American Tories: Attacking the Founders and the Constitution

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A Response to Professor Seidman

Should we acknowledge that the U.S. Constitution is filled with “archaic, idiosyncratic and downright evil provisions,” and “extricat[e] ourselves from constitutional bondage” by cashiering the document?

“As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken,” argues Louis Michael Seidman, tasked with teaching constitutional law at the Georgetown University Law Center . And the Constitution, he asserts, is largely to blame.

The Constitution, he writes, was adopted by a “group of white propertied men who have been dead for two centuries, knew nothing of our present situation . . . and thought it was fine to own slaves.” The Framers acted illegally in drafting the Constitution because they exceeded their power. Moreover, “[n]o sooner was the Constitution in place than our leaders began ignoring it.” And ignoring it is often a good thing: FDR did it for example, and so did the Supreme Court when it banned school segregation.

Besides, “much constitutional language is broad enough to encompass an almost infinitely wide range of positions.” And while we should keep some parts of the Constitution—like regular elections and freedom of speech—the rest gets in the way of leaders who make considered judgments on the merits. We need to rely on other sources of legitimacy, he concludes, moving to an “unwritten constitution,” like that of Britain.

That such a judgment was rendered is less shocking than who rendered it. The judgment is not unique because there always have been American Tories—people who chafe at restraints on central power and would prefer a British-style government. In recent years, as political “progressives” have gradually lost the scholarly battle over constitutional interpretation, some have stopped pretending the Constitution means whatever they want it to, and have begun to trash the document itself. A controversial example was the Time Magazine cover essay of June 23, 2011. (See my response to that article here.)

But the source of the claim is more shocking, because it comes from one who has taught constitutional law for 40 years. And who should know better.

Did the Constitution cause our present “fiscal chaos?” Quite the contrary. The crisis has arisen not because we followed the Constitution, but because we have allowed federal officials to ignore it. In the 1930s, the Supreme Court announced that it would stop enforcing the Constitution’s limits on federal spending programs. Without meaningful spending restraint, Congress became an auction house where lobbyists could acquire new money streams for almost anything—a redundant health care program; a subsidy for an uneconomic product; or a modern art museum in Indiana.

It is hard to believe there would be a fiscal crisis today if federal spending had remained within the Constitution’s generous but limited boundaries.

Consider, by contrast, the record of the United States during the 140 years in which the Constitution’s limits on federal power were usually respected. During this period of limited government and great personal freedom, the United States became the most successful nation in the history of the planet. Inflation was low. The budget was usually balanced. The foundation of the modern economy was laid. It was a period of unprecedented innovation and unprecedented advances in health, life expectancy, and living standards. It saw the end of slavery and astounding progress for women and even for the most disadvantaged minorities. In other words, it was adherence to the Constitution, not disregard for it, that enabled America (in Professor Seidman’s words) to “grow and prosper.”

Professor Seidman seems to assume that politicians can be trusted to make “considered judgments” and act “on the merits,” and that the public does not need to impose outside constitutional restraints on their power (except, perhaps, through elections). The Founders were wiser. They knew that the entire history of humankind suggests the opposite—as, in fact, does the current fiscal crisis. If Mr. Seidman thinks the United Kingdom is a stronger, freer, less dysfunctional, and more prosperous country because of its unwritten constitution, he should live there for a while, as I have. Britain’s relative decline has been precipitous over the past century. Without the support of America, it is doubtful Britain would have survived as a free country.

Professor Seidman likes some parts of the Constitution. He’d keep those, and disregard the rest. Doing so, however, is inimical to the rule of law, which requires that we follow established rules until duly amended, whether or not those rules tickle our preferences.

