Never Mind the Constitution
A comparative critique of anti-constitutionalism
The dust jacket of Louis Michael Seidman’s new book consists of a sepia facsimile of the 1787 manuscript version of the Constitution of the United States, with a red cross-out scrawled all over it and the word “NOT” interpolated in red at the top somewhere near the end of the preamble. These visuals set up the book’s title, which appears in stark white on a black smear of crayon across the middle of the original text.
On Constitutional Disobedience appears in a series published by Oxford University Press. The series is called “Inalienable Rights,” and it includes, among other works, Laurence Tribe’s The Invisible Constitution, David Strauss’s The Living Constitution, Michael Klarman’s Unfinished Business: Racial Equality in American History, Richard Posner’s Not a Suicide Pact: The Constitution in a Time of National Emergency, and Richard Epstein’s Supreme Neglect: How to Revive Constitutional Protection for Private Property. It is a series of books mostly devoted to various ways in which the Constitution might be interpreted, and various problems in constitutional law that, in the authors’ opinions, deserve greater attention. Some of these works are more abstract than others, some of them are devoted more to theory than to doctrine, but it is fair to say that they are all focused on the distinctive problems and possibilities of American constitutional law. They accept the constitutional framework – the 1787 document and the 1791 and 1865—68 Amendments – and their questions are mostly about how we should read all that and what we should do with it.
Professor Seidman’s book is also (mostly) about American constitutional law. He is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center, and he is the author of Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review and Constitutional Law: Equal Protection of the Laws. But in this new book, Seidman emphatically refuses to assume the framework that the other books in the series assume. As Geoffrey Stone, the series editor, says in a preliminary “Editor’s Note”: “Mike Seidman’s On Constitutional Disobedience asks a very different question: Why should we care at all what the Constitution says?” (p. xii). Seidman proposes that the Constitution should be treated with less reverence, and that its dictates and principles should be obeyed less often, particularly when there is reason to believe that we now know much better than the Framers from 1787 how to deal with the problems we face.
But the practical upshot of Seidman’s dissatisfaction with constitutional authority is not always clear. Sometimes he proposes that we should ignore the Constitution “systematically” (p. 5). He seems to think we should put the document aside as a guide to action, stop quarrelling over its interpretation, stop using it as a distraction from real-world politics, and treat it, at best, the way we treat the Declaration of Independence – as an inspiring piece of rhetoric, but one whose poetic appeal belies its historic distance from the quandaries we have to deal with. Sometimes – in a less incendiary tone – he suggests we should simply stop feeling guilty about the many areas in which we already ignore the Constitution’s commands and in which we have already abandoned our quarrels about its meaning. We should be more candid about this than we are, and less anxious about how the world would look if the Constitution were taken less seriously.
Seidman’s recommendations are, in the first instance, recommendations for Americans, who pride themselves – perversely, in his opinion – on having the oldest constitution currently in force in the world (p. 11). But the case he presents is also a case against constitutionalism in general, and it might apply as much to the South African Constitution of 1996 and to the constitutions with which we are so anxious to endow new democracies created in our image. This general implication of Seidman’s argument is not something he dwells on, but it peeps out occasionally in various reassurances scattered throughout this short and provocative book – reassurances that we have little to fear from abandoning the U.S. Constitution when we consider how well countries like New Zealand and the United Kingdom do without anything remotely like our formal constitutional arrangements.
I shall talk about these universalistic implications in Part III of the Review. There I shall try to show that Seidman’s case as a whole looks less convincing when taken in this broader context. But first, in Parts I and II of the Review, I want to set out Seidman’s argument so far as American constitutional law is concerned. For it is certainly there that the book will have its greatest impact, even if the impact is just that of a provocateur or gadfly. In Part I, I shall set out Seidman’s critique of American constitutionalism, and in Part II, I will see what can be gleaned so far as Seidman’s normative prescriptions are concerned. I hasten to add that the case I shall describe in Part I does not stand or fall on the success of the prescriptions described in Part II. Evaluation is different from prescription; and the case that Seidman brings against American constitutionalism might succeed in making us uneasy with various practices we have been wedded to even though, at this stage, there is nothing much to be done about them. Seidman, I think, would be disappointed (and rightly so) if people inferred from the inadequacy of his prescriptive argument that his evaluation of our constitutional practice must be flawed. We might, however, get a better grip on what is wrong with Seidman’s argument as a whole by paying attention to constitution-making at the front end rather than by dwelling on the impossibility of kicking our own long-established constitutionalist habit. And that is what I shall consider in Part III.