Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Professor: Take our country back, from the Constitution
cbsnews.com ^

Posted on 01/27/2013 8:36:51 AM PST by Sub-Driver

Professor: Take our country back, from the Constitution

The U.S. Constitution - a document perhaps too revered, says Georgetown law professor Louis Michael Seidman. (Library of Congress)

(CBS News) Is the U.S. Constitution truly worthy of the reverence in which most Americans hold it? A view on that from Louis Michael Seidman, Professor of Constitutional Law at Georgetown University:

I've got a simple idea: Let's give up on the Constitution.

I know, it sounds radical, but it's really not. Constitutional disobedience is as American as apple pie.

For example, most of our greatest Presidents -- Jefferson, Lincoln, Wilson, and both Roosevelts -- had doubts about the Constitution, and many of them disobeyed it when it got in their way.

To be clear, I don't think we should give up on everything in the Constitution. The Constitution has many important and inspiring provisions, but we should obey these because they are important and inspiring, not because a bunch of people who are now long-dead favored them two centuries ago.

Unfortunately, the Constitution also contains some provisions that are not so inspiring. For example, one allows a presidential candidate who is rejected by a majority of the American people to assume office. Suppose that Barack Obama really wasn't a natural-born citizen. So what?

Constitutional obedience has a pernicious impact on our political culture. Take the recent debate about gun control. None of my friends can believe it, but I happen to be skeptical of most forms of gun control.

(Excerpt) Read more at cbsnews.com ...


TOPICS: Constitution/Conservatism; Editorial; Government; Politics/Elections
KEYWORDS: academicbias; antiamericanism; anticonstitution; constitution; constitutionalcrisis; littleredschoolhouse; naughtyteacherslist; sedition; seebsnews; wddim
Navigation: use the links below to view more comments.
first 1-5051-73 next last

1 posted on 01/27/2013 8:36:54 AM PST by Sub-Driver
[ Post Reply | Private Reply | View Replies]

To: Sub-Driver

I’d like to personally explain to this Constitutional Law professor that I’d gladly ‘give up the Constitution’ if it mean we could unshackle ourselves from a bloated, tyrannical government that seeks to destroy itself. I’d gladly do it. When separated, we could then remake our own Constitution, largely like the original, but giving virtually no power to a Federated Government.


2 posted on 01/27/2013 8:40:46 AM PST by Gaffer
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

I just saw his commentary on the TV. He must realize that the Constitution is what gives him the freedom to float such tripe.


3 posted on 01/27/2013 8:41:53 AM PST by Francis McClobber
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver
...and many of them disobeyed it when it got in their way.

Add Hussein to the list.

4 posted on 01/27/2013 8:42:10 AM PST by Libloather (The epitome of civility.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

Unfortunately I watched this POC this morning (the wife likes the human interest stories lied by osgood).
He was openly calling to do away with the constitution.
Here it comes, new rule by man, not by law. The criminals have taken over.
Re: http://www.cbsnews.com/8301-3445_162-57566014/professor-take-our-country-back-from-the-constitution/


5 posted on 01/27/2013 8:43:19 AM PST by 9422WMR
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

Can’t warp it any more without breaking it, apparently.


6 posted on 01/27/2013 8:44:46 AM PST by BenLurkin (This is not a statement of fact. It is either opinion or satire; or both)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

Fair enough.

Get to work on convening a Con-Con and revise or scrap the whole thing.

I personally would love to see these people survivie in a world without our Constitution.


7 posted on 01/27/2013 8:45:26 AM PST by Lorianne (fedgov, taxporkmoney)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

The Constitution did not set up a perfect government. It did, however, establish a republic that worked right up until politicians began interfering with the laws of economics and bribing voters with money from the public treasury. No council of fools such as this so-called professor could come up with anything better themselves, and in fact, would come up with something far worse than absolute monarchy. Communism, for example, created far more death and misery than the pretensions of Louis XIV or Napoleon; Fascism, the same results under different management. Both the projects of pseudophilosophers and a lame secular intellectualism that denies natural law.


8 posted on 01/27/2013 8:46:07 AM PST by GenXteacher (You have chosen dishonor to avoid war; you shall have war also.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

I just saw his commentary on the TV. He must realize that the Constitution is what gives him the freedom to float such tripe.


