Bench Memos

A Lawless Law Professor

In a long piece today in the Chronicle of Higher Education, we find a profile of Georgetown University law professor Louis Michael Seidman, who has attracted the Chronicle’s attention by writing that disobedience of the Constitution should be seriously considered.  Oh, the delicious frisson of bravely subverting the hegemonic meta-narrative of constitutionalism!  Writer Alexander Kafka tells us that “over the past 36 years, [Seidman has] had ample time to anticipate critics’ objections to disobeying the Constitution,” and then we get his “top 10 rebuttals” to objections to this idea.

But here’s one that does not make Seidman’s list.  The Constitution is the law.  If Seidman believes it can be appropriately “disobeyed,” I would like to know which other laws, many of them also quite old, and made by persons whose views we have no reason to respect, may also be appropriately disobeyed.  How about the law that says I cannot help myself to his car?  How about the law that says that cars must stop for red lights, or yield to pedestrians?  How about the law that says Professor Seidman’s pension is to be paid, or (as the case may be) that he really does own the assets in his 401(k)?

Of course, Professor Seidman does not seriously mean that the Constitution should be “disobeyed.”  He would be extremely alarmed if any part of it that he likes, or any interpretation of it that he approves of, were to be disregarded.  How about prior-restraint censorship of all his writings?  How about if the local authorities where he lives banned contraception?  How about if the president of the United States shipped him to Gitmo and he were denied habeas corpus?

One cannot speak coherently of “disobeying” the Constitution without implicating the rule of law as such.  One would think a law professor would have thought of that.  There is no evidence in this Chronicle piece that Seidman has.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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