[detbuch]

Originally Posted by spence

The idea that a Constitutional professor of 40 years would suddenly advocate ripping it up resembles a literary hook more than anything else.

Professor Seidman's article "Let's Give up on the Constitution" is a culmination of his 40 years of study and thought on the subject. It is not a sudden opinion and the title is meant seriously, not as a literary hook. He is writing a book soon to be published on the subject which you might read and, I guess, find much if not all, to agree with. As for the article, I find very little with which to agree. His impetus to disagree with adherence to the Constitution stems from how he considers it so readily to have been disregarded, even by the founders. He mentions Jefferson believing that he had no constitutional authority to purchase the Louisiana territory on his own. While Jefferson had doubts about that, he was not necessarily right in his belief. To begin with, a treaty signed by the executive with a foreign power still has to be ratified by the senate and funded by congress if money is required. He had to make the snap purchase without congress only because Napoleon insisted on the immediate purchase or it might not happen. It was too beneficial in every respect not to do it, but there was no time to go through "proper" congressional procedure. The deal could still have been denied by Congress, but the majority saw that it was too good to pass on so they approved it, and all was, eventually, constitutionally confirmed. Maybe that's why Seidman says that Jefferson believed his action unconstitutional, rather than saying that it actually was. He mentions Lincoln's supposed unconstitutional acts in the Civil War. Those are also disputed as being unconstitutional, but the major irony is that the freeing of the slaves was the worm in the bud of the Constitution and that was corrected. The Adams Alien and Sedition Acts that he cites were undoubtedly mostly unconstitutional, and all but one of the four were soon abolished, constitutionally. Yes, there were attempts to circumvent the Constitution from the beginning, even by founders and, possibly, by the great Lincoln. But the founders understood that men are fallible and the people must be shielded against tyrannies, even by those they themselves would impose. Which is exactly why an instrument such as the Constitution was necessary to protect the people's natural liberties. To say that the Constitution should be abandoned because it has not always been followed, is, ultimately, to say that laws should be abandoned because they are broken. The founders believed the reverse, laws must be instituted because all men, especially those who govern, are prone to lawlessness, and must be restrained from that inclination even if not all such lawlessness can be avoided. Ultimately, they believed for that reason that freedom and the Constitution would not be possible if we as a people are not for the most part virtuous.

Seidman makes other false analogies, such as "In the face of the long history of disobedience, it is hard to take seriously the claim by the Constitution's defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism." Quite the contrary, constitutionalists don't fear a reversion to Hobbes's version of the state of nature. They don't believe such a state exists, rather they ascribe to John Locke's version of nature and natural rights. What they fear is the reversion to the ancient form of Hobbesian Leviathan, of the ruler's absolute authority as defined in the Stanford Dictionary of Philosophy:

"The Leviathan must be neither divided nor limited. The powers of legislation, adjudication, enforcement, taxation, war making . . . are connected in such a way that a loss of one may thwart effective exercise of the rest."

It is that consolidation of power that constitutionalists fear and for which the Constitution was instituted to prevent. And it is, indeed, the direction that disobedience to the separation of powers in the Constitution is leading us.

While I'd agree with your description I think that's also a central argument made by the Opinion...perhaps you and the author share more than you'd care to admit?

Actually, Seidman and I do not share what appears to be his argument for freedom from constitutional restriction. His argument for freedom from the Constitution is GOVERNMENT'S freedom from the Constitution. My concept of freedom is in accord with the Constitution's restraint of government's freedoms which are limited by those powers granted to it by the people, not the freedom of government "experts" deciding what the limits of our freedom are. The difference is fundamental, and the progressive thrust is toward the Leviathan.

Seidman's statement that "the deep-seated fear that such [constitutional] disobedience would unravel our social fabric is mere superstition" is an over-statement. We do not fear that it will unravel the ENTIRE fabric--much of which has more to do with cultural, religious, and natural heritage than with the Constitution--but that it will change the relation of the citizen to the State. And that portion of the fabric has been unravelling at a quickening pace which began in earnest with the progressive movement and especially with the constitutional disobedience of the FDR era. That is when disobedience, different in type of most previous disobedience, massively involved freeing the State to dictate to the individual in ways that the Constitution prohibited, and was done wilfully, as the FDR braintrust admitted. They knew their legislation and regulations were not allowed by the Constitution, but their progressive concept that government grants rights and must have the freedom to efficiently rule at will was ultimately for the people's benefit.

