The Piecemeal Constitution

In their heart of hearts, the Left doesn’t care for constitutions, particularly ours, as this buzz-worthy New York Times piece by Georgetown Law Professor Louis Michael Seidman — arguing that the Constitution has created a dysfunctional government — shows.  

There are many typical flaws with such arguments, which reappear in American history: it obviously picks and chooses in wishing to dispense with much of the structural Constitution (such as separation of powers and federalism) while keeping favored individual rights; it only likes some individual rights (speech) but not others (property); it risks massive instability in politics, as no constitutional rules become possible; it fails to recognize the serious decision-making problems with simple majoritarianism; and it ignores the experience of other countries, which have suffered terribly under more majoritarian constitutions.

But it is worth asking a deeper question: why does the Left, starting at least with Woodrow Wilson and the early Progressives, if not before, repeatedly oppose the Constitution?  And why do conservatives, by nature, defend its original meaning?  I think the answer could be simple.

The Left, beginning with the French Revolution, has believed that it has discovered the highest truth or the secret to the universe (and it is not 42, though today it does seem to be the quest for numerical equality).  What is the Constitution to stand in the way of cosmic justice?

Conservatives, starting with Burke’s reaction to the French Revolution, are dubious of claims of ultimate truth or human perfection. Constitutional rules are designed to prevent us from making serious mistakes when passing majorities think they have found the next revolutionary program that will cure all of society’s ills.  Given the track record of American history, and indeed the histories of other western industrialized nations, is it hard to claim that conservatives have it right?

  1. Nobody

    It is not hard to claim that we conservatives have it right.

    But it is very hard for those who are addicted to idols of their own enlightenment to accept it.

    Moral and intellectual pride are great stumbling blocks.

  2. Ben Lang

    John, I really like how you’ve approached this. Given the historical evidence, a conservative worldview is the one that has the highest credibility. But he issue seems to be that, time and again, the evidence presented for this doesn’t seem to carry the weight it should in the ideological argument.

    You can see it (aside from a constitutional argument) in the odd way we still have to defend free markets…or the strange idea that is still afloat that Keynesian policy works.

     

    We’ve got all the evidence on our side…so why is there even an argument to be had?

  3. David Carroll

    The secret of the universe is NOT 42?  How can that be?  I would be more respectful of Douglas Adams’s take on the Constitution (Brit though he is) than Seidman’s.

  4. KC Mulville
    1. If you’re convinced that your plan is correct, are you justified in taking whatever power you need to carry out your plan?

    2. Well, then, how do we resolve conflicts when two or more people are convinced they’re correct?

    The Constitution and our political system are about (2), not (1).

  5. Mark

    I consider myself more of a Madisonian than a conservative but in either case if I were a progressive my comeback to you would be that since the New Deal, America has seen unprecedented prosperity, become the #1 power in the world (beating the Nazis and Commies along the way) , removed the stain in its treatment of blacks via the Civil Rights and Voting Rights bills in the 60s (which conservatives resisted), built the nation’s infrastructure and cleaned its air and waterways and all this was done after the running rules of the Constitution began to change in the 1930s.

  6. Nathaniel Wright

    Wilson made it clear why he opposed the Constitution.  It was founded on Newtonian principles, while the Progressives “know” that society is based on Darwinian principles.

    The Constitution is a hindrance to rapid policy implementation, and since we “know” what is “Just” such a Constitution is an impediment to progress.

    It is quite simple.  The Constitution as a vehicle stands in the way of their agenda by promoting the rule of law and a mixed regime. 

    Reading Charles Beard’s “Economic Interpretation” demonstrates what lengths Progressives will go to in order to malign the document and its authors.  Reading his “The Republic” — which too few people do — reveals his own dismay at what his own earlier works might lead to institutionally.   In the second volume, he attempts to use the Darwinian view to defend the Constitution from those affected by his earlier book and the other assailants of the Constitution.

  7. Nobody

    I can’t speak for Prof. Yoo, but I would respond that post hoc ergo propter hoc is a basic error.

    I am aware that progressives have a narrative about these issues, but I find that it lacks sufficiency.

    Given what they suppose to be true about America without their interventions, their interventions have never really been sufficient in either scope or energy to accomplish what they claim.

    And, in many cases, it’s not clear that their interventions had the desired effects at all.

    To me, it just doesn’t add up.

    Mark: I consider myself more of a Madisonian than a conservative but in either case if I were a progressive my comeback to you would be that since the New Deal, America has seen unprecedented prosperity, become the #1 power in the world (beating the Nazis and Commies along the way) , removed the stain in its treatment of blacks via the Civil Rights and Voting Rights bills in the 60s (which conservatives resisted), built the nation’s infrastructure and cleaned its air and waterways and all this was done after the running rules of the Constitution began to change in the 1930s. · 7 minutes ago

  8. Franciscus

    John:

    I believe you are correct, and would throw in that the understanding of human interaction by the founders was far better than intelectuals of today.  I am impressed daily by their perception, and you point this out concisely.

    That said, it appears that we have a communication problem.  Our leaders are not  educated in the fundamentals you describe well enough to be able to argue properly.  This I believe is a deeper problem of our state of education throught the society and in our schools at all levels. 

    Calvin Cooledge, F.A. Hayek, Ludwig von Mises, Milton Friedman, Barry Goldwater, Mark Levin, and so many others have been debunking the progressive ideas of Utopia for nearly 100 years.  Many have proposed fantastic ways to deconstruct the 100year mess.   President Reagan understood these principles, and could articulate them, and had vision. 

