Let's Not Give Up On The Constitution

By Douglas V. Gibbs

As my nephew reviewed his history book, he became excited when he noticed an entire chapter of the text book was dedicated to the United States Constitution.  Like his Uncle Doug, Branden loves history, and has studied extensively the various Founding Fathers, and the Constitutional Convention.  The opportunity to discuss the law of the land in class was more than he ever expected.  Branden waited patiently through the school year as the class marched through the textbook, chapter by chapter.  When it finally came time for the chapter on the Constitution, the teacher skipped it, and went on to the following chapter in the book.

Branden, disappointed that the chapter he had been waiting for all school year was hurdled over and forgotten, asked his teacher for an explanation.  The teacher told him, "We only have so much time to get through this book, so we will have to skip the less important chapters."

The Constitution unimportant?

Stunned by the teacher's answer, Branden went to his principal regarding his concerns.

The answer from the principal of the school was the same.

A whole generation of students are being taught that the Constitution is unimportant, and if anything, a hindrance.

At the New York Times, Louis Michael Seidman, a professor of constitutional law at Georgetown University, and the author of the forthcoming book “On Constitutional Disobedience,” believes we should give up on the Constitution.

In his New York Times article, "Let's Give Up on the Constitution," Professor Seidman calls the document archaic, idiosyncratic, and downright "evil."

Reading the article, and his credentials, two things became abundantly clear to me.  First, Professor Seidman supports the concept of Constitutional Law, a.k.a. case law.  In other words, the Constitution does not necessarily mean what it says. The text of the Constitution means what judges say it means.

Second, Professor Seidman abhors originalism.  In other words, he has disdain for those that believe in defining the Constitution as it was originally intended by the Founding Fathers involved in crafting the document.

After completing reading his article, one other thing came to mind that startled me, when considering that this gentleman is a teacher in one of our fine collegiate institutions. . . 

Professor Seidman is completely ignorant of the Constitution.  He believes it to be a living document based on an ever-changing society, and the court's view of the constitution based on their rulings.

The best way to explain the professor's failure to properly understand the Constitution (or perhaps refusal to recognize the orginalist point of view), we must pick apart his article bit by bit, piece by piece.

Early on in his article, Professor Seidman makes reference to the fiscal cliff, buying into the rhetoric of fear created by the politicians so that they can get a pat on the back for passing a bill that would have otherwise disgusted most Americans.  As an observer of the fiscal debates, and failure of Congress to resolve properly an oncoming economic collision that Washington has known was coming for over a decade, the professor has come to the conclusion that our American system of government is broken, and the culprit is the fact that a few folks in The Beltway are still willing to try to be obedient to the Constitution.

The claim that the government is broken is an oft used argument by the liberal democrats whenever they don't get their way quickly because some republicans want to actually debate an issue, and fight for their own principles regarding whatever the argument is about.  Professor Seidman is saying that since Congress is not just passing what Obama wants in a quick and easy manner, and because there are members of Congress that dare to defend the United States Constitution, our governmental system is broken.

The Constitution is the Law of the Land, so what the professor is asking for is lawlessness in Washington.  As for efficiency, where Congress moves quickly to agree to the President's demands?  That kind of efficient system does indeed exist.  We call such a government a dictatorship.

In the next Paragraph, Professor Seidman complains that there has been an argument against the Senate originating a fiscal cliff bill because the Constitution requires that revenue measures originate in the House of Representatives.  He then asks if anyone should even care, and why a lame-duck House should have that kind of power?

Article I, Section 7 of the Constitution is what Professor Seidman is referencing.  The clause states that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."

The question I pose to my Constitution Classes that I teach on Thursday Nights in a gun shop is simply, "Why?"

