Kojo and Tom Sherwood chat with D.C Council Chairman Phil Mendelson and Fairfax County Supervisor John Cook.
The Constitution of the United States was drafted in 1787, and has since been amended 27 times. But even as our society has undergone sweeping changes, many of the document’s basic premises have been left unchanged. Interpreting the Constitution has long been a matter of debate among legal scholars and others, but one constitutional law professor argues that it’s time to reconsider strict adherence to some of the more arcane points.
- Louis Michael Seidman Carmack Waterhouse Professor of Constitutional Law, Georgetown University
Read An Excerpt
Excerpt adapted with permission from “On Constitutional Disobedience” by Louis Michael Seidman. Available from Oxford University Press. Copyright © 2013.
MR. KOJO NNAMDIWelcome back. If you had to memorize the preamble to the Constitution in junior high, this will be familiar. We the people of the United States in order to form a more perfect union establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. Those words were written back in 1787 and we've been living by the letter of that law as outlined in the articles and amendments that follow ever since.
MR. KOJO NNAMDIBut should we simply and mechanically obey some of the more arcane rules and outlines? And does the constitution itself hamper healthy and civil debates over modern issues? After 40 years of studying and teaching law one professor says it's time we the people engage in some constitutional disobedience. And here to explain what that is is Louis Michael Seidman. He is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University. His latest book is called "Unconstitutional Independent." Mike Seidman, thank you so much for joining us.
MR. LOUIS MICHAEL SEIDMANIt's just a pleasure to be here, Kojo. Thanks so much for having me.
NNAMDICan we start at the very beginning with the drafting of this document? The founding fathers weren't actually tasked with creating a constitution when they did. What were they supposed to be doing?
SEIDMANWell, that's right, Kojo. One of the great ironies is that the constitution itself was born of constitutional disobedience. The continental congress, which called the convention into session, instructed the delegates to write amendments to the Articles of Confederation. And the articles themselves provided that they could be ratified only by the consent of all 13 states and only by the state legislatures.
SEIDMANAs soon as these guys got there they tore up their instructions and drafted an entirely new constitution and decided it was going to go into effect -- was ratified by only nine states, not all thirteen. And by conventions rather than by the legislatures that the articles provided for.
NNAMDI800-433-8850 is the number that you can call if you'd like to participate in the conversation. Do you think the constitution should simply remain unchanged, 800-433-8850? You can send email to email@example.com. Among the chief points of issue, how much power to allow the central government, how many representatives in congress to allow each state, how these representatives should be elected, directly by the people or by state legislatures.
NNAMDIThis was the work of many minds and it, I guess, really represents an example of cooperative statesmanship, the art of compromise. These are things you've said.
SEIDMANWell, here's the thing, Kojo. I'm glad you started by reading the preamble to the Constitution. The first three words of the preamble are "we the people." Now I think that means we the living people, not they the dead people. You know, this is -- in the end this is our country. We live in it. We're the ones who are going to be affected by these decisions. We wouldn't want France to tell us what to do or the United Nations to tell us what to do.
SEIDMANThere's just no reason on earth why we should blindly follow the dictates of people who have been dead for over 200 years who had some terrific ideas, but who also had some really, really strange ideas. And for whom -- in any event, it's not going to matter in the slightest because they're dead and we're alive.
NNAMDIWhen students come into one of your classes for the first time, generally speaking how well do they grasp the basics of the Constitution and its purpose?
SEIDMANI think a lot of our students have a kind of 6th grade civics course idea of the Constitution. They really don't understand its complexities or its problems. They don't have a firm grasp of the kind of shenanigans that went on when it was adopted. And one of -- what I view one of my tasks to be is just to make clear to the students how complicated and complex the problem is. It's not simple. It's hard.
NNAMDIDo they come in with the impression that this was something that was simple and just laid out, a text that was simply prepared for us by genius minds?
