Louis Michael Seidman on the Constitution
Feb 4 2013

Louis Michael Seidman of Georgetown University talks with EconTalk host Russ Roberts about the United States Constitution. Seidman argues that the we should ignore the Constitution in designing public policy, relying instead on the merits of policy regardless of their constitutionality. Seidman defends his position by citing examples in the past where constitutionality has been ignored and says it would be better to recognize our disdain for the Constitution in a transparent way. In this lively conversation, Roberts pushes back against these ideas, citing the limits of reason and the dangers of using popular sentiment to determine policy.

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Explore audio transcript, further reading that will help you delve deeper into this week’s episode, and vigorous conversations in the form of our comments section below.


Feb 4 2013 at 8:54am

I think this was my favorite talk so far, which is saying something! Doubly so since I went into the podcast expecting to be fairly opposed to Seidman’s position and came out of it partly convinced by him.

Both sides seem to agree that the Constitution presents only a SOFT limit on what government does. In a showdown between voters and the constitution, voters seem to win out eventually. In that sense the Constitution is less a road block and more a speed bump. As such, I like Russ’ point that speed bumps are GOOD. I also like Seidman’s point that it’s somewhat dishonest, and can lead to an odd complacency wherein people stop trying to justify their point because they just go “Unconstitutional, QED.”

My take away from the podcast is that, actually, both Russ and Seidman were right AND both Russ and Seidman will in part (continue to) get what they want AND both of them have already gotten what they want:

The Constitution has been, is, and will continue to be a limit to impulsive legislation. It is also a limit that sustained public opinion can OVERCOME.

I appreciate Russ’ desire for a more strict respect for the Constitution, sadly this would require a consensus on an interpretation of the document that, I believe, does not exist. It seems to me that it is less a desire for a certain legal framework of government and more a desire for a more universal set of policy opinions. In that sense, if citizens could agree on a Constitution that had strict things to say about government and the economy(for instance) then they wouldn’t NEED a constitution. This consensus could just as easily impose itself through the democratic process.

I also think that Seidman underestimates what a massive systemic shock an overt abandoning of Constitutional review(more or less strict) would be. It would be a massive rhetorical shift, and it would alter the story of what the US is to such an extent that it could do a lot of damage to what limited consensus does exist.

The critical point that I think was sadly NOT discussed is the political-economic education of the population of the US. Why do so many people allow the sugar and farm subsidies/trade protections to persist? I think it’s because they don’t care; furthermore they don’t care because they aren’t very well informed about it AND because in the large scheme of things it doesn’t impact their lives very much. There’s an opportunity cost to doing something about farm subsidies, a lot of people have better things to do. Or at least they THINK they have better things to do because they don’t fully understand the consequences of those policies. There is also growing left-wing opposition to US farm policy from environmentalists; it’s an area of policy where I am actually quite optimistic about future prospects for reform.

This reminded me very much of the rarely mentioned fundamental consensus of libertarians and socialists: both sides worry about the collusion of private business and government and the capture of one by the other. Libertarians would solve the problem by strictly limiting government(or eliminating), socialists by strictly limiting(or eliminating) private business. I think both stances are wishful thinking.

You can’t(ie. no one has yet succeeded) stop powerful private individuals from influencing the political process. You also can’t(ie. same as before) stop government bureaucrats from abusing their economic policies.

The power of the worst system of government(except for all the others we’ve tried so far) is that it allows people MULTIPLE, redundant avenues of expressing their ethical preferences. Democracy is about the process of slowly creating the society in which we want to live. It involves compromise because, as Hayek argued brilliantly, people disagree on fundamental issues and ultimately there is no algorithm or argument that can end the conversation between different factions.

The Constitution does not and never has ENDED the political conversation that continuously produces the society in which Americans live. It just provides it with a starting point and slows it down to encourage proper deliberation. It is, in this sense, merely a reminder that despite differing political views what unites the United States is an agreement about the PROCESS through which decisions are made, not some mythical equilibrium point past which hard political choices don’t need to be made at all.

Superb discussion! It’s an issue that I think should be discussed more, not because it will result in a conclusion, but because through the process of discussing it we learn more about the system and how to live within it.

Feb 4 2013 at 9:45am

A real weakness in Seidman’s analysis is he says things like ”the Supreme Court should be honest about what is doing’. The constitution was designed to constrain power hungry and dishonest people. If we were governed by Angels we wouldn’t need it. We are not governed by angels.
He nodded but in reality dodged the most important question of what would constrain our govt. His theory supports more expansive gov’t. This would destroy conservative (small c) govt.

Greg G
Feb 4 2013 at 9:51am

Great discussion here! And, as Seidman points out, this is one of the few places this kind of a discussion can happen with everyone remaining civil.

I think that Seidman takes far too extreme a position but extreme positions can often result in illuminating discussions. I often think that libertarians are too extreme but one thing I love about libertarians is that – although they often get the wrong answers – they almost always ask the right questions.

We do care, and should care, about quite a number of things when deciding if a law is “constitutional.” Original language and original intent (not always the same thing) are, and should be two of those things that we care about.

We also care about not upsetting precedent without a very good reason. We also care about avoiding disastrous consequences. We also care about getting a result that does not outrage our innate sense of justice or common sense.

These things that we care about often conflict with one another. We often forget that the founders argued about the correct way to interpret the Constitution just as heatedly as we do today. In most cases there was no single “original intent.” The Constitution was barely ratified and was opposed by the libertarians of that time as too great a consolidation of power. If its meaning had been made any more specific, it never would have been ratified in the first place.

Russ did a great job of illuminating important differences of opinion while finding significant area of common ground. Great example here of why I never want to miss an EconTalk episode.

Feb 4 2013 at 10:00am

I think libertarians today support the constitution simply because it is some small restraint on the government.

Feb 4 2013 at 10:09am

Russ- although Louis Michael Seidman seems to have leftists economic views, his position on the Constitution is deeply libertarian and compatible with Lysander Spooner’s “The Constitution of No Authority”, one of the great libertarian essays on voluntary consent. Not sure why you are an old-fashioned conservative on this issue.

Eran Yehudai
Feb 4 2013 at 10:11am

The question I wish Russ asked is the following:
“Should we (both government officials and private citizens) obey the (ordinary, legislated) law?”

Answering in the negative means that Seidman no longer believes in the rule of law.

I would therefore expect him to answer in the affirmative. But such answer contradicts his main line of argument.

Surely, the only position consistent with that line of argument is that we should obey the law when that is a good idea, and violate it whenever that is a good idea.

After all, some laws on our books are fairly old, perhaps enacted by past Congresses which are no longer in power, perhaps having been enacted under quite different circumstances than those in which we find ourselves today.

If Constitutional terms ought to be ignored whenever doing so is “a good idea”, the same holds for ordinary laws!

Feb 4 2013 at 11:16am

The Constitution supplies constraints which determine what sort of system the government is.

Doing away with this or that constraint changes stability and gives you unintended consequences.

The constraints start doing work, in the language of classical physics. Then the system is capable of doing anything.

Richard W. Fulmer
Feb 4 2013 at 11:18am

As I understand it, Seidman’s goal is for government officials to honestly register their “disdain” for the Constitution. And having registered their disdain, they are presumably no longer required to honor their oaths to uphold and defend the Constitution.

Along with the Constitution, can they also choose to ignore the amendments? If so, which ones? Do we bring back slavery? End freedom of speech? Once the Constitution has been effectively repealed, will lesser laws be held in any less disdain?

Will only government officials be allowed to ignore the laws of the land? Or will American citizens also have the right to pick and choose those laws they will obey?

Evan S
Feb 4 2013 at 11:39am

It’s hard to see why so many find Professer Seidman’s conclusions to be so shocking, especially when you face the fact that the Constitution has not only failed to limit the power of government, but has actually produced the most powerful government in history.

The Constitution is much more useful to the government as a “license to rule” than it is to those who believe that their freedoms are somehow being “protected” by it.

Keith Vertrees
Feb 4 2013 at 1:06pm

Let’s be direct.

With the Constitution as a social contract, it makes sense for individuals with merit to form a society for their mutual benefit, guaranteed by their social contract that the products of their labor will not be appropriated by the state.

With no Constitution, there is nothing to prevent those without merit from voting themselves an ever increasing share of the income of others.

Feb 4 2013 at 1:35pm

I want to go ahead and vote on this one as the best podcast of the year. It will be hard for someone else to make me think this hard.

Great Job!

Feb 4 2013 at 1:46pm

Seidman never directly addressed the question of whether the Constitution has been, and continues to be, a constraint on political power. He continually used, I think, a circular argument: we have political traditions and norms that would continue (at least the good parts) in absence of our current framework. But he ignores the role of the Constitution in developing and maintaining those norms.

He also thinks that because we’ve sometimes ignored the Constitution and the sky hasn’t fallen, somehow that is a meaningful argument for his proposal to scrap our framework. Pretty lame.

Feb 4 2013 at 2:33pm

Podcast in a nutshell:

The Constitution provides people with a cheap way to make poor, but politically effective arguments.

Without the Constitution, people would be forced to make better arguments.

Therefore to have better arguments, we should do away with the Constitution.

My quibble is with the second premise.

