Despising the Constitution

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Russ Roberts, host of the significant and highly influential podcast show, Econ Talk, interviews this week Leftist law professor Michael Seidman. Seidman, you might remember, started off 2013 with this breathless piece in the New York Times (no doubt fulfilling one of that publication’s New Year’s resolutions) disputing the need for our Constitution and its principles of federalism, separation of powers, checks and balances, and the rule of law. Mike Rappaport responded here. A tenured law professor at Georgetown, Seidman maintains that “obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions . . . 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.”

We should, as it were, stop pretending “that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text.” Of course, as a professor of law Seidman has the unenviable task of teaching a legal subject, constitutional law, that he no longer really believes in. In effect, Seidman wants to trade in the many-storied mansion of our constitutional order, replete with its triumphs, failures, and redemptions, for the flattened barn of unlimited democracy. This is the effectual truth of Seidman’s drone strike on the Constitution.

We should use this occasion, however, to ask more broadly what is the point of constitutionalism in the progressive view of government that Seidman surely favors? Men locked into conversation about the public responsibilities of government would become strangely irrelevant. Instead an all-encompassing material equality, unmoored from America’s historical and philosophical founding, would ground political authority. The true charter of our constitutionalism would become the collection of milestones reached in social and economic rights. These become the constitutional touchstones reached by the historical moment, ratified by evolving consciousness.

Social Security, Medicare, Medicaid, and various other welfare programs would be lifted above debate in the public square. To question their existence, or even argue for the retrenchment of the size and scope of these programs, would be to question the constitutional order itself. Consequently, domestic politics becomes war-like.

As Ken Masugi recently underscored there is always more to do under an unbound constitutional project because of “the insistence on the identity of each individual good with the common good.” The Founders saw it differently. “The politics of freedom means conflicts over the common good.” Such conflicts and contests over the common good are not allowed to exist within progressive “constitutionalism”. The precise aim and working of political power now becomes the diminishment of uncertainty by the more or less even distribution of income, security, pensions, etc. But is there ever finally an acceptable rendering of security and results-based equality that satisfies the material passions of individuals once these have become the basis and measure of governmental action? Can government ever rest secure in the knowledge that it has adequately distributed the ever-lessening spoils of productive investment and labor?

Could this possibly be why Seidman so readily dismisses our written constitutional order? The purpose guiding the machinery of government is known and fixed, so why bother with the constitutional procedures that guide and channel the passions and powers that propel public argument.

Other disturbing questions emerge from Seidman’s formal rejection of the procedural constraints the Constitution imposes. How to limit the pride and passions of men, greatly exercised as they are in the pursuit of their self interest? How to limit the excitement generated by emergencies in those moments when so many want to strip away the binding nature of law so that their imperial will may govern and lead us to their destination? What might remain is merely man and the state, and the hub and spoke control of government power centers, unconstrained by law and right, imposing a monotonous will.