Giving Up The Constitution

Writing in the NY Times, Louis Seidman, a constitutional law professor at Georgetown University, suggests that we give up on the Constitution, because according to him, our “insistence on obedience to the Constitution” is the cause of our “broken” government. Seidman claims that obsession with the Constitution “saddles us with a dysfunctional political system,” which keeps us from “debating the merits of divisive issues” and inflames public discourse.

Seidman doesn’t really make much of an effort to explain what he means and why debating the Constitution and the structure of government prevents us from debating the merits of other issues. Indeed, the article is largely substance-free and incoherent, although Seidman manages to gratuitously insult James Madison and the other architects of our government. It seems that his article is nothing more than another effort by liberals to cast conservatives as obstructionists responsible for political gridlock, but this time dressed up in semi-scholarly language, as if that makes it legitimate.

According to Seidman, America has a long history of constitutional disobedience which he claims has helped the country to “grow and prosper.” And so Seidman imagines that lawlessness equals prosperity and that ignoring the Constitution is the way to go. He claims that the “deep-seated fear” [on the part of conservatives] that such disobedience would unravel our social fabric is mere “superstition.”

Seidman is right that America has ignored the Constitution, but rather than helping the country grow and prosper, it has only created the divisiveness that we see today. Seidman’s proposed remedy is actually the cause of today’s problems:  Government is broken not because we continue to blindly follow the Constitution or talk about following it, but because, beginning in the 1930s, we actually have ignored it, resulting in the loss of self-government.

Over a period of decades, we have transformed the original structure of the federal government in a fundamental way, from one based on decentralization to one based on centralized authority. And as healthcare, which is a local activity that accounts for almost 20% of the economy, comes under centralized control, the transformation will be almost complete. Seidman seems to be completely oblivious to this movement, and mistakenly identifies calls to adhere to the Constitution as the problem instead of the result of having ignored it.

Under the original decentralized structure of our government, states retained the right to legislate for the general welfare within their separate jurisdictions, but came together for certain, dare I say, enumerated purposes despite the divisiveness that existed among them (e.g., with respect to slavery). Decentralization ultimately didn’t prevent civil war over slavery, but slavery represents a special case. The morality of today’s issues and the divisiveness arising from them don’t compare to slavery.

We could therefore expect that a return to a decentralized structure of government would reduce the political divisiveness in this country, assuming that liberals could respect the idea of self-government and self-determination within the states, which may be an unrealistic assumption. Even if the states enjoyed more power, the arrogance of liberals and their desire to put everyone under their thumb may lead leaders in some states to intervene in the affairs of other states (e.g., if taxing and spending levels are deemed insufficient).

Seidman apparently likes parts of the Constitution, but it’s hard to say why as he seems to lack any kind of organizing principle. He’s no James Madison, that’s for sure. The fact that someone like Seidman teaches at a prestigious university is remarkable. With professors like this, it’s easy to understand the muddled thinking of Georgetown law grads such as Sandra Fluke – you know, the darling of the liberals who demands that the rest of us pay for her contraception.

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