Why is it not equally plausible that people will find a new cheap way to make poor, but politically effective arguments? Or, put another way, is referring to the Constitution really the only way to make a bad argument?

Adam Baum
Feb 4 2013 at 3:24pm

The problem with this guest’s argument (which I understand as: that due to age and defects, real or perceived in the constitution’s enactment, provisions or observance, we should have summary disregard-rather than a nullifying amendment, -because it’s too hard). That’s just a recipe for majoritarian tyranny.

Ironically, he endorses several extraconstitutional excursions-but seems to forget that for every benign Louisiana Purchase, there’s a plenty of Plessy v. Fergusons, Buck v. Bells, Excutive Orders like 9066 and other actions largely agreed upon (or at least unopposed),at the time of enactment or issuance that we now regard as abominations-in part because we can see how they lacked Constitutional fidelity.

We know what summary dismissal of the existing legal codices looks like- Russia, 1917, Germany 1930’s and Cuba in the late 1950’s. Tyrants are never short of sanctimonious invocations to necessity to suspend limits on their power, and I’ll take any limits, no matter how imperfect.

One thing that you missed Russ, was the chance to explore how the amendment process has deformed the original Constitution and the rule of law.

I would have especially like an inquiry into how the Sixteenth Amendment has provided the federal government with practical economic power to arrogate, maintain, exercise powers that are unhealthy. It certainly would have been timely, since yesterday 2/3/2013 was the 100th “anniversary” of the enactment of that affront to limited government and civil discourse.

Feb 4 2013 at 4:05pm

I admire Seidman’s bravery in proposing an idea that he knew would probably invoke much criticism. A major issue with his view is a similar one that Milton Friedman had with the Federal Reserve, “A system which depends on the right man is a bad system”.

Walter Clark
Feb 4 2013 at 4:20pm

Russ, nor any of the commenters below use the term meme. When he wants to use that idea he says norms or convention or recalls Hayek’s ambiguous use of the word law. Meme is an extremely important concept that goes beyond law. It is advice from grandmother… as if society has a collective grandmother. That advice isn’t flawless, but is more than just valuable. It is a tacit understanding that mere law tries to become. The Constitution might be the most important source of our memes. The fact that Seidmann got so much hate mail is important. It shows an attachment that even unsophisticated people have for grandmother’s words; a resistance to change away from established tradition. It is very important to note that grandmother’s words don’t carry any weight at all with lawyers that represent special interest or even those that represent the 47%. The Constitution is the closest thing we have to a grandmother that works on legislators.
Seidmann, like all progressives have what Sowell calls an unconstrained vision of human nature. The last thing they want are memes that limit their power to mold society.

Feb 4 2013 at 4:46pm

Because there are catchers, we should throw away the backstop.

Among the many problems here is that he gives WAY too much credence to the power of reason, or the desire to be reasonable.

It is quite clear that people are not reasonable.

He should read up on the outcomes of Athens’ flat democracy.

If the problem is that it is ambiguous, then we should clarify it through the legislative process.

Feb 4 2013 at 5:05pm

Russ, I think you did a great job in this interview. Many of Seidman’s comments made me cringe, and it was not immediately clear why they made me uncomfortable. It’s possible that if I was the interviewer that I would have gotten very exasperated. But you kept your cool: great job!!

Here are the Seidman points which make me uncomfortable:

(1) He seems to think that invoking the Constitution in an argument is “authoritarian.” He uses this word several times, but what is the argument? We’re not talking about a dictatorship, because-I-say-so thing here. We’re talking about rules of the game.

What if one of the coaches in yesterday’s Super Bowl told a referee: “That’s dumb. I don’t think you should cite the NFL rules (or whatever) when you make that call. You should provide a good argument for why football should be played that way. I (and my fans, etc) think it should be played this way.” ?

Would Seidman label that “authoritarian”? Note that there *are* processes in place by which the NFL officials can review and change rules. But it’s a somewhat hazy, somewhat separate process from the day-to-day game reviews.

(2) There are several moments where Russ says X and Seidman turns around and says “X is making my argument.” What is the most concise way to state Seidman’s argument? I think it is:

You should not be allowed to use arguments of the form “James Madison chose Z, so we must do Z.”

but is that really what people are saying? I think people are saying

“James Madison chose Z. I also like Z. If you want to do something other than Z, then the burden is on *you* to provide a good argument why we should not do Z.”

I think if *everyone* hated Z, then we could easily stop doing Z. We could even have a Constitutional convention.

Further, wouldn’t there always be *some* body of law or existing process that would take the place of “James Madison” here? Are we saying that there *should not* be no body of stuff that people can reasonably *take for granted* when they make their plans? I think there should be, and it should be written down.

[It’s possible that I would be happy with term limits on our constitutional provisions. That way, there is at least some period where some rule is crystallized and usable.]

Feb 4 2013 at 5:11pm

I agree with the guest.

The reasons are too numerous but mainly that it’s an empirical fact that at the first sign of trouble people stop taking pieces of paper seriously (and that’s when they were supposed to be most needed). I’d like to say that it’s a fact about human nature but really it’s my opinion.

Anyway great podcast.

Patrick R. Sullivan
Feb 4 2013 at 5:42pm

Constitution has not only failed to limit the power of government, but has actually produced the most powerful government in history.

Really? More powerful than Stalin’s govt? Mao’s, Hitler’s?

As for Seidman, I haven’t heard so many internal contradictions since the last basketball game called by Bill Walton (okay, that was just last week). He was making what he thought were anti-constitution arguments when in fact, they were pro-constitution. He was making what he thought were anti-authoritarian arguments that were actually pro-authoritarian. I feel sorry for his law students.

As Russ seemed to understand, the authors of the Constitution recognized that government is dangerous and far more likely to be harmful than to do good. So, they wrote a constitution designed to make it difficult to get anything done. A system requiring deliberation and compromise, and disfavoring fads of the moment.

Yeah, it hasn’t worked perfectly, but it’s pretty silly to argue that we’d have a better chance at avoiding the worst results without a constitution at all.

Shawn Buell
Feb 4 2013 at 6:16pm

It seems to me that Seidman’s argument falls into a couple of categories: The Constitution is flawed in some ways due to minor, clerical oversights OR the men who wrote the Constitution were smart but engaged in evil in one way or another (i.e., they owned other Human Beings) and the Constitution should be ignored as a result.

The vast majority of the evil attributable to men is due to their use of ad hoc or situational ethics. Congressional majorities are no different; without the guardrails of the Constitution which places off-limits some of the levers of power who knows what sort of nastiness the Congress might have gotten itself up to in the name of zeitgeist?

Seidman’s level of naivete is Rousseauian in its optimism regarding what lies in the hearts of men. There’s a reason our Country and Constitution were based upon the thoughts of Locke and specifically NOT Rousseau.

His complaints about the petty sausage-making aspect of the Constitution’s creation is merely annoying; Does that invalidate it? No. The results are in front of us. Is the Nation we have the result of more or less strict adherence to the principles of the Constitution or are the good things we have the result of disobedience of it?

Patrick R. Sullivan
Feb 4 2013 at 6:29pm

Also, Seidman makes an incredible blunder in putting forth the hackneyed claim that the Constitution was produced in violation of the Articles of Confederation (essentially, that the CC ‘replaced’ rather than amended the Articles).

Forrest McDonald blew that sophistry out of the water decades ago in his Novus Ordo Seclorum. From which;

In a resolution appended to the Constitution and ‘laid before Congress,’ the convention recommended that Congress forward the document to the states and that ‘it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and ratification.’

Congress unanimously resolved to follow that recommendation, and the legislatures of all thirteen states voted to abide by it. In so doing, Congress and the [state] legislatures approved article 7 of the Constitution
and thereby constructively amended the Articles of Confederation in regard to the amendment process; and they did so IN ACCORDANCE WITH THE STIPULATIONS IN THE ARTICLES THEMSELVES.

What the above means is that all the ‘i’s were dotted, and the ‘t’s were crossed in the procedure, and the Articles were adhered to punctiliously.

Feb 4 2013 at 6:55pm

Eran Yehudai beat me to the same question I was hoping would get asked.

Why should any law be referred to directly or given heed to at all?

With all due respect to Prof. Seidman, his stance seems to be that you need to provide a “good reason” each and every time you want some particular policy to stand. I should try that approach next time I’m stopped for a traffic violation: “No left turn. That’s an old sign. Give me a good reason why I can’t turn left there.”

The Constitution is not some random imposed standard from above, it is the duly ratified supreme law of the land. The same way businesses file governing documents, the constitution serves a similar purpose. Calling something “unconstitutional” is not simply an appeal to some old dead men’s ideas, it’s an appeal to the law itself.

While the shorthand of referring to things as unconstitutional is common, this doesn’t mean there are no arguments for the things codified in that law. I’ve never heard someone submit as a dispositive argument for some constitutional provision that “Madison said so.” Even if Madison did say so, the provision eventually *became the law*. There are always arguments about the merits of various laws…before they are passed.

The constitutional is also changeable by amendment and if my facts serve me correctly, the most recent amendment was ratified in 1992, not 1971 as referenced on the podcast.