SEIDMANWell, I think obviously different students have different views but I think there is a much too wide spread complacency in the country about the Constitution, where it comes from, what it does. And don't get me wrong, the Constitution has some really wonderful things in it. But those are things that we ought to respect because we now think they're wonderful. And it's also unfortunately got some really peculiar things and some things that are downright evil in it.
NNAMDISince it was written some two-and-a-quarter centuries ago and those who wrote it are no longer, as you pointed out, with us we are left to interpret the Constitution and adapt it to our time. What are the two main ways of understanding and interpreting this document?
SEIDMANSo there's something called constitutional originalism. And that is a theory that says the constitution ought to be read as it was understood or -- depending on the version of this -- as it was intended when it was written. The problem with that view is that it saddles us with 18th century judgments about 21st century problems. The other version is something that's sometimes called living constitutionalism. And that view says that what we ought to do is to read the Constitution in a way that makes sense today.
SEIDMANThe problem with that view is that of course we're in disagreement among ourselves about what makes sense today. And so what you end up with is liberals reading liberal principles into the Constitution, conservatives reading conservative principles into the Constitution. And then each side yelling at each other and accusing the other of treason because they're violating our foundational document. I don't think that's a sensible way to have political debate in a mature democracy.
NNAMDICan you talk a little bit about the influence of one Alexander Bickel, a mid-20th century law professor at Yale?
SEIDMANWell, Alexander Bickel is not much known to most normal people. But law professors pay a lot of attention to him. He coined the phrase "the countermajoritarian difficulty." And what he was talking about was the fact that Supreme Court justices who interpret the Constitution are not elected. They are appointed. They're appointed for life. They're almost impossible to remove. And in a democracy he thought it was anomalous and required explanation why they should have the amount of power that they do.
NNAMDIBefore we delve into what you mean by constitution disobedience, we should be clear about what you are not saying. Which elements of the Constitution do you think are not necessarily worth revisiting?
SEIDMANSo I'm glad you brought that up, Kojo, because it's something people get confused about. Saying that we ought not to have an obligation to obey the constitution doesn't mean that we ought to disregard everything in the constitution. There are some things in the constitution that make sense today. And to the extent they make sense today we ought to do them because they make sense today.
SEIDMANMy point is just this. We shouldn't do anything solely for the reason that some people who did not even represent a majority at the time they wrote thought they made sense 200 years ago when the country was a small rural republic huddled along the eastern seaboard. We need to make our own judgments today about what we ought to do. And those judgments might, in many cases, correspond to judgments that were made then.
NNAMDIYou point out -- and I'll put it the way you put it -- who would fight and die for the notion that an elector should cast a ballot for a candidate who did not win the popular vote? Probably not many, so there are aspects worth revisiting or at least talking about. The argument you make is not necessarily a popular one. What kind of response have you gotten from colleagues -- the statement I just read seems rather reasonable, but what kinds of responses have you gotten from colleagues on the one hand and strangers on the other hand too?
SEIDMANWell, Kojo, the world would be a much better place if everyone were as reasonable as you are. So among colleagues I've had really enjoyable and interesting discussions. Almost nobody agrees with me but people are willing to think about this. And that kind of interchange I learned from, I hope they learned something. And among ordinary people also I've gotten some really interesting responses that have caused me to think.
SEIDMANOn the other hand, I have to tell you I've gotten something on the order of 700 maybe really abusive emails. Maybe 100 or so of those were overtly anti-Semitic, even though my views about this have nothing to do with my ethnicity. A few of them threatened physical violence. And so I've learned something interesting also. We live in a very big complicated country. And it is striking the emotional hold that the idea of the Constitution has on people.
SEIDMANEven though again if you sort of look at the details, I really don't think that for the people who think that god inspired the Constitution, that god inspired all of the fine tuned minutia of it. Did god really intend for residents of the District of Columbia not to vote? I have my doubts. And yes, I would hope I would fight and die for basic principles of liberty and equality but I wouldn't fight and die for the right of an elector to disregard the wishes of the state that the elector's supposed to represent in voting for a president.
