Law Prof Argues Against the Rule of Law

Roger’s not the only one who found “strange” Georgetown law professor Mike Seidman’s New York Times op-ed calling for us to ditch that old, antiquated Constitution to which some of us bitterly cling. Here’s a letter to the editor that I submitted:

Louis Michael Seidman wants us to “kick our constitutional-law addiction.” Why? He proclaims our political system “dysfunctional” and our government “broken” but makes no convincing case that the Constitution is to blame for our recurring political breakdowns or that giving up on it would reduce our dysfunction. But malformed though it is, the rickety old structure has served us well over the centuries.

Mr. Seidman offers nothing to suggest how we might go about governing ourselves once liberated from the Constitution, the skeletal structure that frames a living conversation about our relationship with government, not blind worship of “a poetic piece of parchment.”

He confidently predicts that his proposal wouldn’t yield total anarchy. But he doesn’t explain how we could preserve even the “political stability” he values while treating the Constitution’s provisions as mere recommendations, to be accepted or rejected through processes whose constitution-free structure he never specifies.

He tells us that he would preserve free speech and religion, equal protection and limited government, but he never explains how he picks those values over others or how his maddeningly vague proposal would “give real freedom a chance” rather than risk tyranny.

Actually, no, I didn’t write that.  It’s a letter by Harvard law professor Laurence Tribe that ran in today’s Times. Tribe is one of the most celebrated and cited legal scholars ever, an old-line liberal lion with whom I disagree on many if not most aspects of constitutional interpretation. Nevertheless, he gets this spot on. We may disagree on what the Constitution means, but we’re in full agreement that it’s this nation’s basic law and must be central to the operation of our legal and political institutions.

For what it’s worth, I did send in a letter myself:

Louis Michael Seidman’s solution to the difficult policy choices we face is to throw out the very thing that legitimates government action. That’s an odd argument from a law professor, who should know that the Constitution is there to empower government in a way that prevents violation of the “real freedom” he seeks. It’s for that purpose that we have the “archaic” counterbalances that limit majoritarian power.

But these sorts of claims date at least to Woodrow Wilson, who was frustrated with the Founders’ combination of Jeffersonian rights with Madisonian structures and thus preferred the rule of progressive technocrats. Rather than the mature self-government Seidman says he wants, throwing out the Constitution would leave us with self-appointed Platonic guardians who know when basic rights must yield to “modern demands.” That’s precisely how viewing the Constitution as “living” ultimately becomes an argument for the document’s death.

Instead, it is indeed “we the people” who created and own the government through the Constitution. If Seidman doesn’t like that tax bills must originate in the House, the body more sensitive to popular opinion, then he should convince his fellow citizens to amend that provision.

This discussion reminds me of the colloquy I often have regarding this or that judicial opinion being “activist.” Look, I don’t care whether a judge is striking down or upholding a law, let’s talk about whether that reading comports with the Constitution. Because if you’re not grounding your argument in the Constitution, you’re arguing for tyranny—whether tyranny of the majority (ochlocracy) or the minority (oligarchy).  Either way, individual liberty loses.