When people argue that “it’s hard to change the Constitution,” that serves as at least some evidence of decent reasons for the existence of the very provisions people want to change. I truly don’t buy the idea that any “obviously necessary” changes are so impossible to enact. It’s just so much easier to ram things through the courts.

Those who want things changed will use the path most suitable. That path does not currently lead through the amendment process for very many things.

Feb 4 2013 at 8:01pm

A couple things stood out to me, similar to a lot of the other comments, along the lines that the arguments made supporting the idea that the Constitution is unnecessary seemed to make the exact opposite point.

Two things stood out in my mind during the discussion:
First, similar to Walter Clark’s discussion of the meme, the Constitution represents the combined cultural knowledge of our society. Keeping this document and, as importantly, this symbol of our democratic ideals, is as important to the country as the Bible or the Torah are to Christianity and Judaism in keeping the spiritual knowledge of those religious traditions.

Second, in personal life, one of the best ways to achieve a goal is to write it down. This action cements the idea in black and white, and makes the person think the whole thing through to some extent at the outset. Further, it gives a concrete reference to come back to, making goal consistent over time. The same can be said of the Constitution for our society – it is a goal of how we should come together in a social compact. We may never perfectly adhere to it, but without it, we are far more likely to stray, and farther from our core.

Feb 4 2013 at 9:52pm

Please name an unambiguous language.
Mathematics is limited to pure science. Politics and economics are ambiguous because people are.

Feb 4 2013 at 10:22pm

Seidman has a point. The Constitution has good parts and bad parts and every bit of it is open to interpretation and opinion. Throughout our history the country has deviated from the Constitution on many occasions, for various reasons. We should expect that to continue, especially with the current structure and operation of the Supreme Court.

It seems, if we are compelled to stick to an objective interpretation of the Constitution to support our positions we handicap ourselves in the fight. For me, Seidman has taken the shine off the document. I too often hear it, opportunistically, described as an old document written in a different time by men long dead. That description has always frustrated me but, I must admit, it’s a description that resonates. If it’s that easy to cast doubt on the Constitution, outside of those that have cared to study it, then it’s probably time to leave it out of our arguments.

After hearing Seidman’s rationale, whether something is supported by the Constitution will no longer constrain my thinking.

Feb 4 2013 at 10:37pm

An excellent podcast!

But, Russ, I think you let him off too easy with the “The constitution is too hard to amend” line. No it’s not — you just need a lot of political agreement about the change, and that’s exactly the same thing that he asserted you need if you were going to ignore the Constitution. We had that sort of agreement between 1909 and 1933, a period when 6 constitutional amendments were passed, and again in the 60’s and early 70’s, when another 4 were. Since then, the country has been a lot more divided and there hasn’t been widespread agreement on change.

@mdesq: he deliberately ignored the 27th amendment because it was an odd duck — took 200 years to ratify.

Ken P
Feb 4 2013 at 11:45pm

Great podcast. I commend Seidman for thinking outside the box and for pointing out some illusions.

Personally, I like the protection that the super-majority aspect of amending the constitution affords.

As other listeners have said the “authoritarian label” for arguments in favor of the constitution made me cringe. By providing limits on government and providing freedom for the individual, the constitution protects people from the will of others (authoritarianism).

Feb 5 2013 at 1:34am

The problem I have with Russ’s view of the Constitution is that it seems to be based more in what he believes should be in a constitution rather than what is actually in the Constitution. When explaining why certain laws are unconstitutional, he explains why they should be unconstitutional instead. Just because a policy is a bad policy or even an unjust or immoral policy doesn’t mean that it’s an unconstitutional policy.

Feb 5 2013 at 7:36am

I’ve been listening to EconTalk for a year now and I’m constantly impressed by the wisdom, intelligence and how articulate everyone is.

This episode is one of my favorite (if not number one). The topic is a very complicated one and it seems to me that there is no one right answer. Both Russ and Louis have showed incredible skills in explaining what they think and mean and it seems to me that even if they disagree (though it is hard to determine to what degree — which is fascinating!) they understand and respect each other, and I think that — in a way — the accept the fact that perhaps neither of them has found the answer… because there is no one right answer. Wonderful discussion!

A warm “thank you” from Poland!

Feb 5 2013 at 8:16am

That was an interesting talk. I’d seen Seidman in other interviews, and he’s right, he wasn’t always treated fairly. I got a lot more out of this interview than any of the other Seidman interviews. He actually made some good points, though I still disagree with his overall premise.

One of the main reasons I love EconTalk is because Russ is one of the best (perhaps THE best) interviewers around. It’s always the case that the guest gets a really fair chance to explain his point of view. And even though Russ often challenges his guests’ views, I don’t get the feeling that he’s trying to change their view.

I’ve watched Piers Morgan do a few interviews, and the contrast couldn’t be more glaring. It’s rare that his guests ever get to make a complete statement and it often seems that the only reason the guest is on his show is so that Morgan can convince them that his (Morgan’s) view is the correct one.

Feb 5 2013 at 8:42am

Yehudai and Mdesq are spot on. I would love to hear Seidman address this issue. He believes “just” policy comes from immediacy and rational debate. With regard to immediacy, what’s the expiration date on a law? At what point should a law be considered invalid because it was written by someone in the past who doesn’t understand “current circumstances”?

What happens when rational debate doesn’t lead to an agreement? What do we use to pass judgement on right and wrong? Under Seidman’s regime, would we sit and debate until someone gave up? Would we count on some third party to determine the “just” outcome of every dispute with regard to current circumstance? Wouldn’t it be nice to have something in existence that everyone was aware of as a starting point?

Feb 5 2013 at 9:36am

Econ Talk is probably the most sober (!) and balanced podcast I know. I have learned to love the debate, the calm and rational discussion and logic. The reflection of though and reason related to ideology/opinion is… thrilling. This particular episode (…) was one I started with all claws out. It ended with great respect for Russ of course but also Louis Michael Seidman. The discussion was simply superior of anything I have ever listened to. We disagree but we must be able to have a respectful discussion where the rational behind the arguments are allowed to be reflected. And Russ does it brilliantly!
Russ’ approach to intellectual stimulation in general is unique. Wish I was younger and could enter academia again… It is not much of this type of reflected opinion anymore in the media. I sincerely hope that Russ will ‘never’ stop. Each week I long for the stimulus.
Thank you very much!

Patrick R. Sullivan
Feb 5 2013 at 10:58am

What happens when rational debate doesn’t lead to an agreement? What do we use to pass judgement on right and wrong? Under Seidman’s regime, would we sit and debate until someone gave up?

Nicely put. I wonder if Seidman patronizes Super Hero movies.

Adam S
Feb 5 2013 at 11:02am

Great podcast from both sides.

I think one of the key points brought up early was that there are stable democratic countries without constitutions (UK), democratic countries with them (US), authoritarian countries with constitutions they don’t necessarily follow (China), and of course authoritarian countries without constitutions (many).

So I think there is significant evidence that the constitution itself is neither sufficient nor essential to stable democratic society where the government is well restrained. Is the UK government more unrestrained as a result of their un-constitutionalism? Hard to measure, but I’d think probably not.

Another point alluded to but not said outright is the level of enforcement of constitutions. Many countries have them but simply don’t follow them. The Soviet Union and Chinese constitutions had provisions for free speech and assembly, but of course this was meaningless. The US has specialized courts specifically for interpreting the Constitution, but as Seidman bravely points out, the justices are obviously political, and should be honest about this.

Interestingly, two Chinese newspapers were recently censured (one was closed outright) for suggesting that China follows its own constitution and offers greater rights to its citizens. There is a very vibrant debate on constitutionalism in China right now that is actively being stifled by their government. After listening to this podcast and thinking about it some more, what they are really calling for is independent courts and a system of equal law enforcement across all sectors of society. But the constitution is still a valuable symbol that is undoubtedly giving many Chinese gov officials some serious headaches

eric falkenstein
Feb 5 2013 at 1:35pm

A foolish consistency is the hobgoblin of little minds. In this case, we shouldn’t let our tendency to ignore the constitution to imply we should just ignore it entirely.

Surely we violate the Constitution pretty regularly, but at least we have to think very hard about it, ie, there’s a greater cost to violating it at present. It’s sort of like paying deference to Tradition, which I think is generally a good thing.

Ak Mike
Feb 5 2013 at 1:56pm

I have to agree with most commenters, this is one of the best of a very strong series of podcasts. I started listening, like many of you, ready to dismiss Seidman’s argument – but he made some excellent points.

The very best point he made is that the current system of constitutional adjudication is essentially a fraud. If I understand him correctly, he is not opposed to a system of unelected “guardians” putting the brakes on the actions of the elected legislators – rather, he dislikes the pretense that this is all based on some higher law that is merely being interpreted.

I think we all understand that judges, and especially those on the Supreme Court, decide – in cases that have political ramifications – in favor of their political opinions, and clothe the result in constitutional language. Seidman is repelled by the conscious fraud that this system depends on, because clearly the judges who do this must know what they are doing.

Russ is right (and perhaps agrees with Seidman) that there should be some system of checking the passions and foolishness of the democratic process. He is wrong if he thinks there is some objective underlying “constitutionality” against which laws can be adjudged. There is only a brief document that can be interpreted to say nearly anything.

