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01/11/2013

Giving Up on the Constitution Part I: How to Change the Constitution
Mike Rappaport

In a New York Times Op Ed last week, Louis Michael Seidman presented an argument for not following the Constitution.  Here is my summary of the major aspects of his brief:

1. Our American system of government is broken due to the archaic, idiosyncratic and downright evil provisions.

2.  It is irrational to rely on the judgments of men dead for two centuries.

3. Constitutional disobedience may seem radical, but it is as old as the Republic.

4. Given this disobedience, it is not true that we would be reduced to a state of nature if we ignored the constitution.

5. We should follow the good constitutional commands out of respect or because it is better to leave some things as settled.

6. The decisions of the different branches should be defended on a contemporary policy basis.

7. Other countries are held together by long standing traditions.  So could we.

8. If this is not possible, then the dream of a country ruled by we the people is impossibly utopian.

In my view, there is so much wrong with this argument that it is hard to know where to start.  In this post, let me focus on the two most important problems with the argument.  In my next, I will discuss other issues.

My main disagreement turns on how  Seidman wants to change our Constitution.  Basically, Seidman wants to replace our Constitution with another one.  We might think of our Constitution either as the original meaning of the document, as I do, or as the constitutional practices that the country follows, which purport to follow the document in a more complicated way.  But in either case, Seidman wants to change the Constitution to a practice that openly disregards the document and have institutions justify their actions based on policy rather than on text.

While I don’t believe this would be a good system for a variety of reasons, the basic question is how we should effect this change.   Seidman is not explicit about how the change should occur, but it seems pretty clear that he wants government actors simply to start ignoring constitutional provisions and to behave in the way that he recommends.

That is a problem.  Changing a constitutional system in this manner – by government action without any approval by the people – is not the right way to enact a good governmental system.  Here we can contrast Seidman’s recommendations with those of Sandy Levinson.  My impression is that Levinson largely agrees with Seidman on policy grounds, but Levinson argues that a constitutional convention should be called to draft a new constitution.

This is the way that a new constitution should be adopted.  In this way, the people – rather than the government – can decide on the fundamental law that will govern the country.  Otherwise, it is government officials who decide to ignore the constraints that are supposed to limit their actions.

(One might question whether the people actually acting through a constitutional convention.  If one questions that, then one might put the point differently: constitutional conventions allow special entities to frame new constitutions rather than allowing ordinary government entities, that have an incentive to enhance their own powers and agendas, to make the decisions.)

Seidman does not explain why he does not want a constitutional convention, but there are obvious disadvantages from his perspective.  One is that the country is unlikely to adopt the system that he recommends.  And if that is true, then the idea that having ordinary government officials replace our Constitution rather than having conventions do it would hardly be a way that “the dream of a country ruled by we the people” could be realized.

Let me conclude with a second point: Seidman claims that our Constitution contains “downright evil provisions.”  This is a strong claim and should be backed up with examples of these evil provisions.  But Seidman does not appear to provide any.  He specifically mentions the House origination provision, a malapportioned Senate, and a lame duck Congress.  Even if one disapproves of these provisions – and I disapprove of two, but not one of them – I hardly think any of them are bad enough to be considered evil.

(Cross Posted at the Liberty Law Blog)