Tuesday, January 1, 2013

NYT Op-Ed: Let's Give Up On The Constitution

Harvard educated Georgetown Professor of Constitutional Law Louis Michael Seidman has penned an op-ed in the NYT - Let's Give Up On The Constitution. He trashes the Constitution and argues for pure judicial activism - i.e., that judges disregard the original intent of the Founders who wrote and voted on the Constitution in favor of whatever the judge believes is the better solution. He is arguing for a dictatorship of the judiciary. If this is the tripe being taught to our best and brightest young minds, we as a nation are indeed in trouble.

According to Seidman, our nation is dysfunctional because of "our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions." As he sees it, "instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago."

Rather than get into the weeds of Seidman's many fatuous arguments, it is enough to address Seidman's penultimate argument - that we should at a minimum reduce the Constitution to a mere starting point for discussion of what policies our nation should implement. For, according to Seidman, if we as a nation can't at least do that, than . . .:

. . . perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

Seidman argument is the purist of deceits. Our judiciary claims the power - granted nowhere in the Constitution - to be the final arbiter of what the Constitution means. The Courts are not the starting point for debate, they are the end point of debate. And if our Judges have no fidelity to the Constituion, then what we are left with is a totalitarian state, where unelected judges are free to impose on our nation whatever policy they wish. That is anything but democracy.

Our Founders provided in our Constitution two separate means by which the people could alter or amend it. It is a measure of Seidman's extreme intellectual dishonesty that he studiously ignores that fact in his arguments, though it is not hard to guess why. Neither of those means of amending our Constitution - used many times over the past 200 plus years - involve Seidman's preferred solution of amending the Constitution by the unilateral decisions of unelected judges.

Twenty years ago, no mainstream professor would dare to have made an argument such as Seidman makes - not merely because it is fatuous, but because it ultimately an attack on the very core of our nation. But today, the progressive left is ascendant and they are taking no prisoners. They wish to remake our nation into a bureaucratic socialist state - a state left with only a bare patina of democracy to keep the unwashed masses fooled. Why not, if the nation can buy that Obama deserved re-election or that the right is at "war with women," they can be fooled by anything.

Update: I note that the Volokh Conspiracy make many of the same arguments as I do above in assessing Seidman's piece of progressive tripe.

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