Should the Constitution Be Scrapped?

In a new book, Louis Michael Seidman claims that arguing about the constitutionality of laws and reforms is the cause of our harsh political discourse

  • By Amy Crawford
  • Smithsonian.com, February 05, 2013, Subscribe
 
Constitution of the United States
Constitution of the United States (© Tetra Images / Corbis)

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On Constitutional Disobedience

by Louis Michael Seidman

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When James Madison and his fellow statesmen drafted the Constitution, they created our system of government, with its checks, balances and sometimes awkward compromises. The laws of the United States are based on this document, along with the Bill of Rights, and for more than 200 years, Americans have held it sacred.

But Georgetown law professor Louis Michael Seidman says that adherence to the Constitution is both misguided and long out of date. In his incendiary new book, On Constitutional Disobedience, the scholar who clerked for Supreme Court Justice Thurgood Marshall argues that giving up on the Constitution would improve American political discourse and government, freeing us from what he describes as an “intergenerational power grab” by the Founding Fathers.

Why would we stop obeying the Constitution?

This is about taking the country back for ourselves. There’s no reason to let folks who have been dead for 200 years tell us what kind of country we should have. The United States that the Founding Fathers knew was a very small country huddled along the Eastern seaboard. It was largely rural; large parts of it were dependent on slave labor, and there was nothing like modern manufacturing or communication. Many of the most important drafters of the Constitution, including Madison, owned other human beings. Virtually all of them thought that women should have no role in public affairs. I don’t mean to say that they were not farsighted for their time, but their time is not our time.

Are there certain parts of the Constitution you find most onerous?

One example hits home for me—I live in the District of Columbia, and the Constitution provides that the District of Columbia will be ruled by Congress, with the residents having no right to choose who’s going to be in Congress. That might have been okay in the 18th century, but it’s not anything any American would endorse in the 21st century. Another problem is the method we have for electing a president. It’s not an arrangement that anyone would set up today, but we’re more or less stuck with it. The electoral college is free to vote for whomever it wants—they could vote for Beyoncé for president if they wanted to.

If Beyoncé were 35 years old, as the Constitution requires the president to be.

That’s right. Maybe she is, I don’t know. [She isn’t. Knowles will turn 32 this year]

A lot of people would agree with you on those points. But instead of scrapping the Constitution, couldn’t we just amend it, so it’s better in tune with modern circumstances?

One really unfortunate thing in the Constitution is Article V, which governs the ways in which the Constitution is amended. As a practical matter, it’s impossible to amend. The Constitution requires a very strong supermajority; an entrenched minority can prevent it from happening. And just as with the rest of the Constitution, there’s no reason why people who are alive today should be saddled with amendment provisions that are no longer wise and practical.

What if we did as the founders did and simply wrote a new constitution from scratch?

I’m against people who are long dead telling us what kind of country to have, but I’m also against us telling people who aren’t alive yet what kind of country to have. Starting over and writing a new constitution is an invitation to entrench our views against the views of future generations, and I don’t think we have a right to do that.

Couldn’t giving up on constitutional obedience lead to tyranny or chaos?

I think that’s extremely unlikely. We all have an interest in not having tyranny and chaos, and it is that interest, and our willingness to stand up for it, that ultimately prevents that from happening. The Constitution is a piece of paper. What prevents tyranny and chaos is not a piece of paper, but a willingness of all of us to realize that we’re all in this together, that freedom is better than tyranny and order is better than chaos. There are lots of countries that get by just fine without constitutions. Last time I looked, there wasn’t tyranny and chaos in New Zealand or the United Kingdom.

What would we gain by giving up constitutional obligations?

It would improve deliberation and rhetoric about issues that divide us—gun control, for example. Now, to the horror of most of my friends, I am actually quite skeptical about gun control. But that’s a subject on which reasonable people can disagree. But what happens when you start thinking about constitutional obligations? All of the sudden the argument is not, “How are you going to enforce this? Would it actually prevent violence? Would it cause more violence?” The argument is about, “What exactly did the word ‘militia’ mean 200 years ago? What is the relationship between the ‘bear arms’ clause in the English Bill of Rights and the American Bill of Rights?”

Those are questions that historians ought to have some interest in, but they’re completely irrelevant to the issue of gun control in 21st century America. Without enlightening us, arguments of constitutionalism unnecessarily divide us. Now, all of the sudden, instead of talking about a policy decision that reasonable people could disagree about, we’re talking about whether one’s opponent is really an American, whether they are violating the document that defines us and creates us as a nation.

Is there historical precedent for constitutional disobedience?


When James Madison and his fellow statesmen drafted the Constitution, they created our system of government, with its checks, balances and sometimes awkward compromises. The laws of the United States are based on this document, along with the Bill of Rights, and for more than 200 years, Americans have held it sacred.

