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Extra-constitutional power is what they’ve always wanted (Update — blaming those ancient “white dudes”)

Extra-constitutional power is what they’ve always wanted (Update — blaming those ancient “white dudes”)

So it’s refreshing when they say it

An Op-Ed in The New York Times from Georgetown Law Professor Louis Michael Seidman, Let’s Give Up on the Constitution:

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….

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…. Constitutional disobedience may seem radical, but it is as old as the Republic….

No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.

If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey.

I find myself agreeing more frequently than ever before with Glenn Greenwald, at least on the issue of the willingness and desire of “progressives” to go where even the demonized George W. Bush was not willing to go, and the willingness with which the progressive intelligentsia embraces such ideas in the service of Obama. Or maybe he’s agreeing with me.



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Well then…

If we’re going to ignore the Constitution, then I suggest the House draw up articles of impeachment against our Traitor-in-Chief, then deem as passed the conviction of the Senate.

Then, once he has been removed from office, we can read the bill to find out what was in it.

I’ll be happy to stand at the top of the steps of the Capitol with a giant gavel in my hand screaming “Are You Serious? Are You Serious?” to questions of the Constitutionality of the act.

I have to say that this op-ed was one of the most offensive things that I have ever read.

If you were not of the impression that we are headed towards something far, far worse than some ‘fiscal cliff’ in this country then you should read that op-ed again and let it sink in that this seditious SOB is teaching at Georgetown Law School.

This is not some fringe nutcase writing on an old Royal typewriter from a cabin in the Montana wilderness, folks.

    punfundit in reply to turfmann. | December 31, 2012 at 11:14 am

    No, no, no. Why write a law? If the Constitution holds no power, Congress need write no law. The House can simply dictate. The Senate will counter-dictate. The White House will exercise its police power and enforce its preferred policies. Or create its own.

    Why not let the House install the Supreme Court Justices it likes, then the Senate its justices, and then the White House its justices? Why not let the states install Supreme Court justices? For that matter, why couldn’t the Supreme Court can nullify laws and civil liberties simply by appearing on camera and so stating? Why couldn’t one group of justices override the other group.

    On the other hand, if the Constitution holds no power, why should a President serve for four years? Why not a hundred years, or one year?

    Why should the states adhere to any law or decree? If the Constitution holds no power, they can do their own thing. They can ally against the states they dislike, or the federal government. Or the federal government can ally with friendly states and overthrow unfriendly state governments.

    Don’t limit your imagination.

      punfundit in reply to punfundit. | December 31, 2012 at 11:27 am

      And how could I forget the military? Service members swear an oath to support and defend the Constitution. If the Constitution holds no power, then the President is no longer the Commander-in-Chief… unless the military wants him to be. Why obey any order? Why obey any lawful order? Can there be such a thing as a “lawful order” if Congress’ power to write laws is in question?

      Who or what would the U.S. military swear obedience to? Would they need to? Perhaps they could establish their own government to keep things in order, or at least to ensure the military doesn’t fall apart. Perhaps one group of formations might attack another formation to keep them from pursuing popular or unpopular ventures. Perhaps there could be a black army, and a white army, and an asian army, and a gay army, and a woman army, and a poor army, and a rich army…

NC Mountain Girl | December 31, 2012 at 10:37 am

Let’s start by forgetting about NY Times v. Sullivan. I’ve long felt the special protection from negligence offered the media in that decision was key to what has happened to Big Journalism in the last three decades.

Let me know when we stop being a nation of laws and can start doing what feels good and is expedient because there’s an empty pike which is lacking that fella’s head.

Afterwards we’ll use his estate to balance the budget. The damned constitution prevents that now.

Seidman obviously cribbed that from Ayn Rand.

Orwellian. “Let’s ignore the Constitution, except for the parts I like.”

“Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues…” So the piece of parchment we call the Constitution KEPT US from debate. I am unfamiliar with the Article and Clause which KEEPS us from debating the issues! It caused all of these fiscal cliff negotiations to be conducted in secret!

Dumb and incoherent is a generous critique of this insanity!

Pretty sure that Justice Ginsburg and Morsi would agree with this fool!

This from the same professor who argued for the *constitutionality* of an ObamaCare mandate. When it serves them….

He begins his argument for the “brokeness” of the American system of government (for which he can be credited as somewhat correct, though not for the reasons he supposes) with criticism of the Senate minority, and by extension the House majority.