Michael Tolhurst
Feb 5 2013 at 3:04pm

I have to admit that I found Seidman’s line of argument conceptually confusing. It seemed like any stick was a good enough stick to beat the constitution with.

“The Constitution has failed to constrain the behavior of politicians and special interests” therefore constitutional government is bad.

“The Constitution might constrain the behavior of politicians and special interest in an arbitrary way that would leave their intellects ‘unsatisfied'” therefore constitutional government is bad.

Also, Seidman seems to jump from pointing out particular cases of constitutional ‘wrongs’ to using that to condemn the very idea of constitutional government.

Needless to say I did not find his arguments compelling, but what seems to me is the root difficulty is that Seidman has a too rosy picture of the ‘rationality’ of political and moral decision making. The founders, and more particular David Hume, one of the founders influences, recognized the great value tradition had in helping to maintain a decent and well ordered society. Indeed, Hume dramatically minimized the role rationality played in political and moral discussions. Politics concerns desires and interests, which are always potentially limitless and tyrannical. It does not discuss distinctions made by reason! This is the conception of human agency that influenced the founders and led them to think it was a good idea to impose restraints on using the government for the fulfillment of human desires and interests.

Finally, I would say in closing that Seidmann’s position seems like folly when we see the documents justifying Obama’s extra-judicial killing of US citizens released. This is the sort of thing constitutions are good for. While they may not prevent wrongs, they at least provide a rallying point for condemning something as wrong.

john thurow
Feb 5 2013 at 4:59pm

I think that your guest is absolutely crazy. His argument is lunatic. People have been following the same idea since Lincoln (16th, 17th amendments, Wilson, FDR, Johnson, Carter, Clinton and Obama) and the US is on the verge of economic collapse with the rule of law in tatters and an ever increasing Federal Government that is close to becoming a tyranny. I have totally lost confidence in any of our nations leaders who do not know how to tell the truth, make hard choices and to lead. Why has this happened? Because they, our leaders and academics, have turned their back on the constitution and its original constraints, thinking they know what is best for all (Hubris at its worst). Policy makers don’t have a clue of how to fix our problems and to make the correct trade offs giving them more leeway is nuts! The only thing that can save us now is going back to the principles of liberty and freedom and following the 10th amendment and allowing the people to have the most power not government policy makers. There is nothing that can’t be solved if the government would get out of the way and allow the people to pursue their own business. Unfortunately, Seidmann is advocating the opposite. Not very wise and I bet he doesn’t have any skin in the game either.

Marybeth Van Huxtable-Funkhouse DDS
Feb 5 2013 at 5:19pm

[Comment removed pending confirmation of email address. This is your second warning. Email the webmaster@econlib.org to request restoring this comment. A valid email address is required to post comments on EconLog and EconTalk.–Econlib Ed.]

Richard W. Fulmer
Feb 5 2013 at 5:23pm

Seidman argued that reasoned debate should not be eliminated by simply declaring that something is or is not Constitutional. Roberts essentially granted Seidman’s point by arguing that some things should be “off the table” – that is he wants reasoned debate eliminated for certain things (sugar subsidies).

Putting something in the Constitution neither takes it off the table nor does it eliminate the need for reasoned debate. It establishes a rule that can be changed according to a set of rules that themselves can be changed.

Granted that the Constitution is difficult to change, but it can be changed and we have 27 amendments to prove it. Making the Constitution easier to change may be a good thing to do, but it also should not be too easy. Many new ideas are good, but (let’s face it) most aren’t. If a new idea has merit, it should be tested, but not tested at the national level. Let it be tested at the state level. If it turns out well, it will be adopted by other states and, eventually, by the nation. If it fails, at least it will not have failed at the national level, perhaps with catastrophic results.

Richard W. Fulmer
Feb 5 2013 at 5:36pm

Seidman argued that reasoned debate should not be cut off because something is or is not in the Constitution. Roberts essentially granted Seidman’s point by arguing that some things should be “off the table” – that is, he wants the ability to eliminate the need for reasoned debate for certain things (sugar subsidies).

But, putting something in the Constitution neither takes it off the table nor does it eliminate the need for reasoned debate. It establishes a rule that can be changed according to a set of rules that themselves can be changed.

Granted, the Constitution is difficult to change, but it can be changed and we have 27 amendments to prove it. Making the Constitution easier to amend may be a good thing to do, but it also should not be too easy. Many new ideas are good, but most (let’s face it) aren’t and even good ideas may have unintended, undesirable consequences. If a new idea has merit, it should be tested, but not at a national level. Let it be tested at the state level. If it turns out well, it will be adopted by other states and, eventually, by the nation. If it fails, at least it will not have failed at the national level, perhaps with catastrophic results.

Feb 5 2013 at 6:20pm

It’s a small point but there was an – I think unstated but I might be wrong – implication that sugar tariffs exist to help domestic sugar beet and sugar cane producers. I would expect that they’re supported just as much by corn producers.

Not that it really matters.

James Law
Feb 5 2013 at 10:10pm

Great show as usual. Jefferson was mentioned on the show, but his belief that the constitution should be re-written every generation was not. This is clear in his letters to James Madison:

Episodes 968 and 971 of the Jefferson Hour Podcast discuss this at length for interested listeners.

It seems Jefferson’s view is amenable to both sides of todays’ arguments to some degree.

John Berg
Feb 6 2013 at 1:01am

Ak Mike’s comment helps me understand the decision of Chief Justice John Roberts on ObamaCare. I happened to be reading Mark Levine’s _Ameritopia_, specifically the chapter on the harm activist Judges and Courts have done to our Constitution, the day when Roberts’ decision was announced. If Roberts believed as cynically as Ak Mike suggests, then Roberts may have feared another attempt at packing the Supreme Court was possible and sought to protect his institution. Essentially one of the several means of enforcing the Constitution is the action of other Constitutional office holders jealously protecting the powers of their office.

John Berg

Feb 6 2013 at 4:24am

Through all of the vigorous discussion of contrast, I’d like to emphasize some agreement. Russ and Seidman both believed that no matter the system, it’s important for the actors to be honest and upfront about the process.

I would take either Russ or Seidman’s approach over what we have currently, if adhered to. Right now we have a system restrained by little more than conflicted popular opinion, and supported by the illusion of stability in the Constitution. That necker cube (though still genius) document has now been tied into more knots and loopholes than a balloon animal.

It is a very interesting question on how to balance long term legal and moral stability while also allowing for adaptation to modern understanding. Perhaps we should be more diligent about defaulting to our founding document. Perhaps we should completely abandon the obligation of consulting it. Or somewhere in between.

Whichever way, in order to have a lucid discussion about the future, we need to confront the charade.

…Of course that requires politicians to lie less, so I’ll just keep dreaming.

Feb 6 2013 at 5:17am


Ignoring the Constitution is great when you’re an appointed stooge of the puppet-master State, advocating for it’s ever-expanding godlike powers, and enjoying the associated benefits. (Tenure, NYT op-eds, etc.)

But if Prof. Seidman decides some day to commit a speech- or thought-crime (or my favorite, the soon to be rolled out pre-crime), when he sees the drone fleet descending on his ivory perch at Georgetown … well, he might wish he hadn’t been so quick to throw out that “piece of paper.”

