Roll over, Madison

Here’s a solution to our current problems of democratic governance: “Let’s Give Up on the Constitution.” The writer of this New York Times editorial confesses that it took him way too long to come to this conclusion. Just think, here we are trying to set a course for a new millennium, and we still must defer to “a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law [the Articles of Confederation] and thought it was fine to own slaves.” Is this any way to run a country?

The editorial reads like the work of a journalism-school graduate looking for attention, but in fact, Louis Michael Seidman is a scholar who co-authored a major volume of constitutional case law. So he should know better than the slapdash summary quoted above. The dead white guys who had the greatest influence on the law of our land had studied and thought deeply about governments through the ages, had tested many of their theories in state constitutions, and did not think it was fine to own slaves. (The infamous three-fifths compromise was the best that could be done to delay a vexed and painful solution to the slavery problem.)

Seidman’s main point is that our loyalty to an ancient document is hypocritical. He shows how the Constitution had been stretched and overlooked from its beginning, such as the Alien and Sedition Acts, the Louisiana Purchase, and the ratification of the 13th Amendment. He’s right that “much constitutional language is broad enough to encompass an almost infinitely wide range of positions,” but he doesn’t see that as a virtue. And what’s his solution? Keeping the provisions that work and the principles we hold dear, but changing “the basis on which they claim legitimacy.” He argues that the best parts of the Constitution work because they’re based on sound reasoning, not because they were Founding Father-approved. Instead of a written document, we could rely on “entrenched institutions and habits of thought and, most importantly, the sense that we are one nation and must work out our differences.”

But where did all these “entrenched habits” come from? What made us “one nation,” but the Constitution itself?

What Seidman seems to be advocating is just the kind of ad hoc, reactionary government that the United States is becoming, as a result of ignoring the Constitution. Congress careens from one last-minute deal to another, the president executive orders his way to fundamental change, and the Supreme Court turns judicial review into a guessing game. Ditching the Constitution would make it official: more of the same, without the ceremonial bows and vows. It would be like eliminating “hypocritical” divorce laws and letting marriages dissolve for any reason or no reason—before long, we’ve undermined the institution of marriage itself. “Bondage” is what Seidman calls our outdated fealty: It’s time to “give real freedom a chance.” I think that was the basic idea behind the French Revolution, and we know how well that worked out.