Give Up on the Constitution?

My good friend Mike Seidman, who’s taught constitutional law at Georgetown for nearly 40 years, who’s often been a willing foil at Cato forums, and with whom I myself sparred for an hour last April on C-SPAN’s “Washington Journal,” outdid himself last Sunday with a long and strange op-ed in the New York Times. Erroneously titled “Let’s Give Up on the Constitution,” it’s not everything in the document that troubles him: he likes the structure—two houses of Congress—and freedom of speech and religion—even “equal protection of the laws and protections against governmental deprivation of life, liberty or property.” But he’d justify those institutions and practices “on contemporary policy grounds, not abstruse constitutional doctrine.” And he’d do so because:

As the nation teeters at 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. …

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.

Would that Seidman were right in that last lament. The fiscal cliff debate of the last few weeks has been about anything but what Madison might have wanted. It’s been all about “what is to be done”—as if there were no constitutional constraints whatever on “what is to be done.”

Seidman, however, would dispense with the law of the Constitution and reduce nearly everything to politics. In fact, he offers several historical examples of the “constitutional disobedience” he’s urging—Congress and the Alien and Sedition Acts in our first decade, Jefferson and the Louisiana Purchase, Lincoln and the Emancipation Proclamation—conspicuously ignoring the countless times the Constitution has saved us from political lawlessness. Indeed, in a passage that gives the game away, Seidman writes:

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation.

Just so. And that treatment of the Constitution as “advisory only” is what has brought us to the fiscal chaos we’re enjoying today. A Progressive to the core, Seidman lays out the view that has dominated modern “constitutional law” for a century, enabling the rise of the modern, unsustainable welfare state the Founders sought expressly to avoid. And in the process, he illuminates the central flaw in that view.

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. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace.

Let’s parse that text. To be sure, there is broad language in the Constitution. But from that it hardly follows that “an almost infinitely wide range of positions” can be justified. Text, structure, and original understanding, especially as evidenced in the vast writings that accompanied the document, give a fairly clear picture of what that broad language was meant to allow—and disallow. There is room for some disagreement, to be sure, but far from infinite room. When Madison wrote in Federalist 45 that the powers of the new government would be “few and defined”—an assurance that led to ratification—he surely did not mean anything like the powers we see today.

But now we come to the clincher—this idea that we have “aspirations that, at the broadest level, everyone can embrace.” Buried in that thought is an insight as old as antiquity: We all want the good, the ancients observed; we just disagree about what it is. And Seidman himself recognizes the gap between the general—what we all embrace at the broadest level—and the particular, because he adds that “that does not mean that people agree at the ground level.” But what is it, precisely, that we all embrace “at the broadest level”? Seidman never answers, but we can begin to glean his answer here:

If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

And just who is “forcing others to give up their moral and political judgments”? Is it Georgetown University, whose officers are objecting to being forced by Obamacare to subsidize Sandra Fluke’s contraceptives? Is it the taxpayer, who’s now being forced to subsidize everything from green energy to NASCAR to Bacardi rum? Or is it, instead, those who’ve read the Constitution as saying that “we’re all in this together”—and therefore that nearly every aspect of life is to be subject to political ordering, as if we all aspired to the life of dependency depicted in the Obama campaign’s “Life of Julia.”

Plainly, “at the broadest level” we do not all embrace the Progressive vision. Today, in fact, we’re a fundamentally divided nation. Many of us believe in individual liberty, a vision starkly different than the Progressive’s, which is all about politics. Why leave things in the private sector, the Progressive asks—education, retirement security, health care, energy production—if we’re all in this together. “Perhaps the dream of a country ruled by ‘We the People’ is impossibly utopian,” Seidman laments at the end. No, it’s not utopian. It’s just that “We the People” were never meant to rule over everything. The Constitution enumerates only a few objects of federal concern, leaving “We the People” otherwise free to plan and live our own lives, in freedom.

It’s not a little ironic, then, that Seidman dismisses “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.” Isn’t that just what we’ve come to—from having abandoned “this ancient text”—a Hobbesian war of all against all? How could it be otherwise when we’re all in this together, clawing at each other to get our piece of an ever-smaller collective pie? This is a strange brew for one who professes to believe still in the “equal protection of the laws and protections against governmental deprivation of life, liberty or property.” But it’s the brew that dominates our politics at the moment, from having given up on that ancient text.