Categorized | Opinion

Louis Michael Seidman: Time to scrap the constitution

I first thought this was going to be some kind of parody.  It isn’t.  My first clue should have been that it was published in, you guessed it, the New York Times.

AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost 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. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

And this guy teaches constitutional law at Georgetown. I’m guessing libidinous Georgetown Law School graduate Sandra Fluke was one of his favorite students. On the bright side, if we scrapped the constitution the Senate could get away with not passing a budget for four years, the Supreme Court could decree that mandates for private citizens to enter into contracts with private businesses is a-ok, and the President could choose which laws to follow and which to ignore. He could even appoint an army of unaccountable czars to help him rule us. Oh wait.

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