Not surprising that his criticism is one-sided, nor that the way to “fix” the problem is to grant powers to one side of the argument that would not be accorded to the other side.

Dictatorship of the Proletariat… after a fashion. In this case probably Dictatorship of the Nomenklatura or Intelligenstia. In other words, fascist oligarchy.


    punfundit in reply to punfundit. | December 31, 2012 at 11:37 am

    My apologies, a better statement should read:

    Not surprising that his criticism is one-sided, nor that the way to “fix” the problem is to grant powers to one side of the argument that cannot be checked by another side.

“kept us from debating the merits of divisive issues ” – How? I believe the First gives us the express protection to discuss just about anything.

Separately, a lot of us have taken an oath to protect and defend the Constitution from enemies foreign and domestic. This includes both military and elected officials. Does that oath come with an expiration date? This oath is a public swearing to God to follow through on the defence of the Constitution. Did anyone relieve you of that promise after leaving the service?

No, the “progressive era” did not begin with obama, but it has taken a dark evil turn, with him..

In this article, you will see the term “investigative journalism”, more correctly termed “muckrakers”.

If that term does not describe nbc, david gregory and the entire Leftstream Media, dunno’ what would.

In the place of the “old” (as the) “Republic”, I suggest Seidman try a newer “Republic”. This one. Democratic People’s Republic of Korea.

Killing the Constitution and sharing the wealth are the only things that ever cross a ‘progressive’s’ little mind… read this to raise your spirits…

Georgetown..Georgetown. Why does that ring a bell?

Ahh of course..sandra fluke.

Obama WAS/IS extra-constitutional from the get-go because as the son and adopted sons of foreign nationals, and having attended college as a foreign national, he was NOT qualified to be president.

The entire administration is composed of people who have no respect or adherence to the Constitution and law.

Power-grabbers, usurpers, looters and pillagers of America is what they are, aided and abetted by the Republicans.

Give up on the written constitution–the instrument whereby the governed grant their consent to the government? And replace it with what? Opinion polls? Or a council of the elite imposing its morality on the populace (as Seidman actually suggests)?

Seidman’s argument boils down to this: after a sufficient quantity of wrong-doing has occurred, that wrong-doing should be legitimized. Failure to legitimize the wrong-doing only leads to political dysfunction. Seidman’s mistake comes in failing to recognize that government by consent of the governed (as manifested through a formal written document) is, itself, a meritorious political good. Thus, a debate regarding whether a bill raising taxes can originate in the Senate is not a debate which avoids the merits of an issue, but is a debate which focuses on the most important merit of the issue: is the government acting in a way to which the governed have consented?

Finally, if we can ignore the Constitution when it is expedient, why shouldn’t we also ignore whatever other putative limits are placed on government in the absence of a Constitution? And how can a government, given the authority to do whatever it pleases, without regard to constitutional limits, ever be characterized as other than totalitarian? Note that the Constitution set up a limited government, and the Bill of Rights specified certain limits on that government that were not clearly spelled out in the original document. Seidman’s proposal is literally to create a totalitarian government, but then restrict it somewhat with respect to certain rights.

FreshPondIndians | December 31, 2012 at 11:33 am

I’ve heard the “Obama needs a third term” trial balloon being floated around recently. Add it to the wish to unilaterally raising the debt ceiling, and possibly reducing our nuclear armaments by executive order. We know what the progressives want. The question is, do they have the guts to try?

    “The question is, do they have the guts to try?”

    Yes. But I wouldn’t call it guts so much as voracious need mediated through calculated risk-benefit understanding.

    The question is: do our “leaders” have the guts to call them out for who they are? The evidence so far is no, they do not.

    punfundit in reply to JP. | December 31, 2012 at 11:50 am

    This late pig states: “If some people refused to give up their guns, that ‘prying the guns from their cold, dead hands’ thing works for me.”

    He may be a dead pig, but he’s not the only pig. He was just honest enough to state openly what he truly believed. And isn’t it refreshing to know that his solution to death and violence is more death and violence?

    We need encourage more pigs to be honest about their beliefs. Call their bluff. They want confiscation. There is no other logical goal to achieve their claimed end state of a violent-less society. Don’t let them get away with any other rhetoric.

