Previously by C.T. Rossi: A Very Bad Movie
Folly is the cloak of knavery. ~ William Blake, Proverbs of Hell
When Cicero said "There is nothing so absurd but some philosopher has said it," philosophers were actually a component of the popular culture. We don't have philosophers nowadays. We have law professors.
Enter Louis Michael Seidman, Georgetown University constitutional law professor, and his recent op-ed "Let's Give Up on the Constitution." In his calumny against the United States Constitution, Professor Seidman, author of the forthcoming book On Constitutional Disobedience, yearns to breathe free from that "archaic, idiosyncratic and downright evil" document. As I read on I wondered whether Seidman was merely being purposefully incendiary and ginning things up for book promotion night at Politics and Prose, whether his mind had been rendered feeble and credulous in the thin air of the ivory tower, or whether he was a sly and cunning crypto-fascist offering a Trojan-horse-utopia vision for the masses.
In his clarion call to break the weighty chains of – well, frankly – the rule of law, Seidman displays himself ever the free thinker – his thinking being free of logic, common sense, and eons of human experience. He argues that because the "nation teeters at the edge of fiscal chaos" the "culprit" must be the Constitution, bemoaning for example that the Senate Democrats' best-ever-plan-in-the-history-of-plans plan to save us all is hampered by the fact that revenue measures must originate in the House of Representatives. The good professor makes no effort to analyze the causes of the chaos. (Could it be that extra-constitutional institution the Federal Reserve?) Neither does he, as a putative constitutional scholar, address the check-and-balance rationale behind the House's special revenue prerogative or how the 17th Amendment has altered that balance. Instead, like clockwork, Professor Seidman offers the threadbare mantra of all legal positivists – what do a bunch of dead white males 200 years removed from us know about anything? Really, professor? Is that all you've got?
But Seiden does give us something else as he takes a rhetorical detour I didn't expect. As grounds for ditching former-decider-in-chief George W.'s favorite gu2014damned piece of paper, our Georgetown don makes perhaps the most candid admission ever to get clicked-out on a keyboard – the usurpers on the Potomac have actually been ignoring it for years! Not only does Seiden come clean that Lincoln, FDR, and the Supreme Court didn't let America's foundational document stand in the way of what they wanted to do, the law be damned, but also offers the even more surprising admission that the Constitutional Convention was itself a coup-d’etat against the Articles of Confederation. But rather than reach the sane conclusion that this crisis situation was a function of the state's attacks on liberty and the American people's unwarranted tolerance of usurping petit despots, he offers us a utopian state which can only be conjured when individual rights wither away. In Seiden's cloud-cuckoo-land, our cherished "protections against governmental deprivation of life, liberty or property" would "continue" but only "out of respect, not obligation." Dare I ask if a government which was obligated to respect the rights of its citizens had engaged in the wholesale disregard of those obligations, as catalogued and endorsed by Seiden, what would its restraint out of mere respect look like?
Professor Seiden assures us that: "Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper." Neither does an occasional illness kill the body, but it is sheer folly to contend that sickness is the root cause of health or that destruction is the key to prosperity.
Does Louis Michael Seidman seriously believe that "extricating ourselves from constitutional bondage" will lead to "real freedom" or is he advocating that the American people keep the mere illusion of our institutions while the substance becomes something very other as that other Georgetown sage put forth? Does he share the unrecanted view of his academic co-author Cass Sunstein that government should be free to "ban" any views it defines as "conspiracy theory" from public discourse?
The close of the op-ed – "before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage" – can be read two ways: as a warning call or as a blueprint for enslavement. Whether he is conscious of the hell he would unleash, we've seen Professor Seiden's rationale promoted again and again (in those histories written by and about dead white men that he finds so irksome) with horrific results and it's the sirens' song that leads to doom always the same refrain: War Is Peace, Freedom Is Slavery, and Ignorance Is Strength.