9 posted on 01/27/2013 8:46:31 AM PST by Francis McClobber
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

Yeah, yeah, rule of law and limited government are so overrated. We need leaders who can get things done. Like Benito and Adolf and Uncle Joe.


10 posted on 01/27/2013 8:47:41 AM PST by Lonesome in Massachussets (What word begins with "O" and ends in economic collapse?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

Yeah, yeah, rule of law and limited government are so overrated. We need leaders who can get things done. Like Benito and Adolf and Uncle Joe.


11 posted on 01/27/2013 8:47:41 AM PST by Lonesome in Massachussets (What word begins with "O" and ends in economic collapse?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

Hey I got a good idea Professor: How about we get rid of part of the constitution? Like the 16th amendment? Which come Feb. 3rd will be its 100th anniversary. So what better time to get rid of it?

http://en.wikipedia.org/wiki/16th_Amendment_to_the_United_States_Constitution


12 posted on 01/27/2013 8:47:55 AM PST by GrandJediMasterYoda (Someday our schools we will teach the difference between "lose" and "loose")
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver
Wow. Just wow.

I remember when a diploma from Georgetown Law was worth more than the equivalent square footage of Charmin.

Now, I'm not so sure.

13 posted on 01/27/2013 8:48:53 AM PST by Smokin' Joe (How often God must weep at humans' folly. Stand fast. God knows what He is doing)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver; holdonnow

Nitwit professor ping.


14 posted on 01/27/2013 8:49:55 AM PST by Darnright ("I don't trust liberals, I trust conservatives." - Lucius Annaeus Seneca)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver
Sad thing is, people like this don’t know that they would be the first to be led to the gallows if it were not for the rule of (Constitutional) law. It’s the only thing standing between them (or anyone) and the knives and clubs of mob rule.
15 posted on 01/27/2013 8:50:23 AM PST by chimera
[ Post Reply | Private Reply | To 1 | View Replies]

To: Gaffer
President Jefferson Davis said it best:

"I love the Union and the Constitution, but I would rather leave the Union with the Constitution than remain in the Union without it."

16 posted on 01/27/2013 8:53:08 AM PST by central_va ( I won't be reconstructed and I do not give a damn.)
[ Post Reply | Private Reply | To 2 | View Replies]

To: central_va

Truer, more appropriate words were never spoken.


17 posted on 01/27/2013 8:55:14 AM PST by Gaffer
[ Post Reply | Private Reply | To 16 | View Replies]

To: Francis McClobber
I just saw his commentary on the TV. He must realize that the Constitution is what gives him the freedom to float such tripe.

My wife and I were watching it, too. It was one of those rare times that my wife will vocally respond to a TV report of any kind and we were both in total agreement that the guy was a flippin' moron. On that basis, I'd say he is blissfully unaware of how the Consitution works or its relationship on his ability to spew such tripe.

Given his comments on the founders and writers of the Constitution and not being tied to what these men wrote, I'd say he's cemented his moron status for all time. I don't see anybody of equivalent wisdom on the scene today that would compare to the Founders.

18 posted on 01/27/2013 8:58:09 AM PST by T-Bird45 (It feels like the seventies, and it shouldn't.)
[ Post Reply | Private Reply | To 3 | View Replies]

To: Gaffer

There are more tears over answered prayers than unanswered ones, professor.


19 posted on 01/27/2013 8:59:45 AM PST by Lonesome in Massachussets (What word begins with "O" and ends in economic collapse?)
[ Post Reply | Private Reply | To 17 | View Replies]

To: Sub-Driver

“Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution...”

Seidman, if you don’t like it, amend it. Let the people decide if your proposed changes are worthy.

Every single one of the hundreds of contracts I’ve worked on in my career have had a similar clause stating precisely the rules for amending the contract and that both parties must agree in writing to all amendments.

We all know the real reason behind his proposal. The leftists and statists simply want a government of made-up ad hoc “rules” that can be bent and twisted at their every whim to create a dictatorship and resulting in totalitarian control over us.


20 posted on 01/27/2013 9:00:37 AM PST by ProtectOurFreedom
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

And another moronic, mentally-diseased, communist heard from...
Add him to The List.


