and no longer do plea bargaining. They schedule and prosecute cases as they come, regardless of “importance”
    Open prosecution for crimes to the injured and their counsel of choice
    Stipulate the meaning of speedy trial, privacy, due process, and petition for redress, obliging government to answer with finding of fact/conclusion of law, or act on the petitions
    Specifically strengthen habas corpus and add amparo as the two greatest of writs for protecting people from government abuse in emergencies; impose strict penalties for denying the petitions without strong reason. Establish punishment for false accusers who arrest or harass without precise probable cause.

    I believe the vastness of the gulf between the responsible/smart and the irresponsible/stupid encourages a third world mentality in state and national infrastructures. You don’t fix this by willy nilly encouraging immigration and procreation of the stupid while the smart aren’t smart enough to produce large families as they once did. Although I have not proposed it in the constitutional fixes, I suggest it as a reality that society cannot ignore, and that society should implement through benign eugenics, with government sponsorship, aimed at elimination of the degenerate and defective from the face of the nation so they don’t clamor for voice in government or for government or other welfare and thereby rob the nation of its productivity.

    People will not obey the constitution if no penalty exists for violating it, and if not means in government exists for identifying the violators and lets injured citizens attack their bonds. People do not have an intrinsic right to work for government or elect those whom government employs. They have to earn that right through education, self sufficiency, studying the bases of government and its ideals, and gaining sufficient life experience and service experience to know first hand the dangers of government excess before they should have any say in it.

    We need the 4th branch with the ability to investigate, inform, advise, record, and publish information so as to police the other three branches and punish offenders in it. Otherwise the 4th branch has no official say in government policies and practices so long as they comport with the constitution. It will bring a screeching halt to judicial immunity.

    You cannot denounce any of the above provisions as a violation of essential liberty unless you show some guarantee that the exercise of liberty comports with essential responsibility. They go hand in hand as a balancing effect on one another.

    Bob Hurt (475d7e)

  58. Yeah, New Zealand seems to be doing pretty well without a codified constitution.

    Dave Surls (46b08c)

  59. 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?

    I believe in the rule of law, including that I am subject to laws and Constitutional principles with which I disagree.

    Is our government legitimate — and if so, what makes it so?

    It is legitimate as long as the public generally believe in and consents to our form of government. There have been times in our history where that has been sorely tested. I believe this is one of those times.

    Do you believe the People should set any limitations whatsoever on the ability of politicians to pass laws that affect the individual?

    Yes. In general, I favor term limits as a method to limit politicians, and I have come to believe nullification is a legitimate tool. In addition, I would support civil disobedience in some circumstances, and I’m sure there are other methods/tools I could support.

    How should such limitations, if any, be placed on governments — and how should those limitations, if any, be enforced?

    I’m not sure. I have to think about this more.

    Is there, in the final analysis, anything about the United States that sets it apart from other nations?

    Yes — our individual self-reliance and our national willingness to put our lives, liberty and money on the line to effect change for the betterment of mankind, although I fear a majority of Americans have given up on the former. Ultimately, that will lead to our abandonment of the latter.

    DRJ (a83b8b)

  60. Patterico,

    I didn’t mean to bold my last comment. Please delete that code when you have a chance.

    DRJ (a83b8b)

  61. And add a blockquote code in lieu of the bold code.

    DRJ (a83b8b)

  62. Done.

    Patterico (9c670f)

  63. Thank you. Bolding is really hard to read, otherwise I wouldn’t have asked.

    DRJ (a83b8b)

  64. The ancient Athenian democracy only lasted 50 years and was comprised solely of male, property owning citizens but they had one feature of interest.

    A majority could banish one citizen each year.

    Prolly not practicable, but we’re over the cliff anywho. Let’s put the foot to the floor.

    gary gulrud (dd7d4e)

  65. Seidman, is one of the leaders in critical legal studies, so it’s not surprising he comes to these conclusions,

    narciso (3fec35)

  66. #22 An oath is something more than politics. Traitors will be dealt with. The tree of liberty….

    Kevin P. (1df29c)

  67. I am just a simple man. I have no degree, but I do have common sense. Even after brain surgery, cancer and all. The world is fine, the people in it…. not so much.

    Kevin P. (1df29c)

  68. Is anyone familiar with enough of the professor’s views to know how he proposes we go from our current Constitution to something else?

    It would seem to me that unless he has a serious proposal how to go about the change, he’s merely dissing the Constitution to make it easy for the current administration to ignore what it wants to ignore, which it is doing anyway.

    Along the way he is burning straw men right and left.

    MD in Philly (3d3f72)

  69. i deal with the same essay here, admittedly taking it much less seriously than you are.

    i mean he cited the alien and sedition acts in support of his approach. what more needs to be said?

    Aaron "Worthing" Walker (23789b)

  70. he’s merely dissing the Constitution to make it easy for the current administration to ignore what it wants to ignore, which it is doing anyway.

    This

    JD (b63a52)

  71. 68. “not so much” Amen.

    gary gulrud (dd7d4e)

  72. On further thought, our adherence to the rule of law is another thing that sets America apart from most countries. That’s another reason why Obama’s Imperial Presidency is so dangerous.