Feb 6 2013 at 6:54am

I thoroughly enjoyed this episode and I am certainly very glad that Professor Seidman has articulated his views. I am not a US citizen I was born and raised in the UK and in the last 7 years I have moved to Australia and become a citizen of this country. So I unfortunately do not understand the US constitution very well. I have become addicted however to US constitutional issues ever since 2000 when I lived in France and I used to watch Fox News and the incredible drama of the 2000 presidential election and the hanging chads. Fox News, I can understand hardly deserves the epithet of news. But despite that it was quite revelatory when you see institutions performing under stress. The many reports of voter disenfranchisement and the poor voting practices in America that were revealed at that time was amazing to watch for an outsider who had up until that time somewhat believed that the USA was a progressive Democracy with universal suffrage. The real take home message for me was that Al Gore should have won by such a margin against George W Bush that if he had to lose by a legal argument in which blatantly partisan counting and denial of votes was allowed to be made, well he had lost the election. In this instance in my view the Supreme Court made the decision that the legal process had to stop as someone had to be sworn in as President by a certain date. The Supreme Court defacto made the law and they therefore chose the president. It was a credit to the American system and Al Gore personally that this decision was accepted though most people believed that in natural justice it was more than likely the wrong decision. Subsequent counting and analysis showed that Al Gore actually won Florida and should have won the Electoral College election but that vote had been taken long since and could not be recalled. I make this point not because the Supreme Court acted unconstitutionally rather to point out that the Supreme Court really can make law by the choices it makes and it’s interpretation of the wording of your constitution. The next incredible disregarding of the constitution came with the reaction to the 9/11 attacks the water boarding, rendition of prisoners to be tortured for information. The “legal” authorisation of enhanced interrogation methods was shocking for those who believed that America had a legal system that was designed to stop these excesses. Guantanamo bay and the imprisonment without trial indefinitely showed what little real regard there was for the rule of law. Many Americans do seem to be ashamed of this and the fact that the Supreme Court will not take cases to challenge the constitutionality of this abuse of human rights. However there was and still remains a political bipartisan tacit agreement that nobody ever got re elected supporting terrorists rights so we can ignore the constitution and have a race to the bottom. Citizens United; the Supreme Court rewrote the law by equating free speech with, effectively, money, surely that was never the intention of the constitutional framers. Targeted assassinations of American citizens by drone strikes, surely unconstitutional, of course assassinations of non Americans with no trial or recourse to appeal, fair enough! There are so many concrete examples where the American Constitution is ignored that Professor Sideman’s case can be easily made.
However if you believe that there is a general disregard for the constitution what should you do? I don’t think you should try to say let’s find some way to codify the disregarding to make this acceptable, so that I can say that I am no longer a hypocrite. Rather you have to point out the hypocrisy because ideals matter even if America doesn’t live up to them. People know in their hearts that these matter and eventually over a long period of time things will swing back to a more principled view. But without a guiding mechanism to slowly tug back excesses which is really what your constitution is. To be honest that is a straw man argument not the real argument that Professor Seidman is making however in some respects that is the argument that Russ Roberts appears to be making, if not a Supreme Court and a Constitution who will watch the watchers.
The problem that America has is that moral arguments, such as the sensible right to universal health care or a good education, or gun control is not argued out on a what is best basis, it is argued out in an abstract sphere as what will pass the human judgement of 9 Supreme Court justices and their interpretation of wording written in the main over 200 years ago in which these issues were never foreseen. It is easy to despair of America when you see moral arguments completely bypassed by my right to have an automatic rifle, which should really be extended to owning any type of arm such as a surface to air missile, though at the time of framing of the second amendment this would have been considered some type of fairy tale. Of course the constitutionalists will always say you can always amend the constitution and it is hard morally to argue against that except that now the effective “super majority” required to do this is so high that it is almost impossible to effectively change the constitution formally in this way. The practical amendments to the constitution are now made by the minds of 9 people and for the most part they know that they have less moral legitimacy than the congress that writes the legislation and the President that signs it. They have a difficult road to walk and they have to sometimes find ways to pretend that a bill is not unconstitutional because it leads in, however imperfectly, the best way for the country to go. They can’t possibly break the spell and say this because you must all collude with the myth of constitutional government.
So thanks for pointing out the Emperor has no clothes and please keep feeling embarrassed by that fact and urging the Emperor to put new clothes on but the imperfect nature of humans is such that don’t make us all accept nudity as a solution to this problem. But at heart you are right the moral arguments are the most important and America is not making them for itself but it is happy to tell others what they should do.

Adam S
Feb 6 2013 at 10:56am

I’ve seen some vitriol about Seidman here and elsewhere, but I haven’t seen it explained thoroughly yet why the UK has neither fallen apart nor fallen into dictatorship without a constitution. I’m not partial one way or the other, but I think it’s odd that so many believe the government would immediately turn tyrannical without a constitution, yet clearly this hasn’t happened in several other countries.

To add to that, while I think it’s absolutely essential that there are legal restraints on government, I think it’s odd to look at the Constitution as such a restraint, when the people who made it were absolutely unrestrained. If we were to have a new Constitutional Congress today to rewrite the Constitution (or decide to do away with it entirely), why would it necessarily be worse than the old one? We’ve had 250 years to learn from our mistakes, and our politicians today are certainly more representative of actual society than they were when the Constitution was written. I can’t wrap my head around the idea that the guys who wrote our Constitution (while brilliant) are smarter than we are today and could predict our country’s current situation

Feb 6 2013 at 11:19am

This was an important and fascinating podcast because asking whether we would be better off without our Constitution (or in Seidman’s view, any constitution) provokes thought about if and why a constitution is important in achieving a well-functioning government as well as a fair and prosperous broader society. The commenters, including particularly Sebastian, but many others as well, have added a lot to this endeavor.

Here’s my provisional take. The U.S. Constitution (like most constitutions) is a legitimate social compact that helps empower judge in constraining Congressional and executive power. It is not the infallible wisdom of the founders that merits respect, but their successful negotiation of such a contract to accommodate competing interests and perspectives that have, thus far, resonated over time. In effect, in contrast to feasible alternatives, the Constitution is continuously re-ratified, one might say by each subsequent generation. Hence, the notion that we have enslaved ourselves to the opinions of 18th century icons misrepresents the Constitution’s real status. As Seidman notes, in 1789 the Articles of Confederation were ditched in favor of an improved fundamental accord. The same could be done today, and that it is not constitutes an implicit contemporary endorsement of the continuing utility of the compact.

Why would Americans seek a Constitution to limit the powers of Congress and the President, thus protecting certain rights of individuals and minorities above the prerogatives of the democratic majority? My conjecture is that in a diverse, multi-dimensional population, almost everyone – or at least, the vast majority of people — anticipates belonging to the minority in some respects some of the time. Among the dimensions are (and were) religion, race, ethnicity, national origin, gender, personal ideology, occupation, age, family size, geographic location, and citizenship within a “small” or “large” state. Even in the late 18th century, the United States was diverse, particularly when compared when some European countries – but of course, diversity increased dramatically over the subsequent centuries and so may well have strengthened modern commitment to such protections even further. Most people, evidently, preferred to protect themselves prudentially when they find themselves vulnerable to the abuse of a majority than to retain the prerogative to abuse other minorities or individuals when they, themselves, were part of the majority. In addition, people may have suspected that majorities might also sometimes lose control of government decision making given the prospect of special-interest influence or capture, and hence the power of government ought to be constrained.

My point is that the Constitution is a contract that reflects social sentiment based on self-interest. In this respect, it is misleading, or at least only partly true, to see it principally as the product of Enlightenment philosophy about inalienable natural rights that was in vogue among intellectual elites 250 years ago. That is the notion that it reflected detached wisdom (upon which we might improve today) rather than self-interested consensus.

Seidman’s arguments generally highlight claims about the imperfection of the Constitution in achieving its apparently intended purpose. Sometimes it isn’t followed faithfully. It is too difficult to amend (though, arguably, that may well be a feature rather than a bug). Over time, judges, who after all are just people drawn from society at any moment of history, interpret its meaning differently because the Constitution is inherently ambiguous (it is not and cannot be a “complete” contract). But if these are imperfections, then let’s at least admit that imperfection is endemic to the human condition and so can’t alone indict the utility of an institution. Seidman never addressed the affirmative case for the Constitution — that it has, in fact, many times actually protected individuals and minorities from abusive legislation by legitimizing judicial decisions.

Moreover, countries such as Britain that don’t have a written Constitution and muddle along nonetheless, often have an unwritten constitution based in part on judge-created common law (see, for instance http://www.ucl.ac.uk/constitution-unit/research/uk-constitution ).

If Seidman agrees that protecting minority and individual rights from majoritarian mob rule (or worse, special-interest rule) is a “good idea” that we ought to embrace, how does he affirmatively propose those protections might best be attained institutionally? I felt he didn’t answer that question with anything approaching adequacy. Whatever he might propose, one might imagine, would also be subject to imperfection in implementation. If so, then we are left to assess whether the Constitution remains the more effective way to go.

John Berg
Feb 6 2013 at 11:42am

Commentators should realize that the original sovereign states made a contract among themselves to permit a collecting or cover organization to provide certain services to the collection. An analog of states to the UN is not far-fetched. The original contract intended specific limited powers as expressed in the Constitution’s 10th amendment. The ambiguities inherent in language, the “wear” on language over time, and faults in mankind have lead to many of the current failures in our consequent AMENDED government.

I point specifically to the amendments for direct election of Senators and for the income tax. The former eliminated the sovereignty of states and latter made the states dependent on the Federal government. With the power of the revenues collected, the Feds can bribe directly the citizens and, indirectly, their representatives by granting the representatives the power to offer revenues. The House is as much in the thrall of their party as the citizen in his greed for stuff.

John Berg

Feb 6 2013 at 12:19pm

I have to say, it is amazing to me that anyone thinks there is anything novel about Seidman’s arguments. They have been part and parcel of the progressive movement since at least Wilson (he had similar complaints about the constitution).

The only thing interesting here is the fact that Seidman actually has the guts to just frankly argue his disdain for the constitution unlike most progressives. Most progressives attempt to play the weaselly game of grossly misconstruing the document and thereby injecting their values into it. This has lead to creating the new positive “rights” they seek (ie the right to privacy). Although we still sometimes see the outright disdain despite their best efforts (ie Ginsburg and the South African Constitution).

So I do really appreciate Seidman dropping the facade, so we can have a frank and fruitful debate on what is actually a more subtle and interesting issue than most people think. The fake posturing hasn’t helped anyone.

Cowboy Prof
Feb 6 2013 at 1:56pm

This discussion was better than I thought it would be and I did make it to the 57 minute mark.

However, I had two major problems with the discussion:

1. There was no discussion regarding the basic purpose of a constitution, which is to create a set of rules about make future rules — the who and how of power distribution.

Our various legislative laws and regulations can have an arbitary nature to them. Just ask Ken Arrow or Jim Harbaugh. However, without a fundamental set of rules about how rules will be made, the rule making process can become even more arbitrary thereby increasing high levels of uncertainty in society (and that ain’t all that good).