Based solely on the assertions in his article, Professor Seidman appears to know little about the background of, and principles underlying, the document he is charged with teaching. The list of his historical inaccuracies and omissions is long. Following is merely a sample:

* As part of an attack on the Founders, Professor Seidman repeats the ancient calumny that the Framers ignored limits on their authority by drafting a new instrument rather than merely proposing amendments to the Articles of Confederation. The truth is that when the authorizing commissions are read, not anachronistically, but in light of 18th century language and law, they show that 48 of the 55 Framers had authority to recommend a new document. Four of the remaining seven did not sign. One (Hamilton) subscribed in an individual capacity.

* Those who adopted the Constitution, Professor Seidman tells us, were “white propertied men.” He is apparently unaware that the document was debated and ratified through one of the most democratic procedures conducted up to the time. All levels of society participated in the debate, and the electorate choosing delegates to the state ratifying conventions included (in some states at least) women, poor people, and free African-Americans.

* He further attacks the Founders as men who thought it was “fine to own slaves.” In fact, the prevailing opinion among them was that slavery violated natural law, and was doomed to extinction. They backed up that opinion with action: In the 11 years between Independence and the Constitution’s drafting, eight of the 13 states had begun the process of emancipation, 10 had abolished the slave trade, and two others had restricted it. In urging ratification, the Constitution’s advocates, particularly in the North, emphasized that it might hasten the end of slavery.

* Professor Seidman also writes that once the Constitution was adopted our leaders immediately “began ignoring” it. No one who has spent much time in early post-Constitution political debates can believe that. Those debates reveal much consideration of constitutional issues, and often a very high quality of discussion. Thomas Jefferson, for example (as Professor Seidman concedes), agonized over the constitutionality of the acquisition of Louisiana. He did not “ignore” the issue. Unfortunately, Jefferson had been in France during the Virginia ratifying convention, or he would have understood that the Constitution authorized territorial changes through the Treaty Power.

* But what of Professor Seidman’s claim that the Alien and Sedition Acts of 1798 violated the First Amendment? Actually, the Sedition Act violated the Tenth, not the First (as then understood). But a single, fiercely contested law is little evidence that leaders systematically “ignored” the Constitution.

* “Who cares?” In this phrase, Professor Seidman dismisses the constitutional rule that revenue bills must originate in the House of Representatives rather than in the Senate. The Framers were better educated on the subject. The rule was suggested by both theory (the House would be more likely to reflect popular interests) and practice (long experience in the British Parliament). It remains today as a buttress against senatorial oligarchy.

* Can Professor Seidman really believe that the Supreme Court decision abolishing school segregation had “no basis in the Constitution?” Perhaps it would help to examine the congressional debate over the 14th Amendment’s Equal Protection Clause—a provision that, unlike some others, was designed to respond to changing factual conditions.

* It is odd that a constitutional law professor would erroneously define “originalism.” It certainly is not “divining the framers’ intent.” Originalism is adhering to the contemporaneous public meaning of the Constitution, and in some cases, the understanding of those who enacted it (the ratifiers, not the Framers). This is not an obscure concept; it is the same rule by which most legal documents are interpreted.

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* Professor Seidman states that it is “obvious” that “much constitutional language is broad enough to encompass an almost infinitely wide range of positions.” This can be “obvious” only to those unfamiliar with the contemporaneous meaning of key constitutional terms. To be sure, the Framers could draft a highly flexible phrase when they chose to do so, and in a few instances they did. But most of the Constitution is a reasonably precise document, relying on legal terms of art of understood content widely employed by 18th century scriveners.

Although it is true, as Professor Seidman states, that politicians have violated the Constitution, it is rarely true that we have been better off for it. The breaches have included incarceration of innocent citizens during World War II, ill-advised attempts to micro-manage the economy through monetary and regulatory policy, and unrestricted spending. We have lived to rue them all.

America performed brilliantly when constitutional limits were honored. As those limits have eroded, we have lost our edge: Economic growth has slowed, the civic fabric has frayed, and we have fallen into fiscal crisis. The fault, therefore, is not in the Constitution. It rests in politicians who disregard it and in scholars, jurists, and other citizens who encourage them to do so.