Is It Time to Get Rid of the Constitution?

By Spartacus Thrace

As 2013 dawns across America, the Progressive Movement appears to be at the zenith of their power within the federal government and throughout major sectors of American society and culture.  Buttressed by decades-long control or domination of the academy, the theater, the press, labor, and the Democratic Party, the Progressives have fundamentally changed the state of the nation by creating a secular utopian statist path as an alternative to the religious individualistic minimalist government path set down by the Founders two centuries ago and expressed in the obligations of the government to the governed they enshrined in the Declaration of Independence and the Constitution.

The Declaration has long been treated by many in power as an irrelevant historical relic.  The radical notion that the Constitution is a “living document” has gained wide adherence across several parts of the societal spectrum, even among those who hold themselves out as experts on matters of constitutional law.  America is now governed by a semi-permanent ruling class, engaged in rampant self-entitlement, seeing itself as separate and apart from — and superior to — the governed.  The notions of the American melting pot of disparate peoples and American exceptionalism have been lost to Balkanization of the population along the classic imaginary socialist fault lines of race, ethnicity, gender, and class.  The fundamental concept of minimalism — where the power of government is a revocable grant from the governed and the government has only that power and authority necessary to perform the essential duties entrusted to it by the governed — has long been smothered by massive growth in the size, power, and reach of the federal government and the concomitant decrease in individual liberty.

In the wake of two presidential victories, control of the Senate, the marginalization of the Republican majority in the House of Representatives, and the recent flipping of the Supreme Court onto the Progressive track in its ruling on the Affordable Health Care Act (aka Obamacare), nothing stands in the way of  limitless government power — except for the Constitution.  One can now expect renewed and increasingly energetic efforts by the Progressives to destroy the authority of the Constitution and and reverence for and obedience to the limits it places on the federal government.

Is it time to get rid of the Constitution?  The Progressives think so.

The opening shot of the Progressive’s 2013 campaign to figuratively and effectively get rid of the Constitution was fired in a December 30, 2012 New York Times Op Ed by Georgetown University Law Professor Louis Michael Seidman, who opines:

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.

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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?

Throughout his piece, Professor Seidman lays out the Progressive argument for “extricating ourselves from constitutional bondage so that we can give real freedom a chance” — meaning the freedom of temporary government officials to make decisions about how the governed should lead their lives without having to worry about limits the governed have placed on those temporary government officials.  After all, Government Knows Best.

Seidman’s opinion piece is important reading for those who favor limited government, because he lays out with stark clarity the basic argument of the Progressives.  Praemonitus, praemunitus:  Forewarned is forearmed.

So, what is the response to Professor Seidman’s view of the Constitution?

John J. Vecchione, in a December 31, 2012 National Review Online Bench Memo titled “No Constitution — We’re Progressives,” offers some harsh criticism of Seidman’s views, observing in relevant part:

In what reads like a parody of liberal thinking from Jonah Goldberg’s Liberal Fascism, Professor Louis Seidman of Georgetown Law School posits that we should ignore some parts of the Constitution while keeping the parts he likes. He risibly blames the crisis of spending and entitlements — brought on by men who think like him — on an over-punctilious adherence to the Constitution.

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Seidman attacks the legitimacy of the Constitution and the laws made under it. But where would the new regime gain legitimacy? The Constitution’s legitimacy — won by debates, ratification, constant reexamination, practice, use, and long history, including victory in war — would be traded for the suzerainty of the now.

At root much of his thinking comes from Jacobin and Progressive forbearers. The French Revolution overthrew everything, even naming the months anew and calling the year of Revolution “Year Zero.” The American Revolution was based on ancient liberty and was ameliorative in the English manner. The French Revolution thought itself brand new in every aspect and was designed to tear down all that France had been….

Vecchione ends his critique with the following challenge to Seidman and the academy’s other Progressives:

What he more seriously proposes, the radical rejection of binding any polity, is not only silly but unworkable. But we should take a small step in a very small universe and test it anyway: Get rid of tenure, and job security more broadly, at Georgetown Law. Every year, nay every minute, each faculty member should be judged on how they are doing at that instant of time. If they are found wanting by the standards of the hour they should be fired. Surely deep, radical thinkers like Professor Seidman and his confreres at Georgetown would not sacrifice the new and untried for the old, stolid, and hidebound edifice that is tenure? Why should current students suffer under the methods that were deemed acceptable by a faculty panel 30 years in the past, all of whom abjured same-sex marriage and none of whom used the Internet?

When Professor Seidman gets the faculty of Georgetown Law to scrap tenure, we can take his proposal seriously. Until then, he is only one of many Progressives who blame the failure of their policies on the form of government that keeps us free.

In another NRO Bench Memo also published on December 31st, titled “The Lawless, and Ultimately Pointless, Views of Professor Seidman,” Matthew J. Franck takes the criticism further, observing that:

Seidman is frustrated with features of our government, and blames his frustration on the Constitution.  Okay.  His solution, though, is to urge us to “disobey” the Constitution.  But as I noted weeks ago, he does not want us to disobey the entire Constitution–only the parts of it that he doesn’t like.  We should obey the parts of the Constitution that we “respect,” and not consider the whole of it as carrying any “obligation.”  But which parts of it should we respect?  What if I respect certain parts, and Seidman respects different parts?  Shall we have a test of strength to see which of us prevails at the polls?  Come to think of it, who needs elections?  Perhaps the supporters of Mitt Romney might decide they don’t respect the part of the Constitution that resulted in the reelection of President Obama.  Professor Seidman’s argument, on its own terms, is quite incapable of answering anyone who acted lawlessly on such a basis.  In fact, as I argued weeks ago, his entire argument is an assault on all law, and on the rule of law itself.

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Compared to the true revolutionaries of our founding, Professor Seidman is a weak sister.  If he really thought our Constitution was beyond redemption, he could say so, and follow the revolutionary argument to its real conclusion.  What’s really going on here is the final collapse into utter intellectual bankruptcy of the “living Constitution” approach to our fundamental law.  Thanks to the pioneering work of the late Robert Bork and other early originalists, and the many who have followed in their path, “living constitutionalism” has been utterly discredited.  The result is that the adherents to the latter school have largely fragmented into two groups, those who claim that they too are “originalists” after all (while changing really nothing about their views) and those who have decided simply to attack the Constitution.  Neither group, when all is said and done, really has much to say that is of any use.

Joel Griffith, in a January 1, 2013 response to Seidman posted on Breitbart’s Big Journalism website, offers a more pointed challenge to Seidman’s views, stating in relevant part:

…. 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.

….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.

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…. [T]he 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 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.”

Indeed, the coming fight over the Constitution — and the soul of our nation — will be the single  most transformative event in American history in this century.  The outcome will determine, once and for all, if the brilliant American experiment in limited government beholden to the people survives or is lost forever to the ancient ways of despotism that the Founders sacrificed so much to free their nation and its people from.

For those who favor constitutional limits on government, the task ahead encompasses more than populating the federal branches of government with self-proclaimed constitutionalists.  It is much bigger than a single political party or movement.  It is larger than educating oneself about the Constitution and the Declaration of Independence.  The job requires nothing less than changing the direction of American culture itself, right down to the very language and images of political discourse, through direct engagement with the Progressives wherever they or their influence can be found.

As for the Progressive argument that it is time to throw the Constitution into the dustbin of history, Vecchione, Franck, Griffith, and others have articulated the counterargument.  It is now up to those who believe in the Constitution and the rule of law to fight for that belief against the coming darkness of statism and its accompanying lawlessness.