But Georgetown law professor Louis Michael Seidman says that adherence to the Constitution is both misguided and long out of date. In his incendiary new book, On Constitutional Disobedience, the scholar who clerked for Supreme Court Justice Thurgood Marshall argues that giving up on the Constitution would improve American political discourse and government, freeing us from what he describes as an “intergenerational power grab” by the Founding Fathers.

Why would we stop obeying the Constitution?

This is about taking the country back for ourselves. There’s no reason to let folks who have been dead for 200 years tell us what kind of country we should have. The United States that the Founding Fathers knew was a very small country huddled along the Eastern seaboard. It was largely rural; large parts of it were dependent on slave labor, and there was nothing like modern manufacturing or communication. Many of the most important drafters of the Constitution, including Madison, owned other human beings. Virtually all of them thought that women should have no role in public affairs. I don’t mean to say that they were not farsighted for their time, but their time is not our time.

Are there certain parts of the Constitution you find most onerous?

One example hits home for me—I live in the District of Columbia, and the Constitution provides that the District of Columbia will be ruled by Congress, with the residents having no right to choose who’s going to be in Congress. That might have been okay in the 18th century, but it’s not anything any American would endorse in the 21st century. Another problem is the method we have for electing a president. It’s not an arrangement that anyone would set up today, but we’re more or less stuck with it. The electoral college is free to vote for whomever it wants—they could vote for Beyoncé for president if they wanted to.

If Beyoncé were 35 years old, as the Constitution requires the president to be.

That’s right. Maybe she is, I don’t know. [She isn’t. Knowles will turn 32 this year]

A lot of people would agree with you on those points. But instead of scrapping the Constitution, couldn’t we just amend it, so it’s better in tune with modern circumstances?

One really unfortunate thing in the Constitution is Article V, which governs the ways in which the Constitution is amended. As a practical matter, it’s impossible to amend. The Constitution requires a very strong supermajority; an entrenched minority can prevent it from happening. And just as with the rest of the Constitution, there’s no reason why people who are alive today should be saddled with amendment provisions that are no longer wise and practical.

What if we did as the founders did and simply wrote a new constitution from scratch?

I’m against people who are long dead telling us what kind of country to have, but I’m also against us telling people who aren’t alive yet what kind of country to have. Starting over and writing a new constitution is an invitation to entrench our views against the views of future generations, and I don’t think we have a right to do that.

Couldn’t giving up on constitutional obedience lead to tyranny or chaos?

I think that’s extremely unlikely. We all have an interest in not having tyranny and chaos, and it is that interest, and our willingness to stand up for it, that ultimately prevents that from happening. The Constitution is a piece of paper. What prevents tyranny and chaos is not a piece of paper, but a willingness of all of us to realize that we’re all in this together, that freedom is better than tyranny and order is better than chaos. There are lots of countries that get by just fine without constitutions. Last time I looked, there wasn’t tyranny and chaos in New Zealand or the United Kingdom.

What would we gain by giving up constitutional obligations?

It would improve deliberation and rhetoric about issues that divide us—gun control, for example. Now, to the horror of most of my friends, I am actually quite skeptical about gun control. But that’s a subject on which reasonable people can disagree. But what happens when you start thinking about constitutional obligations? All of the sudden the argument is not, “How are you going to enforce this? Would it actually prevent violence? Would it cause more violence?” The argument is about, “What exactly did the word ‘militia’ mean 200 years ago? What is the relationship between the ‘bear arms’ clause in the English Bill of Rights and the American Bill of Rights?”

Those are questions that historians ought to have some interest in, but they’re completely irrelevant to the issue of gun control in 21st century America. Without enlightening us, arguments of constitutionalism unnecessarily divide us. Now, all of the sudden, instead of talking about a policy decision that reasonable people could disagree about, we’re talking about whether one’s opponent is really an American, whether they are violating the document that defines us and creates us as a nation.

Is there historical precedent for constitutional disobedience?

My view sounds really radical, but most of our greatest presidents had a lot of skepticism about the Constitution. No one had more doubts than Thomas Jefferson. Throughout his life, he expressed real doubt about allowing one generation to rule another. He said at one point that it was like allowing a foreign country to rule us. He proposed that constitutions automatically expire after a single generation. The most consequential act of his presidency, the Louisiana Purchase, was in his own view unconstitutional. But he also thought that it was the right thing to do, and so he went ahead and did it, and we’re better off for it. 