The 17th Amendment in 1913 changed the dynamics of our system, by changing the appointment of Senators by the State Legislatures to a vote by the people.  What this did was make the Senate not a whole lot different from the House of Representatives.  Before 1913, the Senate was the voice of the States, and the Senators were appointed with the expectation of acting on behalf of the State's interests.  Therefore, since the Senate was the voice of the States, and the House of Representatives, which has always been populated by members voted in by the people, was the voice of the populace, granting to the House the authority to be the only location where bills for raising revenue could originate was an important constitutional check and balance that enabled the people to have the ultimate weapon against political tyranny.  If the federal government needed to spend money, the people's representatives in the House of Representatives had to initiate the bill.  If the federal government was spending money in a manner not acceptable to the people, then the representatives of the people in the House could starve those programs by defunding them with appropriate legislation.

The clause that gives the House of Representatives the sole authority to originate bills regarding revenue was put in there to give us, the people, the ability to ensure the government did not spend money in a manner we did not approve of.  That, however, has been all but forgotten.  The 17th Amendment changed the dynamics of our government, and ideology slithers through both Houses of Congress, as a result.

That part of the system is broken not because of conservatives demanding the Constitution be followed, but because of the progressives being victorious way back in 1913 when they kicked State representation out of the federal government.

Professor Seidman argues that rather than argue today's issues with today's minds, we argue what James Madison might have wanted 225 years ago.

Liberty never goes out of style.  Tyranny is an eternal threat.  The Founding Fathers studied hundreds upon hundreds of years worth of governmental history, and worked out a system they felt would stand the test of time by ensuring a division of power that protected the system from collusion, and mob-rule.  As a republic, we are a country with a system that is based on the rule of law, rather than the rule of man.  The professor thinks that what worked so well, and has made this nation the most prosperous nation on Earth, is too old fashioned, and that the progressive line of thinking, which has brought us to the problems we are now encountering, is somehow something to embrace.

When faced with the tyranny of big government, versus the limiting principles Madison championed 225 years ago, I will go with the founding principles based on freedom and liberty any day of the week, thank you.

A little further down the professor calls the founders "white propertied men. . . who knew nothing of our present situation."  Why should we care, he adds, if they would think our politicians are acting "illegally under existing law" when these men "thought it was fine to own slaves?"

White?  At the time that was the reality of the colonies. The leaders were white men.  They realized changes would come, and granted us the ability to amend the Constitution, and it has been.  As a result, women vote, too, as does non-white citizens.  We should congratulate ourselves on our growth, and our willingness to enable that growth through amending the Constitution in a manner given to us by those "white men."

The term the professor used, "propertied," is interesting.  You see, the ability to own property was a big deal.  In Britain, it was the King's Realm, so you couldn't own property.  Sure, some nobles thought they did, but in the end, it all belonged to the king.  Here in America, you had the opportunity to become a property owner.  Those that did own property often could because they were successful businessmen, or successful in some kind of agriculture.  In other words, the "propertied" men were the wealthier of the citizens.  The success stories.  And in this current world of class warfare, where the democrats have demonized the successful as "greedy," and people who need to "pay their fair share," we are supposed to dislike those founders that were "propertied" men, because we are supposed to hate the rich.

Isn't this supposed to be America where, rather than despising the wealthy, we are supposed to have the opportunity to join their ranks through hard work and ingenuity?  I don't hate the rich.  I want to join their ranks, and I think anyone can join the ranks of the wealthy.  That is the promise of America.

Our present situation was caused by us straying from the Constitution, and the Founding Fathers were well aware of our situation because socialism existed back then, too.  And guess what?  The founders abhorred the kind of thinking the liberals champion - because that kind of system was a proven loser.

"The utopian schemes of leveling (re-distribution of the wealth) and a community of goods (socialism scheme of central ownership of production and distribution), are as visionary and impractical as those which vest all property in the crown. These ideas are arbitrary, despotic, and, in our government unconstitutional. Now what property can the colonists be conceived to have, if their money may be granted away by others, without their consent?" -- Samuel Adams, Boston Gazette, April 4, 1768.