21 posted on 01/27/2013 9:02:29 AM PST by lgjhn23 (It's easy to be liberal when you're dumber than a box of rocks.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Lorianne

Scummy elites run most 3rd world hellholes... In those places, elites “do it their way and in a hurry”. No laws or Constitutions to stand in the way of tyrants in those places.


22 posted on 01/27/2013 9:05:01 AM PST by GOPJ ( Do murder laws control murders?..freeper Red Badger Let's try Criminal control - Fr:MadMax)
[ Post Reply | Private Reply | To 7 | View Replies]

To: T-Bird45

He seems like a classic example of a perfesser who hasn’t done much more than research or navel gazing for a mellinium or two.


23 posted on 01/27/2013 9:07:04 AM PST by Francis McClobber
[ Post Reply | Private Reply | To 18 | View Replies]

To: Sub-Driver

I wonder what this twit would say if someone decided to ignore the laws and rob/rape/kill those he considers loved ones because the laws got in their way...


24 posted on 01/27/2013 9:07:28 AM PST by trebb (Allies no longer trust us. Enemies no longer fear us.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Gaffer

Whenever you hear someone say “give up the Constitution” it’s because they think the Gov’t does not have enough power as it stands now.

We have deviated from the Constitution, but that does not make it a poor document.


25 posted on 01/27/2013 9:09:21 AM PST by Tea Party Terrorist (Those who work for a living are now outnumbered by those who vote for a living.)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Sub-Driver

and another drank the kollaid.


26 posted on 01/27/2013 9:10:43 AM PST by NY Attitude (Make love not war but be prepared for either.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

“Constitutional obedience has a pernicious impact on our political culture.”

Constitutional obedience is rule of law not rule of man.

A significant part of the “political culture” wants “rule of man”, as long as it’s their man.

So, if “Constitutional obedience has a pernicious impact on our political culture” I say “good”.

“...neither should we allow people who died over two centuries ago and knew nothing of our country as it exists today.”

Does that go for court decisions and other legal things too? How about land grants, can we go back and revise them because we don’t like the way it turned out now?

It’s almost 2014, 200 years after the Treaty of Ghent which ended the War of 1812, so can we say to Britain: “Hey, we want to kick your butt some more and this Treaty is 200 years old so it doesn’t count, so ‘game on’”?


27 posted on 01/27/2013 9:12:00 AM PST by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: NY Attitude

kool aid.


28 posted on 01/27/2013 9:12:07 AM PST by NY Attitude (Make love not war but be prepared for either.)
[ Post Reply | Private Reply | To 26 | View Replies]

To: Sub-Driver

Louis Michael Seidman

29 posted on 01/27/2013 9:14:21 AM PST by kcvl
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

Where’s the Tar, Feathers, and Rail when you really need them?!


30 posted on 01/27/2013 9:14:48 AM PST by SoConPubbie (Mitt and Obama: They're the same poison, just a different potency.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

John Carroll would be truly mortified to think that a professor at the institution he founded would even think to turn his back on our hard fought Constitution.


31 posted on 01/27/2013 9:18:20 AM PST by Slyfox (The key to Marxism is medicine - Vladimir Lenin)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 9422WMR

“Here it comes, new rule by man, not by law.”

Rule by man and man’s number is 666.

Anyway, read the comments at the CBS site and only the first of 59 responses are anti-constitutional/right.


32 posted on 01/27/2013 9:20:50 AM PST by huldah1776
[ Post Reply | Private Reply | To 5 | View Replies]

To: Sub-Driver
The Constitution has many important and inspiring provisions, but we should obey these because they are important and inspiring, not because a bunch of people who are now long-dead favored them two centuries ago.

So.... If it feels good, do it?

Pretty scary as a system of government, IMHO.

33 posted on 01/27/2013 9:23:35 AM PST by Smokin' Joe (How often God must weep at humans' folly. Stand fast. God knows what He is doing)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Slyfox

Just days after Congress passed a bill dealing with the cliff, Seidman elaborated on his argument on Friday’s “America Live” on the Fox News Channel. He told host Megyn Kelly the way the country is run should not be dictated by “folks who have been dead for over 200 years.”