I'd disagree that the structure and language of the Constitution is always that clear. While the Founding Fathers were certainly remarkable it's not like those who have followed have all been inept. Interpretations over the last two centuries are just as much a part of the American fabric as are the original words or subsequent amendments.

-spence

Jefferson would have agreed with you to the extent that, as he wrote in an 1816 letter "Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond ammendment."

It is not that those who have followed have been inept. They have been too ept. They have "interpreted" and sometimes ammended with a different purpose than that for which the Constitution was written. The original intent was optimal individual freedom, especially from central tyranny. The progressive intent has been to transfer that freedom from the individual to the government. So the interpretations and ammendments have made the government stronger and the individual weaker, more dependent on the strength of government. Though Jefferson did not see the Constitution as "perfect" which would be impossible for fallible men to create, he believed in ammendment not abandonment. He even recommended that it be periodically ammended to fit future generations. But he saw the structure of governement in the Constitution as one to be continued "so that it may be handed on, with periodic repairs, from generation to generation, to the end of time, if anything human can so long endure."

So, when Seidman ends with "If even this change is impossible, perhaps the dream of a country ruled by 'we the people' is impossibly utopian. If so, we have to give up on the claim that we are a self governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance" he is speaking of government's freedom to rule with expedient and efficient discussion and opinion of "experts" not the citizen's freedom from government to rule as it wishes.

What he advocates, implicitly, is rule by men, not rule of law. He is an example of how law schools have produced judges who rule progressively rather than constitutionally. And the irony is that he doesn't seem to know how successful this has been. He talks about abandoning the Constitution as if it were the problem. The Constitution has already been abandoned bit by bit so that it is barely hanging on with the thread of what is left. The fiscal chaos to which he attributes the cause as clingling to constitutional formalities is none of that--it is the disobedience to the structure and intent of the Constitution to reign in the very extravagance that the Federal Government now has the power to exert. And the regulatory "experts" that have been spawned will continue to cast an over-arching web of control over us--for our own good of course. But it is they who have the power now, not us.

And, contrary to his "If we acknowledged what should be obvious--that much constitutional language is broad enough to encompass an almost infinitely wide range of positions--we might have a very different attitude about the obligation to obey," rather the almost infinitely wide range of positions are not expressed or commanded by constitutional language. What is circumscribed in the Constitution is that various types of positions are to be legislated, enforced, or adjudicated by various branches of gvt. so long as those types fit into the realm of enumerated powers. Types of positions which are not circumscribed by the enumerations or by the limitations of power granted to those branches are the province of the states or the people to debate or regulate. So-called problems of "interpretation" arise, usually, when legislators and/or judges wish to make laws/policies/positions fit the Constitution even when they don't. The logic and law must be twisted and contorted into positions that are barely recognizable by the concocted definitions that purport to describe them. The jurisprudence of constitutional disobedience has always been the wilful twisting, if not outright lying, of concepts--legal, moral, or social--to make legislation appear to fit constitutional construction. And they use various progressive judicial philosophies.

Seidman says "the two main rival interpretive methods, 'originalism' (divining the framer's intent) and "living constitutionalism' (reinterpreting the text in light of modern demands), cannot be reconciled." But the two rivals are more complex. Originalism is accompanied by formalism, textualism, strict construction, intent, as means to apply the actual constitution as written. "Living constitutionalism" is a hodge-podge of several methods of "interpretation" concocted by progressive theorists to escape from the actual Constitution and make of it whatever the judges wish--such theories as Monumentalism, Instrumentalism, Realism, Cognitive Jurisprudence, Universal Principles of Fairness, Rule According to Higher Law, Utilitarian Jurisprudence, Positivist Jurisprudence, Sociological Jurisprudence--theories that the Founders would have considered arbitrary whims of personal judgment and destructive to constitutional law-- are used to accomplish a "living Constitution" that bears little resemblance to the written one.

Such is the state of modern, progressive jursprudence which has effectively disobeyed the Constitution, such is the method taught in most universities and colleges. Apparently, Seidman doesn't recognize that what is utopian, is not a government of "We the People," nor one "of, by, and for the People," but one of "Us the Beneficent Government--of, by, and for the Government." He doesn't recognize that the disobedience he advocates is, for the most part, the current state of affairs, so he can't connect our broken system of government to that state of affairs and must then attribute it to a fictional over-concern for sticking to the Constitution.