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.