Seidman’s argument in The New York Times
is necessarily limited by space. It’s not enough to cover any legal issues or go far beyond basic ideas. That said, the line of argument is pretty easy to disagree with, on a range of issues.
The general direction of Seidman’s approach to the argument is best shown in these two paragraphs:
Our obsession with the Constitution 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.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
There’s absolutely no mistaking the core issues in Seidman’s argument. The issues of the Constitution’s relevance and the cultural differentials between then and now. The problem as I see it is that the intent of the Constitution is much too often confused with the pedantic approach to issues.
This is the intent of the US Constitution, as spelled out:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
This is one of the most ignored parts of the Constitution. Most people know the “We the people” phrase, but try finding anyone who recognizes it as a legal principle, let alone anyone who can quote the rest of the sentence. The working verbs describing the moral principles of the Constitution are:
You can argue that:
Forming a more perfect union has had its ups and downs, notably the Civil War and the current Congress, which appears to be determined to prevent democracy at all costs.
Establishing Justice seems to be a very mixed blessing. The Supreme Court, established by the Constitution, may be established, but whether or not it’s adequately providing justice is highly debatable.
Insuring domestic Tranquility has been in the too-hard basket for decades. Rampant crime was almost certainly not the intention of the Founding Fathers.
Providing for the common defence has created the contract rackets but not for oversight of the provision of common defence. A gigantic gravy train sucking money out of the economy is a dubious Constitutional right.
Promoting the general Welfare has created a class of people opposed to welfare in any form who claim to support the Constitution. Quite the opposite, the whole idea of the welfare of “we the people” seems to be the last thing on anyone’s minds.
Securing the Blessings of Liberty doesn’t seem to be much of priority when the poor are apparently only at liberty to become poorer on the basis of the whims of the lobbies. Libertarianism is now a rich man’s hobby, not a general achievement.
The joke, such as it is, is that these are also legal issues. When a legal argument is made, it’s quite common for lawyers to cite the intent of a law. Why not apply that to the Constitution? Nobody does.
The introduction to the Constitution is its stated purpose, the reason for its existence. Is that irrelevant? Can these parts of the Constitution be ignored? They are, and that’s one of the causes of dysfunction as we now see it every day.
The United States Constitution is one of the most unusual documents ever written. It’s based on principles, and the result is that when principles get turned into logic, the logic tends to obscure the principles. That’s been a colossal disaster.
Seidman argues, and I won’t dispute his logic, that many subsequent actions by Presidents, including Jefferson, were disobedient to the Constitution. The intent of those actions, however, like the Louisiana Purchase and the New Deal, were in the perceived best interests of the United States. In that sense, adding some land to a new nation while removing a continental competitor made sense. So did “promoting the general welfare” in the form of the New Deal, particularly when corporate America, in the Depression days was as usual promoting its own safety and security at the expense of the nation.
Put it this way:
What is the intention of the United States Constitution? A working democracy.
What is the basis of the American idea of the Constitution? Freedom.
What’s the intent of the protective elements of the Constitution: To protect citizens and their rights.
What’s the Bill of Rights? A guarantee of those rights.
… And you want to abolish it? All due respect to Seidman for raising an issue which relates to practicalities, but if you’re talking about principles, abolishing the Constitution would be an act of national suicide. There could be no America as it was intended to be.
The existing train wreck is a direct result of disobeying the principles of the Constitution. The intent of the Constitution wasn’t dysfunction. It’s sad to say that most constitutional debates never even approach the issue of principles at all. Meanwhile the actual practice of subverting the intent of the Constitution is now daily practice among those elected under its auspices.
I think that’s a fairly cohesive view of the basis of opposition to Seidman’s brave assertion. He’s trying to raise important issues and generate public involvement, and I respect the idea.
Just one more thing, but it’s a bit relevant:
I’m a foreigner.
Why aren’t Americans raising these issues? Has national senility gone so far that the basis of America’s liberties and incredible achievements has been totally forgotten? Or is it being simply ignored by the usual lazy collection of time-servers acting as “thought leaders”? I’d love to hear some answers to those questions, but of course, I won’t. These people are too busy being important to deal with actual issues.
For Americans reading this, may I wish you a much happier New Year than the last few decades and offer some hope- Generally speaking, the idea of American freedom defeats the saboteurs, it’s really just a matter of when.