The Emancipation Proclamation, that we’re celebrating the 150th anniversary of now, was a massive constitutional violation. Virtually nobody in the 1860s thought that the federal government had the ability to interfere with slavery in states where it already existed. Franklin Roosevelt purported to believe in the Constitution, but the Constitution he believed in was a vague statement of aspirations, not a lawyer’s document that would be enforced in all its detail. There’s no doubt that in part because of that belief he did things that were outside the constitutional understanding at the time he did them. Teddy Roosevelt ran against constitutional obligation in his famous Bull Moose campaign. We have a long tradition of skepticism about the Constitution, questioning it, fighting against its yoke. This is as American as apple pie.

You also say that the circumstances surrounding the framing of the Constitution argue for disobeying it. Can you explain?

When the framers went to Philadelphia in 1787, the call from the Congress was to amend the Articles of Confederation [the governing document adopted in 1783 upon the end of the Revolutionary War.] As soon as they got to Philadelphia, they immediately decided they were not going to follow their mandate and were not going to follow the Articles of Confederation. Instead, they threw out the Articles, and they wrote an entirely new document, in violation of the terms of the Articles. The Constitution itself was pretty clearly an illegal document—it was itself unconstitutional. I’m not saying that we should go back to the Articles of Confederation, but it is more than a little ironic that we are so insistent on obeying the Constitution when the people who wrote the Constitution itself were ready to disobey the constitution that was in effect at the time. 

Why now? Is this the historical moment for this idea?

We’re at a moment when people are more willing to really think seriously about constitutional obligation. There’s an unstable situation right now in the United States. On the one hand, people express this deep commitment to obeying the Constitution. And yet on the other hand, both conservatives and liberals are using the Constitution for political purposes. We have this amazing coincidence that on the Supreme Court, justices appointed by Democrats read the Constitution as if it were written by the Democratic platform committee, and justices appointed by Republican presidents read the Constitution as if it were written by the Republican platform committee. And then each side accuses the other of constitutional violation. 

How would our government function without the Constitution?

If we didn’t have a constitution, that would not mean that we didn’t have longstanding institutions, and settled ways of dealing with things. Not having a constitution does not mean not having a Senate and a House, presidents, states, even a Supreme Court. All of those things we’ve had for a very long time, and I don’t think people would want that to change.

Aren’t the roles of the President, the Senate and the House prescribed in the Constitution? How would the separation of powers be detailed? Are you arguing that the process should just be self-policing, without any underlying rules or regulations?

It’s not at all clear that as things stand now constitutional obedience is what is enforcing separation of powers. Many separation of powers questions—especially with regard to foreign affairs—are not judicially enforceable. What prevents one branch or another from overreaching—to the extent that they haven’t overreached—is political forces, not constitutional obedience. So, for example, when the Reagan Administration unilaterally armed the Contras, Congress stopped the program not by going to court to enforce the Constitution, but by holding public hearings, attaching riders to appropriation bills, etc. In any event, it is very unlikely that our current divisions of power would be changed dramatically and quickly if there were no constitutional obligation. We have long traditions in this country and are used to certain ways of doing things, and people have vested interests in the status quo. These forces would constrain sudden change in much the way that they do in New Zealand, the United Kingdom and Israel, where the structure of government is not enforced by a constitutional document, but nonetheless is relatively stable.

How would we determine which laws or government actions are appropriate or inappropriate? Would we still have judicial review?  

I certainly understand the argument that we don’t want a pure democracy, and there is something to be said for an elite body that is separated from day-to-day politics, pronouncing on questions of political morality. But if we look at the most important Supreme Court decisions over the last century or so—things like Brown v. Board of Education, Roe v. Wade and Lawrence v. Texas, which established the right to gay intimacy—those are not, in any meaningful sense, tethered to the constitution. They are judgments by the justices about our traditions, about prior precedent, about their own sense of political justice. That might be a good thing, it might be a bad thing—I think that is something for the American people to decide. There is one thing that would change, and that is people would not be able to stop an argument by saying, “But that is unconstitutional.”

What would judicial review be based on, without the Constitution?

It would be based on our values. I take no position on judicial review in this book. What I do think is that if we are going to have judicial review, judges have an obligation to be honest with us about what they are doing. As things stand now, they are not being honest. Important decisions rendered by the Supreme Court on issues like abortion, the rights of gay men and lesbians, and affirmative action, have virtually nothing to do with the Constitution. Instead, they reflect contestable value judgments made by the justices. It’s important to emphasize that this is not something I’m proposing—this is how things are now. Maybe it’s a good idea to have an elite body, somewhat insulated from political majorities, making judgments of political morality that bind the political branches. But people need to decide on that question without being confused by the pretense that the justices are only enforcing the Constitution. One of the virtues of my proposal is that it would force the Supreme Court to be more honest about what it’s actually doing.

How would our rights to, say, free speech, be protected without the Bill of Rights?

