Louis Michael Seidman is a constitutional law professor who doesn’t think we need to listen to the Constitution. At least, that’s the case he laid out late last week in the New York Times when he said:
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?
First, I have to assume that Seidman knows exactly why revenue bills have to originate in the House. Now, that serves less of a purpose now that voters choose senators directly, rather than the state legislatures, but it did serve a purpose.
Now, Seidman makes reference to “archaic, idiosyncratic and downright evil provisions” of the Constitution, yet makes little effort to actually identify these provisions with one exception. That’s right, boys and girls, he does as all who oppose ideas like constitutionality do, and that’s point to slavery.
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.
Yes, we’ve heard this argument before. To be clear, there is no argument that the Constitution protected the evil that was slavery.
However, he goes on to point out how the 13th Amendment was passed - thus changing the constitution to outlaw the evil that it permitted - by claiming it may not have been constitutional in the first place due to the southern states lacking sufficient voice. Of course, as a southerner, I’d like to point out to Mr. Seidman that I have never heard anyone cliam that the 13th Amendment was invalid, especially as it was ratified by state legislatures here in the South eventually.
Seidman goes on to lament how the Constitution shackles our leaders.
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?
Now, he makes no specific policy mention here, so let’s play a little game. Let’s take this part of the above quote:
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.
And put in some specifics. Those will be bolded so you know that I inserted them.
Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that executing the Tea Party’s/OccupyWall Street’s members is best for the country.
How about this one:
Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that allowing police to randomly check homes for contraband is best for the country.
Oh wow, this is fun. How about this one:
Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that imprisoning all who disagree with the President is best for the country.
Now, not a single one of these is a good thing. I don’t think you’ll find many people who think otherwise. Unfortunately, there are a few who actually do…at least with the last two. Luckily, there is something that provides a level of protection, and that’s the Constitution.
It’s not perfect. Nothing created by men ever is, or ever will be. There are flaws, and there always will be. However, we don’t discard things because they have a few flaws. Instead, we try to fix those mistakes. That’s what the 13th, 14th, 15th and 19th Amendments did. That mechanism makes it possible to fix problems with the document without having to scrap the whole thing.
However, if Seidman were to get his way, we would lose the protections we currently have. While they have been gutted left and right lately, the Constitution gives us hope that we actually have a prayer of getting our rights restored. Without that, we really would be screwed.
One would expect a constitutional law professor to know that already.