Is America being held in ‘constitutional bondage’?

National Constitution Center

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Lyle Denniston comments on a Georgetown professor’s claim that the Constitution itself is a big reason that the American system of government can be seen as dysfunctional.

The statements at issue:

“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….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.”

—Louis Michael Seidman, Georgetown University constitutional law professor, in an op-ed column December 31 in The New York Times. The column, headlined “Let’s Give Up on the Constitution,” provides an advance summary of views to be expanded in a forthcoming book, On Constitutional Disobedience. The full text of his column can be read here.

We checked the Constitution, and…

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If one were to start the New Year by re-reading the American Constitution, now into its 226th year, one would not find there an expiration date. Nor would one find the suggestion that continued fidelity to its mandates and principles would lead to bondage for the American people. So, it is unfortunate that, after teaching about the basic document for more than 40 years, Professor Seidman would be led to read those two doomsday scenarios into it.

Lest one’s New Year begin in constitutional gloom, though, it is important to note that there is no chance that America is about to take his suggestion to “give up on the Constitution.” The document is secure, and so is the nation that it created and continues to govern.

In perhaps every era of the Constitution’s existence, there have been those who were discontent with one or more parts of it, and demanded change (sometimes, in fact, succeeding in change). Right now, there seems to be a particularly lively debate in the legal academy over whether the Constitution has gone out of date, and Professor Seidman has been a part of that conjecturing. He may have begun to emerge, though, as having gone further than most of the academics in suggesting that he would give up on what he somewhat dismissively calls “a poetic piece of parchment.”

Actually, when one reads all of his column in The Times, one does see that he is not ready to give up on every part of it, suggesting several concepts and restraints that he would retain (although with some reworking of their theoretical premises).

What is truly valuable about his thoughts here (and no doubt will be true of the book when it comes out) is the reality that the document itself is no guarantee that its contents will not be misused, no assurance that government actors, politicians or advocates will not try to bend it to their own preferences, no promise that it will not be invoked to give legitimacy to even lunatic fringe arguments.

It is a Constitution, after all, designed to create not a perfect government, but a workable one; it has within it considerable flexibility, unlike a literalist Bible or a civic Ten Commandments of “thou shalts.”

Seidman provides a few past examples of “constitutional infidelity,” and he makes the altogether reasonable argument that the country has survived those. It is far too much, though, to say that those examples add up to an indictment of the Constitution itself, sufficient to justify talking about giving up on it.

What is most missing in the column, though, is an appreciation of what the Constitution has meant in inspirational terms. He writes admiringly of other free nations who have no written constitutions but yet “are held together by longstanding traditions, accepted modes of procedure, and engaged citizens.” But he apparently fails to see that those same qualities are the ingredients of America’s tradition, too, coming out of a civic appreciation of the virtue of a written constitution and fidelity to its core principles.

What is it about America, one might ask, that has given it its own “engaged citizens,” if it were not at least in part a belief in their two-century-old “parchment”? What roles does an iconic instrument play in developing and in preserving an admirable history of governance for a free nation?

To ask those questions, of course, is to answer them. When legions of Americans and foreign visitors meander through the marble gallery of the National Archives in Washington to examine the Constitution and the Bill of Rights, are they drawn there by mere pieces of yellowed paper? While there, when they chance to look at a copy of Britain’s Magna Carta (which will be 800 years old just about two years from now), do they just see an old scrap of paper or something close to the foundation stone of human liberty?

Do nations preserve their documentary heritage merely to add to museum revenues, or do they understand that what those with the genius to create systems of government have bequeathed is part of the fabric of a nation’s life. Such nations are not inviting slavish submission to totalitarian writings, but encouraging later generations to discover for themselves the very essence of democratic possibility as the opening generation itself imagined it.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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