Subverting the Constitution

Thomas Lifson
Another line is being crossed in the campaign to fundamentally change America. The Left has long regarded the American Constitution as an obstacle to the sort of fundamental change it desires, and now the seeds of delegitimizing the Constitution itself are being planted by powerful members of the progressive establishment.

Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law at Georgetown University, is no fringe figure. He is a pillar of the left wing legal establishment, graduate of Harvard Law, former clerk for Thurgood Marshall, and notable figure in the Leftist "critical legal theory" movement. His law school's most prominent recent graduate is Sandra Fluke, and its former dean, Peter Edelman, is most famous for resigning a senior position in the Clinton Administration to protest the wildly successful welfare reform measures enacted when the GOP controlled Congress and signed by President Clinton.

Seidman has taken to the pages of the daily bible of the progressive establishment,  the New York Times, to lend respectability to a movement to subvert the Constitution, and turn to an undefined system which inevitably means the loss of our safeguards against tyranny.  All expressed in superficially reassuring prose. In a stunningly-titled piece, "Let's Give Up on the Constitution," he writes, for example:

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

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.

My colleague Rick Moran has already treated the shallowness of the arguments. However, the real intent of the piece is not to persuade by logic, but rather to put on the table the very foundation of our lives as Americans, and devour it by increments, as it becomes increasingly respectable to mouth the opinion that it really doesn't matter what the Constitution says, if an important issue is challenged.

A republic, if we can keep it.

Update: Mark J. Fitzgibbons writes:

After 100 years of attempting to destroy the Constitution even though professing fealty to it, the progressive movement has its new, honest champion in Seidman.

The United States Constitution has been disobeyed, battered and belittled, yet we have somehow survived as a nation. According to Seidman, "Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens." Why not finally and completely gut our "supreme" American law, and become like the others?

Seidman argues that following the Constitution is impractical, and that it somehow holds us back from achievement: "[W]e ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance." (Emphasis added.) He adds:

 "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."

Seidman, like so many progressives, misses the purpose of our Constitution. It is designed to sometimes impede government in order to protect liberty. The "constitutional bondage" on government is meant to protect liberty and to protect individuals from tyranny. It is, as Jefferson wrote, the "chains" binding down men who hold the awesome power of office.

The Constitution is therefore not merely a document that establishes - constitutes - a form of government. It is, as Joseph Story writes in his Commentaries on the Constitution, "an ordinance or establishment of government and not a compact, though originating in consent; and it binds as a fundamental law promulgated by the sovereign authority [,the people.]"

The difference between constitutionalists and progressives such as Seidman is that we recognize that the Constitution is not a law governing the actions of individuals or even of society. Progressives often confuse government with society. The Constitution is our supreme and paramount law, but it is a law written exclusively to frame and control our government, meaning that it was written to govern government itself.

The Constitution sets forth generally how the government must operate and behave. It is the laws of driving for the government, so to speak, and is violated at our peril. Only by remaining faithful to the Constitution may the government make, enforce and adjudicate other laws governing the people. But note that nowhere does the Constitution actually dictate the behavior of society - only the behavior of government itself.

The Constitution was unprecedented when it was created. No people had ever established from scratch and in one document a supreme, written law governing government.

The very intent of this written law was of course to provide protection for society, which was thought to be the primary purpose of any government. What made the United States Constitution a unique creation theretofore in history was that it was also a law to protect God-given liberties of each individual, from the lowest born to the mightiest.

The Constitution was written without any exact model on which to rely, although the Magna Carta and English Bill of Rights were seeds of this new creation. There were no precedents under which the people established a government governed by a supreme, written law.

Great thinkers among the Founders tried to articulate the notion of what was to be this unprecedented written constitution. Wrote one anonymous author in 1776, "Among the many publications which have appeared on the subject of political Constitutions, none, that I have seen, have properly defined what is meant by a Constitution."

Writing in Federalist 78, Alexander Hamilton called the Constitution our "paramount" law, and thereby acknowledged the force of the Constitution as the law above all other written laws of governing. Nowhere in the Federalist Papers do we find reference to the Constitution's regulating anything but government itself. Only by following this paramount law may government legitimately and lawfully establish and enforce other laws.

What the Founders did through the Constitution was to create a supreme law to govern government itself, which is necessary to preserve liberty. To "give up on the Constitution," therefore, is the progressive way of freeing government from the rule of law. I suspect that at least 75 percent of Americans would refuse to concede to that type of tyranny by the ruling class.

