Law
1:59 pm
Thu January 3, 2013

Op-Ed: The Constitution Is Just 'A Poetic Piece Of Parchment'

Originally published on Tue January 8, 2013 11:01 am

One of the cornerstones of American democracy is the pledge that every federal officer takes to preserve, protect and defend the Constitution.

In a piece in The New York Times, Georgetown law professor Mike Seidman argues that our reliance on the document has created a divisive and dysfunctional political system.

"It just doesn't make any sense, I don't think, to have a document that is as important as the Constitution — as entrenched as it is — given the fact that the world changes," Seidman tells NPR's Neal Conan.

Seidman, who has taught constitutional law for 40 years, explains why he thinks it's time to reexamine the role the document plays in American society.


Interview Highlights

On why the Constitution is no longer relevant

"The people who wrote the Constitution lived in a small rural country, huddled along the Eastern Seaboard — a large part of which was financed by slave labor. ... Many of them believed that it was OK to own other human beings. Almost all of them believed that women should have no role in public affairs. Almost all of them believed people ... without property have no role in public affairs. Why on earth would anybody think that their decisions ought to bind us now?"

On how the Constitution has complicated the health care debate

"Where I work, here's the way an argument about health care goes:

A says, 'Gee whiz, the president's health care proposal's terrific.'

B says, 'But it's unconstitutional.'

A says, 'No, it's not. The framers would've liked this.' ...

"And before you know it, we're off and running on a completely irrelevant conversation about what people thought 250 years ago, instead of about what we should be talking about, which is the merits of health care. Now, don't get me wrong. This is what I do for a living, so I enjoy doing it. ... But I don't think it's a particularly good way of talking about whether, for example, Obamacare is good for the nation or not.

"To make matters worse, constitutional discourse tends to raise the temperature of the argument, so that instead of my saying ... 'You and I just disagree about what ... the economic effect of Obamacare is going to be,' somebody says, 'You're disobeying our basic commitments which make us Americans.' And that kind of debate is just not helpful. We need to engage with each other instead of calling each other names."

On a part of the Constitution that we don't obey

"In Article I, it's very clear that every senator is to serve for six years except for the senators who were elected in the very first Congress who will serve for either two, four or six years. But since the first new state was admitted to the Union in 1791, we've just disregarded that provision. One senator from new states has always served less than six years so as to allow for staggered election of senators.

"So I looked at sort of the record about this, and so far as I can tell, only one time has anybody ever objected to that. There was a back row member of the Senate when Alaska was being considered as a new state, who gave a speech. He said, wait a second, we can't do this, this is unconstitutional. And the floor manager of the bill said, shut up and be seated.

"And so we've just disregarded that provision, for a good reason. I think it doesn't make a lot of sense. Last time I looked, God and his mighty wrath has not rained thunderbolts down on us because of that. Life seems to be going on more or less as normal, and we're the better for it."

On why amendments are not enough

"As a practical matter, for many, many provisions, it's just impossible to amend the Constitution. If there's even a very small minority that's entrenched and determined, ... that minority can prevent the American people from making changes that most people think would be a good thing to make."

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

NEAL CONAN, HOST:

One of the cornerstones of American democracy is the pledge that every federal officer takes - from the president on down - to preserve, protect and defend the Constitution. Georgetown professor Mike Seidman, who's taught constitutional law for 40 years, argued in an op-ed in The New York Times on Monday that our obsession with our most revered founding document has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues, and inflamed our public discourse. If constitutional originalists focus on the intent of the framers, Professor Seidman's on the other end of the spectrum. He says we ought to largely ignore it.

So if we were to get rid of the Constitution, what are the parts we can't do without? Give us a call, 800-989-8255; email, talk@npr.org. You can join the conversation at our website as well. That's at npr.org; click on TALK OF THE NATION.

Mike Seidman joins us here in Studio 3A. He's a constitutional law professor at Georgetown University. His book, "On Constitutional Disobedience," goes on sale later this month. And it's good to have you on the program today.