Freedom of speech and the press are important rights that we ought to protect. In the long run, though, if we’re going to have freedom of speech, we’re not going to have it because people are told, “Your betters said this was something you’ve got to have.” The people who favor it have got to do the hard work of telling their fellow citizens why this is something we should cherish and why it’s important to all of us. One of the problems with constitutional obligation is if people start depending on it, they get lazy, and they stop making arguments that make sense to people today.

If we don’t have to obey the Constitution, does it still have value? What should its place be?

The Constitution, in the great words of its preamble, speaks of “we the people,” of forming “a more perfect union” and providing “for the common defense” and “general welfare.” Those are things that anybody could favor. To the extent that we treat the Constitution as kind of a poem that inspires us, or even as a framework that allows us to debate how we should achieve these things, I don’t have a problem with that. Poems inspire us, but they don’t command obedience, and I don’t think the Constitution should either.


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Comments (43)

I would like Louis Michael Seidman to name one president in the last 100 years that has actually had a "deep commitment to obey the Constitution". Once in office, they find they are restricted by the constitution from doing as they please (while in public at least) and suddenly refer to it as "from the horse and buggy days" (FDR), "Just a dam piece of paper" (GWB), or a "hindrance" (BHO).

Posted by Mark on April 21,2013 | 01:07 AM

Problem with the Constitution? MOVE TO A COUNTRY W?OUT IT!!

Posted by warren on April 1,2013 | 12:28 PM

The consolidation of all supercedent U.S. Supreme Court decisions, supercedent Presidential policies, and all supercedent Amendments, into a new, re-clarified Federal Constitution, which also automatically includes all races of Americans as being fully human, full American citizens. All vague Amendments would be re-placed and re-clarified, while the remaining Amendments from 1791 would be transferred into the new Federal Bill Attainder of Guaranteed Rights.

Posted by Jon on March 28,2013 | 03:09 PM

This person questions to continue doing something we've always done, the process by which we "progress." However, he displays an abysmal understanding of why it was/is done. Imagine a ball game with no rules that both sides must obey? "Might" would make "right." It is a system which protects the powerless from hostile actions of the powerful (majority vote, or in positions of legal power)taken in the heat of the moment or from ideological beliefs. Had Germany stuck with their system of government instead of discarding it so the Nazis could save the nation from terrorists...Well, you get the idea. There will be a day we will rue the Patriot Act, much as we rue the Red Scare tactics of an earlier time. The Constitution is the speed bump in the road to annihilation of the minority.

Posted by Tom Bennett on March 24,2013 | 02:04 PM

We should scrap the Constitution, but not for the reasons cited in this article. In the words of Lysander Spooner, "But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist." The only way to truly avoid chaos and tyranny is to abolish all governments, and the Constitution stands in the way of this goal.

Posted by Matthew on March 21,2013 | 12:31 PM

I feel the Constitution is our backbone. No one should change the laws of the land. Maybe update, NEVER eliminate.

Posted by Christopher E Brown on March 3,2013 | 10:17 PM

I don't find anything exceptional about a Constitution that did not prevent the deplorable conditions that we live in today. We brag about being an economic powerhouse but people are poorer than ever. We boast of being a multi cultural nation but can't find a way to get health insurance to poor white males who have none of the benefits of Affirmative Action, the NAACP, The Civil Rights Act or other programs for minorities. We have a military that is second to none but refuses to hear the cries of dying children in Afghanistan, Iraq and Palestine. The English and German's were only thinking of themselves. The Constitution offered little hope to eastern and southern Europeans who were white slaves in the late 1800's. Why did these whites not have any comfort in the Constitution? Because it could be easily manipulated as the author has said. I find nothing exceptional about it.

Posted by Cecilia Sherwin on February 18,2013 | 02:20 PM

The Constitution is the only thing that protects the people from the Federal government. Without it citizens will no longer be limited by the 2nd amendment.

Posted by Henri Smithson on February 16,2013 | 04:48 PM

At this time,Im not going to jump into the philosophical basis for the Constitution, or the medium of paper in delegating power (which is why some founders opposed the constitution). Just consider that other than San Marino, The U.S. Constitution is the longest surviving document of its kind in the world. Consider that no other nation in time has grown to such incredible lengths at such a pace within the length of one document. But, I suppose I'm getting sentimental. I argue that the growing irrelevence of the Constitution is the true devil in our political mess. Politicians, against the aim of the Constitution, are now managers of the masses, rather then defenders of liberty. As a people,we have traded fundementals with responsibilty, for bureaucracy with promises. This out-dated Constitution is inconvenient for this trend, and so we see ignorance like the piece above.

