Sunday, January 27, 2013

Seidman on Constitutional Disobedience

ConLawProf Louis Michael Seidman (Georgetown) shared a thumb-nail version of his "constitutional disobedience" at CBS Sunday Morning.  Drawing on dead-hand, anti-democratic, and pragmatic arguments, he contends that constitutional disobedience has both a history (as when past presidents have acted against the Constitution) and a virtue (as when we might ignore election results that would allow a presidential candidate rejected by the majority of Americans to assume office).  He also says that the better way to approach the document is as an inspiration, not a set of commands.

Here's his example from the gun control debates:

But what happens when the issue gets Constitutional-ized?  Then we turn the question over to lawyers, and lawyers do with it what lawyers do.  So instead of talking about whether gun control makes sense in our country, we talk about what people thought of it two centuries ago.

Worse yet, talking about gun control in terms of constitutional obligation needlessly raises the temperature of political discussion.  Instead of a question on policy, about which reasonable people can disagree, it becomes a test of one's commitment to our foundational document and, so, to America itself.

For the full version, check out Seidman's new book, On Constitutional Disobedience (OUP).



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It astonishes me that a "constitutional law professor" could make statements like these. If the Constitution is an "inspiration," then any protection for fundamental rights such as freedom of speech, equal protection, etc., becomes subject to ordinary political control. If Congress or the President decide, on September 12, 2001, that freedom of speech is not as important to them as it was to the ratifiers of the First Amendment, then people can be jailed for criticizing the government. Separation of powers issues would be decided how, by the appearance of military units on the Capitol steps? One important function of the Constitution is to take extremely important human rights out of day-to-day political processes. If the Second Amendment was a mistake that sufficiently interferes with important public policy, then use the amendment process to alter or eliminate it. Criticize originalism as a method of constitutional interpretation, but don't suggest that the Constitution be ignored when it seems convenient and useful to do so.

Posted by: Jeffrey G. Purvis | Feb 2, 2013 10:56:31 AM

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