MIKE SEIDMAN: It's a tremendous pleasure to be here, Neal. Thank you. Just to set the record straight, it's not quite 40 years that I've been doing this. I don't want you to make me any older than I am.

CONAN: Close to 40 years, though.

SEIDMAN: All right. I'll accept that.

CONAN: I expect since that op-ed came out, you've received some colorful emails.

SEIDMAN: My inbox now has over 700 emails. I have to tell you the majority of them are abusive. Some are anti-Semitic, really viciously anti-Semitic, and a few are threatening physical violence. So it's been quite a trip.

CONAN: And you're just about to publish a book on this subject. It's going to be an interesting few months.

SEIDMAN: I guess it is.

CONAN: The point of your - you've been teaching the Constitution for so long. Why do you think it's become - or large parts of it - irrelevant?

SEIDMAN: Well, I think the basic point is this. This is our country. We live here. We have a right to have the kind of country we want. We wouldn't want France or Great Britain or, for that matter, the United Nations telling us what kind of country to have. And we shouldn't let a small group of people - who lived over 250 years ago and who knew nothing about our current situation, and who didn't even represent a majority of the Americans then, tell us what kind of country we have. That's a decision for us. We have a right to make it for ourselves.

CONAN: Yet this document is cited, well, reverentially is not too far to go.

SEIDMAN: So my email traffic does indicate people have a emotional attachment to it, and don't misunderstand. There are many things that we ought to hold on to in the Constitution. There are important things. But we ought to hold on to them because we think they're right, not because somebody who's been dead for 250 years ago thought they were right.

CONAN: But if you start ditching some parts because you don't think they're right, how do you then make sure you keep the parts that you do think are right?

SEIDMAN: So we need to talk about which parts we think are right and which parts we don't. In fact, in large ways and small, over the years we've ditched many parts of the Constitution. There are lots of provisions that are not obeyed. And what we need to do is just acknowledge that fact and talk for - make decisions for ourselves about the kind of country we want to live in.

CONAN: Give us an example of parts of the Constitution that we don't obey.

SEIDMAN: Well, so I'll give you a small example. In Article I, it's very clear that every senator is to serve for six years except for the senators who were elected in the very first Congress who will serve for either two, four or six years. But since the first new state was admitted to the Union in 1791, we've just disregarded that provision. One senator from new states has always served less than six years so as to allow for staggered election of senators.

So I looked at sort of the record about this, and so far as I can tell, only one time has anybody ever objected to that. There was a back row member of the Senate when Alaska was being considered as a new state, who gave a speech. He said, wait a second, we can't do this, this is unconstitutional. And the floor manager of the bill said, shut up and be seated.

(LAUGHTER)

SEIDMAN: And so we've just disregarded that provision - for a good reason. I think it doesn't make a lot of sense. Last time I looked, God and his mighty rath is not rain and thunderbolts down on us because of that. Life seems to be going on more or less as normal, and we're the better for it.

CONAN: Well, if want to change any provision of the Constitution, including that one if we wanted to, all we need to do is pass an amendment.

SEIDMAN: Well, that's easy for you to say, Neal. The - as it happens, the procedures in Article V for amendment are the most difficult of any Constitution in the world. And as a practical matter, for many, many provisions, it's just impossible to amend the Constitution. If there's even a very small minority that's entrenched and determined, they can prevent - that minority can prevent the American people from making changes that most people think would be a good thing to make.

CONAN: Well, in our lifetimes, yours and mine, we've seen the Equal Rights Amendment go down. We've seen other provisions that some people thought would pass, like an amendment to bar burning the American flag. Well, that never got anywhere.

SEIDMAN: Well, that's exactly right. It's just not practical to amend the Constitution for many, many matters. And, of course, Article V is itself part of the Constitution and one of the parts that, I think, we ought to disregard.

CONAN: Really?

SEIDMAN: Yes, because it just doesn't make any sense, I don't think, to have a document that is as important as the Constitution, as entrenched as it is, given the fact that the world changes. The people who wrote the Constitution lived in a small rural country, huddled along the Eastern Seaboard, a large part of which was financed by slave labor. They believed - many of them believed that it was OK to own other human beings. Almost all of them believed that women should have no role in public affairs. Almost all of them believe people with properties - without property have no role in public affairs. Why on earth would anybody think that their decisions ought to bind us now?