As for those men thinking it was fine to own slaves, if you read their writings you realize that they understood slavery to be a great sin.  Slavery was also practiced throughout the world.  It was the normal course of things, and the economy depended greatly upon it.  The Founding Fathers, as a result, were faced with an incredible quandary.

Because of their feelings that eventually slavery would need to be abolished, the delegates in the Constitutional Convention began the process of abolishing slavery in the Constitution.  The first clause of Article I, Section 9 abolished the Atlantic Slave Trade in 1808, and the new nation's navy enforced it, disallowing any new slaves from being brought into America.  However, based on the principles of State Sovereignty, that was as far as the federal government could go in the effort to abolish slavery without compromising States' Rights.  Once the slaves were inside the States, it became a State issue.  So, short of an amendment to the Constitution to outlaw slavery, which came into being after the American Civil War, the founders believed the States would need to abolish slavery on their own, one by one.

At the time of the start of the Civil War there was an incredibly effective abolition movement in place in the Southern States.  New technology had made slavery expensive, and many of the industries were moving out of the fields and into factories.  If the American Civil War had not been fought, it is entirely reasonable to believe that as the Founding Fathers expected, the States would have individually abolished slavery within the next decade or two.  Of course that is speculation, and reality dictates that rather than abolition happening through State Sovereignty, it occurred as the result of the senseless slaughter of over 600,000 lives, and the ratification of the 13th Amendment to the Constitution.

Professor Seidman argues that constitutional disobedience is natural, and in fact the founders themselves followed such a rebellious path when they disregarded the requirement by the Articles of Confederation that changes be unanimous.  The founders abandoned the Articles, wrote a new Constitution, and only required ratification to be by nine of the thirteen States.

All of this is true.  The Articles of Confederation was weak, and it was actually placing the country in a very dangerous, unprotected, position.  The requirement of unanimous ratification was also unrealistic.  Talk about a government not getting anything done.  So, the Founding Fathers created a whole new government with the Constitution - a larger, stronger, more centralized system.  Twelve of the Thirteen States had delegates representing them that signed the Constitution, and eventually all thirteen States ratified the Constitution.  So regardless of the nine State minimum ratification requirement, it wound up eventually being unanimous, after all.

As for the ratification being by conventions, rather than through the State legislatures, this was to ensure We The People had a part in it. You would think Professor Seidman would be approving of that.

The good professor then cites the unconstitutional Alien and Sedition Acts, signed by John Adams, as more proof of unconstitutional behavior by the founders.

John Adams was a Federalist Party member, and the federalists supported a bigger government than the Constitution offered (so you would think the liberals of today would love those guys).  Their attempt to stomp all over the Bill of Rights with that law was no surprise.  After the Adams presidency came to an end, so did the law, and another sedition act never saw the light of day again, until another big government president decided it was a good idea.  This time it was during the early nineteen-hundreds, under progressive champion Woodrow Wilson.

Professor Seidman's next citation of unconstitutional action by a founder zeroes in on Thomas Jefferson, and since Jefferson was an ardent supporter of the Constitution, the good professor bringing up Jefferson's purchase of the Louisiana Territory, and claiming it exceeded his constitutional powers, is supposed to be a "gotchya" moment.

Sorry, professor, you couldn't be more wrong.  The Louisiana Purchase was not unconstitutional.  First of all, the money was properly appropriated through Congress, so Jefferson did not just spend the money without a bill going through the House of Representatives, first.  Second, the terms of the sale were negotiated by treaty, and as Article VI. of the Constitution indicates, "all treaties" are the supreme law of the land, just as is the Constitution, and all laws made in pursuance thereof.

Then Professor Siedman, in his ignorant article, returned to slavery.  He states that "abolitionists conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored."

The Constitution did not protect slavery.  The Constitution protected States' Rights, which included their right to be a slave state if they so chose.  In fact, the Fugitive Slave Act of 1850 was written to reinforce a clause in Article IV., Section 2 that considered slaves to be property, and demanded that slaves be returned to their property owners if they escaped into the northern States.

