Is the US Constitution problematic in terms of the creation and implementation of successful public policy in today’s America? Is the Constitution authoritarian? What’s the history of constitutional ambiguity? Louis Michael Seidman joins EconTalk host Russ Roberts to discuss and disagree on constitutional disobedience, how the Constitution should be interpreted, and the ideal place of the Constitution in how policy is designed. Seidman is the Carmack Waterhouse professor of constitutional law at the Georgetown University Law Center, and the author of On Constitutional Disobedience.

Seidman’s main point throughout the podcast is that of constitutional disobedience: not using the Constitution as a framework for creating laws for the country. Seidman believes that blindly accepting the rules that people from three centuries ago is archaic and undemocratic, and that we should ignore the Constitution when it advocates for immoral rules:

Constitutional Disobedience does not mean disobeying everything that’s in the Constitution. To the extent that the Framers put in the Constitution are good things, they ought to be obeyed because they are good things. And so you’ve pointed to one feature of the Constitution which you consider a good thing. And that ought to be followed because it’s a good thing. There are other things in the Constitution that are not good things and ought not to be followed because they are not good things.

Seidman has a few arguments to bolster this view. For example, he believes that there is a significant pattern throughout American history of the Constitution being ignored or blatantly violated due to practicality or morality. His main example is the Emancipation Proclamation:

Other sorts of foundational events in our history are also either outright violations or constitutionally questionable. So, my favorite example: We’re now celebrating, the 150th anniversary of it, is the Emancipation Proclamation. It was common ground, a view shared by everybody, including Abraham Lincoln and including most abolitionists, that the Constitution prohibited interfering with slavery in the states where it already existed…So the abolition of slavery was accomplished not by constitutional processes but by the force of arms, in violation of the Constitution. And when the Constitution finally caught up in 1866, with the passage of the 13th Amendment, the Amendment itself was adopted by mechanisms which were constitutionally questionable.

A few people dispute this, but the vast majority of people who have studied it think that the framers of the 14th Amendment would certainly not have read their words as prohibiting segregated schools.

Here, Seidman is making the point of many dis-unionist abolitionists in the 19th century, such as William Lloyd Garrison. Garrison believed that slavery was constitutional due to the opinions of the founding fathers being mostly pro-slavery, but he also encouraged his followers to not accept the U.S. Constitution as a legitimate legal document until slavery was abolished. However, many other abolitionists at the time, namely Lysander Spooner and Frederick Douglass disagreed. In Spooner’s The Unconstitutionality of Slavery, he outlines why the Constitution’s language itself is anti-slavery, and why the pro-slavery attitudes of the framers are irrelevant to interpreting the Constitution. 

Seidman references a more niche issue, that of how U.S. Senators have been elected since 1791. Seidman concludes that Americans have sensibly ignored the Constitution in this realm, and that more scrutiny needs to be applied towards the more nonsensical portions of the Constitution:

The way in which we have appointed elected Senators since 1791 pretty clearly violates Article I. So, Article I. provides that all Senators serve 6 years, except for the first group of Senators, who were divided by lot into 3 groups to serve 2, 4, or 6 years, so as to have staggered elections. So, in 1791, Vermont became the first new state. And in the resolution making Vermont the first new state, Congress provides that 1 Senator is going to serve for 6 years and the other is going to serve for only 4 years. That’s a violation of Article I. And you know what? Every state that’s been admitted since then, Congress has done that.

This leads into the “obsession” with constitutionality that Seidman takes issue with. He explores how appeals to the Constitution, and the strict use of the Constitution to justify rules in America are inherently authoritarian. According to Seidman, Americans are too focused on whether policies are constitutional, as opposed to their effectiveness in solving the problems they were intended to solve. To Seidman, this is representative of a fallacious appeal to tradition and legality over morality. A focus on constitutionality stifles debate and gives hegemonic, totalitarian, and undemocratic control of the nation over to the opinions of the founders as opposed to the views of Americans today, and is no different from a dictatorship, or control from a hostile foreign power:

I don’t have to give you any reasons, you’ve got to think aid to agriculture is unconstitutional because people 250 years ago said so, people are not willing to accept that. And they shouldn’t accept it. The obligation you have is to explain to people why now government aid to agriculture is a bad thing. And in the end what we think of as constitutional rights aren’t going to survive unless folks can explain to their fellow Americans why these are principles that ought to be accepted and not just something that in an authoritarian way you tell people they have to whether they want it or not.

This is our country. We live in it. We have the right to have the kind of country we want. We would not accept rule by France or rule by the United Nations. And for the same reasons, we shouldn’t accept rule by a relatively small group of people who probably did not represent a majority even at the time that they lived; but in any event have been dead for several hundred years.

Seidman’s claim here ignores the concept of the Constitution as a living document. However, Americans don’t have to accept the attitudes and ideas of those who lived 250 years ago, contrary to what Seidman suggests. Evidence of this is the amendment process, and the significant changes to American law since 1787 which have passed the merits of constitutionality, such as the Affordable Care Act. 

Seidman takes significant issue with the ambiguity in the Constitution. He believes a core purpose of law is to settle disputes, and the constant debates over the unclear language of the Constitution create gridlock and animosity. To Seidman, the Constitution doesn’t only do a poor job of settling arguments, it causes them and fans the flames of contemporary American polarization.

