January 4, 2013
By Daniel Downes
True to form, the New York Times saw out 2012 by publishing another apology for dictatorship. In his op-ed, Louis Michael Seidman — Professor of
Constitutional Law at Georgetown University – argues that the Constitution should be abandoned. The suggestion is so preposterous that it is tempting to dismiss the article altogether, but to do so would be to miss some very revealing implications. The article is not so much a suggestion of constitutional reform as an open call for dictatorship.
Seidman begins by blaming the current governmental crisis, incredibly, on “obedience to the Constitution,” which he describes as containing “archaic, idiosyncratic and downright evil provisions.” He does, however, lament that when some wise government official reaches a decision on what will benefit the country, he is likely to be stymied by this document. Seidman expresses doubt about the rationality of letting our wise official be dissuaded by the views of “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.”
It is amusing to note Seidman’s hypocrisy as he takes the authority of this hypothetical ‘government official’ for granted while he sneers at the authority and smears the characters of men like Madison. Don’t dwell on that double standard for too long, however, else you’ll miss the real sleight of hand: the insinuation that belief in constitutional government amounts to faith in the personal authority of the founders — that constitutional government has nothing to do with individual liberty. By launching into this ad hominem abuse of the Founding Fathers, Seidman hopes to distract his readers from noticing that without a constitution there would be no restraint on the government and that officials would be free to act on the expediency of the moment.
But don’t worry, says Seidman, you can have your Constitution and eat it too, “We should continue to follow those requirements” — he is referring to principles like freedom of speech, freedom of religion, and the rule of law — “out of respect, not obligation.”
Suppose we nullified laws prohibiting homicide: would we then expect people generally to continue to respect those abandoned laws? Why then should we expect government officials to continue to respect abandoned constitutional principles? Professor Seidman provides no answer.
We can even keep, he says, constitutional features such as finite terms of office, a bicameral congress (these last two are “better left settled,” apparently), checks and balances, and “an elite body like the Supreme Court.”
Absent the Constitution, why would term limits not change? Absent the Constitution, why would Congress remain bicameral? If these matters are “better left settled,” why change matters like which house can raise taxes? Absent the Constitution, by what process are unsettled matters to be settled? Absent the Constitution and the separation of powers codified therein, how are Congress and the States to restrain the President? Absent the Constitution, by what standard or authority is “an elite body like the Supreme Court” to rule on the legitimacy or otherwise of laws and executive actions? Professor Seidman provides no answer to any of these questions.