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In Praise of Professor Seidman

I noticed a couple of things while driving up from Hannibal, Missouri into Iowa last weekend. The first was that the bottom had completely fallen out of the thermometer and taken the temperature with it. Second — and there is really no polite way to describe this observation — when the temperature drops below 18 degrees Fahrenheit, one can actually see cow flatulence.  I know it’s not a savory thought. Nor is the phenomenon easy to see. In fact, its almost as elusive as a partial lunar eclipse, or the backbone of a Republican, but I saw it just the same. Which, of course, set me to thinking about what passes from Washington DC these days.

People from both political camps are looking sideways at the emissions from inside the Beltway and wondering what, if anything, can be done alleviate the smell. Louis Michael Seidman, a constitutional Law professor at Georgetown University, has taken great heat for his recent New York Times editorial, “Let’s Give Up On The Constitution,” but I think the uproar is in some way undeserved. At least he put his cards on the table, unlike the looming effrontery scheduled for January 20th, when Barack Obama will place his hand on a Bible and swear an oath that he’ll violate the first chance he gets. Of course, Obama used to publicly lament the Constitution’s shortcomings, back when it was profitable. But these days he swears allegiance to it in speech, and then feeds it to the shredder.  

Some plain talk from Professor Seidman:  

As the nation teeters on 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.  

Question: Who is insisting on constitutional fidelity? Democrats? Not hardly. Ask Nancy Pelosi what constitutional provision authorizes the federal administration of health care and she’ll stare at you like a big-eyed flower child on bad buds. Ask a Republican about obedience to the Constitution and he’ll immediately begin selling as much of it away as required to make you say nice things about him. In fact, one could make the point that our “system of government is broken” in exact proportion to our abandonment of the Constitution, but that hardly advances the good professor’s point, which he explains thus:  

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? ….

Well, for starters, since senators were originally selected by the states, the House of Representatives most closely reflected the will of the people and, given that they stand for election every two years, they are also the most responsive to the people. So it made perfect sense that measures extracting money from the people would have to originate from that part of government most accountable to them. But Seidman is a constitutional law professor, so he already knew that, right? His point — and he should be applauded for making it — is that the Constitution is “archaic,” “idiosyncratic,” and contains provisions that are “downright evil.”  Though, come to think of it, “evil” is a pretty archaic term for our enlightened age, isn’t it? Why such exclusionary language? Never mind. He’s a professor, he’s smart, and he’s getting to the nub of things. For example: 

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. …

What divisive issues? The idea that sovereign individuals are to be divided into groups and that certain groups of people are to function as harvesters of money for the aggrandizement of other groups? The idea that that which you create with your hands or with your mind is not your own, but rather Barack Obama’s, or Harry Reid’s to dispense as they please? What is divisive about these issues, other than that they run contrary to the basic nature of man, which is that of liberty?  Or perhaps, the root of this division was identified long ago by John Locke, who observed that, “[W]henever the legislators endeavour to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people…”  But Locke has been dead for a long time and so the statute of limitations on his wisdom has expired, yielding inexorably to the illuminations of Professor Seidman who observes that:

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit a bit.  

Here, one wishes the Professor had hitched up his courage a notch and taken his argument on tour. If we’re going to disconnect the government from legal restraint, why not disconnect the people too? Are we not all equal after all? If the government isn’t bound by the law, why should the people be bound by the government? For that matter, weren’t the Ten Commandments superseded by the advent of the condom?  

But, you might ask, what is to halt the descent into anarchy? Here, Professor Seidman rushes in to say:

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against government deprivation of life, liberty or property are important, whether or not they are in the Constitution. …

While we appreciate the professor’s dispensation, we are entitled to ask  how those protections square with confiscatory tax schemes or administrative agencies acting as unaccountable legislatures? This could turn divisive, couldn’t it? But I’m getting in the way again. Seidman sez: 

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country. 

And why wouldn’t we debate presidential terms, or the composition of the legislature? Even the Constitution, with all its supposed draconian restraints, contains an amendment process. But in his world, the professor, who can’t stand restraints, places certain things off-limits. Why?  Because in his world, the rule of law is supplanted by the rule of men. Men who, though they may fashion themselves as supremely gifted to order our lives, are just as fallen as the rest of us, and just as susceptible to the seductions of power. His is a world in which life, liberty, and property are supposedly sacrosanct, but which also contains a Supreme Court with the power to impose its views on the morality of society. And when those ideas come into conflict, as they inevitably will, what refuge is left to the free man?

