Citizenship and Civic Life

The Constitution: Its Role in Public Debate

Based on Louis Michael Siedman, “Let’s Give Up on the Constitution,” NYT, December 30, 2012.

Seidman is a professor of Constitutional Law at Georgetown University and author of forthcoming book, On Constitutional Disobedience

What is Seidman’s thesis?

That invoking the Constitution stops public/political debate about issues that need addressing

Frames them as “constitutional questions” or limits, no-gos, the impossible

Preventing us from having real discussions about how we can solve contemporary problems with the spirit of the constitution, i.e, our constitutional tradition as a whole as our guide

Difference between constitutionalism, following political traditions and using the Constitution as a club to beat your political opponents into submission

Seidman traces our political history, the numerous uses of “unconstitutionalism”

Argues that the progress of our country has often depended on overtly, explicitly going against the Constitution

e.g. drafting the Constitution itself, John Adams supporting the Alien and Sedition Acts, TJ’s Louisiana Purchase, the drafting of the Civil War amendments without the participation of Southern states, FDR pursuing the New Deal and threatening the Supreme Court

Dissenting justices often assert that their colleagues have ignored the Constitution, in landmark cases, e.g. Miranda, Roe v. Wade, Bush v. Gore

“should give us pause” – how? Why? What are we to make of this?

Note: He argues both interpretive methods

“originalism” and “living constitutionalism”

cannot be reconciled;

some cases are decided invoking one method, others the other

Thus we have no SINGLE tradition of interpreting the constitution

Or rather that IS our tradition – of using it literally at times, extrapolating at others

He says, we shouldn’t chuck our traditions but rather follow them out of respect rather than obligation

He’s not advocating redesign of institutional design (“some matters are better left settled”)

“What would change is not the existence of these institutions, but the basis on which they claim legitimacy.

The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief.

Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine.

The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.”

“What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought, and, most important, the sense that we are one nation and must work out our differences.”

“If we acknowledged what should be obvious – that much constitutional language is broad enough to encompass an almost infinitely wide range of positions – we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace.

…If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.”

“If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.”