You better run for your life if you can, little girl
Hide your head in the sand, little girl
Catch you with another man, that’s the end, little girl
—The Beatles, Run For Your Life
Run for your life from any man who tells you that the Constitution is a “living, breathing document.” Run faster still from any man who says “let’s give up on the Constitution.”
Expanding a bit on something I mentioned in the last post, giving up the Constitution is exactly the position espoused by Georgetown University Law Center Professor Louis Michael Seidman on CBS News Sunday Morning last weekend. Charles Osgood introduced him with the ludicrously loaded question, “Is the U.S. Constitution truly worthy of the reverence with which most Americans hold it?” Professor Seidman proceeded to answer that question in the negative.
For Professor Seidman, the Constitution is a cumbersome nuisance that interferes with proper debate about matters of policy:
“Constitutional obedience has a pernicious impact on our political culture. Take the recent debate about gun control . . . [I]nstead of talking about whether gun control makes sense in our country, we talk about what people thought of it two centuries ago. Worse yet, talking about gun control in terms of constitutional obligation needlessly raises the temperature of political discussion. Instead of a question on policy, about which reasonable people can disagree, it becomes a test of one’s commitment to our foundational document and, so, to America itself.”
Seidman went on to say that because we are the people who live here now, we should be able to decide for ourselves what this country should be, and we shouldn’t be ruled by people who died 200 years ago any more than we should be ruled by the French or the United Nations. Basically, according the learned Professor, the Constitution is an old document written by people who are long dead, and so we shouldn’t feel too wedded to it when it doesn’t suit our current purpose.
This, friends, is who is teaching in your law schools. “Constitutional Law” professors who teach that the Constitution is a dead letter not worthy of reverence, and that Constitutional obedience is “pernicious” (harmful or destructive).
Seidman attempted to temper his argument with a superficial appearance of reasonableness, conceding that some provisions in the Constitution are “important and inspiring,” and should be obeyed because they are important and inspiring. Of course, he didn’t say which ones are still worth obeying, nor does he explain what (or who) determines which ones are and which ones aren’t. We can surmise that the provisions that should be obeyed are the ones he and the Left find “important and inspiring,” but that would be just rank speculation on my part. You can draw whatever conclusions you want, however, from Professor Seidman’s calling into question the Constitution (via the electoral college system in Article II) allowing the election of a President “who is rejected by a majority of the American people” (read: George W. Bush in 2000), but disallowing the election of a President who isn’t a natural-born citizen (read: Barack Obama (were he not—no, I’m not trying to start another “birther” debate)).
Alternatively, it could be that the provisions that should be obeyed are those that a majority of Americans at any given second find “important and inspiring.” But that would render the entire discussion about giving it up moot in light of Osgood’s introductory concession that “most Americans” at this point still revere the Constitution.
Discarding the Constitution as Professor Seidman suggests leaves us with either an elitocracy of self-appointed pseudo-intellectuals, or mob rule by 50%-plus-one. Either way, the result is a system where governance in all things is left to the whims of men. And this is precisely what the Founders—long-dead though they may be—wanted to avoid.
Our Fathers bequeathed us a nation of laws, not of men. And that is the most profound, noble, and loving inheritance they could have left us, because it is the essence and cornerstone of freedom. It doesn’t matter what men—even a majority of men—say. No matter your station in life, your rights and your freedom are guaranteed by law: an objective, concrete, knowable, and constant set of rules to which you can appeal and which is binding upon all that does not depend on the capricious fancies of this or that passing administration or the fad of the moment.
The foundation of this law that safeguards your rights and your freedom is our Constitution. Nowhere is that more clear than in the Supremacy Clause in Article VI:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby[.]”
There is no higher authority than the Constitution. And isn’t it funny that people like Professor Seidman complain that those who invoke their constitutional protections to disagree with him are “needlessly rais[ing] the temperature of political discussion,” yet they shriek about the sanctity and supremacy of the Constitution when the matter of dispute is something they have declared to be a “right” (not coincidentally, almost always a “right” not actually found in the text of the document). Those things you support are mere matters of policy, where disagreement is simply a difference of opinion to be tolerated, debated, and resolved by majority vote; but those things they support are Holy Constitutional Writ, where dissent is an abomination not even to be acknowledged.
Of course, the real beauty of the Constitution is that it isn’t a particularly complicated document, and it doesn’t require a University of Chicago or Harvard degree to read and understand it—that’s only necessary if you want to engage in the mental gymnastics (read: intellectual fraud) required to make it say something it doesn’t, because what it does say doesn’t suit your purpose. But the Constitution is not an a la carte menu; you have to take it as a whole, and you don’t get to pick and choose which parts you will follow and which parts you will ignore. The concept of a supreme and binding law of the land becomes meaningless if that law can arbitrarily be discarded piecemeal.
That said, the Founders didn’t leave us hopelessly chained to a permanently static document forever burdened with impracticality and anachronism. They recognized that later generations might see a need to make changes, so in Article V they laid out two—and only two—processes for amending the Constitution when it became necessary to do so: either via a two-thirds vote of both Houses of Congress, or by application of two-thirds of the States. These processes have been invoked and carried to completion twenty-seven times to deal with matters as weighty as equal protection for blacks following the Civil War (the 13th, 14th, and 15th Amendments), and as relatively trivial as the consumption of alcohol (the 18th and 21st Amendments).
The people of this country know how to adapt their Constitution to changing times, and they have done so on numerous occasions. As a professor of constitutional law, Seidman undoubtedly knows this, which begs the question why he says we should just ignore the Constitution (or at least those parts that he or someone determines aren’t “important and inspiring”). Seidman says matter-of-factly, as though there’s no reasonable dissent about it, that the Constitution is out-of-date and out-of touch. If he’s right about that, presumably there’s a broad consensus about it, and there should be no trouble going through Congress or the State Legislatures to make the appropriate adjustments. That’s what you do in a nation of laws—you go through the prescribed process and change those laws, not just ignore them as some academic tells you is appropriate.
If that’s not how we’re going to do things; if we’re not going to abide by the law as it’s stated in the Constitution until that law is changed via the mechanisms for doing so contained in that Constitution; if instead we’re only going to adhere to the Constitution (or not) as the winds of the time blow; then who’s to say what your rights are today? And what’s to protect those rights tomorrow? Ignoring the Constitution means the law says whatever whoever has the biggest, baddest gang at a given time says it says.
I was wrong about running from a man who says we should give up our Constitution.
We should stand and fight him like Hell.
By the way, for those who might feel the need to let Professor Seidman know what you think of his suggestion that we give up our Constitution, he can be reached at the following contacts published on the Georgetown Law Center website:
600 New Jersey Avenue N.W.
Washington, D.C. 20001