The point of the American Revolution was to free the individual from the arbitrary rule of men.  When the professor writes of the glorious possibilities that await if only, “… we freed ourselves from the shackles of constitutional obligation,” he gets it exactly backwards in his monumental failure to understand that it is not the people who are shackled by the Constitution, but rather the government, which, after all, has the sanction to use deadly force against its citizens to accomplish its ends. The Constitution is the last impediment, before physical resistance, to the despot. That bit of parchment, written by men of the Enlightenment, is historically relevant not because it attempted to anticipate all the technological advancements of society, but because it addressed that which is unchanging in human nature. It is predicated on another outdated notion; that of virtue. As another old dead white guy, Montesquieu, wrote: 

When that virtue ceases, ambition enters those hearts that can admit it, and avarice enters them all. Desires change their objects: that which one used to love, one loves no longer. One was free under the laws, one wants to be free against them. Each citizen is like a slave who has escaped from his master’s house. What was a maxim is now called severity;  what was a rule is now called constraint; what was vigilance is now called fear. There, frugality, not the desire to possess, is avarice.

To which one might add; what was called the wisdom of the human experience, is now called “evil” by tenured and presumptuous academics. But, like the cow in 18 degree weather, at least the professor had the gumption to let ‘er fly — and no one can take that away from him.  

  1. Austin Blair

    Dead on as always.  Thanks!

  2. BrentB67

    Great post and sadly it comes back to the root cause – We The People. As long as a majority believes we can have $3.5 of government and pay less than $2 for it and the spineless minority puts up little or no resistance we will continue down the road to hell. I don’t think the Constitution is the issue as much as it is the lax nature of the citizens it was designed to secure and protect.

  3. Whiskey Sam

    The problem we’re now encountering is that the Constitution is just a piece of paper.  Unless people are willing to defend it and make others abide by it, it is functionally worthless.  We have somehow constrained ourselves to the idea that when the Constitution gets trampled we are powerless to do anything, and that it is allowed because those in office won an election.  If we’re going to keep ignoring the problem, what’s the point of having a Constitution?

  4. Eeyore

    Looks like Seidman and our Constitutional Law “Professor” In Chief took the same courses in law school.

  5. jetstream
    Whiskey Sam: …  If we’re going to keep ignoring the problem, what’s the point of having a Constitution? 

    Or a Supreme Court or a House of Representatives or a Senate …  all we need is more Obama

  6. The Mugwump

    This is not mere nonsense on the part of Seidman or the New York Times.  They are itching to dispense with the Constitution so they can have their way.  And they are not so moral as they would have us believe.  I’m at least self-aware enough to know I would never make a good cop.  I would probably deliver a well-deserved beating to the first creep that got up my nose.  People like Seidman don’t believe they need restraint.  They either lack self-awareness or they are deliberately deceiving us.  If it’s the latter condition, as I suspect is the case with our current chief executive, then they cross the line from folly into evil.

  7. Red Feline

    Dave: The point of the American Revolution was to free the individual from the arbitrary rule of men.  When the professor writes of the glorious possibilities that await if only, “…we freed ourselves from the shackles of constitutional obligation,” he gets it exactly backwards in his monumental failure to understand that it is not the people who are shackled by the Constitution, but rather the government, which, after all, has the sanction to use deadly force against its citizens to accomplish its ends. …

    The Constitution is the last impediment, before physical resistance, to the despot.

    Great post, Dave!

    I don’t quite get it: what part of the Constitution does the professor want discarded? Every country has a Constitution. China has an incredibly detailed one as does Russia. I wonder what the professor would make of these Constitutions?

    I like your analysis of what he is really saying. He does seem to think that the government of America ought to have much greater power to do exactly what it wants to do. I guess he must believe in Redistribution. :-)

  8. civil westman

    Marvelous! Written by a scatological eschatologist like myself.

    The good professor, it seems to me, is merely rehearsing and codifying what the supreme court (I can no longer bring myself to capitalize the words) has been about for quite some years: excising those portions of the Constitution which obstruct a rising national socialist tyranny. That is what Seidman obviously wants. Pray for the continued health of the majority in  Heller and keep your eye on the Second Amendment insofar the coming supreme court construction of ‘regulated militia’ (read desiccation unto dust if Feinstein has her way) as it pertains to the right to keep and bear arms.