NNAMDIIs part of the passion that the document evokes tied up in the very name, the Bill of Rights as the first ten amendments are known?
SEIDMANThat's a good question. I don't know. I have the following sense but I have to tell you it's pure speculation. I think we live in a situation where for many people things seem to be falling apart. So many Americans today are downwardly mobile. And on top of that, there have been tremendous cultural changes in the country that leave a certain number of Americans at sea. And I think some people feel understandably that the one kind of thing they can hang onto is the Constitution of the United States.
SEIDMANAnd then there's some fancy pants, over-privileged east coast radical telling, by their light sort of laughing up his sleeve at the things that they hold sacred. And people don't like it. And I do understand that. I just think we need to think a little harder about what exactly it is we're committed to and what we're not.
NNAMDII guess the problem I'm having is with the word sacred. But what, in practical terms, would the legal landscape look like if we reconsidered, maybe introduce some benign neglect to our approach to some parts of the Constitution? What would the interpretation -- what would our lives, our legal landscape look like?
SEIDMANSo that's a terrific question, Kojo. I think a lot of people are afraid that if we gave up on the Constitution there would be chaos and tyranny. That seems to me to be really, really unlikely. There are a number of countries in the world that seem to function quite fine without written constitutions.
SEIDMANThe United Kingdom, New Zealand. It's a more complicated case, but Israel also. You know, the United Kingdom has problems, but the last time I looked, they were not rioting in the streets. There wasn't a Hobbesian war of all against all. There wasn't a dictator that had taken over. I think most things would be -- in the United States would be more or less the same. We have well -- as in the United Kingdom we have well established ways of doing things. And we're not about to give up on them lightly.
SEIDMANBut there's one thing that would change and that is if I said to you, you know what? I don't think it's fair that the three citizens in Wyoming get their two senators while the millions of people in California also get two senators. You would not be allowed to say back to me, but that's what the Constitution requires, and end the argument that way. People would have to defend their positions on the merits. And I think that's something we owe to our fellow citizens.
NNAMDIOn to the telephones. We will start with Gilbert in Rockville, Md. Gilbert, you're on the air. Go ahead, please.
GILBERTOh, thanks for taking my call. We seem too often to interpret -- a lot of times to interpret the constitution according to present day punctuation rules, which didn't exist in 1789, particularly the use of the comma. Because back then the comma was used to indicate when to pause when you're reading the document alive -- aloud.
NNAMDISo that's the question.
SEIDMANSo, Gilbert, you know, I think that's a terrific point and I want to broaden it a little further from your specific point. So when you make public policy issues, constitutional issues, you turn them over to lawyers. And lawyers then do with them what lawyers do. And so what do lawyers do? They read the punctuation very carefully. They have arguments about whether in 1787 a comma meant the same thing that it means in 2013. This is profoundly beside the point.
SEIDMANSo there's a lot to be said about whether we ought to have gun control in the United States. But one thing that I don't want to spend a minute worrying about is what the framers in 1787 meant about -- by the comma between the two clauses. That has absolutely nothing to do with anything we ought to care about in 2013.
NNAMDIGilbert, thank you very much for your call. We move on to George in Forest Heights, Md. George, you're on the air. Go ahead, please.
GEORGEHow are you doing today?
NNAMDII'm doing well.
GEORGEI've got a complex question for you and I have a lot of history in it. What is the view of -- our Constitution on Article 4 section 1 guarantees due process rights of law for all of our citizens. And as of late in the last 30 years or so our courts have deviated away from giving due process right of law because as administrative agencies they feel that they are not -- that they don't have to adhere -- the appellate courts don't have to adhere to the Administrative Procedures Act.
GEORGEAnd now they've gotten to the point that all of our appellate courts issue literally hundreds of thousands of unsigned orders which the court courts will not authenticate or validate in this country, and depriving our citizens of rights, liberties, property and life. And I've asked the Supreme Court to give a ruling on that in Case 10-10 236 in the U.S. Supreme Court. But they -- you know, what they answer, they take a rubber stamp, a William Suter and say, certiorari denied.
