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.