    The ability to articulate the obvious and historical failures of Seidman and others ideas, while providing a vision akin to the “Contract With America” of 1995, seems to have escaped our current political leaders.  Those selling a Utopian Elixer have a clear message that isn’t rebutted.

  9. BlueAnt
    John Yoo: 

    The Left, beginning with the French Revolution, has believed that it has discovered the highest truth or the secret to the universe

    Put another way, Don’t Let Them Immanentize the Eschaton.

    What is the Constitution to stand in the way of cosmic justice?

    It’s the last great bastion against Eric Voegelin’s Gnostics:  the dreamers, the utopians, the technocrats, the men who Have It All Figured Out, and who Know Better Than You.  It was intentionally designed to bind the hands of those who would rule mankind in the interests of protecting mankind from itself.

    Is it really any mystery why the modern Left hates the Constitution?

  10. BlueAnt

    By the way, this bit in the op-ed is priceless:

    the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care?

    …As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is.

    If someone taught ConLaw for 40 years and still can’t figure out why revenue bills should originate in the House… well, it explains a lot about why our lawyer-infested Congress is murky on the Constitution as well.

    Seidman needs to get out of the law school, and wander over to the political science department.  Maybe they can clue him in on the history of republics, the abuses of the public purse, the reason for restrictions on political zeal to “just do something”, and so on.

    If he thinks a better check on the President’s military actions is some vague institutional need to make an argument “solely on the merits”, instead of Congressional authorization or electoral consequences… well, he needs to get out of academia and into some place where real power is exercised, with real consequences.

  11. david foster

    Many others, of course, have believed that constitutions and other legal constraints are unnecessary and should be disregarded in the name of prompt action.

    For example, here’s what Adolph Hitler said in justification of The Night of the Long Knives, which involved the completely extrajudicial murder of more than 100 people:

    “If someone asks me why we did not use the regular courts I would reply at the moment I was responsible for the German nation, consequently it was I alone who, during those twenty-four hours, was the Supreme Court of Justice of the German People.”

    The conceptual distance between Seidman’s logic and Hitler’s is too close for comfort.

  12. Mark
    Purplestrife: I can’t speak for Prof. Yoo, but I would respond thatpost hoc ergo propter hoc is a basic error.

    Mark: I consider myself more of a Madisonian than a conservative but in either case if I were a progressive my comeback to you would be that since the New Deal, America has seen unprecedented prosperity, become the #1 power in the world (beating the Nazis and Commies along the way) , removed the stain in its treatment of blacks via the Civil Rights and Voting Rights bills in the 60s (which conservatives resisted), built the nation’s infrastructure and cleaned its air and waterways and all this was done after the running rules of the Constitution began to change in the 1930s. · 7 minutes ago

    While I agree with your point I posed the statement in response to Prof Yoo’s assertion below to stimulate discussion on how one would persuade others since we are already in agreement.

    “Given the track record of American history . . .  is it hard to claim that conservatives have it right?”

    I think it is harder than Prof Yoo thinks to make the argument.

  13. Crow

    I, for one, was thankful to see Seidman’s piece and wish we’d see more like it. It was a frank statement of what Progressives believe.

    Seidman is opposed to the Constitution because, ultimately, he is opposed to the idea of any fixed constitution; that is, he is opposed to the rule of law as such. He is opposed to the rule of law because he is opposed to the idea that right and wrong are in any way fixed things which can be addressed, however imperfectly, in a general way by a set of laws.

    Since everything is mutable for Seidman and since history is directional, what matters most is the flexibility of the system in responding to the dictates of history, which, of course, as one of the enlightened, he receives directly and unmediated from on high.

    And far be it from us to question such emanations: the future cannot belong to those who say the future does not belong to me!

  14. Anne R. Pierce
    C

    Professor Seidman has many compatriots in Congress, the media and American society who would like nothing better than to get rid of those pesky checks and balances, so that they can “efficiently” enact their agenda and impose it on the whole.  That’s what Obama means by “unity.” 

    All the more reason to read the Federalist Papers and discover why the founders warned about the tyranny of the majority.

  15. Buckeye

    Along the shore of Lock Lomond I saw two scots readying a sailboat for a brisk run on the loch.  It was very short-lived; for as soon as it was released from its mooring the boat flopped down before the wind, with mast and sail flat on the water.

    What is it that prevents a tall ship, pushed along by high winds, from capsizing?  It’s ballast, down in the holdThe constitution of the United States is really an anti-democratic ballast, set against the whim of any brisk populist movement.  It says, “go ahead and elect by majorities of voters (alive, or dead, or invented by computer votes, I suppose) — but here are a couple of dozen things you cannot do, even by majority vote. This will be the ballast that keeps the ship of state from falling over before the winds.” 

  16. Buckeye

    How embarrassing.  “Loch Lomond.”

  17. Anne R. Pierce
    C
    Crow’s Nest: I, for one, was thankful to see Seidman’s piece and wish we’d see more like it. It was a frank statement of what Progressives believe.

    Seidman is opposed to the Constitution because, ultimately, he is opposed to the idea of any fixed constitution; that is, he is opposed to the rule of law as such. He is opposed to the rule of law because he is opposed to the idea that right and wrong are in any way fixed things which can be addressed, however imperfectly, in a general way by a set of laws.

    Since everything is mutable for Seidman and since history is directional, what matters most is the flexibility of the system in responding to the dictates of history, which, of course, as one of the enlightened, he receives directly and unmediated from on high.

    And far be it from us to question such emanations: the future cannot belong to those who say the future does not belong to me! · 2 hours ago

    I see your point; many believe what Seidman says without clearly delineating their beliefs. Maybe this makes the discussion – and the stakes – clearer.

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