    DRJ (a83b8b)

  73. It would be really nice if the SCOTUS stopped to read the 9th Amendment before making each ruling.

    Neo (d1c681)

  74. I think that the US was/is pretty unique in the idea that the public had the freedom, and the responsibility, to worship as they pleased and live according to personal conscience as the basis for society, and national government was meant to be a relatively weak oversight, largely for dealing with other nations (treaties, defense/war).

    That is a “shooting from the hip” response, nothing I would even try to say from a critical reading of law.

    MD in Philly (3d3f72)

  75. 73. Reminds me of a quote from an assistant manager of the Biltmore in Guatemala City where I stayed some weeks in the early ’90s.

    “We have good laws as well, what matters is that they be enforced.”

    gary gulrud (dd7d4e)

  76. Look at what happens when you keep Congress in the loop. You lose control of the leaks truth.

    http://www.thegatewaypundit.com/2013/02/sen-rand-paul-administration-needs-to-answer-are-they-running-guns-through-turkey-to-syria-video/

    gary gulrud (dd7d4e)

  77. They’ll get back to you on that as soon as they nail down the details on Fast & Furious, and where Jimmy Hoffa is buried.

    askeptic (b8ab92)

  78. Yeah, New Zealand seems to be doing pretty well without a codified constitution.

    Actually, we’re doing as badly as you guys – governments doing whatever the heck they want, media not overly interested in reporting on governments they agree with etc.

    scrubone (e7e0ea)

  79. scrubone, how’s that campaign against house-cats going?

    askeptic (b8ab92)

  80. 57. My take: it doesn’t matter what the law is…

    Comment by scrubone (e7e0ea) — 2/6/2013 @ 4:47 pm

    That’s the David Gregory position on possessing large capacity magazines in Washington DC.

    Or the Bob Menendez position on indulging in under-aged teenaged prostitutes in the Caribbean.

    And now our President’s position on killing US citizens.

    Steve57 (bc3ba2)

  81. For decades, the lefties were asserting that the Constitution is “a living, breathing document.”

    Now, they want to kill it.

    Elephant Stone (13d484)

  82. askeptic: Well, someone just discovered that being a media darling will only get you so far.

    scrubone (e7e0ea)

  83. 31. We are truly ruled by Fools!

    Comment by askeptic (b8ab92) — 2/6/2013 @ 11:46 am

    Yeah, but somebody keeps voting for them.

    Actually, I don’t think our rulers are fools. They just act that way to get votes. Because if they were fools…

    •Do you believe the People should set any limitations whatsoever on the ability of politicians to pass laws that affect the individual?

    Yes its called the ballot box.

    Comment by EPWJ (c3dbb4) — 2/6/2013 @ 12:05 pm

    …they wouldn’t have figured out the work-around for this little obstacle. Which is no longer an obstacle.

    The Librarian of Congress decided In October of 2012, that personally unlocking phones would no longer be allowed.

    Read more: http://wgntv.com/2013/01/25/unlocking-cell-phones-becomes-illegal/#ixzz2KFN3Rkg0
    Read more at http://wgntv.com/2013/01/25/unlocking-cell-phones-becomes-illegal/#bwT3c1dPrVkATChc.99

    Who’s going to vote out the Librarian of Congress? Maybe I missed something, but I don’t recall voting him or her in. And now the Librarian of Congress is decreeing new felonies.

    The EPA operates on the principle that crucifying businesses is the best way to encourage compliance. It’s bad form to actually come out and say it. Which is probably why “Richard Windsor” didn’t use her own official email account to say what was really on her mind.

    Delegation. That’s the key. The pols don’t really want to have a record that would expose them to accountability (Just ask President “I vote Present”). Now when gub’mint health care starts to screw up aspects of your life you never dreamed of, they can point to the director of HHS and claim it’s not their fault.

    And then they’ll have to chutzpah to ask you to send them back to DC so they can fix things!

    And people will. And you know what? It really doesn’t matter. They’ve placed Leviathan on autopilot.

    Feds defend Department of Education raid on a home

    The Department of Education has somehow, probably about the time I missed the fact that the Librarian of Congress can decree things into law, been empowered to raid people’s houses.

    You can vote the pols out of office. That’ll just give them a bit of a break that they can spend banging teenaged Dominican hookers at a five star beach resort. Then they’ll probably take a job working for the unaccountable monstrosity they created.

    Where they can continue treating the entire country like an under aged third world prostitute.

    Steve57 (bc3ba2)

  84. Comment by scrubone (e7e0ea) — 2/7/2013 @ 12:42 pm

    So, the Kiwi’s have too many cat-bloggers too.

    askeptic (b8ab92)

  85. Comment by Steve57 (bc3ba2) — 2/7/2013 @ 12:47 pm

    When all else fails, we shall invoke Rule-7.62!

    askeptic (b8ab92)

  86. So, the Kiwi’s have too many cat-bloggers too.
    Actually it was more of an MSM thing.

    scrubone (e7e0ea)

  87. Well Lincoln did suspend the Writ of Habeus Corpus:

    http://www.zerohedge.com/news/2013-02-08/guest-post-ndaa-lawsuit-headed-supreme-court

    gary gulrud (dd7d4e)

  88. Thus says the Lord:
    “Stand by the roads, and look,
    and ask for the ancient paths,
    where the good way is; and walk in it,
    and find rest for your souls.”

    But they said, ‘We will not walk in it.’

    Jeremiah 6:16

    Amphipolis (e01538)


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