“In some ways it’s really very simple,” Seidman, author of the forthcoming book “On Constitutional Disobedience,” said. “This is our country. We live in it. We have the right to have the kind of country that we want. I don’t think most Americans would be happy with the French telling us what kind of government to have, or the British, or the United Nations, or the Russians, or some law professor. It’s our country, and I’m not very happy with having a bunch of folks who have been dead for over 200 years — that’s a very small group of people who were not the even representative of the time of the United States at the time they wrote, telling us what kind of country we have. We have a right to decide that for ourselves. Now, there are a lot of things they got right, and when they got them right, we ought to do them because they’re right. But we ought not to do that just because they said to do them. We need to think about all of that now and what’s best for Americans now and not what was best for them in 1789.”

Kelly pointed out that the country can update the document through an amendment process. Seidman said that process is too difficult.

“Actually, Megyn, I think that’s one of the biggest problems with the document,” he replied. “Of all the constitutions in the world, the American Constitution is the most difficult to amend. It’s only been amended 27 times, only 17 times if you don’t count the Bill of Rights. It hasn’t been amended recently at all. … Some are terrific. The fact of the matter is, as things stand now, it’s almost impossible to amend the Constitution. If you have even a pretty small minority, they can block amendments, and that means that even if the vast majority of Americans are not happy with some aspect of the Constitution, they can’t do anything to change it.”

http://dailycaller.com/2013/01/04/georgetown-law-professor-elaborates-on-his-downright-evil-constitution-claim-video/


34 posted on 01/27/2013 9:25:35 AM PST by kcvl
[ Post Reply | Private Reply | To 31 | View Replies]

To: Sub-Driver
But what happens when the issue gets Constitutional-ized? Then we turn the question over to lawyers, and lawyers do with it what lawyers do. So instead of talking about whether gun control makes sense in our country, we talk about what people thought of it two centuries ago...

This is our country. We live in it, and we have a right to the kind of country we want. We would not allow the French or the United Nations to rule us, and neither should we allow people who died over two centuries ago and knew nothing of our country as it exists today.

If we are to take back our own country, we have to start making decisions for ourselves, and stop deferring to an ancient and outdated document.

He's arguing against the idea of a constitutional republic and in favor of an unrestrained democracy, which makes him a thoroughly conventional modern liberal. It's just that he's saying out loud what most of them only think.

And despite what he's saying here, we all know he would gladly enshrine things like the New Deal legislation in law forever and for all time if he could. At this particular moment he's arguing against the idea of an enduring constitution, but's that's only because he doesn't like the current one. If the Constitution were more, um, progressive, he'd be a flag waving consitutionalist.

35 posted on 01/27/2013 9:27:18 AM PST by Yardstick
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

College elections have consequences.

Can anybody name a republican or conservative elected to a college board of regents anywhere in America? Better still, how many can name a conservative candidate who ran for one of those slots?

Here in Michigan, every last electoral state level education position went to radical leftists because only a tiny fraction of republicans bothered to vote on those races. If the people who voted for Mitt Romney had voted in those races, we could have had a serious impact on the educational system here.

I suspect things are very similar in other states.


36 posted on 01/27/2013 9:30:18 AM PST by cripplecreek (REMEMBER THE RIVER RAISIN!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

Progressive want an exception to every rule they don’t like.
Losers always unite and expect to be excepted.


37 posted on 01/27/2013 9:30:36 AM PST by Vaduz
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

This is the kind of guy the Constitution was written to control. His radical ideas would undermine the whole thing. He pretends to support parts to the Constitution, but which parts? He is basically trying to undermine the whole thing in the end. Nuckleheads like this are precisely why we need a Constitution. The Second Amendment to the Constitution was written to insure that each citizen had the right to own and keep a gun. It didn’t say that if one nutcase misused his gun, we would take rights away from the rest. There will be more misuses of a gun. That doesn’t mean we should take all guns. The Second Amendment scenerio is just one of many that shore up the need for the Constitution. It may not be perfect for all the people, but it is the best we can do for all the people in general.


38 posted on 01/27/2013 9:30:58 AM PST by maxwellsmart_agent
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver
Just another member of academia who bought into the false narrative of the "living constitution" advocates among unenlightened "progressives."

