Throwing Out the Constitution with the Bathwater

I'm a big fan of CBS Sunday Morning.  It has a pacing that's rare to find and doesn't get caught up in the hysteria of the moment's headlines.  Periodically it has commentary pieces, sometimes from regulars and sometimes from one time visitors.  On January 27 it was one of the latter when Louis Michael Seidman, professor of Constitutional law at Georgetown, gave his opinion on the US Constitution.

Here's what he had to say, if you want to see it.

The long and the short of it is that he thinks Americans place too much emphasis on the Constitution, and that the founding document should be abandoned.  He starts out with a premise that's almost something I can agree is correct because the Know Nothings treat the Constitution as though it were a book of the Bible.  (I'd mention some other holy books out there, but honestly, are there any Know Nothings who don't consider themselves Christians?)

Seidman's rationale is that the Constitution was written by people who've been dead two centuries and that, while it has some good ideas in it, also has things that are outdated and unnecessary or detrimental, such as the Electoral College.  Because of these outdated things that hinder our nation, we should be rid of the Constitution.  I don't recall that he called for creation of a new one, but I'd say that's the logical necessity.  To bolster his argument he says that several presidents questioned the Constitution, including Jefferson, Lincoln, and both Roosevelts.

I'll get the nitpicking out of the way first.  The Founders haven't been dead 200 years.  Jefferson and Adams, for instance, didn't die until 1824.  Furthermore, the presidents he cites as being oppponents of the Constitution were opposed to either elements of the Constitution or Supreme Court interpretations of the Constitution, not the document in its entirety.  As an example, FDR opposed the Supreme Court's interpretations of the Commerce Clause that were used to overturn several New Deal laws.  This lead to FDR's court packing plan to add more justices to the court so he would have a majority in his favor, something that didn't occur due to The Switch in Time that Saved Nine.  FDR didn't even propose any change to the Constitution in this dispute, as the Constitution is silent about how many Justices sit on the Supreme Court.

The meat of the problem with Seidman's argument is that he wants to thow away all that's good about the Constitution because there are a few outdated elements.  In fact, he only pointed out a couple of outdated elements, too.  Of course, the Constitution already has a way of dealing with the outdated.  It's called amendments.  In fact, that's why the Constitution isn't a 226 year old document.  It's been updated throughout its history, starting with the first ten amendments put in place by the same people Seidman thinks are a sclerotic impediment to the country now.  Most aren't as significant as the Bill of Rights or the post Civil War amendments that outlawed slavery and applied Constitutional protections against Federal infringement on individual rights to the states but there have been important changes as recently as the lowering of the voting rights age to 18 that was ratified in 1971.

The solution to the Electoral College, if it's a problem, is to amend the Constitution.  The Founders created the Electoral College as a bulwark against mob rule, something that was as much a concern to them as monarchical rule.  With GOP proposals to make certain states change their Electoral College vote awards so that a GOP presidential candidate is more likely to win the office while losing the popular vote, I can certainly see why it's looking like it's time for the Electoral College to go.  But that doesn't make throwing out the entire Constitution a good idea.

It's a terrible idea.  I suspect Seidman hasn't thought through why it's such a bad idea, either.  First, the Constitution, since the Civil War, has been a stabilizing force in the country.  The framework it provides keeps extremes from ruling the day.  It's almost impossible for the passions of the moment to seize control because the government is divided at national, state and local levels and further divided withing those levels between executive, legislative and judicial.  These divisions of power make consolidation of power that can happen in purely parliamentary governance impossible.  Look at the UK, which shifted from a Labour government to a Conservative one, then imposed radical austerity that sent the UK into a double dip recession that the US has avoided.

Second, and more fearsome, is the idea of who would write a replacement to the Constitution.  In a world where mental midgets like Antonin Scalia are considered great thinkers by an all too large portion of the population I shudder to think what kind of idiots we'd have writing a new framework for the government.  Undoubtedly there'd be a substantial movement to have it enshrined in the new document that this is in fact a Christian nation and that anyone who arrives here not speaking English has to be sent back immediately.

No, Seidman's idea is a very bad idea.  The Constitution should not be worshipped as a holy document but neither should it be abandoned in favor of chaos and ignorance.