NYTimes columnist say "Let’s Give Up on the Constitution"

[StreetScooby 5]

Let’s Give Up on the Constitution

I'm a shocked, but then again not, since the NYTimes is the bastion of liberalism in this country. Do we still have our guns?

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If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey.

This is getting dangerous. The individual pursuit of liberty and happiness in a civilized society isn't all that open to interpretation, IMO.

Here's the article in its entirety:

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AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

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? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

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.

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. 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 has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.

If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

If even this change is impossible, 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.

Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book “On Constitutional Disobedience.”

We are all engines of karma

[popsjumper 2]

What he fails to remember is that constitution got us this far and could get us a lot farther..IF THE IDIOT POLITICIANS WOULD LEAVE IT ALONE!

I won't mention the idiocy of the SC trying to do the legislative and executive branches jobs.

I'm tellin ya', there's something in the water that is making people in this country crazier and crazier by the day.

My reality and yours are quite different.
I think we're all Bozos on this bus.
Falcon5232, SCS8170, SCSA353, POPS9398, DS239

[StreetScooby 5]

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What he fails to remember is that constitution got us this far and could get us a lot farther..IF THE IDIOT POLITICIANS WOULD LEAVE IT ALONE!

Well said, and I could not agree with you more.

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I won't mention the idiocy of the SC trying to do the legislative and executive branches jobs.

When/if Obama appoints another SCOTUS member, our country may never be the same. I'll expect an ever increasing proliferation of "rights" that are paid for with other peoples' money, and an unlimited reach in Federal government power.

Our education system has failed miserably in civics. People do not appreciate the difference between State government and limited Federal government. With 50 States doing things somewhat differently, at least you'll get a chance to see what works and what doesn't. Not so with a single draconian Federal entity.

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I'm tellin ya', there's something in the water that is making people in this country crazier and crazier by the day.

It's become apparent to me that liberals feel there will always be this "higher power" behind the scenes, i.e. federal govt, that can be consistently relied upon to make things right and take care of you. They honestly don't feel that this country can break, nor will the quality of our life decline. I'm beginning to think they are nuts.

This article is pretty insightful into liberal thinking. I found it to be eye opening.
Obama's Tax Hikes Won't Be Nearly Big Enough

Some examples:

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First, that in order to meet public demands for affordable health care, quality public education, and retirement insurance, government at all levels will need to grow and take up a larger percentage of the nation’s GDP. Second, any significant cuts to these programs’ funding will undermine their effectiveness. And third, the only way to maintain these programs is by raising taxes on income and wealth--and well beyond, the kind of increases that the Obama administration has proposed in negotiations over the fiscal cliff.

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These programs exist, and have grown, because the public overwhelmingly supports them.

Overwhelmingly?

I continue to be stunned that the media is not reporting the Fed's massive "purchases". Right now, they're purchasing 60% of all federal auctions. They're not borrowing 40 cents on the dollar, they're printing 60 cents on the dollar! This has been going on for over two years now. Simply not sustainable. I fully expect to see $1T/year interest service in my lifetime. We'll be toast.

We are all engines of karma

[wmw999 2,588]

It's an opinion piece, by a nationally known constitutional scholar. It's meant to be provocative.

That the NY Times published it is no more reflective of their corporate opinion than their publishing pieces by George F. Will or Charles Krauthammer.

Sometimes by postulating something really far-out in an intelligent way, people can start to figure out how to talk about something.

Wendy P.

There is nothing more dangerous than breaking a basic safety rule and getting away with it. It removes fear of the consequences and builds false confidence. (tbrown)

[StreetScooby 5]

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That the NY Times published it is no more reflective of their corporate opinion...

Uhm, we'll have to agree to disagree on that...

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Sometimes by postulating something really far-out in an intelligent way, people can start to figure out how to talk about something.

I understand the principle, Wendy, but this isn't a reasonable application, IMO. I think our country now has many people who will actually take this piece seriously.

We are all engines of karma

[kallend 2,148]

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That the NY Times published it is no more reflective of their corporate opinion...

Uhm, we'll have to agree to disagree on that...

But the NYT DOES publish opinion pieces by right wingers such as Will, and guys from Heritage Foundation.

You only think it unbalanced because you're so far to the right.

...

The only sure way to survive a canopy collision is not to have one.

[lawrocket 3]

The irony is that this guy is posting about disobeying the mess of the Constitution while discussing all the problems caused by disobedience to the Constitution.

I wonder whether this piece is satire.

My wife is hotter than your wife.

[AdamLanes 1]

here, read this: http://jim.com/treason.htm

[StreetScooby 5]

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I wonder whether this piece is satire.

You're not the first person who's mentioned that possibility. It's not clear to me that it is.

We are all engines of karma

[StreetScooby 5]

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http://jim.com/treason.htm

I think the Constitution is a legally binding document that our democratically elected officials take an oath to uphold, thus making us a Republic. That arrangement has made our country what it is today.

We are all engines of karma

[kallend 2,148]

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http://jim.com/treason.htm

I think the Constitution is a legally binding document that our democratically elected officials take an oath to uphold, thus making us a Republic. That arrangement has made or country what it is today.