I am not defending slavery, I am simply explaining the reality of the times.  Remember, the Founding Fathers did not want the federal government dictating to States what they can and can't do.  State Sovereignty was to be protected.  This placed them in a very unenviable position when it came to slavery.  In fact, many of the compromises made that today's liberal-left like to use as proof the founders loved slavery were actually nothing more than actions of compromise taken to ensure the Southern States ratified the Constitution, for without their willingness to ratify the Constitution, the weak and dangerous government under the Articles of Confederation would remain in place.  To use a cliche, The law was the law.  As a nation operating under the rule of law, the law needed to be followed. If the law was unjust, as slavery was, then the nation had to come to a point where the law was changed.  And, eventually, we did.  Unfortunately, it took a War Between the States to do it.

That is the reality of history.  The Constitution has been changed, and we have grown because of it.  That process was a part of our growing character as a nation.  We survived difficult storms, and as a nation grew as a result of it.  That is one of the things that makes this nation so great.  Our past inequities did not destroy us, but were eventually resolved, and then from that we strengthened as a nation.

Abraham Lincoln acted unconstitutionally throughout his presidency. One can argue it was necessary, while another can argue it wasn't.  We will never know the answer to the debate because history turned out as it did, regardless of the "should ofs" and "could ofs."  Reality is reality.

I do want to address Professor Seidman's mention of the Emancipation Proclamation, however.  In this part of his article, the professor actually nailed it on the head.  He wrote: "He justified it (freeing the slaves) as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)"

Correct, professor.  Maybe there's hope in that old dome of yours, yet.

We have to remember that the Civil War was about States' Rights.  Sure, slavery was an ingredient of the conflict, but not the central issue.  The Southern States began seceding because they felt outnumbered and overpowered by northern States, and a federal government, that refused to act in accordance to the Constitution as it was at that moment because they felt it to be unjust.  So, the secession happened, and the war broke out.

Europe, content trading with the Southern States, whether they were a part of the union, or not, supported the Confederacy, largely by keeping the union's navy away from the waters along the Confederacy's coast.  Abraham Lincoln reasoned that he had to find a way to get the European countries' navies out of the area.  He decided the best way to do this was to infuriate the citizens of those European nations.  Slavery had long since been abolished in the Old World, and if Lincoln made slavery the central issue of the War Between the States, he believed the outcry in Europe would be so great that it would convince the European leaders to pull out of America's civil war.  The Emancipation Proclamation did not technically free the slaves. It was only a proclamation. It did, however, make the war's central issue all about slavery, and with that the nations of Europe pulled out of the area as criticism back in the Old World reached a crescendo.  Then, once the European navies were gone, The North proceeded to hit Confederate ports, and invaded New Orleans.  Once the Confederacy was fighting two fronts, victory by The Union was imminent.

Later, during reconstruction, the federal government had the Southern States under the control of military governors, and it was under this occupation that the Southern States ratified the 13th, 14th, and 15th Amendments, ending slavery forever in the United States.  The States in the south did not have proper representation at the time, and were under duress and occupation.  However, their ratification of those amendments was accepted at the time.

Again, that is just a reality of history, and not an argument that there is something wrong with the Constitution.  If anything, it reveals that something was wrong with the people involved, and if the Constitution had been followed, there might have been a smoother outcome. . . or maybe not.  History doesn't allow us to view what the alternative would be like, so reality wins out, every time.

Professor Seidman then turns to President Franklin Delano Roosevelt, a liberal progressive so far to the left that I would have no problem also calling FDR a Marxist.  He did, as the professor points out, extend federal power beyond anything the framers imagined, and threatened the Supreme Court when it stood in the way of his New Deal legislation.  This is not evidence that the Constitution is a problem, but that FDR was.

Next, the good professor throws into the mix 1954's Brown v. Board of Education, as any good liberal would.  He quoted Justice Robert H. Jackson's opinion that indicated he was "voting for it as a moral and political necessity although he thought it had no basis in the Constitution."

