Let’s Not Give Up on the Constitution Quite Yet

Conservatives often suspect that deep down, liberals are anti-constitution and anti-American. So the reaction of outrage that I’ve seen to Louis Seidman’s New York Times piece Let’s Give Up on the Constitution is no surprise — Seidman has just tipped the liberal hand.

But does Seidman have a point?

No, not really (ha, you thought I was going to triangulate or something). But since this sentiment does exist, it is worth examining so that we know how to calmly and sensibly respond to Seidman’s criticisms. He is, after all, a professor of Constitutional Law at Georgetown, which gives him both status and knowledge.

Seidman opens with the broad assertion that the Constitution contains “archaic, idiosyncratic and downright evil provisions.” Archaic and idiosyncratic I’ll give him. The Senate representing states and budget bills starting in the House are much less significant after the 17th Amendment switched the selection process of the Senate from appointment to election. It should be noted, though, that this is an oddity not with the original document, but with the document as amended. As Alexis de Tocquevolle noted: “It is therefore only at the birth of societies that one can be completely logical in the laws. When you see a people enjoying this advantage, do not hasten to conclude that it is wise; think rather that it is young.” And whatever idiosyncrasies one finds in the Constitution, they pale in comparison to what our federal government gives us today.

But evil? Seidman fails to identify a part of our current Constitution that fits that category. The closest he comes is slavery, which was corrected by the 13th Amendment.

Nonetheless, he would toss most of it (headline aside, a close reading shows he would keep parts, such as the various governmental chambers). What he is particularly upset about is the fact that the Constitution prohibits governmental action by both not delegating all powers to the federal government and ensuring that citizens have rights that can be asserted against exercise of power.

The error in Seidman’s analysis, which I find surprising for someone who teaches law, is his dismissal of the rule of law. This becomes evident in his proposed thought experiment:

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?

Yes, it is rational (after wading through the loaded language and irrelevant content contained in the question itself), provided that those long-dead people passed a law that prohibited the action in question. (See this article for a response to the argument that the Constitution was illegally adopted.)

This answer becomes more obvious when the thought experiment is recrafted.

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, such as the prohibition of abortion, is best for the country. Suddenly, someone bursts into the room with new information: a group of white men who have been dead for decades, knew nothing of our present situation, and whose predecessors in office 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?

Or imagine that after careful study a governmental official — say the Secretary of a Department  — reaches a considered judgment that a particular course of action, such as declining to enforce antitrust rules, is best for the country. Suddenly, someone bursts into the room with new information: a group of mainly white wealthy men long dead who were more interested in grandstanding than in protecting the country or understanding the problem at issue, and whose successors will take full credit for any successful program while scapegoating the Secretary for any failure, 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?

Or imagine that after careful study a corporate board reaches a considered judgement that a particular course of action — say, that X level of health care should be offered to its employees — is best for the company. Suddenly, someone bursts into the room with new information: an appointed bureaucrat thousands of miles away with no knowledge of business has interpreted a poorly worded provision of text which had been adopted by a group of overpaid egoists (also with no knowledge of business), who for three years hasn’t even been able to pass a budget for its own operations, but has ensured that it gets pay increases, might disagree with this course of action. Is it even remotely rational that the board should change its mind because of this divination?

Finally, imagine that after careful study I reach a considered judgement that a particular course of action — say, that I shouldn’t have to pay taxes — is best for me. Suddenly, someone bursts into the room with new information: a legislative body that can’t manage it’s own budgets and whose members routinely have difficulty paying their own taxes, who claim to represent me even though I didn’t vote for them, and who know nothing of my situation might disagree with this course of action. Is it even remotely rational that the I should change my mind because of this divination?

Yes, yes, and yes. It is rational that (conscious issues aside) the actor would change their mind. In fact, it’s expected. That’s how laws work.

Which is where Seidman’s hypothetical reveals its own slant (and he is not the first one to make this straw-man argument). He complains that “Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.”

Not quite. What we argue about is whether a proposed course of action is legal. What James Madison thought — or any of the other founders thought — has only indirect bearing into the interpretation of the text. By itself, it carries no more than persuasive authority. And if the question is one implicating the 14th Amendment, we argue about what the post-Civil War Congress intended, ignoring James Madison altogether.

My own Constitutional Law professor, at a rather liberal school no less, opened the first class talking about Machiavelli’s Prince. He said that we follow the Constitution, not necessarily because its perfect (27 amendments discredit that claim), but because we are a nation of laws and not of men. As the law, it must be followed by Congress and the President, just as agencies, companies, and individuals have to follow the law passed by Congress and signed by the President. The Constitution reminds us, and more importantly reminds Congress and the President, that there is still a higher law above them.

Seidman’s political check solution misses the entire point. Yes, there is a political check on Congress by which the people can exercise their voting rights to influence decisions. This is true, and vitally important within those areas where Congress has authority to legislate (Constitutional ability, after all, does not equate to prudent policy). But, important as it is, this democratic solution cannot be relied upon to protect the rights of minorities. For that, we rely on the Constitution itself.

Seidman’s critique, at its heart, is that the Constitution is difficult to interpret and well meaning people can disagree on what it means in particular situations. That, as he should know, is the nature of law itself.

As I heard time and time again during my first year of law school, if you want clear answers go study mathematics.