Let’s Give Up on the Constitution

As one who has sworn to support and defend the Constitution against all enemies, foreign and domestic it pains me to post this.  But perhaps it may have the effect of making people think about how important our Constitution is and maybe some will silently restate their oath to support and defend it.  I do not think we have a problem with the Constitution at all.  I think we have problems with people who interpret it in ways that support their political agendas and especially with those who do not want to support and defend it.  I think the beauty of the Constitution is that the tension between the "originalists" and the "living constitutionalists" is that the checks and balances of our system resolve the disputes over time. Perhaps I lack imagination but I cannot envision a better system and I do not think the author really offers any better solutions.

But the bottom line is that I do not think the Constitution has created a dysfunctional political system, I think the fault for our dysfunction lies in our political parties which of course are not at all part of our Constitution and the Constitutional process (and per my previous messages – President Washington correctly warned us against them I think for the very reasons we are experiencing today).

In this New Year I hope we will remember the how important our Constitution is and again think about the necessity to support and defend it.

V/R

Dave

Let’s Give Up on the Constitution

By LOUIS MICHAEL SEIDMAN

Published: December 30, 2012

http://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-the-constitution.html?pagewanted=all&_r=1&

For Op-Ed, follow@nytopinion and to hear from the editorial page editor, Andrew Rosenthal, follow@andyrNYT.

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?

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.

Continued at the link below)

http://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-the-constitution.html?pagewanted=all&_r=1&