Things fall apart–Beltway edition

December 31, 2012 | By TIMOTHY SANDEFUR

Yeats’ eerie, prophetic poem “The Second Coming” is one of the great masterpieces of twentieth century literature. In it, he warns of the imminent collapse of civilization, at a time when

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world;
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Today’s New York Times–still considered by the nation’s intellectual elite as the leading newspaper in the country–the primary forum for deliberation in the world’s superpower democracy–contains an article by Professor Louis Seidman of Georgetown University Law School. Georgetown is considered one of America’s top law schools; an elite institution. Professor Seidman, who teaches constitutional law, clerked on the D.C. Circuit and on the Supreme Court for Justice Thurgood Marshall.

In his article, Prof. Seidman writes that we should stop obeying the Constitution. That’s not my spin; he just says that “the American system of government is broken,” and “the culprit” is “our insistence on obedience to the Constitution.” It’s just “bizarre,” he says, for us to allow the Constitution to restrain “government official[s]” from implementing their “considered judgment that a particular course of action is best for the country.” And “our sometimes flagrant disregard of the Constitution…has helped us to grow and prosper.”

One wonders whether Prof. Seidman is a member of any state bar–since bar members are required to take an oath to support the Constitution. One wonders whether Prof Seidman considers himself to be under a moral obligation to counsel people not to violate the law, while he urges us to violate the supreme law of the land. One wonders whether radical chic has finally exhausted itself when the worst are so full of passionate intensity that they climb the country’s highest pedestals to urge us to overthrow the government.

And one wonders if they realize how banal it all is. This isn’t the Second Coming. This isn’t Yeats’ “vast image out of Spiritus Mundi,” or even some sexy revolutionary in a bandolier calling the peasants to break their chains; this is no noble visionary proclaiming the fall of cruel hierarchies; it isn’t even father Abraham declaring that we shall all be forever free. It’s an aging, upper-class, one-percenter with a tenured professorship, complaining that Congress is having trouble getting a budget passed. I guess the revolution will be televised–closed captioned, on PBS. The medium is the massage–the deep-tissue massage.

But all of this aside, what’s most striking is Prof. Seidman’s childlike caricature of constitutional law; his almost naive misrepresentation of what it is really all about. Constitutionalism isn’t about debating what a bunch of evil slaveholders wanted two centuries ago. Not even originalists think that. The point of a Constitution is to restrain those very “government officials” who “reach a considered judgment that a particular course of action is best for the country,” because as fallible human beings, it’s possible (even likely) that their judgments are wrong, or are best only for some, but not for others. The temptation to impose their “considered judgments” on others for wrongful reasons, or without weighing the costs, is too great for any human being to resist. That is why we separate powers, check and balance them, use federalism to bring contrary pressures to balance the center–that is why the House must generate revenue bills, and the President must seek Congressional approval for funding, and on and on. If men were to be governed by angels, no government would be necessary. But since we are governed by ordinary human beings, government must be made to control itself. The falcon is dangerous, and the center must hold him, or we will all become the prey. The point of constitutional scholarship is to determine what the words mean and what changes, if necessary, must be made. This enterprise channels political power so that it does not overflow and drown the ceremony of innocence.

Prof. Seidman pooh-poohs the risks of “constitutional disobedience,” saying that we’ve seen unconstitutional acts before, and survived them. Tell that to the Japanese-Americans unjustly imprisoned during World War II. Tell it to the victims of segregation. Tell it to the thousands of victims of eminent domain abuse and federal over-regulation. Tell Susette Kelo and the Sacketts that unconstitutional government action ain’t such a big deal. When Prof. Seidman says “our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism,” he’s making light of the chaos and tyranny visited on those who have suffered injustice at the hands of the state. When people can be searched without warrants, stripped of their earnings, deprived of their land, bankrupted without due process, excluded from school on the basis of race, censored, disarmed, forced to endure hearings where the prosecutor pays the judge–when these things go on on a daily basis, as they do in this country, it takes a remarkable degree of ignorance and insensitivity to say that violating the Constitution hasn’t come at much cost.

Note how, on one hand, Prof. Seidman complains that Congressional resolution of the budget crisis is stymied by checks and balances, and urges “disobedience” (i.e., illegal action) as a solution. But he then complains about unilateral executive action–wishing for a world in which the president “would have to justify military action…without shutting down the debate with a claim of unchallengeable constitutional power.” Prof. Seidman doesn’t see that he’s contradicted himself by simultaneously supporting and opposing unilateral action. That’s not just because he’s accepted the false premise that the president has power to act unilaterally–an assumption serious constitutional scholars should hesitate to make; it’s also because he fails to recognize how the system of checks and balances forces the branches of government to make their cases to each other on the merits. It is the falconer, meant to keep tame what would otherwise be a wild, and dangerous, bird of prey. Without these procedural rules, the different authorities–and even those who merely pretend to authority–would have no need to make their case in words, but could resort instead to unilateral, ipse dixit action. True, Congress has sometimes deferred too much to the president on military matters. But the cure for that is to ramp up our constitutional vigilance, not to shrug at it and just let the groups all fight it out among themselves. They won’t long restrain themselves to ballots if we do.

The reason we (try to) adhere to the Constitution is to make our government’s actions conform to principle; to give long-term meaning to our words about justice. If we give up this effort, we will continue to make judgments, and do what we think is right– only without the guidance of the past, and with an incomplete picture of the future. Soon we will find that our decisions today contradict those from yesterday; that those in power need not ask our permission before doing what they please; that the state can make up the rules as it goes along. Sadly, we’ve had this happen already in the U.S.–though not nearly as bad as many other countries have suffered. We should hesitate to cast aside the falconer, even if at times the hawk has not obeyed. Those who live under the unchecked rule of raptors are not thereby made safer.

The one valid point that Prof. Seidman makes is that our Constitution can mean nothing if we regard it as a dry set of rote instructions, instead of as a living tradition of values. If we think of the Constitution only as a set of commandments to be mindlessly obeyed, instead of learning why we have it, what it was meant to accomplish, and what we aim at when we comply with it, the Constitution will become vulnerable to those demagogues–or those dull, grumbling beltway statists–who urge us to toss it away. James Madison himself realized this. As Gary Rosen observes in his excellent book, American Compact, the Constitution must serve as a focus and an instructor of civic values and the meaning of citizenship, if it is to function at all. If it does not–if we let ourselves forget that it exists to secure individual liberty, to prevent officials from imposing on us whatever schemes they think are best for us–then we will reach a point where, in Rosen’s words, “utility rather than constitutionality [becomes] the ultimate test for policy,” and where the objection of unconstitutionality is “seen as little more than a diversionary tactic.”

But the only solution to this problem–the only way to actually breathe life into this system–is to recognize the fundamental, libertarian values on which the Constitution depends: individual liberty, limited government, a government of legally restrained democracy, and not of politics and majoritarianism alone. And those values are beyond the scope of the Progressivist, post-New Deal consensus now governing our country. This is why the intellectual elite find the Constitution so troubling, and go to such lengths to rationalize–or in this case, to abandon–it.

The time has come for us to reinvigorate our constitutional tradition, not to toss it aside for trivialities. Fortunately, the best no longer lack conviction. They’re ready to respect and defend the Constitution even if the country’s elite are not.