It would have been useful to have a discussion about why a constitution is needed in the first place and how permanent that constitution should be. (That issue was discussed indirectly at various points, but never directly.)

2. The guest never indicated what we should replace The Constitution with or how it should be modified. There are lots of things that I don’t like in life, but then when I think about an alternative to those things I end up saying, “Well, I guess it ain’t all that bad.” I never had a full sense of what the guest wanted to see in place of The Constitution, or how it should be ammended. He mentioned that he doesn’t want to start from scratch, but then what? What do we replace it with? And why would what we replace it with be any better than what came before?

This is part of our larger policy debate process. We see some problem and say that we must create a policy to “solve” the problem without sometimes realizing that the problem has been becoming less problematic over time (e.g., poverty, gun crime). The results of the new policy are often unintended.

Feb 6 2013 at 10:58pm

Before I dive deep and make a long post on the subject….

The UK DOES have a constitution. In fact, the UK is the original example of constitutional monarchy. The difference between the US and the UK is twofold:

1. The UK constitution is uncodified. It’s not collated into a single document, but made up of a group of statutes, practices, and other legal devices that are recognized as fundamental.

2. The British Parliament is the sovereign body in the British political system, and can thus change the constitutional arrangement of the UK at will. There is usually a little bit of a different taste when constitutionally important bills are being considered, but ultimately you just need a majority vote in Commons.

Ryan Vann
Feb 7 2013 at 9:09am

Seedman has sowed some seeds of constitutional discord in me. I shall disregard the 16th amendment post haste now.

Feb 7 2013 at 9:23am

Russ, you say “If you go back to the recent string of Presidents–Reagan to Bush I, Clinton to Bush II to Obama–aren’t you a little glad that none of them got close to what they actually would have wanted?”
Well, I don’t know! When Bush II decided an invasion of Iraq was a good idea and somehow got his way – I’d say that was a pretty big, and also disastrous, swing.
It certainly cost the country dear. The constitution does little to prevent such ill-fated adventures. Nor does it prevent an out-of-control drone war that could soon be threatening freedom on the “home front”!
And yet in other areas of policymaking, where strategic action is sorely needed, utter gridlock and a mutated filibuster.
Just a thought.

Feb 7 2013 at 10:06am

Great guest Russ. I shall ignore all laws because they were made prior to today and made by people other than me.

I am glad it’s now up to the slaves to convince their masters why they shouldn’t be slaves.

Jakob Engblom
Feb 7 2013 at 3:27pm

Interesting discussion. I think that having a constitution that is harder to change than mere regular laws is a good thing, and is what Russ is mostly after. But the constitution the US currently has is not a good one, and suffers from not having been updated and changed to keep up with the times. It would be good to make it more European and possible to change with two or three iterations of congress voting in the same way.

I remember the first time I realized how the US constitution worked, and how I actually laughed out loud (as an exchange student at a US high school), as it seemed too strange to be believed that a country would keep and revere a document so obviously out of date. Good to see that some americans also find it an anachronism.

Still, having a constitution is good. But it is good to keep it changing and with the times rather than relying on arbitrary interpretations of vague text from 250 years ago.

Maybe the US political style has too much confrontation and I win-you lose in it to make a European variant work, though. That requires a firm belief in continuous reform, adjustment, and consensus.

Russ Roberts
Feb 7 2013 at 3:43pm

Jakob Engblom,

The Constitution was put in place to restrain the government from abusing its citizens. That, unfortunately, a timeless necessity. Nothing about that is “out of date.”

The massive increase in the redistributive state over the last century has put the United States on an unstable and unsustainable path due to demographic changes. Europe faces similar challenges. It is not obvious that democracy can handle these changes. Do these problems come from ignoring the Constitution or do constitutional constraints keep us from dealing with them? I take the former view…

Joshua Wade
Feb 7 2013 at 3:57pm

I haven’t listened to the talk yet and I am about to, but I wanted to make a quick comment. The Constitution is the highest “law of the land” therefore Siedman’s logic would apply to all laws.
This has rightly been pointed out by many commentators.

Also, the comment regarding Hume is very on point. People are ruled by their emotions more often than reason and can therefore be easily manipulated in the heat of a “crisis”. This is why our government now legislates by manufacturing fake crises like the “fiscal cliff” or the debt-ceiling or uses kids to manipulate the masses’ emotions. Lack of rational debate has especially gone by the wayside since the invention of modern media formats which allow millions of people to be exposed to emotional manipulations through music, images, and language that is designed by people who do nothing but dedicate their lives to rhetorical skill ans researching psychologically manipulative techniques. In the past I wager the debates between members of Congress contained much more rational debate. The public was not involved even on the superficial level it is today, therefore legislating by emotion was more difficult, less necessary, and less practical.

Siedman’s notion that rational debated will decide laws is so simplistic and naïve that I wonder if he even believes it. The cynic in me says he just got his 15 minutes in the sun.

Mark Wonsil
Feb 7 2013 at 4:51pm

While I agree that we shouldn’t hold to an opinion because of the understanding of those from 200+ years ago, I can’t help but think of what commonly happens with family businesses. The first generation builds the business. The next generation lived through the work of the parents and grows the business. The third generation is disconnected from the prior work and usually makes poor decisions with the business and ruins it.

Maybe it’s just in our human evolution, but we seem drawn to authoritative systems. Most of the systems before were that way. Maybe the Founders understood that and we’re the “third” generation and have forgotten what it’s like to live without liberty. Sure, it’s natural to question our predecessors but maybe we should give some credence to them. Their experiences and lessons may actually apply to us more than we know.

Greg G
Feb 7 2013 at 9:50pm

In a comment above, John Berg imagines up a pending conspiracy to pack the Supreme Court and worries that such a thing could mess up the constitutional separate of powers. This is exactly the kind of thinking Seidman is effectively skewering here.

Actually, in reality there is no pending conspiracy to pack the court but it is instructive to consider WHY there is not. Court packing is a bad idea in my opinion but it is a bad idea DESPITE the fact that it IS clearly constitutional. The founders not only wrote a Constitution that permits it, they themselves packed (and unpacked) the court for political reasons and without embarrassment.

It is public opinion and tradition, not the Constitution that protects us from court packing and that is about the best protection you can get from such things in this world.

I agree with many commenters that Seidman needs to show why the logic he uses to disparage respect for the Constitution would not just as easily disparage the rule of law itself.

Eric Hosemann
Feb 7 2013 at 9:58pm

Another fascinating discussion. Russ, you really set the standard for courteous, measured-but challenging-discourse.
I think a discussion with David Friedman along these same lines should be next.

Feb 8 2013 at 1:26pm

I really enjoyed the podcast and have been reading the comments with interest. How refreshing to see intelligent people articulate their reasonable viewpoints without denigrating those of others. I appreciate hearing someone talk about the Constitution without feeling that it is Holy Scripture and therefore sacrosanct. What a great discussion- let’s hope it generates a wider public engagement. Kudos to Roberts and Seidman.

Kenneth Gauck
Feb 9 2013 at 4:16am

Seidman’s argument is in part an objection to the argument from authority, but removing the weight of the authority won’t convert most people into more knowledgable citizens with a better command of rhetoric. I see these statements as statements of preference, not arguments at all. They are no better or worse than just saying I support such and such. A professor of political science (or economics or history) might prefer that the whole citzenry be well versed in the best evidence and its most persuasive arrangement, but even without the authority of the constitution, many citizens would just make other kinds of declarations about what side of an issue they are on without any apparant effort to be persuasive. I am warry of any argument that requires the citizen to be a scholar to speak up on politics.

John Berg
Feb 9 2013 at 6:05pm

Think for a moment of the Constitution as the rules for club which grants benefits and obligations to its members. Perhaps, more important than Prof. Seidman’s question, one should ask, “Do the benefits justify the obligations?” It use to be that being born in the US of citizen parents was a requirement for the presidency. In fact now a woman grants citizenship to her child even if both parents have foreign citizenship and the woman is living temporarily in a US hotel room. In fact several million people have indicated with their actions that citizenship comes in second to employment with out enforcement of obligations. Indeed, some citizenship obligations may earn an illegal resident citizenship.

John Berg

Charles D
Feb 9 2013 at 10:59pm

I listened to the entire conversation, waiting for someone to get down to what appeared to be the nub of the issue — with Seidman talking about persuasion, and Roberts talking about limits, it seemed clear that what divided them was the extent of their faith in an absolute democracy to produce good policy.

To be fair, Seidman went to great pains to declare that he didn’t want an absolute democracy, and believed that there should be “limits” on what a democracy can choose to do. However, IIRC, Seidman posited no other moral standard that could inform some definition of those limits (even though there are many to choose from,) and I don’t think that he made a convincing case that the power of persuasion would see to it that democratic majorities would always be appropriately restrained via recourse to their own sensibilities and judgments.

All in all, I think this conversation was great in that it indirectly laid bare a conflict that I think is essential to the difference between “Left” and “Right”, broadly construed. Namely, that the people on the left really believe in (capital-D) Democracy — that democratic procedures lend moral sanction to state action and that individual participation in democratic procedures is ultimately beneficial to that individual. People on the right, including (and perhaps especially) libertarians, are more circumspect.