NNAMDILet me see if Mike Seidman understands what you're talking about here, George, because you're deep in the weeds at this point.
SEIDMANWell, George, just to get into the weeds a little, first of all, Article 4 doesn't say anything about due process. The due process clause is in the 5th, and 14th Amendments. I frankly don't know what George is talking about with regard to clerks not certifying things. It is true that in the Circuit Courts a growing number of cases are decided by the courts without opinions that have precedential value and to the extent George is concerned about that, I think it actually is a legitimate concern, but it's pretty far removed from the topic we're talking about today.
NNAMDIGeorge, thank you very much for your call. The topic is the book written by Louis Michael Seidman called "Unconstitutional Disobedience." He is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University, and we are taking your calls at 800-433-8850. We're going to take a short break first, but if you have called stay on the line. If you haven't yet, you can still call. If you're a lawyer or a law student, we'd like to hear your take on the Constitution. Do you think it makes it harder or easier to have civil debates and conversations about controversial issues? 800-433-8850. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're talking with Louis Michael Seidman about his book. It's called "Unconstitutional Disobedience." Mike Seidman is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University. We got this email from Julie from White Post, Va. "Is there any evidence that the framers of the Constitution expected it to be interpreted literally in perpetuity, or did they believe the interpretation of it would evolve as the country evolved? The most obvious example that I can think of is the 13th amendment. Surely the framers did not believe slavery would continue.
NNAMDI"From my limited understanding, they simply were not able to come to an agreement and avoided the subject in the Constitution. I know many of the founders wrote prolifically, and was wondering if any of them address this topic."
SEIDMANThat's a really interesting question, Julie, and there's been a fair amount of scholarship about the method of interpretation that the framers themselves had. They seemed to have -- or many of them seemed to have believed in what's sometimes called a plain meaning approach. That is to say they thought that one should pay attention to the text and not to -- not necessarily to the intention of the people who wrote it. Of course, for the same reasons that doesn't make a lot of sense to be bound by their substantive judgments, it also doesn't make a whole lot of sense to be bound by their judgments about how their own words would be read.
SEIDMANAnd on the specific question that Julie raises, there certainly were a number of people in Philadelphia who deeply believed in slavery, wanted it to continue, and were prepared to veto any constitution that didn't provide adequate protection for slavery, and for that reason the Constitution is rife with provisions designed to protect slavery. When you think about that, it does make you wonder why we ought to give deference to the views of people who had positions that are so different from our own.
NNAMDIPundits on both sides of the aisle also have a tendency to holdup the Constitution and point to it as the evidence that solidly backs their argument. Is the Constitution a document we should think about in political terms?
SEIDMANI think that's one of the most unfortunate aspects of constitutional obedience and our obsession with the Constitution. So let me give a specific example. Take the Health Care Act. Now, that's a really complicated issue, and I spent some time studying it, and there was just a lot to be said on both sides of it on a number of -- along a number of different dimensions. But what happens when it becomes constitutionalized?
SEIDMANWell, then, instead of talking about how much money we should provide for end of life care, or about what the best way is to keep health costs down, or even about whether it's fair to demand that people buy a product they don't want to buy, what happens instead is we start yelling at each other about who it is who's disobeying what Alexander Hamilton wanted. And, you know, life is short.
SEIDMANI don't think a lot of it ought to be devoted to thinking about what James Madison and Alexander Hamilton wanted, and I really don't think it helps to be doing that at the top of our lungs. And that's what happens when people start arguing about the Constitution instead of arguing about the merits of the things that we disagree about.
NNAMDIIn a recent New York Times op-ed, Mike Seidman wrote, "If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion. A demand that we make a good faith effort to understand the views of others rather than as a tool to force others to give up their moral and political judgments." That said, I'll go to the phones and go now to Jane in Baltimore, Md. Jane, you're on the air. Go ahead, please.