Posted by james sample on February 15,2013 | 04:02 PM

At this time,Im not going to jump into the philosophical basis for the Constitution, or the medium of paper in delegating power (which is why some founders opposed the constitution). Just consider that other than San Marino, The U.S. Constitution is the longest surviving document of its kind in the world. Consider that no other nation in time has grown to such incredible lengths at such a pace within the length of one document. But, I suppose I'm getting sentimental. I argue that the growing irrelevence of the Constitution is the true devil in our political mess. Politicians, against the aim of the Constitution, are now managers of the masses, rather then defenders of liberty. As a people,we have traded fundementals with responsibilty, for bureaucracy with promises. This out-dated Constitution is inconvenient for this trend, and so we see ignorance like the piece above.

Posted by james sample on February 15,2013 | 04:02 PM

This is just one more reason why I have become skeptical of any speeches or writings from "Ivy League Professors and lawyers". This man has been given a professorship without any in depth understanding of the US Constitution, especially considering the separation of powers and checks and balances, and historical basis of our constitution. I would recommend that he study the philosophers of ancient times to understand other types of governments and their frailties. He should also understand that one of the big causes of discord is not the Constitution but the decay of the US citizens moral fiber. As morals, honor, and virtue of our citizens have declined, so has our government declined. The fix is for the citizens to return to family values, faith based communities, and virtuous living, not to discard the US Constitution.

Posted by Ronda Ammon on February 12,2013 | 10:52 PM

So in essence he is arguing to remove the framework (the Constitution) and the "institutions" (House, Senate, etc.) will still stand. How does any structure stand without a foundation? One good challenge, and the government would be in chaos. Personally, I think the framework is solid, but maybe the building could use some refurbishment...

Posted by AMM on February 12,2013 | 08:00 PM

I think he should review his history. Without the Constitunsion the Leader no matter what he was called could disband Congress, remove Congress, serve as long as he chooses and remove elections and become a dictator.This is the attitude of a Liberal.What we need is to get our noses out of other Countries business and get a much smaller Government and get welfare under control. Welfare should go to those that can prove they need it. Others no work, no welfare from the Government.

Posted by f.w.l. on February 12,2013 | 05:44 PM

IF we did completely destroy the Constitution, we would lose the strong base that has supported america for 236 years! These "dead guys" are the greatest men that have ever lived in America. If we destroy the Constitution then we are no better than Cuba.

Posted by Andrew Ratchford on February 12,2013 | 09:20 AM

If you don't like the something in the Constitution, amend it. Since congress is dysfunctional it would be better to change the politicians. This is just the kind of discussion countries opposing our way of life must love.

Posted by Albert Mignone on February 11,2013 | 09:37 PM

Cleary this is someone who needs to leave this country. If he agrees with how other countries are run, then he now has a choice as to where he can go. Please leave sir. We do not need this type of thinking here. God Bless the USA.

Posted by B B on February 11,2013 | 10:28 AM

The thesis here is silly. Our Constitution was very cleverly constructed to limit the power of Government to overrule the desires of its citizens. The document CAN be amended as needed, so long as a supermajority approve of the change - that keeps a lot of garbage out of it. Only once has an amendment been overturned - that being prohibition, and hence the supermajority needed to amend has proved its utility over the past 250 years. Other peoples in the world wish they had one - think of the Scots - and yet no other governing document has proven so long-lived. Didn't we fight a civil war to preserver it, as well as to define blacks, women and natives as people also deserving of its protections?

Posted by Robert Black on February 11,2013 | 10:06 AM

The founders never anticipated that corporations would become more powerful than states. They never saw it coming that that American corporations would fight the American people in a cold-war for control of the legislation. They never saw how their Constitutional Federated Democratic Republic would be easy pickens for a hostile corporate take over and become a Corpocracy parading around all patriotic like in Democracy's clothes, serving the false god "Dollah The Almighty" and his obscene profits.. Where corporations became perpetual entities "free and at liberty" to do any thing they want in the name of profit, including making enemies and instigating highly profitable wars. Where corporations would control resources and services that were vital to human survival,, the Constitution is Dysfunctional, and has allowed and created a legacy of laws and entanglements which are not in the best and vital interests of the people. The US Constitution has no department of conscience with preemptive veto power over all that government does that maintains a sworn list of values, ethics, principles and virtues. Our US Constitution was written in the time of pony express technology. today we live in the age of instantaneous telecommunication, packet switching global networks, the cloud, social networks, and a rising global mind and awareness. Direct Digital Democracy... is coming and will prevail. And the first countries to implement it will prosper beyond imagination.