I do not support judicial review, because the States are supposed to be the final arbiters of the Constitution. However, the opinion Professor Seidman uses by Justice Jackson to prove his point is actually not a good one, and here's why:

First, let's understand that the Brown v. Board of Education ruling was a United States Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students unconstitutional.  The arguments could go on for years on this, but I will try to give it to you in a concise manner.  Technically, the federal government has no authority over schools, they are a State issue.  This is why Justice Jackson, and a whole slew of other folks, claim the ruling was unconstitutional.  In reality, the court may have got it right (though, I must remind you, the court's power of judicial review is unconstitutional - but we'll save that for a debate on a different day).  The 14th Amendment, after all, was written specifically to ensure that the emancipated slaves, and their children, enjoyed an equal protection under the laws.  Therefore, State laws establishing separate public schools for black and white students were indeed unconstitutional if one was to use the Equal Protection of the Laws clause.  The court, I believe, got that one right.

Then again, even a broken clock is right twice a day.

Understand, that though State laws were required to ensure all races enjoyed equal protection of the laws, if neighborhoods naturally separated ethnically, the laws could not be used to force them to integrate.  In that regard, the practice of "busing" was not in line with the intent of the 14th Amendment.

Professor Seidman then goes on to bring up Miranda v. Arizona (which in many ways supported a number of amendments, including the 5th and 6th Amendments), Roe v. Wade (which was about as unconstitutional as you can get - abortion is a State issue, yet the courts overturned a State law regarding that issue), Romer v. Evans (gay rights case which is an issue I believe to be outside federal purview), and Bush v. Gore (where the federal and State courts both had no business being involved in, for according to the Constitution the duty of the manner of elections belongs to the State legislatures).

 

So, the professor has shown us, or at least tried to show us, that sometimes politicians and judges ignore the Constitution.  Does that make the Constitution something that should be given up on?  Of course not.  That simply means that there are people out there willing to ignore it.  Rather than turn the other way, we ought to demand those people be removed from their political, or judicial position, and be replaced with people willing to abide by the Constitution.  In other words, that is not a shortcoming of the Constitution, but of the people of the United States and their lack of defending the document.

A history of disobedience does not mean the Constitution is irrelevant.  A history of disobedience means that the nature of humanity is to refuse to abide by the rule of law.

No wonder we are in such a - how did the professor put it? - position that we are "teetering on the edge of fiscal chaos" and dealing with an "American system of government that is broken."  Professor Seidman, we are in such a precarious position not because we need to give up on the Constitution, but because the folks in Washington, and people like you, have given up on the Constitution.

As a result of our unwillingness to follow the Constitution our nation is becoming some sort of liberal dystopia that seems to completely disregard the rule of law.  Our unwillingness to follow the Constitution has led to our chaos, and move towards totalitarianism.  Our growth and prosperity has happened because we are a Constitutional Republic, often despite the attempts by characters in history to be disobedient of the Constitution.

Even you, Professor, admit in your New York Times article that we should not "disobey all constitutional commands."  You claim you believe in the freedom of speech and religion, equal protection of the laws, and that you believe the protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution.

Then why are you silent when free speech is quelled by hate-crime laws, or when Obama's health care law stomps all over religious freedom by requiring religious-connected institutions to provide free contraception through their insurance, whether they like it or not?  If you believe in equal protection of the laws then why are you silent when a group is currently being singled out and punished for daring to be successful?  I refer, by the way, to the push to "tax the rich."  How about the calls for gun control legislation?  Isn't my right to protect my life, liberty and property with the right to keep and bear arms important to you?  Or do you approve of the government's desire to outlaw individual possession of my private property, and then confiscating it, along with the ammunition?

Professor Seidman, you claim that without the Constitution the President would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief.  Yet, that authority of bills regarding revenue originating in the House of Representatives, which you complained about early on in your article, gives the people the ability, through their representatives, to defund such a military action if they disagree with it, whether the President claims he has the right to wage that war, or not.  No money, no war.

