Georgetown Law Professor Louis Michael Seidman had a really awful op-Ed on December 30, 2012 in the New York Times (even by that newspaper’s low standards) titled “Let’s Give Up on the Constitution“.  I say let’s give up on him, instead.

Why anyone thinks this guy is qualified to be a constitutional law professor boggles my mind.  Maybe it’s time to give up on tenure, too.

While Akhil Amar of Yale Law School is arguing that we should all be bound and chained by both a written and an unwritten constitution, Louis Michael Seidman is arguing that we should just go with an unwritten one. Seidman gives a bunch of bogus reasons that are too numerous and misguided to fully address here.  But I will bravely try.  Let’s start with this specious specimen from Seidman:

Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy?

There are lots of valid arguments for and against lame duck sessions. But the main point is that the Constitution already leaves us 100% free to get rid of them if we want:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.

Any time Congress wants, they can move election day from November to January, thus eliminating any possibility of lame duck sessions.  That Seidman would give lame duck sessions as a leading reason to abandon the Constitution (without even trying to amend it!) is utterly crazy.  Speaking of crazy, consider Seidman’s next complaint:

Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

It’s true that the US Senate is grossly malapportioned, but this too could be substantially changed by mere legislation.  The four most populous states are California (38 million), Texas (29 million), New York (19 million), and Florida (19 million).   The next state has 12 million, and so on down to Wyoming with just over half a million.

The less a state’s population, the more power each citizen has to enjoy self-government, because that citizen’s vote makes more of a difference.  This principle of self-government, as well as better apportionment in the Senate, would be well-served if the top four states would be split up.  Split California into northern, central, and southern.  Split Texas into east and west.  Spin off upstate New York.  And split Florida into north and south.  Of course, there would still be malapportionment in the Senate, but it would be greatly reduced.  Nothing in the Constitution stands in the way, and Professor Seidman is misguided to suggest otherwise.  Even if something in the Constitution did stand in the way, what’s so onerous about the amendment process?  Seidman does not say.

Professor Seidman attempts to dress up lawbreaking and treason by claiming it’s all been done before:

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience.  When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

Certainly the founders engaged in revolution, but it was against Britain.  Yes, one can argue that they also revolted against the Articles of Confederation, but there’s a better argument that they did not.  For example, Lincoln argued in his first inaugural address that secession was unacceptable because “the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778.”  The constitutional convention surely stretched its mandate, but the Continental Congress subsequently accepted the Constitution, thus removing any legitimate quibbles about the stretched mandate; on September 28, 1787, the Continental Congress said:

Resolved, unanimously, That the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures, in order to be submitted to a Convention of delegates chosen in each state, by the people thereof, in conformity to the resolves of the Convention made and provided in that case.

But what about Professor Seidman’s complaint that amendments had to be ratified by all 13 states, rather than just the nine states contemplated by the Constitution?  It’s true that the Articles required any alteration to be “confirmed by the legislatures of every State.” This was so that no state would be bound without its consent.  But the US Constitution did not purport to bind any state without its consent: “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.” Non-ratifying states would not be bound at all.  And the framers of the US Constitution did not pick the number “nine” out of thin air.  The Articles of Confederation explicitly allowed states to form confederacies among themselves with “the consent of the United States in Congress assembled” provided that “nine States assent to the same.” Professor Seidman is wrong that the framers of the Constitution favored secession from the Articles of Confederation.  It didn’t happen that way.  Maybe our right of revolution should be exercised someday, but the precedent for that occurred in 1776 and hasn’t been repeated since then.

Seidman goes on (and on):

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech.

Regarding the Alien and Sedition Acts, it is downright weird for Seidman to invite a repeat of that sorry episode.  The main reason those lousy Acts were finally repealed was because opponents refused to give up on the Constitution.  For present purposes, the key point about those Acts is that President John Adams and his Federalist Party thought (mistakenly) that they were acting constitutionally rather than trying to evade the Constitution.  For example, see the defense of the Alien and Sedition Acts on behalf of a minority of the Virginia legislature (1799).  That influential report (probably written by John Marshall) was plausible in its time, arguing (at page 13) that liberty of the press “signifies a liberty to publish, free from previous restraint, any thing and every thing at the discretion of the printer only, but not the liberty of spreading with impunity false and scandalous slanders, which may destroy the peace, and mangle the reputation, of an individual or of a community.” Opponents of the Alien and Sedition Acts had the better constitutional argument, which ultimately prevailed, but obviously neither side argued for giving up on the First Amendment, as Professor Seidman wrongly suggests.

Seidman continues:

He [Jefferson] believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

Jefferson believed that when the United States makes a treaty with another country, such as the treaty he made with France, then the content of the treaty is limited to the other enumerated powers (“If [the treaty power] has bounds, they can be no other than the [Constitution’s] definitions of the powers which that instrument gives”).  Because Jefferson did not perceive anything in the Constitution authorizing incorporation of foreign lands, he drew up a draft amendment to the Constitution, in order to legitimize the treaty with France.  But members of his administration and of Congress argued that the Constitution did grant adequate power, for example under the power to spend for the general welfare (as Caesar Rodney argued).  So Jefferson then decided to take a middle course: he would acquire the land by treaty, without seeking to amend the Constitution, but leave Congress with the decision about whether Congress had power to make the land into part of the nation:

With the wisdom of Congress it will rest to take those ulterior measures which may be necessary for the immediate occupation and temporary government of the country; for its incorporation into the Union.

In other words, Jefferson declined to use the treaty power in order to occupy, govern, or incorporate foreign lands.  In this way, he held true to his constitutional convictions about the legitimacy of the treaty with France.  Jefferson’s view was vindicated long ago, and Congress has incessantly spent money to promote the general welfare, and to take necessary and proper steps to manage federal property.  In a nutshell, Jefferson initially thought the treaty with France exceeded his constitutional powers, he responded by seeking a constitutional amendment (ignored by Seidman), and ultimately changed his mind by construing the treaty narrowly (as a valid exercise of the spending power that did not occupy, govern, or incorporate any foreign lands).

Moving on, Professor Seidman writes:

[W]hen the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

This complaint strikes me as frivolous.  What the heck is supposed to happen if Congress proposes a constitutional amendment, and new states are admitted prior to ratification?  Obviously, the new states must be counted to determine how many states are required for ratification. After all, Article V of the Constitution says:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution …which…shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States….

Is Seidman seriously suggesting that the rebel states should have been allowed full voting rights in Congress throughout the Civil War?  Or that they should have been forbidden from ratifying any amendment that Congress had proposed before their readmission?  Either notion seems absurd to me.  But even if one imagines that Seidman has the better constitutional argument, surely that does not imply that everyone on the other side of the argument was ignoring the Constitution.

More baloney from Seidman:

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations.

What Roosevelt actually said:

When the Framers were dealing with what they rightly considered eternal verities, unchangeable by time and circumstance, they used specific language. In no uncertain terms, for instance, they forbade titles of nobility, the suspension of habeas corpus and the withdrawal of money from the Treasury except after appropriation by law. With almost equal definiteness they detailed the Bill of Rights.

But when they considered the fundamental powers of the new national government they used generality, implication and statement of mere objectives, as intentional phrases which flexible statesmanship of the future, within the Constitution, could adapt to time and circumstance. For instance, the framers used broad and general language capable of meeting evolution and change when they referred to commerce between the States, the taxing power and the general welfare.

Roosevelt was 100% correct.  For Seidman to assert that Roosevelt did not feel obligated by the Constitution is absurd and insidious. I’ll leave it at that.

Happy New Year.