Bench Memos

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No Constitution — We’re Progressives


In what reads like a parody of liberal thinking from Jonah Goldberg’s Liberal Fascism, Professor Louis Michael Seidman of Georgetown Law School posits that we should ignore some parts of the Constitution while keeping the parts he likes. He risibly blames the crisis of spending and entitlements — brought on by men who think like him — on an over-punctilious adherence to the Constitution.

Seidman claims that, in another context, we wouldn’t change course based on the fact that some white men from the past who believed slavery was okay would want it that way. Put aside the ahistoricism of the assertion that, as a body, the Founders thought slavery was fine; Seidman simply rejects any law made by anyone even a second in the past. He attacks the idea of a Congress with 27 congressmen who have been defeated for reelection making budget decisions. So apparently terms of office are out, too.

Worse, Seidman, who has taught Constitutional law for 40 years (and I’ve seen him do it), makes no distinction between the opinions of some of the Founders and what was put in the Constitution and ratified. And then amended. Twenty-seven times. By different polities over 230 years.

This great Progressive adopts Confederate arguments about the adoption of the Civil War amendments — the very arguments used by moonbat racists to undermine their legitimacy. The readmission of each state to the Union required their adoption. Just as Utah could not join the Union without rejecting polygamy. So what? Seidman also attacks the Senate — a constant bugaboo of Progressives.

Seidman attacks some portions of the Constitution — for example, the provision that tax bills have to originate in the House — and thinks these can be scrapped while other provisions, such as the right to free speech, will hang on somehow. But one need look no further than the Georgetown campus to see why our fundamental rights are not safe in the absence of established constitutional protections. You would be hard pressed to find a handful of Georgetown professors who robustly support the free-speech decisions that let people spend what they want on political messages, for instance. You would be hard-pressed to find anyone who would protect freedom of religion from any attempt to implement of the gay agenda.

Seidman attacks the legitimacy of the Constitution and the laws made under it. But where would the new regime gain legitimacy? The Constitution’s legitimacy — won by debates, ratification, constant reexamination, practice, use, and long history, including victory in war — would be traded for the suzerainty of the now.

At root much of his thinking comes from Jacobin and Progressive forbearers. The French Revolution overthrew everything, even naming the months anew and calling the year of Revolution “Year Zero.” The American Revolution was based on ancient liberty and was ameliorative in the English manner. The French Revolution thought itself brand new in every aspect and was designed to tear down all that France had been. Which is why the current French government is the Fifth Republic while we are still “Republic Classic.”

It is telling that he quotes Jefferson — a Jacobin sympathizer — voicing the opinion that all laws should lapse in 20 years. Seidman terms this “real freedom.” It is the same “real freedom” that the Soviet Republics and the South American banana republics had. They ignored the inconvenient portions of written constitutions as a matter of policy. Vladimir Putin heads a state with this kind of “real freedom.” So does Hugo Chávez.

Seidman cites Britain and New Zealand — places where respect for the past is so great that every law requires the assent of a monarch — as places without adherence to written constitutions. Yet monarchs, established churches, hereditary titles, and even a House of Lords may be a bit much from Americans to readopt. Rejection of the Constitution for the system of government that was in place before 1776 seems a little retrograde for a Progressive.

What he more seriously proposes, the radical rejection of binding any polity, is not only silly but unworkable. But we should take a small step in a very small universe and test it anyway: Get rid of tenure, and job security more broadly, at Georgetown Law. Every year, nay every minute, each faculty member should be judged on how they are doing at that instant of time. If they are found wanting by the standards of the hour they should be fired. Surely deep, radical thinkers like Professor Seidman and his confreres at Georgetown would not sacrifice the new and untried for the old, stolid, and hidebound edifice that is tenure? Why should current students suffer under the methods that were deemed acceptable by a faculty panel 30 years in the past, all of whom abjured same-sex marriage and none of whom used the Internet?

When Professor Seidman gets the faculty of Georgetown Law to scrap tenure, we can take his proposal seriously. Until then, he is only one of many Progressives who blame the failure of their policies on the form of government that keeps us free. 


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