Feb 10 2013 at 12:14am

This was very enlightening, especially as one of the plebians that came out of the American public education system that had exactly zero context as to how the Constitution came about except for the most general terms. Even worse is the kind of sanctified aura around the constitution that prevents students from thinking critically about it. Or the people who drafted it. On some media outlets, a person might be pardoned for thinking that the constitution literally is a holy relic.

Nuanced approaches to history are often attacked as “revisionist” which I find quite assanine. As though people living at the time had better hindsight less than a decade after the fact than those of us a few hundred years after the fact. I wish I had that kind of certainty.

Glenn Donovan
Feb 10 2013 at 7:27am

I found so much of what Seidman to be intellectually inconsistent and dishonest that I lost all interest about half way through. I’ll just make one largeish point to support my contention. Seidman’s argument seems to be that SCOTUS and the rest of our govt is defective for imperfectly enforcing and upholding the constitution. He further holds that the constitution is some kind of authoritarian anachronism that is at the source of our current instability.

My listening of this is that he undermines the very notion of the rule of law and limited govt, and rather seeks to replace it with an unlimited democracy in which there are no fixed limits on the way govt can intervene in our lives. What he seems to want to just skip over is that many of us who value those quaint anachronisms see the overreach he uses to justify abandoning the constitution as THE source of our current political system breaking down in the first place. Does he not listen to the arguments emanating from the right (as poorly formed as they might be)? Perhaps this is an inconvenient view for him, but the current conflict between left and right can be reduced to one side fighting for limiting govt to its original intent and the other wanting to exceed those limits in uncountable ways. In our view, it’s those who want to just abandon any pretense of limits on gvot who are causing the breakdown in the political system. You see to me, its pseudo-intellectuals like him who have destroyed respect for the rule of law in the first place. So, pardon me if I’m not impressed.

His mistake in reasoning is very basic but he, and Russ, miss it. He looks at only the exceptions, but ignores the overwhelming amount of compliance with the constitution that actually exists. Surely, our govt has acted extra-constitutionally at times, Jefferson’s acquisition of Louisiana and the French, Lincoln and the civil war etc. But what he doesn’t note is how much has been sorted out by applying the rule of law and the constitution. Just consider how many MILLIONS of court cases have governed by these rules, how in many real ways our govt does operate within the limits of the constitution. None of this gets mentioned.

Political science isn’t a science, so it’s not a surprise to me that we as citizens agree that from rare time to rare time we realize that our govt may act unconstitutionally or extraconstitutoinally in a needed way. But knowing that reality in no way gives rise to the conclusion that, ergo, the rule of law doesn’t matter, and never has. That’s the implication of ignoring the constitution, is it not? That’s what this guy is selling. Under his worldview there are no limits on govt – whereas our country was founded on the very principle of limited govt. In his world, if the consensus is to limit critical speech about say Islam, I have no inalienable right to free speech and I would have no ability to raise a defense against such a law, other than voting in a new law.

He tries to bolster this view by cherry picking a few countries that operate without a constitution. Particularly Great Britain. First, they have a long govt/legal history to draw on, going back to the Magna Carta (is that not a document written by the ancients). They also have a govt that has overreached into the lives of its citizens in ways that many Americans don’t want their govt to do. We have a different system than them on purpose. Our’s is a country where the people and civil society dominate and govt is supposed to be a small, bit player in much of what goes on.

Last, it’s this intellectual lassitude that I see reflected by many folks like Obama or Sotomayor. It’s this truly cherry-picking, bootstrapping kind of reasoning that gives rise to the extra-constitutionality he laments in the first place, so his views aren’t innocuous.

He also comes across as incredibly condescending, but he just does so in a way that I’m supposed to perceive as ‘nice’ or ‘civil’. Basically his message is this. You rubes who believe in the rule of law and think that limited govt is a good idea are just ignorant and deluded. So, listen to us smart folks and just let us do whatever we want to you with the coercive power of the state. When someone tries to sell me something so vile, so anti-liberal, so utterly un-American I get angry as it erodes the very foundation of my liberty. I don’t care that such nasty intentions are delivered dulcet, academic tone – it improves nothing of what he’s saying.

Civility is not the right response to people who want to tear down the bedrock principle upon which our govt was founded upon. Disgust, contempt, derision – this is what’s appropriate. I realize you folks here think you earn some credibility or see yourselves as somehow morally superior by letting sophists such as this guy prattle on about this nonsense as though it deserves respect, but I’m operating under no such pretense. His ideas are destructive to the very fabric of my liberty. That he does so in glib tones and with a smile on his face matters not a whit to me. He is an enemy of freedom. And if that puts me in some ‘uncivil’ category, I think folks claiming so should look at whether or not they think liberty is worth fighting for or not? Cuz guys like this are the agents of destroying it.

Glenn Donovan
Feb 10 2013 at 7:41am

@ John Berg – Spot on. The instability of our current system is due to the real erosion of it, pushed by Progressives like this guy. The popular election of Senators and the federal income tax absolutely destroyed the balance of power between the states and the feds. If we are to take Seidman seriously, we should ask why we bothered to amend the constitution to bring these changes about in the first place? He seems to be completely blind to the possibility that the pursuit of the very ideas he’s peddling that are the root cause of our political system’s breakdown in the first place. Sigh…

Greg G
Feb 10 2013 at 9:34am

@ Glenn Donovan – I think you misunderstand what Seidman is saying when you claim he wants to “tear down the bedrock principle upon which our government was founded upon.”

He doesn’t want to tear it down, he wants to show you that the real bedrock is found much more in a set of shared traditions and values than in any document. Perhaps you missed this because, as you said, you “lost all interest about halfway through.”

I disagree with much of what Seidman says but I hardly think he is “an enemy of freedom.” If freedom means anything at all it means more tolerance for ideas that you disagree with than you are showing here.

You express a desire for less civility and more “disgust, contempt and derision” than you find in this discussion. Lucky for you it is easy to find the kind of discourse you are looking for in other places.

Eric S. Harris
Feb 10 2013 at 10:05am

One point that only came up indirectly in the podcast is that the Constitution contains some or all of the job descriptions of the elected and appointed officials of the federal government, of all of its enlisted and commissioned members of the armed forces, and of many of its hired employees — and that they promise to abide by the Constitution.

The fact that so many of them do not keep that promise means we have a government which is run by people with serious personal integrity problems. In the case of nearly all elected officials, these are people who promise during their campaigns to violate it in specific ways.

And we have voters who, out of ignorance or a lack of personal integrity, have no problem with that.

Feb 10 2013 at 10:27am

I just listened

two immediate reactions:

Seidman kept harping on “250 year ago …” – reality: as agreed and WE HAVE NOT CHANGED we could have but chose not to

authority vs argument – ok, why should we not exterminate the Jews and take their stuff? many of us want their stuff and don’t mind murder so much

Chris Cornette
Feb 10 2013 at 11:32am

The arguments presented on both sides on this discussion were framed as a disagreement in a civil maner. To use a cliche, they “agreed to disagree.” I would like to point out that much of the constitution was formed by men who agreed to disagree and that the end result was a document or “just a pieace of paper” that binded our society together in a maner that would keep factions civil and honest to one another and the people that they represented. I found it very interesting that Roberts and Seidman have this conversation in what I think would have been in the same tradition that our founding father found themselves in. I think that the present generations always believe that the history is unique to the past, but history is ever repeating with just the cast of characters changing. Thus, I find Seidman’s side of the argument weak because I believe that it was by design that gray areas and flaws were written into the constitution. To ask for this “road map” of civility to just be cast aside in favor of a system where our current elected officials are proclaimed to be deserving of the people’s trust is absurd in today’s environment. The system of checks and balances embedded in the constitution is alone a reason for this great document to continue forward.
The argument that was really being made here is the level of trust that we as a society wish to give our elected officials. Seidman wants to hand over unbridled trust. Roberts and all of those people who have sent Seidman hate mail know that this is the folly of his argument. Roberts examples, pointing out the limitations of trust, support the position of keeping our constitution in tact. Even the so called “bad parts” that Seidman and Roberts agreed upon, rely on a level of trust. The 12 amendment trusts that electors will vote according to the pledge of their state but does not mandate it. Why did the founding fathers let this happen? I belive it was by design that an elector could escape their pledge. For instance, what if the President elect died before he took office and that the Vice President elect had great misgivings surrounding them as has been the case in recent memory, i. e. Dan Quale, Sara Palin or even Joe Biden. Would it have been outlandish for the electoral college to pick Hillary Clinton as Obama’s runner up instead of having Joe Biden assume the office if Obama died before taking the oath? And how many of us would have been truely appalled if that had happened. The history of the 12 amendment is important and for us “modern” citizens to ignore it is hubris.
Most people think we live in a democracy but we do not. We live in a republic. In a republic we trust our politicians to do what is right and just. As Roberts points out there a many differences in what is perceived as right and just. The constitution tries to address this problem, and by design, flaws and gray areas were inserted to allow for a journeyman politician to follow conscience and resist mob rule. This being a good reason to have the Supreme Court continue its existence. Our founding fathers built our republic with a distrust of authority in mind. The constitution is the embodiment of a republic that has limitations put on those that would violate our trust. Why should we change this now? History tells us we should not.

