While I was on the treadmill at the gym yesterday, I finally listened to the podcast that Glenn Reynolds, our friendly neighborhood Instapundit and University of Tennessee law professor, recorded recently with Russ Roberts, economics professor at George Mason University. At about 30:00 minutes into the recording, Reynolds and Roberts had the following exchange over Louis Michael Seidman’s piece in the New York Times at the conclusion of 2012, ominously titled, “Let’s Give Up on the Constitution.”
I quickly typed this up from the MP3, apologies if there are any errors in the transcription:
ROBERTS: We had a recent guest on the program, Louis Michael Seidman, and he suggested that the Constitution’s out of date. It makes us beholden to a group of dead people who lived over two hundred years ago, and we should just ignore it, unless something in it makes sense. He happens to be a defender of the Second Amendment – he wouldn’t get rid of that. Or the First Amendment; he likes that one, too. But, basically [he thinks] we should keep good laws and get rid of bad ones; [keep] good practices, and get rid of bad ones. So you just avoid the Constitutional Convention all together. You just stop using the Constitution! What do you think of his argument?
REYNOLDS: I call this the Raj Koothrappali approach to Constitutional Law. I don’t know if you watch Big Bang Theory, but Raj is Indian of course, and he’s lecturing his sister from India on Hindu rules about modesty and sexual propriety, and she just looks at him and says, “You’re talking to me about this, as you’re eating a cheeseburger!” He just looks at her and says, “Some of it makes sense; some of it’s crazy – whatta do?!” And that’s basically the Seidman approach to the Constitution, right? The parts he likes make sense, and the others are crazy – whatta do?
Here’s the problem with public officials — because that’s really [Seidman’s] audience — deciding to ignore the Constitution: If you’re the president, if you’re a member of Congress, if you are a TSA agent, the only reason why somebody should listen to what you say, instead of horsewhipping you out of town for your impertinence, is because you exercise power via the Constitution. If the Constitution doesn’t count, you don’t have any legitimate power. You’re a thief, a brigand, an officious busybody, somebody who should be tarred and feathered and run out of town on a rail for trying to exercise power you don’t possess.
So if we’re going to start ignoring the Constitution, I’m fine with that. The first part I’m going to start ignoring is the part that says, I have to do whatever they say.
ROBERTS: But his argument is that we already ignore the Constitution; it’s not really much of a binding document.
REYNOLDS: Oh, well, then I’m free to do whatever I want! And actually, that is a damning admission, because what that really says is: If you believe Seidman’s argument; if you believe that we already ignore the Constitution anyway, then in fact, the government rules by sheer naked force, and nothing else. And if that’s what you believe, then all of this talk of revolution suddenly doesn’t seem so crazy, it seems almost mandatory.
ROBERTS: Well, he would say – well, I won’t speak for him, but some would say that, well, there’s a social contract, we’ve all agreed to kind of play by these rules…
REYNOLDS: Oh really?!
ROBERTS: …of electing officials, and…
REYNOLDS: Well, the rules I agreed to electing these officials are the Constitution. I thought we were going to ignore that. That’s my social contract.
Indeed.™ Listen to the whole thing.