Should we acknowledge that the U.S. Constitution is filled with “archaic, idiosyncratic and downright evil provisions,” and “extricat[e] ourselves from constitutional bondage” by cashiering the document?“As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken,” argues Louis Michael Seidman, tasked with teaching constitutional law at the Georgetown University Law Center . And the Constitution, he asserts, is largely to blame.The Constitution, he writes, was adopted by a “group of white propertied men who have been dead for two centuries, knew nothing of our present situation . . . and thought it was fine to own slaves.” The Framers acted illegally in drafting the Constitution because they exceeded their power. Moreover, “[n]o sooner was the Constitution in place than our leaders began ignoring it.” And ignoring it is often a good thing: FDR did it for example, and so did the Supreme Court when it banned school segregation.Besides, “much constitutional language is broad enough to encompass an almost infinitely wide range of positions.” And while we should keep some parts of the Constitution—like regular elections and freedom of speech—the rest gets in the way of leaders who make considered judgments on the merits. We need to rely on other sources of legitimacy, he concludes, moving to an “unwritten constitution,” like that of Britain.That such a judgment was rendered is less shocking than who rendered it. The judgment is not unique because there always have been American Tories—people who chafe at restraints on central power and would prefer a British-style government. In recent years, as political “progressives” have gradually lost the scholarly battle over constitutional interpretation, some have stopped pretending the Constitution means whatever they want it to, and have begun to trash the document itself. A controversial example was the Time Magazine cover essay of June 23, 2011. (See my response to that article here.)But the source of the claim is more shocking, because it comes from one who has taught constitutional law for 40 years. And who should know better.Did the Constitution cause our present “fiscal chaos?” Quite the contrary. The crisis has arisen not because we followed the Constitution, but because we have allowed federal officials to ignore it. In the 1930s, the Supreme Court announced that it would stop enforcing the Constitution’s limits on federal spending programs. Without meaningful spending restraint, Congress became an auction house where lobbyists could acquire new money streams for almost anything—a redundant health care program; a subsidy for an uneconomic product; or a modern art museum in Indiana.It is hard to believe there would be a fiscal crisis today if federal spending had remained within the Constitution’s generous but limited boundaries.Consider, by contrast, the record of the United States during the 140 years in which the Constitution’s limits on federal power were usually respected. During this period of limited government and great personal freedom, the United States became the most successful nation in the history of the planet. Inflation was low. The budget was usually balanced. The foundation of the modern economy was laid. It was a period of unprecedented innovation and unprecedented advances in health, life expectancy, and living standards. It saw the end of slavery and astounding progress for women and even for the most disadvantaged minorities. In other words, it was adherence to the Constitution, not disregard for it, that enabled America (in Professor Seidman’s words) to “grow and prosper.”Professor Seidman seems to assume that politicians can be trusted to make “considered judgments” and act “on the merits,” and that the public does not need to impose outside constitutional restraints on their power (except, perhaps, through elections). The Founders were wiser. They knew that the entire history of humankind suggests the opposite—as, in fact, does the current fiscal crisis. If Mr. Seidman thinks the United Kingdom is a stronger, freer, less dysfunctional, and more prosperous country because of its unwritten constitution, he should live there for a while, as I have. Britain’s relative decline has been precipitous over the past century. Without the support of America, it is doubtful Britain would have survived as a free country.Professor Seidman likes some parts of the Constitution. He’d keep those, and disregard the rest. Doing so, however, is inimical to the rule of law, which requires that we follow established rules until duly amended, whether or not those rules tickle our preferences.
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