Two and a half cheers for Louis Michael Seidman, the Georgetown law professor whose “Let’s Give Up on the Constitution” was a dead fish wrapped in the New York Times op-ed page.
Seidman calls the Constitution “archaic, idiosyncratic and downright evil.” He’s wrong, but at least he expresses his contempt for the rule of law openly and honestly, instead of insulting our intelligence with insincere twaddle about a “living document.”
The people who pretend to venerate our Constitution as a living document are most responsible for it being a dead letter. They are like parents trying to soften the blow of telling their children that Santa Claus isn’t real by saying he lives on in their hearts.
Imaginary Santas give no gifts and imaginary Constitutions protect no rights.
Seidman exercises his constitutional right to miss the point when he blames the fiscal cliff on the fact that revenue bills must originate in the House, or a “grotesquely malapportioned Senate.” But those are the Constitution’s procedural restraints, the equivalent of Robert’s Rules of Order. We got into this mess precisely by flouting its substantive limits on federal power.
Put simply, if the federal government only spent money on its constitutionally enumerated functions, there would be no fiscal cliff. No $1 trillion deficit. No $16 trillion national debt. No $84 trillion in unfunded liabilities for the major entitlement programs and other federal commitments.
It is the constitutional disobedience our man at Georgetown advocates that has the country perpetually on the precipice of financial ruin. He is merely complaining about a too-slow process of dividing up the spoils.
Having “freed ourselves from the shackles of constitutional obligation,” we now labor under new obligations we never freely chose. We look on helplessly as the bankruptcy of the government programs we depend upon fast approaches, unable to fix them. These programs are impervious to reform not because every state must have two senators or the president must be at least 35, but because “we the people” vote ourselves money from the public treasury.
Anyone who thinks the impending insolvency of Social Security and Medicare can be pinned on an “obsession” with what James Madison would have done has been sniffing too much parchment.
Seidman himself admits the federal government has been ignoring the Constitution almost since the beginning of the republic, although this only became the rule rather than the exception in the past few decades.
The Constitution should be obeyed not because the Founding Fathers weren’t flawed human beings (though they seem a great deal wiser than the Capitol Hill pols cramming for the fiscal cliff) or because it is somehow a sacred imperative to have appropriations bills begin in the House.
It should be obeyed because the Constitution and its amendment process comes closer to reflecting the considered judgment of a large majority of the American people than any other document or institution in our shared public life. It carries with it all the value of long-established traditions and customs as practiced in countries with unwritten constitutions, but with built-in protection from the chaos or tyranny of mob rule.
If you believe in a government of laws, nothing exemplifies that belief better than a written constitution. The U.S. Constitution in particular is based on the idea that the powers of government are delegated by the people. To protect the rights of minorities, it takes supermajorities to delegate those powers. The ratification process for the original document and its amendments is how those supermajorities give powers to the government.
Every single problem that Seidman raises, from the profound (human slavery) to the mundane (how the Senate is apportioned) is subject to constitutional amendment. Every problem, that is, except for making it easier for elites to impose their will upon the country.
Our current political leadership may represent a wider electorate than the white male property owners represented by the Founders, which is to the good. But the evidence is all around us that today’s politicians subscribe to more limited notions of free speech, freedom of religion, protection from search and seizure, and the right to bear arms than those contained in the Bill of Rights.
American politics seems broken, and it’s natural people will cast about for a solution. But give up on the Constitution?
Been there, done that.
W. James Antle III is the editor of The Daily Caller News Foundation. Follow him on Twitter.