The Raj Koothrappali Approach to Constitutional Law
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ROBERTS: We had a recent guest on the program, Louis Michael Seidman, and he suggested that the Constitution’s out of date.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 – whatdya do?!” And that’s basically the Seidman approach to the Constitution, right? The parts he likes make sense, and the others are crazy – whatdya 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.
Seidman's article brings to mind a quote from a boring white guy who's been dead for 80 years, and whose thoughts are even more anathema to the current beltway elite than the Constitution or the Declaration of Independence:
President Calvin Coolidge rose to the occasion of the 150th anniversary of the Declaration of Independence on July 4, 1926, with a speech providing a magisterial review of the history and thought underlying the Declaration. His speech on the occasion deserves to be read and studied in its entirety. The following paragraph, however, is particularly relevant to the challenge that confronts us in the ubiquitous variants of progressive dogma that pass themselves off today as the higher wisdom:About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.
— From Scott Johnson of Power Line, posted on July 4th, 2010.
Speaking of Silent Cal, on the PJM homepage today, Rick Richman looks at "Calvin Coolidge, Dr. Benjamin Carson, and Us."