Unshackle Us from the Constitution!

Dear Commons Community.

As we get ready to ring in the New Year, many of us are keeping an eye on the  “fiscal cliff” discussions going on in Washington. D.C.  As of this morning, negotiations did not look promising.  Starting with the Obama presidency (2009) and especially in the past couple of years, there has been commentary about the dysfunction of our system of government and its inability to agree on courses of action.  A good deal of blame for this has rightfully been directed at the partisanship that has come to supersede all other negotiation in the federal government.  Louis Michael Seidman, a professor of constitutional law at Georgetown University, has an op-ed piece in today’s New York Times that directs our attention to  the U.S. Constitution and begs the question:  Should we “give up on it”?

“…no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

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. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is.”

Seidman goes on to provide examples in our history where the Constitution was at least bent if not ignored.

“The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong…

…perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But 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.”

Seidman makes sense but with what do we replace the Constitution?  Also the elected officials who have brought the country to this state of affairs, are the only ones in the position to unleash the country from its constitutional shackles.



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