CONAN: We're talking with Mike Seidman, Constitutional law professor at Georgetown University. So if we were to start ignoring parts of the Constitution, what parts should we really pay attention to? Give us a call, 800-989-8255. Email: talk@npr.org. And we'll start with Maureen. Maureen's with us from Salisbury, Maryland.

MAUREEN: Hi. Thanks for taking my call.

CONAN: Sure.

MAUREEN: The one part of the Constitution I hold on to and I - it makes me shiver when I heard about the response Mr. Seidman got, is free speech. I would hate to see us - I think we can't afford - it's who we are - to let go of that even though we allow hate speech and even though it has awful consequences. We can't do the rest of it without it.

CONAN: Free speech...

MAUREEN: Without having an open dialogue.

CONAN: Mike Sideman, there are a lot of countries in what we regard as the developed world, Europe, that, well, for example, would bar any positive statements about the Holocaust or something like that.

SEIDMAN: Thanks for calling, Maureen. I am a big believer in free speech, and I take advantage of it as much as I possibly can. But look, here's the basic point. If we're going to have free speech rights in the United States and if they're going to be vibrant and secure, we cannot have free speech rest on people being told, whether they like it or not, they have to accept this because of what some people thought 250 years ago. The only way free speech is going to survive in this country is if the people who believe in it defend it, not because it was a good thing 250 years ago but because it's something we desperately need right now.

MAUREEN: I would agree with you. I think that it's - I guess what I'm saying is you can't have the rest of the debate if you're not wiling to listen to - to allow people to see what they will say, even if it sounds awful to you.

CONAN: Thanks very much for the call, Maureen.

MAUREEN: Thank you. Bye.

CONAN: There's a part of your op-ed that I want to ask you about, and that was the Constitution, as you say, has saddled us with a dysfunctional political system and kept us from debating the merits of divisive issues. How so?

SEIDMAN: So why don't we take a divisive issue? How about health care?

CONAN: OK.

SEIDMAN: So where I work, here's the way an argument about health care goes: A says, gee whiz, the president's health care proposal's terrific. B says, but it's unconstitutional. A says, no, it's not. The framers would've liked this. A says, are you kidding? Look at what James Matheson said. And before you know it, we're off and running on a completely irrelevant conversation about what people thought 250 years ago, instead of about what we should be talking about, which is the merits of health care. Now, don't get me wrong. This is what I do for a living. So I enjoy doing it. And I, maybe boastfully, I think I'm pretty good at it. But I don't think it's a particularly good way of talking about whether, for example, Obamacare is good for the nation or not.

To make matters worse, Constitutional discourse tends to raise the temperature of the argument, so that instead of my saying, you know what, you and I just disagree about what the effect - the economic effect of Obamacare is going to be, somebody says, you're disobeying our basic commitments which make us Americans. And that kind of debate is just not helpful. We need to engage with each other instead of calling each other names.

CONAN: But isn't it the job of the legislative branch to try to decide which policies are right or wrong and economically correct? And the judicial branch, the Supreme Court, eventually, says, wait a minute, this is part of our Constitution or not.

SEIDMAN: Well, I think it's - on issues - important issues like health care, I think it is largely a myth that that's what the judicial branch does. Many, many of the Supreme Court's most important decisions on things like Affirmative Action or the rights of gay Americans, they really have nothing to do with the Constitution. There's some mix of political ideology and political morality or philosophy. And maybe it's a good thing to have a body that does that, but it ought to be honest with us and stop hiding behind the cloak of the Constitution, which about - most of these matters has virtually nothing to say.

CONAN: Mike Seidman's book, we mentioned earlier, is called "On Constitutional Disobedience." It goes on sale later this month. His op-ed appeared Monday in The New York Times. There's a link to it at our website. Go to npr.org, click on TALK OF THE NATION. You're listening to TALK OF THE NATION from NPR News. Gary's on the line with us from Kansas City.

