OCALA, Fla., July 7, 2014 — In politics, whenever things don’t go the way some would like them to, chances are that the U.S. Constitution will be brought into the discussion.
In states where same-sex marriage remains illegal, LGBT rights activists claim that the Equal Protections Clause is being ignored, thus creating a system of unlawful discrimination. Socially conservative religious groups ignore this allegation, while claiming to be victims of unconstitutional restrictions whenever the government imposes a standard that counters their theological doctrines.
Meanwhile, many LGBT-interest supporters are progressive on myriad other social issues. When victory is reached on almost any of these, they seem not to care if more conservative Americans feel that the Constitution is being ignored.
The Constitution isn’t on anybody’s side all of the time. Scores of those who allege to be its most stalwart defenders look the other way when it’s convenient. This makes it virtually impossible for any sound mind to take most declarations of “let’s get back to the Constitution” or “they are violating my constitutional rights” seriously.
Perhaps this is why some intellectuals say we should stop taking the Constitution so seriously.
Georgetown law professor Louis Seidman, author of On Constitutional Disobedience, advocates an idea that is sure to make waves. Rather than try to make sense of centuries-old language, he advocates focusing on practical legislation.
“I’m not in favor of interpreting the Constitution at all, in part because I think that no form of interpretation solves the basic problem,” Seidman told me last year. “On the one hand, originalism is impractical (for example, how could we possibly decide whether the framers thought that video games were ‘free speech’ within the meaning of the First Amendment?), leads to some morally odious outcomes (it’s pretty clear, for example that the framers thought there was no problem with racial segregation), and saddles us with eighteenth century solutions to modern problems.
“On the other hand, the living constitution approach pretty much allows us to do whatever we want. I don’t have any problem with this, but I do have a problem when people applying this method insist that we have to do what they want because the Constitution says so.”
With politics being so partisan, little gets done on Capitol Hill, at least insofar as Congress is concerned. Seidman has suggested that Constitutional disobedience might be the solution to some of our country’s most pressing political quagmires.
“Our constitutional regime as it operates in the 21st century does contribute to a number of political pathologies,” he said. “For example, the manner in which districts are drawn for seats in the House of Representatives has produced a body that is much more extreme than the American people are and that does not reflect the way in which a majority of Americans voted. More broadly, our preoccupation with the Constitution tends to distract political argument from what really matters and to raise the temperature of political debate.”
Seidman adds that when a hot-button matter such as health care “is constitutionalized … the question is turned over to lawyers, and lawyers do with the question what lawyers do, that is, they very carefully analyze constitutional language, constitutional history, precedent etc. So instead of talking about anything that matters, we talk about questions that are entirely beside the point like what the word ‘commerce’ meant in the eighteenth century or what, precisely the distinction is between the Supreme Court’s decisions in Wickard v. Filburn and United States v. Lopez.”
The idea of adopting a legal system in which the Constitution is symbolic as opposed to binding surely jars most of us. At the same time, with out present state of affairs, both sides have descended into legalism above reason, typically to promote political ideology over sound public policy.
Trying to figure out how serious changes can be made is difficult. In all irony, an amendment to the Constitution is necessary for allowing any level of disobedience. Whether or not this could pass both chambers of Congress right now is not the issue. Without taking any stance on the subject, we should ask ourselves if enough Americans truly care about the Constitution as-is.
An honest answer might prove frightening — and disappointing. In a society such as ours, Seidman’s views aren’t so far out as mainstream pundits would like to assume.
“(I)nstead of talking about questions of policy, now we are talking about the meaning of our foundational document,” he explained. “People on the other side of the debate are not just folks we disagree with, but traitors to their country. I don’t think this is the way that we should debate what is to be done in a mature democracy.”
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