Maybe we should pledge allegiance to the Constitution rather than to a piece of colored cloth.

...

The only sure way to survive a canopy collision is not to have one.

[Butters 0]

Haven't we already given up on the Constitution?

"That looks dangerous." Leopold Stotch

[davjohns 1]

I thought it was a pretty interesting article until he suggested we should observe freedom of speech and other freedoms out of respect and not due to the law. We have people blasting the bloody hell out kids. They don't respect a right to live. Why would they respect lesser rights?

I'm not ready to trust the yohos we send to DC without written constraints. Even the ones that were put in place have been greatly erroded and continue to do so.

I know it just wouldnt be right to kill all the stupid people that we meet..

But do you think it would be appropriate to just remove all of the warning labels and let nature take its course.

[Andy9o8 2]

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It's an opinion piece, by a nationally known constitutional scholar. It's meant to be provocative..

Ding. My most interesting classes were taught by the profs who knew how to stir the pot and get us sockin' each other in the aisles. I'll bet this guy's classes are pretty interesting.

[rehmwa 2]

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I thought it was a pretty interesting article until he suggested we should observe freedom of speech and other freedoms out of respect and not due to the law.

I agree with him on that point - I don't need the government to tell me to be considerate on these areas. I do it anyway and I suspect you do too. But codifying it isn't really about people like us.

seems to be an impotent point he's making if you consider that rights are, by definition, ours by nature (that 'respect' being a reflection of natural rights as our default group psychology).

Codifying them is less about 'making' people act to their better nature, but rather just acknowledging that it exists already. Or, at worst, codifying them is about protecting those that already show that respect from the very tiny group of those that are deviant from our natural state achieving a level of political power and abusing it

he's really going down a pointless path and is just dressing it up by being outrageous in his delivery



in other words - I suspect the majority of people respect the speech and property and rights of others already out of respect - whether or not law was in place.

most (morally based) laws are in place to address the minority that don't have respect for others....no kidding

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[regulator 0]

Youve said this several times in the past.

Yet why is it considered 'provocative' when liberals see what other libs write

and yet when someone represents the ideals of the GOP liberals call them MORONS [quoting kallend]

[davjohns 1]

The interesting thing is that the Constitution is not meant just to keep ME from infringing on YOUR rights. The Bill of Rights is meant to restrain the government. In that case, legality is all you have. Respect? Give me a break.

I know it just wouldnt be right to kill all the stupid people that we meet..

But do you think it would be appropriate to just remove all of the warning labels and let nature take its course.

[kallend 2,148]

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Let’s Give Up on the Constitution

I'm a shocked, but then again not, since the NYTimes is the bastion of liberalism in this country.”

Right, they also invite opinion pieces from that well know liberal Dr. Charles Krauthammer.

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The only sure way to survive a canopy collision is not to have one.

[wmw999 2,588]

That's part of the provocation . When George Will, Antonin Scalia, or even Charles Krauthammer write it, there's generally some knowledge behind it.

When Michelle Malkin, Mike Savage or Rush say it, well, they're not exactly nationally-known Constitutional scholars.

Wendy P.

There is nothing more dangerous than breaking a basic safety rule and getting away with it. It removes fear of the consequences and builds false confidence. (tbrown)

[toolbox 0]

Once again you have hit the nail on the head.
The bill of rights was not created to protect individuals from each other.
The bill of rights was created to protect the individuals from the state.

[rehmwa 2]

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The interesting thing is that the Constitution is not meant just to keep ME from infringing on YOUR rights. The Bill of Rights is meant to restrain the government. In that case, legality is all you have. Respect? Give me a break.

that's really why it's just some prof stroking himself, he missed the real point

my quote

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Or, at worst, codifying them is about protecting those that already show that respect from the very tiny group of those that are deviant from our natural state achieving a level of political power and abusing it

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[Andy9o8 2]

FWIW, and really just as a neutral point of information, if you research the author, and then drill-further and research his intellectual "school of thought", you'll see that this article isn't just a once-off; it represents a doctrine of legal/political philosophy that he's been part of since his early adulthood. Here, take a look:

Louis Michael Seidman

Critical Legal Studies

[davjohns 1]

So, he's really always been an optimist crying "cant' we all just get along"?

Hey, I'm a bit of an optimist myself, but that's a little too far for me. I think the men who wrote the US Constitution were optimistic of a great new nation, but they were faced with the realities of the past.

Thanks for the background, Andy.

I know it just wouldnt be right to kill all the stupid people that we meet..

But do you think it would be appropriate to just remove all of the warning labels and let nature take its course.

[dmcoco84 5]

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but they were faced with the realities of the past.

Huh...?

[billvon 3,116]

>What he fails to remember is that constitution got us this far and could get us a
>lot farther..IF THE IDIOT POLITICIANS WOULD LEAVE IT ALONE!

Leave slavery in it? Don't allow blacks to vote? Deny women the right to vote?

I think overall a lot of the changes have been good.