GARY: Thank you very much. Appreciate the chance to talk and I'd like to make a comment on what I'd like to keep in the - from the Constitution. I'd like to - actually I'd like to keep the whole of the Second Amendment, which specifically says: A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

So if there are people that wish to keep certain types of arms that most people have no interest in keeping, the arms and discharge ammunition rapidly, let's let them be in the militia. And let's fully honor the way the Second Amendment was written rather than having a selective honoring by certain factions in our country now, who focus on the right to keep and bear arms without infringement, without focusing on the whole language of the amendment.

CONAN: The militia part or the right to bear arms parts?

GARY: The militia part has been lost. If people wish to bear certain types of arm, let's put them in them in our homeland defense militia, and let's make them - let's get them to train together. Because actually, if they function as a unit, a well-trained unit, they'll actually be much more effective to retail an invading army than they would be as individuals with high-powered weapons.

SEIDMAN: Well, we call that the National Guard these days. But anyway, whether do you have opinions on the Second Amendment, Mike Seidman, Gary's point is - there are parts of this document that are not crystal clear, let me put it that way.

Well, that's exactly right. And thank you for your comments, Gary. I'm afraid I'm going to be a little repetitious here, but it seems to me that what matters about the Second Amendment is what we ought to think about whether gun control is a good or bad idea, now, not in a country that existed a long time ago and no longer exists.

And I think the Second Amendment is a good example of the real problems we get into when we start trying to consider these things as a matter of Constitutional law. So you have the spectacle of Justice Scalia and Stevens, spilling tons of ink over questions like what did the word militia mean in 1791; what does the word bear arms mean, or what did it mean to the framers? These questions are deeply irrelevant. What matters is whether in our present environment, gun control make sense, whether it ought to be a link to a militia or not, not what people thought a very long time ago.

CONAN: Gary, thanks very much.

GARY: Thank you.

CONAN: Let's see if we go next to - this is Bob. Bob with us from Lexington in Kentucky.

BOB: Hi.

CONAN: Go ahead, please.

BOB: The thing I think is mostly important to make sure we keep is the preamble, because that really tells why the Constitution was written in the first place and what it's purpose really is to do.

CONAN: And I think you will probably agree with that?

SEIDMAN: Bob, I just think that's a terrific comment. I do agree completely. So the Constitution is supposed to be a unifying document. And one thing I think we can all agree on, are the great goals that are stated in the preamble. And one of the things about preserving and respecting the preamble is that it gives us a vocabulary where we can talk about how we ought to fill in the blanks. Those are goals that all Americans can and should share, to provide for a more perfect union, if you will. And the Constitution serves it best function when it provides us with a framework for debate and doesn't try to dictate to us outcomes that we may or may not approve of.

CONAN: Thanks very much, Bob.

BOB: Thank you.

CONAN: And here's an email that we have from Andy. Sorry to hear about all the abusive response to the op-ed. I enjoyed reading it, although I'm not at all sure with to what degree I agree with the professor's case. I will say that I have been thinking about it ever since, and I guess that's the value of it.

SEIDMAN: That's a very high compliment, Andy. I really appreciate it. And, by the way, let me make clear. I just completely understand why people are emotionally engaged in this, and people have a right to be angry. They have a right to call me names. That's OK. I'm less appreciative of threats of physical violence. But the rest of it is - that comes with the territory.

CONAN: Well, we'll call you Professor Seidman. Thank very much for being with us today.

SEIDMAN: Thank you.

CONAN: Mike Seidman is a constitutional law professor at Georgetown University. His op-ed appeared in The New York Times on Monday. Tomorrow, TALK OF THE NATION: SCIENCE FRIDAY with a look at how Arctic fish avoid becoming ice cubes, and join Ari Shapiro back here on Monday. I'll see you again on Tuesday. It's the TALK OF THE NATION from NPR News. I'm Neal Conan in Washington. Transcript provided by NPR, Copyright NPR.

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