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But Georgetown law professor Louis Michael Seidman says that adherence to the Constitution is both misguided and long out of date.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

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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