Georgetown Univ. Law Prof. in the NYT: 'Give Up on the Constitution'

In a NY Times op-ed, Georgetown University constitutional law professor Louis Michael Seidman called for politicians and judges to engage in “constitutional disobedience.”  According to the Georgetown University academic, the Constitution, “with all its archaic, idiosyncratic and downright evil provisions”, is the “culprit” behind our broken system of government.

The professor clearly delineates what he means by “constitutional disobedience.” No longer would the Constitution dictate that revenue bills be required to originate in the House, nor would the President be constitutionally bound to seek congressional approval before certain types of military action. According to the professor, even civil rights would no longer have their basis in constitutional text.

The professor goes on to state that we should continue to follow “out of respect, not obligation” the freedom of speech and religion, equal protection of the laws and due process. But without a court which ascertains whether or not laws violate these constitutional freedoms, how is the majority stopped from impeding the rights of the minority? Are we to trust judges and legislators to enact laws on these matters as they seem fit? What ultimate recourse does the public then have against a legislature intent on eroding these fundamental liberties? Are justices to be a law unto themselves?

Notably, the professor does not even mention the prohibition against government seizure of private property without just compensation. Nor does the professor even indicate the slightest regard for the ultimate protection against terror and tyranny—the right to self-defense guaranteed by the Second Amendment. Without a judiciary foresworn to guarantee these rights, what reliance do we have that our legislators will remain impotent to usurp these natural rights?

Let’s just look at a few of the professor’s suggestions. Has the esteemed professor forgotten WHY we the Constitution requires Congress to declare war? After years of human misery provoked by the actions of a sovereign in committing young people to die on the battlefield, this serves as a safeguard against rash military endeavors. Or how about the requirement that revenue bills originate in the House? Our Constitution ensured that no longer would a sovereign be permitted to squander the treasure of the public. Representatives elected by the people possess the power to control government expenditures.

Sadly, Seidman seems to have forgotten the reasons why these “idiosyncrasies” were placed within the Constitution. A refresher course from the Federalist Papers could serve to enlighten him. Our system of checks and balances were not crafted in order to turn politics into a mere game. Rather, the founders understood that these checks and balances could prevent this new nation from ever being enslaved by a tyrannical government. Furthermore, the seemingly complex system guaranteed that proper debate occur when formulating national policy, served to balance the interests of a diverse group of people spread across the continent, and protected the fundamental rights of all against possible infringement from a majority.

The checks and balances inherent within our system incorporated the best ideas implemented in the Roman Empire. Should the professor be reminded that ultimately, the Caesar usurped this balance of power, contributing to the decline of the ancient republic? By remaining beholden to the Constitution, we perpetuate stability and freedom. The professor asks, why the “grotesquely malapportioned Senate get to decide the nation’s fate?” The answer to his rhetorical question, is that the slow process of legislative debate is far superior to national policy being dictated to a sole sovereign or to a roundtable of autocrats.

The professor proclaims, “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.” On the contrary, the blatant disregard for the Constitution by both legislators and judges has resulted in a federal government accumulating power and control far beyond that which the Constitution provided for. The glaring example is Supreme Court precedent expanding the meaning of the Commerce Clause far beyond the intent of the founders. This expansion serves to erode the Constitution’s clear demand that “he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It’s not the “obsession” with the Constitution that caused the dysfunction—it’s the blatant disregard of the Constitution that caused the problem.

Although the Constitution is a document barely more than 200 years old, the principles contained within it are distilled from millennia of human experience. The Bill of Rights enshrines the freedom of speech, of religion, private property, privacy, and self-defense. These freedoms encompasses fundamental rights which existed prior to and regardless of whether any government honors these rights. However, to suggest that the courts not be “obligated” to honor these rights because of the Constitution’s guarantee of them destroys a pillar of stability upon which our society rests.

As human beings, we possess the right to speak out against aspects of the Constitution we disagree with. In fact, we are blessed as Americans with a Constitution that guarantees this right can be exercised without government interference. As citizens of this nation, we even have the power to change this Constitution through the amendment process. In fact, the Constitution, far from being unchangeable, has been amendment peacefully numerous times over the last 225 years. However, legislators and judges do not have the right to engage in “constitutional disobedience.”

Each President takes an oath to “protect and defend the Constitution of the United States.” Violation of this oath in an act of “constitutional disobedience” is not just an impeachable offense; rather, it’s arguably an act of treason. As John Adams stated, “We are a nation of laws, not of men.” 


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