http://www.informationclearinghouse.info/article33506.htm
Let's Give Up on the Constitution
By LOUIS MICHAEL SEIDMAN
January 02, 2012 "NY Times" -- 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.
Louis Michael Seidman, a professor of constitutional law at
Georgetown University, is the author of the forthcoming book "On
Constitutional Disobedience."
© 2012 The New York Times Company
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