JANEWell, before I begin, let me make my views on this clear. At this time, with things like fenced-in designated free-speech zones, warrantless wire taps, the ability of the president to order the assassination of American citizens without due process. From my perspective, your much wanted Constitution is a worthless scrap, hardly good for wiping my butt or wrapping kitty litter in. That's my view of it. But I think the professor's earlier statement -- earlier example why Wyoming has two Senators just like California was a bit disingenuous.
JANEThose of us who learned about the Constitution in the seventh grade at Sudberg (sp?) Junior High School in 1963 had it very clearly explained to us that this document, this social contract that replaced the divine right of kings was formulated around two concepts, checks and balances, and the separation of powers. And we see that separation of powers manifest in the three branches of the government, and we see checks and balances manifested in the idea that a smaller state can have as many, you know, two houses, and upper house and a lower house, and a smaller state with just as many Senators so that the state government in effect could become a center of power to balance out federal power.
JANELikewise with the second amendment. It's about checks and balances. The people have to be armed in order to check a government -- a tyrannical government.
NNAMDIWell, allow me...
JANEThat's why they were too...
NNAMDIAllow me to interrupt for a second because you mentioned the second amendment. We got a tweet from someone who had the following proposed change to the constitution. "Rewriting the second amendment so it's less ambiguous and make it more limiting. It's not 1790, and we are not an agrarian society." What would you say to that, Jane?
JANEWell, I go back to -- look, there's nothing original about what this guy is saying. In the 1930s, Charles and Mary Beard completely deconstructed the economic origins of the United States Constitution and showed that it was set up to establish an oligarchy, just like the slave republics of Athens and Rome.
NNAMDISo do you think we should dispense with the Constitution all together?
JANEIt's already dead. It's already dead.
NNAMDIWell allow me to have Mike Seidman respond to that.
SEIDMANWell, first, I want to say, Jane, I think we studied the Constitution in high school at about the same time. So look, in 1789 or 1787, it was necessary to have the Senate with equal representation in the states in order to get a deal. That doesn't mean that it makes sense in 2013. Now, in a sense, Jane was doing exactly what I would like to see us do. That is to say she was making some arguments on the merits why it does make sense to have a Senate as it's presently constituted in 2013.
SEIDMANSo I think we ought to have that discussion, right, in we ought to have it out. I happen to disagree with Jane, but I can't say her position's ridiculous. There's some to be said for the present composition of the Senate. My only point is this. We ought to have that discussion now, and we ought not to short circuit it but just saying, well, we're not allowed to have that discussion because it's already been established by the Constitution.
NNAMDIOne debate we are having right now is about gun control, and you cannot talk about it for long before the right to bear arms as outlined in the second amendment comes up. What, as you see it, is the role of the Constitution in our current conversations about gun control?
SEIDMANKojo, that's another terrific example. So my friends can't believe it, and indeed my wife can't believe it, but I actually am pretty skeptical about most forms of gun control. I think, given the fact that there were already more guns in the United States than people, it's not likely to work, and measures that would work would require more cost than we would want to bear. So I'm doubtful about it. On the other hand, there are people who are not stupid who think there's something for it, something to it.
SEIDMANBut the one think, again, that seems to me to be just completely irrelevant is whether in a vastly different country under vastly different circumstances with different kinds of weapons, people 250 years ago who have been for it. Who cares? That's not the issue that's before us today, and we should just end our hang up about that and fight out the issue as it's presented to us now.
NNAMDIOnto to telephones again. This time to Ann in Rockville, Md. Ann, your turn.
ANNHi. Hi, Professor.
SEIDMANHow are you, Ann?
ANNI am well, thank you. I am formally an ACLU first amendment staff attorney of about 25 years ago, and I am loving this conversation. My concern is not so much with gun control. I do -- I certainly share your view on that. What I find most interesting is you used the word constitutionalization. You have made a verb of the Constitution, which I absolutely love because the Constitution seems to be, in my everyday life, and in the folks I represent who are typically suing local governments, the Constitution is the only -- that's -- so those concepts are only thing that are standing between my clients' rights to go about their everyday business and getting locked up.
