Monday, December 31, 2012

Again With the White Propertied Men

Over at the New York Times, Professor Louis Michael Seidman declares, "Let's Give Up on the Constitution."

Ye cats. I can only give out the Originalism Prize once a year. Maybe Seidman is shooting for the 2013 award, so give him credit for getting started early. Anyways, amidst the calls for more flexibility and more modernism to be awarded to our government, Seidman hypothesizes:
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?
It's a little confusing. Who is this "government official?" Is he acting alone? Is he in possession of unilateral power? Doesn't he have to convince other people in government to adopt his plan? Did Seidman just hypothesize a dictatorship and then complain about a document that would limit such an oppressive regime?

Hold on, it wouldn't be a dictatorship; under this new system,
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.
"Contemporary policy grounds" are already decided by "abstruse constitutional doctrine." Tax rates and many appropriations already fall under the purview of Congress in both the original and amended Constitution. And under this new regime, how, exactly, would the Supreme Court "root" its decisions? Common sense? Whimsical notions? And this is a better system, we're to believe.

What's most puzzling is Seidman's complaining that, under the Constitution, the President can use a claim of "unchallengeable constitutional power" to "[shut] down the debate" on foreign policy. Obviously, such a claim is a flagrant violation of the Constitution itself---the President's military power is supposed to be severely limited under the Constitution, not "unchallengeable." In other words, the more the President violates the letter and spirit of the Constitution, the more Seidman thinks the Constitution should be scrapped and replaced with a type of merit-based system which would be less restraining of those powers! It's akin to cutting the hole out of the sheet instead of sewing it up.

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