A Professor who actually studied and understood America's founding principles, Dr. Walter Berns, wrote the following essay back in the 80's. It is reprinted below, with permission.

Do We Have
A Living
Constitution?

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton

In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:

"... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."

The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act."

The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and in­dependent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.

The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature--even an act subsequently authorized by the judiciary--is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.

Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:

Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."

In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.

The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit "within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved.

The Enduring American Constitution

Now, almost 200 years later, one can read Hamilton's words in Federalist No. 1 and conclude that, under some conditions, some "societies of men" are capable of "establishing good government," but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time - of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions - but most of them are not long-lived.

In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role - in some cases a major role - in the writing of their countries' constitutions, most of them written since 1970. Only the con­stitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them - conspicuous among these the people of America - have an experience of stable constitutional govern­ment. In that sense, we surely have "a living Constitution." That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.

Treating The Constitution As
A Thing Without Form or Substance:
New Definitions Of 'Living'

In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality--"adaptability"-- that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.

In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:

"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both of U.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.

"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."

So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its ex­plicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.

The 'Living Constitution' school and the 'Judicial Power' school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. 'Judicial Power' is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of "creating" constitutional rights (Moore v. City of East Cleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his book Taking Rights Seriously . It is Dworkin who has purportedly given this sort of "constitutional lawmaking" what it has always lacked ­ a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been "a fusion of constitutional law and moral theory," and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion "has yet to take place."

As it turns out, however, the moral theory he propounds, and which he hopes to "fuse" with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.

The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin - justice John Marshall. A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.

Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.

They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:

At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.

Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."

Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.

Summary: Do We Have A Living Constitution?

What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional divi­sion of powers altered, by means other than formal constitutional amendment.

It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular par­tisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to pro­mote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of for­mal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissi­ble and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitu­tion as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.

Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected."

We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.

That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.

Our Ageless Constitution - Part VII (1987) (Publisher: W. David Stedman Associates; W. D. Stedman & La Vaughn G. Lewis, Eds.) ISBN 0-937047-01-5       (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum, The Phi Kappa Phi Journal, Fall 1984)

39 posted on 01/27/2013 9:31:21 AM PST by loveliberty2
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sub-Driver

The perfesser is exactly correct that our present political system is dysfunctional and the Constitution is the main reason.

Unlike most governments on earth, the Constitution specifically and intentionally set up one that was designed to NOT work efficiently. That is, by definition, the purpose behind checks and balances.

In most democracies, like most of Europe, when an election is held the parties campaign on a a specific program stating what they will do if elected. The people vote for the party and program they like the most. If a party gets a majority, by definition it controls both the executive and legislative powers and quickly and efficiently implements its program. If the people don’t like the result, they can vote the party out at the next election and elect a different party with a different program.

In our system, a complete change of power generally takes at least two elections. Most of the time, we have power divided between parties, as at present. Divided power is best suited to keep any changes from being made or strong policies implemented. Given judicial review, complete reversal of entrenched policies might very well take decades.

This all worked fine as long as the government was limited to the rather small list of responsibilities it is assigned by the Constitution.

But a majority of Americans seem to want the government to “run the country” in the same way European governments do. And the constitutional system interferes drastically with efficient implementation of these desires.

To get around this, Americans have for decades largely ignored sections of the Constitution. But I think further expansion of government using this approach is running up against its practical limits.

So I think we have two options: Change the government so it can function efficiently. Or return to a government with limited responsibilities that can be implemented effectively with its limited constitutional powers.

I know which option I prefer.


40 posted on 01/27/2013 9:33:50 AM PST by Sherman Logan
[ Post Reply | Private Reply | To 1 | View Replies]

To: Francis McClobber
He seems like a classic example of a perfesser who hasn’t done much more than research or navel gazing for a mellinium or two.

An "Ivory Tower Idiot"
Educated beyond all reason....


41 posted on 01/27/2013 9:37:00 AM PST by RedMonqey ("Gun-free zones" equal "Target-rich environment.")
[ Post Reply | Private Reply | To 23 | View Replies]

To: Smokin' Joe
So.... If it feels good, do it?
Pretty scary as a system of government, IMHO.



