Georgetown University law professor, Louis Michael Seidman, wrote this in the Op’Ed section of the New York Times the other day:
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.
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?
We conservatives read the professor’s words and they are like blasphemy to us. We believe the constitution is as pertinent today as the day it was ratified. To us, this unique document, put together by our Founders, codified into the law of the this new nation those remarkable words in the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The constitution was ratified on March 4, 1789. Life, Liberty, and the pursuit of Happiness were concepts that were easily sold to the American people of that time. The battle for ratification wasn’t over whether we should or should not have a limited government that guaranteed our rights to Life, Liberty, and the pursuit of Happiness; but whether the limitations on the central government were sufficiently clear. Eleven states did ratify the constitution on March 4, 1789 on the condition that the first order of business for the new congress was to pass ten amendments to the new constitution. Those ten amendments would be called the Bill of Rights and they were approved by three-quarters of the states in 1791.
In the late 1700’s, the things that mattered to most Americans were individual freedoms and a limited and unintrusive government. Today, we conservatives still hold to those values. We understand that as the central government grows and becomes more powerful, we and all Americans become less free. But, the federal government has grown in size and power insessently over the years and especially in the last decade or two. Although we conservatives still hold to the same values that “most” of the original Americans held important, today we are no longer “most” Americans.
What if Professor Siedman is right? What if “most” Americans today are not concerned about losing rights protected by the constitution? What if “most” Americans today do not see big government as one of their problems but as a solution to their problems? What if, as many politicians on the left believe, the constitution is an impediment to solving the problems of “most” Americans? What if the America we love is not the America that “most” Americans want?
Well, now you know what I’m thinking. What are your thoughts?