Posted by iam he on February 11,2013 | 05:40 AM

Sounds like Obama's looking for a third term already! He has now infiltrated Smithsonian with his Army of Chicago racketeers.God bless America. JW

Posted by Johnw on February 11,2013 | 04:04 AM

I appreciate that people want to keep our country up with the times...Thats good. America has always been a land of ingenuity and creativity. But if we scrap the Constitution. We are scrapping the ideals that this country was founded on. It won't improve anything. Just make way for tyranny. Anyone who supports scrapping of the Constitution is either a Tyrant, Traitor or a mindless zombie. The fact that a reputable insitution such as the Smithsonian would put this garbage on the internet repulses me. The Constitution protects us if we let it. It always has. Why would we scrap it???

Posted by Al on February 10,2013 | 02:44 AM

Smithsonian Magazine gets more liberal with each issue. Articles like this that undermine our nation and make me question whether I should continue my subscription in the future.

Posted by Annie O on February 10,2013 | 10:01 PM

Our freedoms rest on the constitution and the ammendments are a crucial factor in enumerating those freedoms. In my 80 years, I have fought two wars (Korea and Viet Nam) and traveled throu a great deal of the Far east and Europe. I have seen the results of what man can do with out the reglation of laws, constitutions and I am highly concerned that if we so much as tamper with one or our freedoms we will (collectively) discard all the rest. Political power will dictate the destruction of the Constitution and we will, over the years, suffer the loss of our country.

Posted by Richard Hogue on February 10,2013 | 07:09 PM

The immediate question this article bring to mind is, "And who is it who wants to scrap the protections in the Constitution against an intrusive government?" We have many elites who all know better than the people themselves, and wouldn't we all be better off if we adopted their control over us? The Constitution is the longest running constitutional show on the planet, it is that because it provides a sturdy framework under which change can occur underneath it with a constant cadence of elections. Ambitious busybodies who want to lord over us, however, may they always be thwarted by essential liberties enshrined in our Constitution.

Posted by John Z on February 10,2013 | 06:42 PM

THIS guy is a law professor? I am a Georgetown graduate, and this is another reason I don't support the university.

Posted by Steve Huete on February 10,2013 | 06:04 PM

This is scary to see such an article in the Smithsonian. I looked at the Smithsonian as something much better. We have enough left wing socialist /communists leading this country and a news media and now the Smithsonian who cannot get the truth out to America. This article from a Supreme Court clerk shows how bad our legal training is becoming, but lawyers would be out of business if they actually had to follow the constitution. It is sad to see so many legal libraries required to explain the simple law started by the constitution. Obama care is the perfect example of politician's and lawyer's work. It is lawyers and politicians (who were probably lawyers)that make something beautiful and efficient into today's legal system. Politicians are successfully trying to create their own ruling class and when they have created a large enough dependency on the government, they then can rule and demand more of those who truly do the work and build the wealth of the America. The government class lives off the work of the builders and creators. What does the government class do - nothing! I'd rather see this country fail following the constitution, responsibilities and principles rather than the lies of the current rulers of this country and the direction they are taking us. The president, Pelosi, and Reed along with RINOs seem to like irresponsibility, dictatorship, and illegality. There is no love of America when they are preaching to disobey the law, putting up signs along our boarders that it is not safe for Americans to walk in the area, and preaching to steal from others. Bring back real honest law. Bring back and uphold the Constitution. Wouldn't be nice if the Supreme court upheld the Constitution instead of making law for social purposes .

Posted by John Reynolds on February 10,2013 | 06:03 PM

I could not disagree with you more. The guiding principles of the Constitution are what guide us. I find the 2nd amendment instructive. It is one of the few amendments that states a reason for its existence and that is "A well regulated Militia, being necessary to the security of a free State" so clearly the right to bear arms must have something to do with a "well regulated militia' and I think the Constitution having those words in there requires that anyone who wants to bear arms show that their need to bear arms have a legitimate connection to "a well regulated militia." By the way when the Constitution refers to "a well regulated" militia, who is the regulator? Well, it would have to be the government. In our fight for independence Washington preferred not to rely on the militias because of their lack of training and discipline and that may be where the phrase "well regulated" comes from. A well studied student of history can discern the founders intent even in this modern era. Sure there may be things that they could not have forseen, but what they believe to be right just and fair for the period could be extrapolated for our modern times with a bit of study, understanding and plain hard work. The author seems to want to eschew such things. But our republic is worth it. In the absence of a Constitution, there will be anarchy.

Posted by Andrew on February 10,2013 | 05:12 PM

If the Constitution was ever scrapped it would only work if whatever was suggested as a replacement receives a majority vote from the public, not the elected officials who created it. Want a revolution on our hands? Try scraping the old and replacing it with the new without the public giving the final okay.