What you end up with is not the Constitution settling our arguments. What you end up with instead is people on both sides accusing the other side of violating our foundational document. And that’s not conducive to the kind of respectful and restrained debate we ought to have in a mature democracy.

Though Roberts pushes back on a significant portion of Seidman’s arguments, this is one he agrees with.

But where I agree with you, and I think you make a very telling point, is that the document is ambiguous, and those of us who don’t like what’s happened under its name, we are fooling ourselves a little bit in that we are saying, not just that we want the Constitution. We want the Constitution that’s the one we like. The one we interpret.

Another argument Roberts takes no issue with is Seidman’s assertion the Supreme Court needs to be honest about legislating from the bench, and making decisions largely through political beliefs, and not an understanding of constitutional law.

So, really, the important decisions, like the decision outlawing segregated schools or creating an abortion right or limiting affirmative action or protecting the rights of gay men and lesbians, those decisions have basically no grounding in the Constitution. They are some combination of the Justices’ views of political morality, their views of our traditions, their interpretation of their own prior precedents; and if we are going to have a body act like that, I think we need to be honest with the American people and come clean and make clear that that’s what it’s doing.

I believe many Americans would also align with Roberts and Seidman on this point. It’s understandably difficult for the court to rule on modern issues which the Constitution doesn’t address specifically, or even ambiguously. Justices of the court are forced to post-hoc justify their rulings, which are may be based on political views, tying together bits of constitutional provisions that fit their narrative, instead of using the legal text to inform their opinions on cases brought to the court.

However, Roberts significantly pushes back on a few of Seidman’s points, such as the authoritarianism of the Constitution. In his counter-argument Roberts makes the point that people don’t appeal to the Constitution because might makes right. The Constitution prevents that mindset in the first place, due to its focus on constraint of factions and power.

Roberts further takes issue with Seidman’s argument against the gridlock that the Constitution encourages. Roberts argues gridlock prevents authoritarianism, as it’s simply too difficult to enact so much totalitarian change with the sheer amount of barriers that need to be bypassed:

My thought is that the gridlock that we have right now–you are talking about gridlock writ large, that it’s very hard to amend the Constitution. It’s also hard to get a lot of things done. We’re having a lot of trouble right now agreeing on how to close a trillion dollar deficit, whether we should at all. We can’t agree on either of those things. Or how to make it happen. So let me argue that that’s a feature and not a bug. There’s a general, I think, perception that policy in America moves very slowly. And there’s a lot more inertia here relative to in Europe. And I think that’s a good thing.

Though this episode was full of disagreements between Seidman and Roberts, both expressed gratitude to the other for being able to educationally and amicably disagree. Seidman and Roberts specifically mention the constant anti-Semitic abuse they both receive as a point of comparison for the healthy nature of this podcast.

Lastly, the podcast finishes with Seidman explaining his approach to education as a professor. 

I don’t expect or even want people to come away from my classes agreeing with me. What I want them to come away from the classes is holding the view they hold in the most sophisticated form that it can be held. And that’s my ambition as a teacher.

This is a fantastic note to end on. The purpose of education is to understand the best process of thought for deciphering the complexity of the world, and deciding how to improve it, and Seidman’s method of teaching is a wonderful example of this.

 

While listening to this podcast some questions came to mind. feel free to share your thoughts as well.

1- Seidman asserts that it is authoritarian to use an appeal to the Constitution. Why is it authoritarian to reference agreed upon principles? If we can’t appeal to these, how else will we solve disputes? Would Seidman agree with this argument in any other scenario, such as a sports environment or private contract? This seems like a strawman; does Seidman think that Americans only have arguments based exclusively on constitutional law and not morality? If Americans reference the Constitution, doesn’t it stand to reason that they do so because they agree with the provision being referenced, not solely because it exists?

 

2- Another of Seidman’s critiques of the Constitution is its ambiguity leading to difficulty in solving problems. Does this contradict Seidman’s points on authoritarianism? Does Seidman want the Constitution to settle our disputes with unambiguous law? Isn’t this the exact same authoritarianism he believes appeal to constitutionality is representing in the first place? I would argue the ambiguity is without a doubt a positive, as it facilitates debate, and allows contemporary and future Americans to interpret the constitution as a living document, in a way that is in the best interest of the country throughout time. Where do youstand?

 

3- Gridlock is a key point that Seidman and Roberts discuss, specifically the drastic stagnation in constitutional amendments. How should Americans view the amendment process potentially going dormant?

 

4- Seidman seems to think that the Constitution has little effect on the American way of life today. In his words it’s not “the glue that holds us together.” However, he also points out that Americans seem hyper-focused on the constitutionality of proposed rules. Are these positions contradictory or can they both be held simultaneously?

 

5- Seidman expressed his dislike for the politicized nature of the Supreme Court, and though I agree that this is a problem, I wonder… to what extent is it possible for any governmental institution, including the Supreme Court, to be apolitical?

 

[Editor’s Note: This Extra was originally published on August 25, 2023.]

Kevin Lavery is a student at Western Carolina University studying economic analysis and political science and was a 2023 Summer Scholar at Liberty Fund.