FLORIDA, January 15, 2013 — The Constitution is the fundamental law of the United States, the document that unites us as a country.
It also divides us. We disagree on its interpretation, some finding in it the absolute right to an abortion, others finding the absolute right to own any weapon they can procure. The Constitution seems to have become both a shibboleth and a fetish.
Georgetown law professor Louis Seidman advocates an idea that is sure to make waves. Rather than try to make sense of centuries-old language, he advocates focusing on practical legislation. He is the author of the forthcoming book, On Constitutional Disobedience.
In this first part of our discussion, Seidman shares his views about the Second Amendment, how the Constitution may be perceived in different ways, what led him to believe that Constitutional disobedience can solve our country’s political quagmires, and whether or not chaos might erupt if the Constitution is ignored.
Joseph F. Cotto: The Second Amendment can be interpreted in many different ways, needless to say. What are your views on the subject?
Louis Michael Seidman: I tend to be skeptical of most forms of gun regulation, but not because someone writing two hundred twenty five years ago told me that I had to be skeptical. I’m skeptical because I believe that under modern conditions, most forms of gun control won’t work or, if they were made to work, would not be worth the cost.
Cotto: The debate over whether or not the Constitution is a living document seems to know no bounds. In a modern, pluralistic society such as ours, what would you say is the most practical method of interpreting our Constitution?
Seidman: I’m not in favor of interpreting the Constitution at all, in part because I think that no form of interpretation solves the basic problem. On the one hand, originalism is impractical (for example, how could we possibly decide whether the frames thought that video games were “free speech” within the meaning of the First Amendment?), leads to some morally odious outcomes (it’s pretty clear, for example that the framers thought there was no problem with racial segregation), and saddles us with eighteenth century solutions to modern problems.
On the other hand, the living constitution approach pretty much allows us to do whatever we want. I don’t have any problem with this, but I do have a problem when people applying this method insist that we have to do what they want because the Constitution says so.
Cotto: Recently, you suggested that Constitutional disobedience might be the solution to some of our country’s most pressing political quagmires. What led you to believe this?
Seidman: Our constitutional regime as it operates in the 21st century does contribute to a number of political pathologies. For example, the manner in which districts are drawn for seats in the House of Representatives has produced a body that is much more extreme than the American people are and that does not reflect the way in which a majority of Americans voted. More broadly, our preoccupation with the constitution tends to distract political argument from what really matters and to raise the temperature of political debate.
Consider, for example, the debate about health care. There’s much to be said both for and against Obama Care. It may or may not raise health costs, it may or may not interfere with freedoms that we should cherish, etc.
These matters ought to be debated. But when the issue is constitutionalized, we don’t talk about any of this. Instead, the question is turned over to lawyers, and lawyers do with the question what lawyers do – that is, they very carefully analyze constitutional language, constitutional history, precedent etc. So instead of talking about anything that matters, we talk about questions that are entirely beside the point like what the word “commerce” meant in the eighteenth century or what, precisely the distinction is between the Supreme Court’s decisions in Wickard v. Filburn and United States v. Lopez.
Worse, yet, instead of talking about questions of policy, now we are talking about the meaning of our foundational document. People on the other side of the debate are not just folks we disagree with, but traitors to their country. I don’t think this is the way that we should debate what is to be done in a mature democracy.
Cotto: Many fear that if the Constitution is disobeyed, bedlam will erupt. Do you have an opinion about that?
Seidman: This is a widespread fear, but there is exactly no evidence to support it and much evidence on the other side.
In the first place, we have been disobeying the constitution since the founding of the republic. There are many examples, large and small. For example, for reasons that are too complicated to go into here, our method of determining the terms of Senators from new states is pretty clearly unconstitutional. Many legal scholars believe that some of the most consequential decisions in Supreme Court’s history – Brown v. Board of Education, Miranda v. Arizona, Roe v. Wade, even Marbury v. Madison – violated the Constitution.
Many other scholars believe that all the undeclared wars in the last fifty years and the entire administrative state are unconstitutional. I think it’s pretty clear that Lincoln’s Emancipation Proclamation freeing the slaves was unconstitutional. All of these things may be wise or unwise, but I don’t think that anyone could persuasively argue that they produced bedlam.
Secondly, it’s hard to see how a piece of paper could prevent people from acting in self-interested ways that might produce chaos. Other countries, where there in fact has been chaos, have constitutions. Some countries – notably the United Kingdom, New Zealand, and Israel – do not have constitutions, and they are not especially chaotic. In this country, we have long traditions, habits of thought, and ways of doing things that would not suddenly evaporate if we gave up on constitutional obedience.
This, together with a sense on the part of the American people that we share a common country and need to compromise in order to get things done is what will ultimately insure against unraveling. To be sure, these qualities seem to be in short supply lately, but if they disappear, no piece of paper is going to save us.
Cotto: Many people believe that Constitutional rights are granted by the divine. Others say that such rights are purely human inventions. What do you believe?
Seidman: Answering this question is way above my pay grade. I will, however, make three comments.
First, I think it is true that rights cannot survive in this country if the only basis for them is that people are told they have to respect the rights, whether they agree with them or not, just because someone long dead told them that they had to respect the rights. Americans have a nasty habit of thinking for themselves. If rights are to survive, people who favor them are going to have to do the hard work of persuading people that they ought to be cherished now and cannot rely on the easy and deeply authoritarian assertion that we must obey certain commands whether we think they are sensible or not.
Second, most of the rights that people cherish today were not in the original Constitution. The Constitution contained no right to free speech or assembly,no right to religious freedom, no right to bear arms or protection from unreasonable searches. All these provisions were added to the Constitution against the opposition of many of the original framers.
Third, I sometimes wonder whether people who think that the Constitution was divinely inspired have looked at the actual document. For example, the original Constitution had many provisions protecting slavery by, for instance, banning legislation prohibiting the slave trade until 1808 or requiring free states to return to their masters enslaved persons who had escaped.
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