Posted by Bob E. on February 10,2013 | 03:53 PM

Without a constitution we would have no protection for any minority group. The majority could simply vote to deprive minorities of the rights of life, liberty, and the pursuit of happiness. When I was born much if not most property ( real estate) could not be purchased by Jews in California due to restrictive covenants. The state Supreme Court finally ruled these unconstitutional. Without a constitution the majority would have had to agree to give this minority the right to own property. Not a good prospect!

Posted by Diana on February 10,2013 | 03:18 PM

Wow! I don't believe the timing of this constitution article...then we have the Tesla article too! Lots of stuff left out of that article, like how the government has the death ray info spoken of in the article. Wonder what machinations are going on with all the technical theories and scientific data they most surely have found! I think we know! Guess they think we are stupid! Sad!

Posted by Roger Thunderhands Gilbert on February 10,2013 | 02:58 PM

Mr. Seidman seems to have conflicting opinions on the value of self-interest. On one hand, he claims self-interest is causing problems (Democrat Justices follow the Dem. platform, Republican Justices follow the Rep. platform). On the other hand, he claims self-interest will provide a better way to rule (people don't want chaos). I'm reminded of Madison's comment: If men were angels, no government would be necessary. I don't see any of Seidman's angels around, so I'll stick with the Constitution. Seidman does, sort of, admit direct democracy is unwise...so perhaps he's not so enamored of angels (and self-interest?) after all? The point of the Constitution is that conflict is universal. The Founders invented a way to deal with conflict. Seidman has not provided a tool to replace the Constitution, he's merely complaining that some lawyers & judges have found ways to ignore it. The problem would then seem to really be "how do we stop the end-runs around the Constitution?". I believe removal would exacerbate the chaos Seidman is concerned about. The Constitution provides the ultimate legal precedent. Without such an anchor, end-runs will become the norm, leading to chaos: Today guns are out, tomorrow guns are in, next week guns are out... now apply this in/out scenario to Every law, yikes! Mr. Seidman also seems to think old people (the Founders) have nothing to say about universal aspirations, thus they (and their documents) should not rule from the grave. I think the Founders did a pretty good job of stating what life should be like. Their Constitution did a pretty good job of providing for that desired life then...and still does now since it can be Amended. I'll take my Life, Liberty, and the Pursuit of Happiness, using the Constitution tool. Removing it to "poem" status would not make my life better.

Posted by Brooks Martin on February 10,2013 | 02:27 PM

The Constitution will never be out of date because it deals with human nature. The idea that government should be limited, that its powers be separated, that there be checks and balances, that there be private property ownership, that there be freedom of speech, religion and assembly, and all of the other provisions of this brilliant document, all came from the hard experience of tyranny and chaos resulting from governments that we not organized around these principles. As for his comment on slavery, it took the greatness of this nation, grounded in the Constitution, finally to end that horrible practice, which was a way of life that had existed for many thousands of years. The idea that it takes a supermajority to amend the document that underlies the laws affecting everyone in this nation is just plain common sense. Allowing otherwise would be to allow the concentration of power into the hands of the few. I am very disappointed that the Smithsonian would give any legitimacy to such nonsense, especially without offering a counterpoint. How about a rebuttal article, Smithsonian?

Posted by Biotechguy on February 10,2013 | 12:49 PM

Think about this: "We have long traditions in this country and are used to certain ways of doing things, and people have vested interests in the status quo." Daniel Shays was pulled out of retirement (Revolutionary officer)to help change the status quo of rural Americans being jailed for nonpayment of taxes in immediate cash needed in port cities, since their farmland could not be worked from jail, and eventually the land was confiscated. Slave ownership was a long tradition in the American south, and secession was unconstitutional, yet the American Civil War was a clash of two views of the acceptable status quo. Presently, corporations have free speech and other rights of persons, yet so far, no one is named as the designated human person for incarceration when the fictional person breaks a law; indemnification of all corporate officers protects the humans from even paying their own fines. So a tradition of corporations as super citizens may be a status quo that is not in favor with all of "we, the people."

Posted by GrayceJ on February 10,2013 | 12:17 PM

Our D.C. idiocracy pays only lipservice to the Constitution, anyway, and then only when it suits their purposes. It has become almost irrelevant to those in power, and we-the-people are the ones who have let it become so.

Posted by ChuckB on February 10,2013 | 11:42 AM

Does the "learned" professor also suggest that we scrap the 10 Commandments because they were written too long ago to be relevant? Does he believe that a compass is unnecessary baggage when navigating the morass of running a nation, that seat-of-the-pants generalizations by a elite group of "officials" is a satisfactory substitute? Our current herd of "representatives" in Washington do not present a compelling case for insightful legislation. Unless the good "professor" can somehow get the gods to come do from the mountains to provide guidance, I prefer the wisdom of ancient people who paid the price in coin and blood without the influence of lobbyists and special interests.