ANNFor example, we have in local governments, who quite frankly to my -- at least they appear to be very dysfunctional. The term Constitution is a vague abstraction, and most conversations I've noticed it's discussed very academically. In my world it's a very real living series of actions and rights. For example, a person driving down the road is stopped by a police officer. Police officer says, excuse me, Ann, you might run a red light, and a say, well, I certainly haven't done anything yet, have I, and the police officer says, well, I'm going to give you a ticket anyhow, and I'm going to impound your car.
ANNWhoa. Whoa. Whoa. Wait a minute. Well, here's the ticket. Here's the place to go. We're going to hold your car until you can get a hearing to get your car back. The circumstances I just described occurs all the time at local government level with respect to the lower agencies that -- I should say the agencies that are not well trained, not well staffed.
ANNAnimal control being a good example. Some of the...
NNAMDII know. Your point being, because we're running out of time.
ANNMy point being this. When we discuss the Constitution, please just keep the debate and the discussion alive. If the issues of the Bill of Rights is very much a living, breathing entity. It's the only thing that stands between us and the police state in the academic sense. In the real sense, it's the only thing that's -- there has to be some way the disseminating information to local governments so they start complying with it.
NNAMDIMike Seidman, I'm not sure that I understand whether Ann is saying that we shouldn't discuss it at all because there are some things in the Constitution that you obviously feel should stay in place, others that you feel we should be debating.
SEIDMANSo Ann, I'm a firm believer in civil liberties, and I really support and admire your work, but here's what I would say. Civil liberties make sense because they make sense today and, therefore, we ought to enforce them because they make the United States a better place today. I don't think that it's a good answer to somebody who opposes civil liberties to say, well, we can't even talk about that because it was settled for us 200 years ago. That's really -- when you get right down to it, that is itself authoritarian. That's insisting that people do things without giving them a reason for doing them.
SEIDMANAnd you know what? In the long run, that's not going to work. If we're going to have a vibrant culture of civil liberties, the only way we're going to have it is by people like Ann and me doing the hard work the convincing Americans today that these are things that are valuable and not just telling them to shut up and accept judgments that were made generations before they were born.
NNAMDIHere is Joe in Arlington, Va. Joe, you're on the air. Go ahead, please.
JOEThank you. Thank you. It's an interesting topic, but I'll try to be polite. It really is nothing new, and it also, you know, I was a lawyer practicing for 25 years. I was also a faculty member in a law school, and this kind of discussion makes me happy that I went back to practicing because, I mean, surely the professor understands that so much of our common law is grounded in constitutional principles, that if you through away the Constitution you would have to relitigate civil rights, you'd have to relitigate commerce clause. You'd have to relitigate everything...
NNAMDINot sure that the professor's talking about throwing away the Constitution, but we're running out of time, so allow me to have him respond. A lot of people seem to feel that that is indeed what you are advocating, Mike Seidman.
SEIDMANWell, so it's really something. Half the people say I'm suggesting nothing new, and the other half say this is so radical and far removed from anything anybody's thought we can't even consider it.
NNAMDIJoe seems to be saying both.
SEIDMANSo I guess I disagree with Joe that everything would have to be relitigated. I don't see why. We have long standing customs and traditions. It doesn't make sense to just upend all of them immediately. For most things, I think things would stay more or less the same.
NNAMDIWell, changes to the Constitution have been made, and in at least one case, undone. Just how difficult is it to alter?
SEIDMANWell, so the problem is that altering the Constitution by formal means under present circumstances is almost impossible. There have only been -- since the Bill of Rights, there have only been 17 amendments to the Constitution. There hasn't been a new one since 1971. The fact of the matter is that a very, very small number of people can block an amendment, and that makes it not a practical alternative.
NNAMDII'm afraid that's all the time we have. Louis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University. His latest book is called "Unconstitutional Disobedience." Mike Seidman thank you for joining us, and for this, well, very intriguing work.
SEIDMANThank you so much, Kojo, a real pleasure.
NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.
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