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

Constitution of the United States (© Tetra Images / Corbis)

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But Georgetown law professor Louis Michael Seidman says that adherence to the Constitution is both misguided and long out of date.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.

About Amy Crawford
Amy Crawford

Amy Crawford is a Boston-based freelance journalist writing about government, education and ideas. Her writing has appeared in Smithsonian, Slate, Boston Magazine and the Boston Globe.

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