    Make the pigs squeal in front of as many people as possible.

    turfmann in reply to JP. | December 31, 2012 at 1:30 pm

    Would it surprise you that the DM is a Gannett publication, the same organization that published the map of legal gun permit holders in New York?

Lefty, smarter than the rest of us professors, what would we do without them? Too bad only one gets to be the Big Dog at a time! The rest have to settle for contact greatness.

    punfundit in reply to secondwind. | December 31, 2012 at 11:52 am

    They have no problem being pets to the power elite, just so long as they get a little treat or pat on the head every now and then.

It is good to have these pukes out in the open like this.

Remember…this particular puke entertains the notion he is a Constitutional scholar.

That is obscene.

The Left despises the Constitution. Yawn. What are we going to do about it? That’s the only thing that interests me at this point.


Ironically, the Masterminds in the Federal Gov’t have been ignoring the Constitution for at least the last hundred years, inserting the Federal Gov’t in places where it never should have gone – and THAT’S the problem.

It’s disgusting to see the disease being prescribed as the cure.

A pessimistic interpretation: The Left is emboldened to openly attack constraints on its power.

An optimistic interpretation: The Left, not understanding the election was handed to them by GOP incompetence, believes its own bullshit, and overreaches.

Which is correct? That depends on whether the Republican Party pulls its collective head out of…the sand…and gets its act together. I’m not making a prediction.

We’ve been here before. As Charles Krauthammer wrote almost three years ago, it became fashionable during the Carter years for the chattering class to say America had become “ungovernable.”

Then came Reagan.

As Krauthammer says, Reagan proved that the country’s problems were not structural problems … they were problems of leadership.

Maybe Mr. Seidman should take a sabbatical to study a little history.

A good rule of thumb: Any time you find yourself on the opposite side of an issue from Matt Yglesias … you can rest assured you are right.

Krauthammer, 2/2010, “It’s Nonsense to say the U.S. is Ungovernable:”

    I remember that, Luke-san. Smart People™ said the Presidency should be split into two offices because if even Jimmy Carter couldn’t handle it, no one could.

      LukeHandCool in reply to gs. | December 31, 2012 at 12:44 pm



      Akemashite, omedetoo gozaimasu.

      Happy New Year!

      “Even Jimmy Carter couldn’t handle it …”

      Haha! More and more he reminds me of a Green Acres character, like Eb or Mr. Kimball. Now we’ve got Mr. Haney, the con man, in charge. We’re back in Hooterville.

It has been a cliche of history – books, classes, lectures, etc. – that the Roman Republic was doomed due to it’s lack of a written constitution; the mos maiorum being insufficient to check willful abuses by bad faith actors.

This not so recent argument (one that the Progressives have promoted since the time of Wilson) about our Constitution, only becoming mainstream public of late, and now openly expressed in such a ‘legitimatizing’ forum, puts paid to that notion that the presence or absence of a recording device was ever the problem.

If we do away with the Constitution we are not back the the Articles of Confederation, we are back to the Declaration of Independence. At that point secession is only off the table because there would be no Union, each State would be free and independent, with each State Constitution being supreme within it’s borders.

Something tells me that is not what Seidman envisions.

Well, let’s take a look: the left controls our education system, from elementary through higher education, they control virtually every federal agency which regulates our lives and business, they control most of the judicial system, they control the media, they have the president and the senate. How much further do they really have to go? Who tells them when they’ve gone far enough? When we lose the House and Supreme Court, we lose the country. 57% of the people think Obama’s doing great. Isn’t that reassuring?

    raven in reply to gasper. | December 31, 2012 at 12:54 pm

    We will lose the House. Boehner is playing out the losing strategy with the same playbook perfection as Romney. I’m afraid we haven’t hit rock bottom yet. More to learn, more to suffer.

Give the bastards the civil war they want.

legalizehazing | December 31, 2012 at 2:46 pm

Wow, I thought the people hating on the second amendment were crazy. This guy just blew it out to of the water! I think he stopped taking his bipolar meds.

Keep it coming NYT. Keep it coming

Perhaps we should adopt the “progressive” South African constitution?

The generational progressives do not respect individual dignity. They do not respect the sanctity of human life. They promise everyone a “beach front property in Hawaii”. Their qualification of “progress” is incompatible with reality and human dignity. It is based on the premise that a minority interest consolidates power and capital, which subsequently redistributes and grants favor to select interests. It is an authoritarian monopoly, which establishes itself through marginalization and evisceration of competing interests, and appeals to emotion and base human desires.