Professor, you claim that without the Constitution, Congress's power of the purse would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine.  But if they are unwilling to be obedient to the rule of law as set forth by the Constitution, what makes you think that these politicians will be willing to be reasonable in regards to contemporary policy grounds?  The constitutional doctrine you seem to abhor is among the final checks against a policy of runaway federal spending.  If we get back to the Constitution, and if the federal government only spent based on Constitutional Authority, there would be no "edge of fiscal chaos."  Again, the problem with federal spending is not the Constitution, but our unwillingness to follow the principles of the Constitution.

Professor Seidman, you claim without the Constitution The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.  In reality, same-sex intimacy has nothing to do with the Constitution. The argument is not over whether these people can be intimate with each other, but whether or not they should be able to force the religious community to change their definition of marriage, and whether or not the States should be able to determine how these laws are applied.  As for affirmative action, doesn't the 14th Amendment call for equal protection of the laws?  Affirmative action gives minorities an advantage under the law, making the protection of the laws unequal when it comes to whites.  Isn't that outside the whole idea of being created equal?

Our social fabric unraveling if we don't follow the Constitution is not superstition, because it is happening.  You said it yourself, Sir.  We are on the edge of fiscal chaos, and according to you our government system is broken - and you also told us that disobedience of the Constitution fills history, and seems to be more prevalent in today's society.  Isn't that evidence enough that we are feeling the pinch because of our constitutional infidelity?

As any good liberal, Professor, you turned your attention in your article to Europe.  You wrote that, "Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources."

But, aren't those countries in a worse financial crisis than us?  Aren't they suffering from societies with less freedoms than us?  Isn't the disaster of Greece's economy, Spain's economy, Portugal's economy, Italy's economy, and the list goes on, enough to convince you that their system works horribly?  And if they are worse off than us, and we have the Constitution, could it be that we are not as bad off as them "because" we have not given up on our Constitution?

What has preserved our political stability is individuality, not only of people, but of the States - through State Sovereignty, which the Constitution is designed to protect.  Holding on to Constitutional obligation, no matter how weak the grip may be, is what has kept this nation ahead of the curve.  A firmer hold on the Constitution can pull us away from the edge of fiscal chaos, and a broken government.

I do agree with you, on a point you make late in your article.  Professor, you wrote that we have a "constitutional-law addiction."  You are right, and that is one habit we need to kick.  As long as we let justices decide what the Constitution says, rather than follow what it actually says, based on original intent, we will continue to swim in seas of difficulty.

We need to acknowledge what is obvious.  The language of the Constitution is not what judges say, but what the text says, and the United States of America became the greatest nation on the face of this Earth because of the institutions, and limiting principles, granted to us by the Constitution.  The problem is not the Constitution, but the refusal to recognize what it established, and the limited authorities granted to the federal government.  The Constitution protects State Sovereignty because individualism is a powerful thing.  As individual people the sky's the limit, and as individual States innovation is only the start.

We the People means that we self-govern; a concept Europe did not think was possible, and a concept that Europe believed would destroy us.  We threw off the shackles of a ruling elite to enable local issues to be handled locally, and for the federal government to not micro-manage our lives, but to only handle the issues regarding the union.  Giving up on the Constitution is to give up on our heritage of self-government, and to allow a big, overbearing federal government control every move we make.  Is that freedom?

Liberty doesn't go out of style.  Freedom is not some archaic concept.  The Constitution protects those concepts.  The Constitution protects us from the bondage of a powerful centralized system, but the Constitution is merely ink and paper if we don't defend it, and if we are not willing to follow it.

Real freedom comes with the opportunity to choose.  Without the Constitution, choice becomes something we will tell our grandchildren about that existed long ago, before the federal government, and people like Professor Seidman, decided to give up on the Constitution.

-- Political Pistachio Conservative News and Commentary