December 31, 2012

WELL, THERE’S AN ADMISSION IN HERE SOMEWHERE: Mike Seidman: Let’s Give Up On The Constitution. “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?”

I dunno. Does this mean we should ignore Roe? Or Miranda? And Baker v. Carr? And if the Constitution is this obsolete and “evil,” then maybe secession isn’t off the table after all? . . . .

UPDATE: I have some more concrete suggestions for constitutional improvement here. You can see me talk about them in this keynote speech from last year’s Harvard Law conference on constitutional reform here.

ANOTHER UPDATE: Reader Paul Berger writes: “The reason a politician or any public official shouldn’t just act in opposition to the Constitution whenever they feel like it? How about because they took an oath not to! If you don’t want to play by the long established rules – find a different game. But I’m just a regular guy in the real world and he’s a Georgetown professor writing in the NY Times, which I suppose speaks volumes about both of us.”

It’s beyond even that. Their entire authority comes from the Constitution, and is the only reason we aren’t entitled simply to ignore them, or hang them from a tree for their insolence. Take away that source of authority because you don’t like the constraints it involves, and you’re a lot closer to the tree. Those who think themselves above the law are not in a position to hide behind it.

MORE: On Facebook, Randy Barnett snarks: “I suppose this means the income tax could now be unconstitutional if we can just get 5 votes.”

MORE STILL: Reader Bill Bacon writes: “If, after all, the Constitution isn’t to be followed then doesn’t that mean we default to the Articles of Confederation? Don’t know about you, but I personally like the idea of having to get unanimous consent of the states to raise taxes….” Heh.

Related: New York Sun: The Times Gives Up. “It will be illuminating to see how far the Times takes its latest lament, particularly because these days the Left generally seems to see the Constitution as a threat more to the liberal than the conservative cause.” As I say, that’s an admission of sorts.

STILL MORE: Inevitably.