Another line is being crossed in the campaign to fundamentally change America. The Left has long regarded the American Constitution as an obstacle to the sort of fundamental change it desires, and now the seeds of delegitimizing the Constitution itself are being planted by powerful members of the progressive establishment.

Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law at Georgetown University, is no fringe figure. He is a pillar of the left wing legal establishment, graduate of Harvard Law, former clerk for Thurgood Marshall, and notable figure in the Leftist "critical legal theory" movement. His law school's most prominent recent graduate is Sandra Fluke, and its former dean, Peter Edelman, is most famous for resigning a senior position in the Clinton Administration to protest the wildly successful welfare reform measures enacted when the GOP controlled Congress and signed by President Clinton.

Seidman has taken to the pages of the daily bible of the progressive establishment,  the New York Times, to lend respectability to a movement to subvert the Constitution, and turn to an undefined system which inevitably means the loss of our safeguards against tyranny.  All expressed in superficially reassuring prose. In a stunningly-titled piece, "Let's Give Up on the Constitution," he writes, for example:

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

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.

My colleague Rick Moran has already treated the shallowness of the arguments. However, the real intent of the piece is not to persuade by logic, but rather to put on the table the very foundation of our lives as Americans, and devour it by increments, as it becomes increasingly respectable to mouth the opinion that it really doesn't matter what the Constitution says, if an important issue is challenged.

A republic, if we can keep it.

Update: Mark J. Fitzgibbons writes:

After 100 years of attempting to destroy the Constitution even though professing fealty to it, the progressive movement has its new, honest champion in Seidman.

The United States Constitution has been disobeyed, battered and belittled, yet we have somehow survived as a nation. According to Seidman, "Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens." Why not finally and completely gut our "supreme" American law, and become like the others?

Seidman argues that following the Constitution is impractical, and that it somehow holds us back from achievement: "[W]e ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance." (Emphasis added.) He adds:

 "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."

Seidman, like so many progressives, misses the purpose of our Constitution. It is designed to sometimes impede government in order to protect liberty. The "constitutional bondage" on government is meant to protect liberty and to protect individuals from tyranny. It is, as Jefferson wrote, the "chains" binding down men who hold the awesome power of office.

The Constitution is therefore not merely a document that establishes - constitutes - a form of government. It is, as Joseph Story writes in his Commentaries on the Constitution, "an ordinance or establishment of government and not a compact, though originating in consent; and it binds as a fundamental law promulgated by the sovereign authority [,the people.]"

The difference between constitutionalists and progressives such as Seidman is that we recognize that the Constitution is not a law governing the actions of individuals or even of society. Progressives often confuse government with society. The Constitution is our supreme and paramount law, but it is a law written exclusively to frame and control our government, meaning that it was written to govern government itself.

The Constitution sets forth generally how the government must operate and behave. It is the laws of driving for the government, so to speak, and is violated at our peril. Only by remaining faithful to the Constitution may the government make, enforce and adjudicate other laws governing the people. But note that nowhere does the Constitution actually dictate the behavior of society - only the behavior of government itself.

The Constitution was unprecedented when it was created. No people had ever established from scratch and in one document a supreme, written law governing government.

The very intent of this written law was of course to provide protection for society, which was thought to be the primary purpose of any government. What made the United States Constitution a unique creation theretofore in history was that it was also a law to protect God-given liberties of each individual, from the lowest born to the mightiest.

The Constitution was written without any exact model on which to rely, although the Magna Carta and English Bill of Rights were seeds of this new creation. There were no precedents under which the people established a government governed by a supreme, written law.

Great thinkers among the Founders tried to articulate the notion of what was to be this unprecedented written constitution. Wrote one anonymous author in 1776, "Among the many publications which have appeared on the subject of political Constitutions, none, that I have seen, have properly defined what is meant by a Constitution."

Writing in Federalist 78, Alexander Hamilton called the Constitution our "paramount" law, and thereby acknowledged the force of the Constitution as the law above all other written laws of governing. Nowhere in the Federalist Papers do we find reference to the Constitution's regulating anything but government itself. Only by following this paramount law may government legitimately and lawfully establish and enforce other laws.

What the Founders did through the Constitution was to create a supreme law to govern government itself, which is necessary to preserve liberty. To "give up on the Constitution," therefore, is the progressive way of freeing government from the rule of law. I suspect that at least 75 percent of Americans would refuse to concede to that type of tyranny by the ruling class.