On December
30, 2012, in a New York Times article, Constitutional Law Professor Louis
Michael Seidman, made the case for why we should “give up on the Constitution.”
I’ll make the case why we ought to do the exact opposite.
Before I do
so, however, let’s understand, fundamentally, what the purpose of the Constitution
is. The Constitution is a document that LIMITS the power of the government over
the individual. It’s a document that recognizes the individual rights of people
(explicitly enshrined in the Bill of Rights) and lays out a framework of the
finite capacity in which the federal government can act. Any power not
specifically delegated to the federal government in the document is left to be
handled by the sovereign states or by the people.
Now, part of
the reason Mr. Seidman gives for why we ought to junk the Constitution is the
fact that past administrations, going back to the founding of our republic,
have ignored provisions in the document--and he provides numerous examples. But
the fact that previous administrations evaded parts of the Constitution does
not mean we should throw it out altogether. A basic principle one learns in
kindergarten is that two wrongs don’t make a right, and throwing out a document
(certainly not without its flaws, which I’ll address shortly) recognizing the
rights of the individual would certainly be wrong. The solution to the problem
of elected officials ignoring the Constitution is not to throw out the
Constitution, but to hold them accountable for doing so. When one commits
murder, we don’t demand that laws against murder be thrown out. Such would be
utter nonsense and a complete abrogation of justice itself.
Oddly
enough, another of Mr. Seidman’s reasons for throwing out the Constitution is
that we do in fact follow it (damned if we do, damned if we don’t, I guess). He
writes “Consider, for example, the assertion by the Senate minority leader last
week that the House could not take up a plan by Senate Democrats to extend tax
cuts on households making $250,000 or less because the Constitution requires
that revenue measures originate in the lower chamber. Why should anyone care?”
I’ll tell you why everyone should care: this is how our system of law and order
works. We are not in a state of anarchy nor do we leave such issues up to the
whims of bureaucrats. These are the rules established to deal with issues
regarding revenue. You don’t like it? Call up your representative and inform
him of your support for a Constitutional amendment changing the way such
business is done. Technicalities within our legal framework such as these could
certainly be debated and changed in the interest of efficiency (what is
non-negotiable in a moral sense, however, is the principle of individual
rights).
Furthermore,
Mr. Seidman makes another odd argument suggesting that we could get rid of the
Constitution while preserving the rights of the people. He states “This is not
to say that we should disobey all constitutional commands. Freedom of speech
and religion, equal protection of the laws and protections against governmental
deprivation of life, liberty or property are important, whether or not they are
in the Constitution. We should continue to follow those requirements out of
respect, not obligation… 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.” What Mr. Seidman is suggesting is that our
rights would be protected based on a common respect of one another as part of
our cultural traditions. The problem I have with this is twofold: 1.) Nothing
is preventing the culture from shifting towards a society that does not respect
individual rights (and if you know anything about American history, America has
indeed shifted away from the free country we once were). In fact, it could be
argued that the reason we have not yet descended into outright tyranny is due
in part to those provisions explicitly expressed in Constitution regarding our
rights. 2.) Societies with no explicit protection of individual rights have a
history of descending into tyranny (ex. USSR, Nazi Germany). That’s not to say
I’m suggesting that a piece of parchment recognizing our rights protects our
rights either (that requires a principled people electing principled
leadership, of which our “education” system has literally obliterated any hope
for in the near future), but how many times when the government encroaches on
our liberty in some capacity do we hear people shriek and cite the specific amendment
that is being infringed upon? It does in fact give the people, even those who
don’t exactly know where their rights come from or why they have them, the
empowerment to fight for them. The Constitution as such is a tangible
safeguard, a first line of defense, if you will, against those who would scheme
to strip away our rights. Take that away, and with enough time, you can be sure
those rights will be phased out of the culture entirely.
Aside from
that, let’s take a moment to imagine how our political process would work with
no specific guidelines as to where budgets can begin, how many electors each
state gets, how power is to be separated amongst the three branches (assuming
there remains to be three branches), etc. I can envision total chaos with the
country at the mercy of the whims of the political class. What if Congress
voted itself more power, declaring it is the true voice of the American people
(what’s to stop them from doing so?)? What if the Commander-in-Chief thought
otherwise? What would be the function of the Supreme Court, which, from the
time of its inception, has been to decide the Constitutionality of a given law?
Would the basis of their judgments, now without a strict guideline, be based
entirely on what they felt was right and wrong? So many questions arise, all of
which would have different answers according to different people. If Mr.
Seidman thinks the gridlock is bad now, he should carefully think through his
proposal.
With that
said, let me say a few words about and provide a few examples of the flaws
(which I define as anything contradictory to the principle of individual
rights) embedded in the Constitution. Article 1, Section 2, Clause 3 mentions
apportioning representatives and taxes based on the number of free persons as well
as “those bound to service for a term of years, and excluding Indians not
taxed, three fifths of all other persons.” This, at best, was an implicit
endorsement of slavery and, as such, a grave contradiction to the point of the
Constitution, especially the Bill of Rights. This defect was eventually
remedied by the 13th amendment outlawing slavery in 1865, after the country
paid for this mistake severely with one of its bloodiest wars, the Civil War.
Another flaw
is found, interestingly enough, in the last part of the 5th amendment, known as
the “eminent domain” clause. It says “…nor shall private property be taken for
public use without just compensation". This amendment actually empowers
the government to take and use the property of others so long as the government
feels it is in the public’s interest and so long as it provides what it judges
as “just compensation.” This is a clear violation and contradiction of one’s
right to own property. Sadly, this flaw has been exacerbated by the Supreme
Court’s “Kelo Decision” in 2005, allowing the government to take land from one
private citizen and give it to another private citizen.
The last
flaw I’ll address (although there are several others), is the so-called
“Commerce Clause,” Article 1, Section 8, Clause 3, which states that Congress
has the power “To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.” This is a clear violation of the right of
people to associate and trade freely with each other without interference from
bureaucrats. Not only has this not been remedied, it has been worsened through
the thousands upon thousands of regulations added throughout the decades. As a
brief history lesson, this clause’s intentions were to empower Congress to tear
down trade barriers (“regulate” as in to keep regular, that is, to ensure trade
is freely flowing), not to erect trade barriers, as is the case in modern
America. It was the answer to ameliorate the problems that had arisen with
America’s first governing document, the Articles of Confederation, which
resulted in the states implementing “protectionist” trade barriers against
other states, which, in turn, resulted in a stagnant economy.
Now, the
point of addressing these flaws is to point out that some of Mr. Seidman’s
criticism of the Constitution is legitimate. But the solution, as I said
before, is not to throw out an otherwise good document, but to work out its
flaws. Just as it is true the entire human race is flawed in some capacity, it
does not rationally follow that the entirety of the human race should commit
suicide. The rational course of action is to identify the flaws and fix them if
possible. Just as we amended the Constitution to abolish the abomination of
slavery, so too should we abide by the same process to fix its other flaws. As
a wise professor told me countless times, “Do not let the perfect be the enemy
of the good.” Instead, let the good be your hope and the perfect be your goal.
This new
year, let’s make a resolution to uphold the fundamental principles of the
Constitution in our daily lives, i.e. respect the individual rights of all
people, and hold our elected officials accountable when they don’t.
To a prosperous 2013!
