Talk about your constitutional moment. These columns have been predicting for three years now that America is entering what we have called a “constitutional moment,” in which our politics have become so divisive that ever more questions would expose the bedrock of the Constitution. Sure enough, America has gone to that very mat on everything from Obamacare, to same sex marriage, to gun control, to monetary policy, to whether civil rights law can be applied to the hiring of clergymen and women, to interstate commerce, to . . . well the docket gets more exciting every week.
Now, in the face of this great swelling of faith in our fundamental national contract, the New York Times has offered a new strategy — abandoning the Constitution altogether. It runs the brainstorm out under the headline “Let’s Give Up on the Constitution.” The piece carries the byline of a professor of constitutional law at Georgetown University, Louis Michael Seidman. He asserts that “observers are reaching the conclusion that the American system of government is broken” but that “no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.”
If this had been published on April Fool’s day, readers of the Times would have slapped their knees and guffawed. But what is one to make of the fact that the Times has issued this piece in apparent seriousness? It starts with Professor Seidman complaining over the way the Senate is being stymied in the fiscal fight by the constitutional requirement that revenue measures originate in the House. “Why should anyone care?” he asks. “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?”