It's damned scary but it goes a long way to explain why highter education system is the way it is

42 posted on 01/27/2013 9:41:31 AM PST by RedMonqey ("Gun-free zones" equal "Target-rich environment.")
[ Post Reply | Private Reply | To 33 | View Replies]

To: Sub-Driver

Seidman.

Another ‘academic’ who conveniently looks past the atrocities committed by the NAZIs to support their same end goal.

Big surprise.


43 posted on 01/27/2013 9:44:27 AM PST by Ghost of Philip Marlowe (Prepare for survival.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPJ
Scummy elites run most 3rd world hellholes... In those places, elites “do it their way and in a hurry”.

You mean like "Progressive" New York and it's recently passed "gun laws" that even outlaws their own cops from having those "scary"gun magazines?
44 posted on 01/27/2013 9:45:07 AM PST by RedMonqey ("Gun-free zones" equal "Target-rich environment.")
[ Post Reply | Private Reply | To 22 | View Replies]

To: Sub-Driver
Let's give up on the Constitution.

Okay, Doc. Let's.

I hereby declare that the constitutional elective process is null and void and that the Pretender currently occupying the White House is to vacate those premises within 72 hours (leaving all the furniture and silverware behind). I further declare that I will henceforth be the Supreme Leader of this Nation, and that the Democratic Party is to be considered an outlaw organization.

Oh, and Congress is fired.

45 posted on 01/27/2013 9:50:14 AM PST by IronJack (=)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kcvl
The Constitution is difficult to change precisely because the Founding Fathers knew that jackwagons like this Seidman would come along every so often and want to destroy it.
46 posted on 01/27/2013 9:53:00 AM PST by hinckley buzzard
[ Post Reply | Private Reply | To 34 | View Replies]

To: Lonesome in Massachussets
There are more tears over answered prayers than unanswered ones, professor.

I wonder how wonderful the good professor would think his ideas are when a different group gets in power.

IIRC, the marxists/liberal/progressives were the ones screaming the loudest when Bush was making moves they did not suit them.

Isn't it groups like the ACLU and Eviros that are constantly in court to defend their "rights" under the constitution?

47 posted on 01/27/2013 9:54:06 AM PST by oldbrowser (They are marxists, don't call them democrats)
[ Post Reply | Private Reply | To 19 | View Replies]

To: central_va

Maybe the South saw the distant future-—“If they (the North) prevail, the whole character of the Government will be changed, and instead of a federal republic, the common agent of sovereign and independent States, we shall have a central despotism, with the notion of States forever abolished, deriving its powers from the will, and shaping its policy according to the wishes, of a numerical majority of the people; we shall have, in other words, a supreme, irresponsible democracy. The Government does not now recognize itself as an ordinance of God, and when all the checks and balances of the Constitution are gone, we may easily figure to ourselves the career and the destiny of this godless monster of democratic absolutism. The progress of regulated liberty on this continent will be arrested, anarchy will soon succeed, and the end will be a military despotism, which preserves order by the sacrifice of the last vestige of liberty.

They are now fighting the battle of despotism. They have put their Constitution under their feet; they have annulled its most sacred provisions; The future fortunes of our children, and of this continent, would then be determined by a tyranny which has no parallel in history.”
Dr. James Henly Thornwell of South Carolina, in Our Danger and our Duty, 1862


48 posted on 01/27/2013 9:54:29 AM PST by yadent
[ Post Reply | Private Reply | To 16 | View Replies]

To: kcvl
Louis Michael Seidman... aka: “Tar Baby the Lamp Post Decoration” without that silly Constitution...
49 posted on 01/27/2013 10:06:36 AM PST by M-cubed
[ Post Reply | Private Reply | To 29 | View Replies]

To: Tea Party Terrorist

I never meant to imply give up the Document; I meant to say that I’d give up the government that is responsible for safeguarding it. Traditional America and its grand history is no more. They do not have the right now in my book. They only want to destroy it.


50 posted on 01/27/2013 10:07:57 AM PST by Gaffer
[ Post Reply | Private Reply | To 25 | View Replies]


Navigation: use the links below to view more comments.
first 1-5051-73 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson