Giving Up on the Constitution

In a New York Times Op Ed last week, Louis Michael Seidman presented an argument for not following the Constitution.  Here is my summary of the major aspects of his brief:

1. Our American system of government is broken due to the archaic, idiosyncratic and downright evil provisions.

2.  It is irrational to rely on the judgments of men dead for two centuries.

3. Constitutional disobedience may seem radical, but it is as old as the Republic.

4. Given this disobedience, it is not true that we would be reduced to a state of nature if we ignored the constitution.

5. We should follow the good constitutional commands out of respect or because it is better to leave some things as settled.

6. The decisions of the different branches should be defended on a contemporary policy basis.

7. Other countries are held together by long standing traditions.  So could we.

8. If this is not possible, then the dream of a country ruled by we the people is impossibly utopian.

In my view, there is so much wrong with this argument that it is hard to know where to start.  In this post, let me focus on the two most important problems with the argument.  In my next, I will discuss other issues.

My main disagreement turns on how  Seidman wants to change our Constitution.  Basically, Seidman wants to replace our Constitution with another one.  We might think of our Constitution either as the original meaning of the document, as I do, or as the constitutional practices that the country follows, which purport to follow the document in a more complicated way.  But in either case, Seidman wants to change the Constitution to a practice that openly disregards the document and have institutions justify their actions based on policy rather than on text.

While I don’t believe this would be a good system for a variety of reasons, the basic question is how we should effect this change.   Seidman is not explicit about how the change should occur, but it seems pretty clear that he wants government actors simply to start ignoring constitutional provisions and to behave in the way that he recommends.

That is a problem.  Changing a constitutional system in this manner – by government action without any approval by the people – is not the right way to enact a good governmental system.  Here we can contrast Seidman’s recommendations with those of Sandy Levinson.  My impression is that Levinson largely agrees with Seidman on policy grounds, but Levinson argues that a constitutional convention should be called to draft a new constitution.

This is the way that a new constitution should be adopted.  In this way, the people – rather than the government – can decide on the fundamental law that will govern the country.  Otherwise, it is government officials who decide to ignore the constraints that are supposed to limit their actions.

(One might question whether the people actually acting through a constitutional convention.  If one questions that, then one might put the point differently: constitutional conventions allow special entities to frame new constitutions rather than allowing ordinary government entities, that have an incentive to enhance their own powers and agendas, to make the decisions.)

Seidman does not explain why he does not want a constitutional convention, but there are obvious disadvantages from his perspective.  One is that the country is unlikely to adopt the system that he recommends.  And if that is true, then the idea that having ordinary government officials replace our Constitution rather than having conventions do it would hardly be a way that “the dream of a country ruled by we the people” could be realized.

Let me conclude with a second point: Seidman claims that our Constitution contains “downright evil provisions.”  This is a strong claim and should be backed up with examples of these evil provisions.  But Seidman does not appear to provide any.  He specifically mentions the House origination provision, a malapportioned Senate, and a lame duck Congress.  Even if one disapproves of these provisions – and I disapprove of two, but not one of them – I hardly think any of them are bad enough to be considered evil.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. z9z99 says

    I think you are too kind to Seidman’s motives. The effect of his proposals is to displace power from localized political communities and concentrate it in professional politicians, and an evolving and useless political class of pundits and mountebanks: the blahbleoisie.

    It is curious that he would advocate, in item seven above, reliance on tradition, since a written and consistently observed constitution serves one of the same purpose of tradition: providing predictability in governance, and acting as a damper against transient social fads and prejudices. Tradition is a repository of wisdom and experience, and so is 225 years of constitutional jurisprudence.

  2. J.D. says

    Seidman’s such a joke. If “it is irrational to rely on the judgments of men dead for two centuries,” then it’s certainly irrational to rely on the judgments of men dead for eight centuries. Who needs due process of law, or trial by jury, anyway?

    • z9z99 says

      Good point. Another question would be, if it is irrational to rely on judgments that have withstood two centuries of real world challenges, why is it reasonable to rely on the judgments of men whose ideas have only been validated in their own thoughts?

  3. libertarian jerry says

    As this is basically a Libertarian site, I would think that most of the “Online Library of Law and Liberty” readers must admit that the original Constitution has been so changed,twisted,amended,ignored and interpreted that it doesn’t really reflect the thoughts of the founders of 225 years ago. However if the original intent of the founders,with the few necessary minor changes made over time having been allowed,there is no reason why the original Constitution couldn’t truly work into the 21st Century and beyond. What has to happen is that the original intent has to be respected. A good way to start would be to abolish the 16th and 17th Amendments,both of which completely changed the direction of original intent.

  4. W.B. says

    Why stop at due process, etc.? His entire argument, as vague as it is, seems to be founded primarily on time. Old is bad. New, good! Yet here is someone conveying his thoughts via newspaper (a concept that is, more or less, thousands of years old) in English (the roots of which are more than 1,000 years old), using a style of thinking that flowered in ancient Greece, and unless the professor composes in his birthday suit, he was wearing clothes made of antediluvian fabrics, which are nothing more than fancy replacements for animal skins. How far back do we need to go before everything available today is too old to be usable? Would love to know where the professor draws the line, although when he does he’s not allowed to use a pen or a pencil or a stick. I demand lasers or better.

  5. says

    With 300 million firearms in private hands (one-third of them pistols), the overwhelming majority of gun owners ARE responsible, law-abiding citizens, which is why horrific massacres are not commonplace, but rather terrible outliers that can never be legislated away (e.g. DC, Chicago, and “Gun Free Zones”).

    For several examples for the recent use of firearms for defensive purposes not typically reported by the national media please visit: and forward this site to others to whom this information may be useful. @forceequalizer

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