    Thanks to Dave’s observations on Seidman, we can all see that bovine flatus is merely the vapid academic distillation product of bull excrement. At least cows follow natural law in rumination and its sequelae. Regrettably, the congress (can’t capitalize that either) performs unnatural acts on us subjects and leaves a trail of statutory spoor, which can be witnessed at any temperature.

  9. Margaret Sarah

    Great post. It would be interesting to know Seidman’s choice of “evil” provisions in the Constitution. The way his article is written it appears that whichever provision gets in the way of something Seidman himself wants done would be the evil provision of the moment.

    “Flexibility” means everything to some of these thinkers. However, they want it to be entirely on one side. Government should have the flexibility to do what they think is important or valuable or even just preferable. They don’t believe that they should practice flexibility and find ways to accomplish their goals without using the coercive power of government against their fellow citizens. When it comes to that, they see only one possible way to proceed. 

  10. Patrick in Albuquerque

    Seidman is a horse’s patootie. I’d imagine horse flaulence is also visible.

  11. Rhoda at the Door

    I think I heard Prof. Seidman on Michael Medved’s show the other day.  I hope nobody has a contract signed with the professor–car or house or carpet job or whatever.  He believes polity should be formed by consensus on our ever-developing values and viewpoints, not bound by old pieces of paper.

  12. Robert E. Lee

    I believe the professor wishes to return to a monarchy.  With himself, of course, among the nobles.

  13. Roberto
    Dave Carter To which one might add; what was called the wisdom of the human experience, is now called “evil” by tenured and presumptuous academics.  But, like the cow in 18 degree weather, at least the Professor had the gumption to let ‘er fly, and no one can take that away from him.   · · 3 hours ago

    Apropos of nothing no doubt: 

     University Professor tops the list of least stressful careers for 2013, according to a new report on the least and most stressful professions by CareerCast.com. The report analyzed 200 different professions, measuring work environment, job competitiveness and risk to determine the rankings…

    On the other end of the stress spectrum are the most stressful jobs: Enlisted Military Personnel, Military General, Firefighter…

  14. Roberto

    Median Salary:

    University Professor - $62,050

    Enlisted Military Personnel –  $41,998

  15. Roberto
    Rhoda at the Door: I think I heard Prof. Seidman on Michael Medved’s show the other day.  I hope nobody has a contract signed with the professor–car or house or carpet job or whatever.  He believes polity should be formed by consensus on our ever-developing values and viewpoints, not bound by old pieces of paper. · 4 minutes ago

    Mob rule, delightful. What could possibly go wrong?

  16. flownover

    Wow 

    Lot of good air on thru ne missouri I can see, hope you got to hannibal on 64 , that stretch between hannibal and louisiana, mo is a beaut.

    Montesquieu perfect. 

    People forget or want to.

    One thing about our country, we did approach a unified field theory about human nature and governance. And boy does it tee the deconstructionists off !!

    up yours derrida !

  17. CoolHand

    Dave, I don’t often say this to men, but I think I love you.

    Visible cow flatulence vis a vis a NYT editorial.  Epic.

    That is all.

  18. Fricosis Guy

    Give thanks that he’s speaking up. Like most flatulence, ’tis the silent that’s deadly.

  19. paulebe

    We have already entered the realm of government by opinion poll. What the professor desires is to enshrine direct democracy as law. You see,We the People are gullible & can be easily stirred up by our betters in D.C. It grinds my gears (that’s for you, Dave!) to hear so many conservative pundits, most recently Kevin Williamson on the HW Experience) throw around poll data to prove that we somhow know how Americans think. There is a poll for EVERYTHING! They can be manipulated to say anything the author wants them to say. My question to my Ricochet friends is what are we to do? Other than talking to each other about this constitution-shredding bunch of thieves, that is?

  20. Dave Carter
    C
    Whiskey Sam: The problem we’re now encountering is that the Constitution is just a piece of paper.  Unless people are willing to defend it and make others abide by it, it is functionally worthless.  We have somehow constrained ourselves to the idea that when the Constitution gets trampled we are powerless to do anything, and that it is allowed because those in office won an election.  If we’re going to keep ignoring the problem, what’s the point of having a Constitution? · 4 hours ago

    Mark Levin noted, sadly, that we have entered a “post-constitutional” phase.  If those who take an oath to uphold it keep ignoring it, and if the people keep electing them, then the document is moot along with freedoms it was designed to protect.  

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