Posted by Rycsailor on February 10,2013 | 11:42 AM

i remember why i dont have anything to do with this liberal outfit.

Posted by Jim Petik on February 10,2013 | 10:41 AM

Bee is basically correct, and without something like the Constitution, this country would devolve into something like Nazi Germany very quickly. It is already well on its way, even with the Constitution, which our "leaders" ignore to whatever degree they can get away with whenever possible. The Department of "Homeland Security", for example, is nothing but a would-be Gestapo, and it will increase its powers on the least excuse it can get away with. We aren't that far from concentration camps and furnaces for those deemed to be "enemies of the state".

Posted by ChuckB on February 10,2013 | 10:26 AM

Sir or Madam, The author proposes treason. I and many others swore to uphold and defend the Constitution against all enemies, foreign and domestic. It seems to me this writer and his proposal are of the latter variety. Let him and any like him try to overturn our Constitution. Many of us will be there to prevent it, Sincerely, F. J. Taylor USMC (Ret.)

Posted by F. J. Taylor on February 9,2013 | 01:44 AM

By the third paragraph it was obvious the poor lawyer never read a history book. I would suggest that he start with the Autobiography of Benjamin Franklin. Although Franklin never finished it it is still very modern and light years beyond what Seidman writes.

Posted by Robert on February 9,2013 | 08:16 PM

I came onto this site to subscribe to this magazine, but saw the teaser for this article. After reading this bizarre article, I wonder if this is the magazine for me and my conservative views. After all, proposing the elimination of our constitution so the liberals can take over everything really scares the stuffing out of me. Fortunately, it's unlikely that such a change can be made without the 2nd amendment advocates rising up in protest. Another Civil War? Quite possible.

Posted by Gracie on February 8,2013 | 09:00 PM

I guess that this article confirm the many theories out there about US "elite" families introducing neodictatorship based on pseudo democracy. Smithsonian is obviously part of that and this article is nothing more than sensing the public opinion. I fill sorry for ordinary Americans I think that yet another civil war for real liberty of US people is approaching to US. James is right in his gun control comment previously. And by the way Tesla newer fall and as you could notice his popularity is constant rise (differently from Smithsonian favors Edison and JP Morgan) and one day his tower will be rebuilt entirely.

Posted by Nenad on February 8,2013 | 11:00 AM

This is the quality of law clerk at the Supreme Court? Someone who feels that we should just ignore the laws we find outdated and who thinks that the Constitution is impossible to amend? (Here's a hint, Mr. Seidman - it has already been amended 27 times, the last being in 1992.) Why dignify this looney by giving him one inch of column space, Smithsonian?

Posted by JohnD on February 8,2013 | 09:19 AM

Is it a coincidence that this article which postulates that we must scrap the constitution when the anti-gunners are out in full force trying to exploit the tragedy of Newtown to impose limits on our right to bear arms? I think not. The constitution was designed to limit the power of government, which is often abused to trample the liberties of its citizens. Perhaps the author would feel better if our government created re-education camps to brainwash citizens to comply with government approved ideologies. This way our political discourse would be improved and more civil. After all, wouldn't everything be so much better if we only agreed on everything?

Posted by James D on February 7,2013 | 01:27 PM

The comment that "We all have an interest in not having tyranny and chaos..." is sadly not historically accurate. At various times in history different conditions led to tyranny and chaos being opposite outcomes. In effect people readily accepted tyranny as an antidote to chaos. Two examples that pop to my mind are the ancient Roman tyrant Cincinnatus who was able to resist the lure of power and lay down his authority at the end of his term which examination of history shows is a very rare occurance, and Adolf Hitler who from his earliest plans to govern never intended to release any power he was able to capture and urged violence against any who would resist his continued rise. In the case of Rome, the chaotic threat that arose was one of opposing invaders without coordinated civic and military leadership. However in the case of Adolf Hitler the threat to Germany was economic collapse in a more advanced state than we see currently in most of the world, with the notable exception of Zimbabwe which is currently ruled by a head of state who has been accused of tyranny. As I look over today's civic leaders in the U.S., I see more tendency toward power-grabbing rather than power-sharing, not because of the Constitution, but because of the difficulty of resisting the exercise of power and its personal, financial benefits. One purpose of the U.S. Constitution is to protect from tyranny because the founders recognized this tendency. The argument that the U.K. and New Zealand have no formally written constitution is only partly true. The U.K. does not have a single document called a constitution but it has long been recognized that there are several documents and recorded legal precedents that form a basis, framework and more flexible boundary for their government, and New Zealand's government borrows heavily though not exclusively from the traditions of the U.K.

Posted by Bee on February 7,2013 | 10:12 AM



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