The left-wing regime is designed to fail since it causes a dissociation of risk, especially for the minority ruling interest, which causes progressive and, inevitably, conclusive or terminal corruption. It ends with a violent revolution (e.g. French) since the people have limited to no recourse for holding the minority accountable for their actions. It is the worst of all possible governing systems as it denigrates individual dignity and devalues human life.

It is dissociation of risk which causes corruption. It is dreams of instant gratification which motivates its progress.

That said, while involuntary exploitation is deplorable, and denigrating individual dignity is despicable, there is no greater moral corruption than a desire to normalize elective abortions (i.e. dissociation of risk for reason of personal welfare or wealth).

The generational progressives (i.e. rebels with a cause and without a clue) are fanatics. They emerge with prominence every two hundred years or so. However, it is not obvious whether they are the disease or merely its symptoms.

I sent this reply to the New York Sun editorial that hammered the NYT, and they were kind enough to print it in their comments. Here it is here:

The editorial by the Sun, well-written as it is, spends a little too much time apologizing for the great sin of slavery and not enough time responding to what is Professor Louis Seidman’s central point in his piece in the New York Times.

To be clear, slavery was indeed a horrible wrong, and all Americans today rightly condemn it, and work for the day when the lasting effects of slavery are finally expunged from our society.

But just as importantly, Professor Seidman complains about the Constitution today. He apparently is of the belief (as best I can tell from his op-ed piece) that the Constitution should be respected only if it is a ‘living’ document; which is to say that it should mean what society (and particularly, people of his beliefs) say it should mean.

In this belief the good Professor misses two key points: the first is that a charter, which is what the Constitution is, deliberately binds a people to history. Be the charter a generation or a millenium old, the whole point is to condition our behavior today on a proper respect for the past, warts and all. There are plenty of specific terms and items in the Magna Carta that certainly would be out of place in the modern world, but we (and the British) still give it reverence for what it did at that time to make us what we are today. So too the Constitution provides an enduring framework that made us the republic we are today, and channels our work, our energy and even our protests in ways that benefit our society.

The second point is even simpler: our elected leaders take an oath to defend the Constitution as their first act of office. Even if Professor Seidman believes the Constitution to be a dead piece of parchment, does he not understand and respect what an oath is, and what it is supposed to do to those who swear one? Like a written charter, an oath conditions and channels us by providing a framework for our subsequent acts. That is precisely why our Constitution, for example, requires our President to take an oath.

If Professor Seidman believes the Constitution to be fatally flawed for today’s world, then he should propose a replacement. He and like-minded citizens could then try to persuade the rest of us as to the wisdom of a new charter. To ignore the Constitution and the oaths taken to defend it, however, rapidly leads to anarchy. In the end, such a society would be based on the very simple, brutish charter of human nature: might makes right.

I shall bet that Professor Seidman does not want that sort of replacement charter in the modern world.

Iowahawk Tweet:

“Between Friedman, Krugman and this guy, the NYTimes has become America’s leading voice of pro-totalitarianism.”

    LukeHandCool in reply to LukeHandCool. | December 31, 2012 at 5:24 pm

    In all fairness, these progs only want to “give up on” the Constitution.

    They don’t want to “shred” it like that evil George W. Bush.

OH! The update is PRICELESS! “…don’t know how to run 2013 America…” the obvious assumption being that SOMEONE–some government mastermind–should running it! No thank you, Dylan Matthews; I’ll handle my own affairs and THAT was what those “dudes” intended for you to do as well.

[…] This is what they want. This what they’ve always wanted. […]

Funny, but I doubt that Professer Seidman would trust George W. Bush with that kind of power.

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I vehemently disagree with Greenwald most of the time but he is one of the few left wingers with the integrity to call ‘progressives’ on their own hypocrisy.

[…] The rhetoric of the Left is rising, and becoming more menacing as their masks slip off. And make no mistake, they are at war with us, and have been making war on our Constitution for a long time. The only difference now, as William Jacobson points out, is that they are no longer seeking to hide their agenda […]

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[…] The rhetoric of the Left is rising, and becoming more menacing as their masks slip off. And make no mistake, they are at war with us, and have been making war on our Constitution for a long time. The only difference now, as William Jacobson points out, is that they are no longer seeking to hide their agenda […]

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