Rich Schmidt
Feb 10 2013 at 11:57am

I agree with the spirit, if not the letter, of Glenn Donovan’s post. I am a bit more charitable than Mr. Donovan, though, in that I agree with Prof. Seidman that it’s a mistake to treat the Constitution as a thing unto itself. The map is not the territory.

The Constitution cannot be thought of or interpreted without reference to the fundamental bedrock value of the declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The Constitution is an attempt to create a government that reveres this foundational value and works everywhere and for all time to nurture and protect it.

Times change – cultures change – tastes change – Truth does not change. Prof. Seidman, in rejecting the efficacy of the Constitution seems to be saying that the truths our founders claimed to be self-evident are no longer so, and therefore, everything is now negotiable. If that is what is being stated, then state it clearly and let’s have that discussion.

I also found it interesting that Prof. Seidman advocates rational discourse as the way out of Constitutional “oppression” but says right up front that the majority of emails and correspondence he has received has been anything but rational. So, then, who really gets to participate in the discussion? I suspect this is another way of saying the “beautiful people” (professors and other intellectuals) are best suited to decide what is right and true for the rest of us on a case by case basis.

Lastly, I groan whenever I hear people use the term “radical” for ideas that limit liberty. Liberty as a political concept is the most radical notion I can think of, as made evident by its notable absence throughout human history and by the fact that it seems to be constantly under siege. Tyranny and the notion that “might makes right” (either through socialism, fascism or, yes, a pure democracy) are far more common and at home in the world.

Glenn Donovan
Feb 10 2013 at 6:00pm

@ Greg G. Seidman’s point that you think I miss is not original, but rather it’s pedestrian and I didn’t find it worth commenting on. “Law” (with the big L) is not something our legislatures create. The passing of a bill is not what makes something law. Legitimate law falls within the bounds of the perceptions of what a society thinks is legitimate. This just in? That law ultimately derives it’s legitimacy from the people? He delivers this observation as though it’s some sage insight that should surprise the troglodytes he seems prepared to encounter here. But in fact, anyone who studies these topics a bit is well aware of this distinction.

Aside from the fact that it’s not new, it’s also irrelevant. It does not in any way obviate the constitution and nor do Americans conflate the constitution with the idea of “Law”. Rather, many of us think the constitution puts in place the safeguards our classical liberal values and liberties require against an overreaching govt,and that adhering to the constitution gives law a big part of its legitimacy.

He’s correct in noting that we don’t adhere to the constitution at times – so what? I made my points about this above, so I won’t rehash. My last point? I actually see the line of reasoning he’s advancing as rhetorically deceptive, much like the rhetoric emitting from many sources on the left these days.

I mean think about it, decompose his argument – it doesn’t add up. It’s essentially that sometimes we go beyond constitutional limitations, so constitutional limitations are useless? Another angle of attack is that some elements of the constitution are anachronistic, but really that only argues for amending the constitution, not ridding ourselves of it. He instead concludes that the entire notion of constitution is unnecessary, and hence the rule of law as well.

Maybe that’s what others here don’t see the way I do. To me if there is nothing permanent and very difficult to break through wrt the law, then the law has no stability and legitimacy. If the foundation can shift on the whims of the majority of the federal legislature and the president, it makes the entire edifice too flimsy. The constitution is about more than just the will of the majority, yeah? It’s a reference point of moral guidelines for law that gives the rest of our laws legitimacy.

Let me ask, is my tone here still somehow uncouth to you? I think certain things are worth fighting for and over – and liberty is one of them. I also think that Seidman’s slippery reasoning is a product of the left’s corruption of the modern liberal ideas that have given rise to our great nation, so I see his work not as a sincere intellectual inquiry but rather as a tool he and his ilk use to advance the rhetorical frontier in the battle the Progressives are waging on the very fabric of our society. Am I somehow being rude by noticing that I’m being intellectually mugged and rolled?

Greg G
Feb 10 2013 at 7:17pm

@ Glenn Donovan – I agree that Seidman goes way too far in dismissing the Constitution but your idea that it must rest on some “permanent” foundation goes beyond what is in the Constitution itself. The founders expected we would occasionally rewrite it in new Constitutional Conventions. I think they would be very surprised at how durable it has been. I think that’s a good thing but not something to be found in the “original intent.”

Both right and left love the Constitution when it delivers the results they want and ignore it when it doesn’t. Consider the idea (popular on the right) that health insurance companies should have a much easier time selling across state lines. Even if that is a good idea, it is an idea that runs up against a little thing called Federalism which gives the states the power to regulate insurance.

As for your tone, I find it ironic that you advocate “disgust, contempt and derision” as the best way to deal with Seidman’s arguments. Conservatives and libertarians are constantly worrying about the tyranny of the majority. Well, if that becomes the standard for political discourse, it will hurt the minority a whole hell of a lot more than the majority.

Glenn Donovan
Feb 10 2013 at 8:31pm

Who are you talking to? I’m well aware that the founders envisioned that the contsitution would change, and that the permanent foundation of law goes beyond the constitution – I just said that myself, so I’m not quite sure why you are telling me this.

I’m also well aware the both left and right have breached our constitution, just as it’s true that the left has been in the vanguard of breaking down constitutional limitations. Both can be, and in fact, are true.

As for my tone, I confront someone who tinkles on my leg and tells me it’s raining like the lout they he/she is. This isn’t a minor point we’re discussing here. I mean, do you accept what he’s saying for a moment? Do you not see the obvious flaws in his reasoning? Look up the term casuistic if you don’t see it immediately…

Puzzling Evidence
Feb 10 2013 at 8:32pm

Seidman has a provocative idea but at the end of the day it’s not entirely clear what he’s really advocating.

On one hand, he claims that the Constitution provokes a kind of authoritarianism by allowing advocates to claim “it’s in the Constitution” and thus stifle debate, on the other he claims even it’s absolute authority is really debatable as it has been bypassed or ignored in several (occasionally obscure) instances.

While it’s procedural authority may have been disregarded occasionally, it strikes me the fact that because advocates for various causes who use constitutionality as a source for their legitimacy it must actually be seen as having a certain kind of immutability that prevents it from being regularly and generally disregarded (unlike, say, securities law).

I also think he’s a little disingenuous when he uses non-constitutional democracies as a counter-example to constitutionalism; while the U.K. is not a dictatorship, it did produce the Prevention of Terrorism Act in 1984(!) that allowed detention of suspects for 7 days, the Official Secrets Act, and a general descent into disarmed, surveillance society.

At the end of the day Seidman’s argument seems to boil down to the American constitution being flawed and contributing to unproductive political discourse. What he seems to advocate for seems like just an improved constitutionalism at the end of the day, one that frees a constitution from become too dated in language and meaning but yet having enough permanence and status to protect minority rights.

Feb 11 2013 at 2:33am

Who likes to say that the constitution is a “living, breathing document”? The left. Why do they like to say that? Because they don’t want to be bound by its intended meaning. And why is that? Well, the left (by definition) wants a bigger, more powerful central government, and the constitution contains checks on limitless government power. Is it a coincidence that Seidman’s article was published in the New York Times during the Presidency of the most liberal President in many decades? I don’t think so. Should we be embarrassed that the constitution was written over 200 years ago, or that its authors were fallible individuals, that the constitution is imperfect, or that it might have been different if John Hancock had overslept? Why should we? We’re lucky the authors were repulsed by unchecked government power, drew inspiration from the Magna Carta, John Locke, the English Bill of Rights (1688), and so on, and we’re lucky it became the law of the land. That its checks on central power are being steadily eroded by people who think problems can be solved if government is just big enough and powerful enough—in defiance of the lessons of history—is in my view not so lucky.

[typo fixed per commenter, Econlib Ed.]

Glenn Friedman
Feb 11 2013 at 9:48pm

How can you have a discussion on the merits and demerits of the Constitution w/out reference to the Declaration of Independence and individual rights. The intent of the founders in writing the constitution was to institute a government that would protect (or secure in Jefferson’s words) individual rights. To the extent that they were or were not successful it’s on the principle of individual rights that they should be judged. Russ, this is why your/our side is losing. We continually fail to make the moral argument for capitalism which rest on the principles of individual rights. Until more of us get this right, the state will continue to grow and our freedoms will continue to be eroded.

Feb 12 2013 at 12:34am

It seems to me that Seidman’s whole argument is that he finds it annoying when people disagree with legislation and their only point is that the said legislation is unconstitutional.

I agree that one dimensional arguments are annoying but I don’t see how that leads to the conclusion that we should get rid of the Constitution.

The articles of the Constitution are there for a reason and when those reasons are no longer relevant, we can amend them, or they are interpreted in a modern context.

Like those that annoy Seidman, his arguments lacks any real substance.

Feb 12 2013 at 11:19am

I really enjoyed the podcast. I had read the article at issue when it was published as well as various reactions to said piece. Much of what was written was merely a knee-jerk reaction to the idea and poorly thought out. This podcast was a nice change in tune as it allowed someone skeptical of unchained power to truly debate and discuss the issues raised by Seidman. Thanks Prof. Roberts!

Feb 12 2013 at 9:07pm

Fascinating podcast and one I will probably listen to again because I’m certain that I didn’t digest all that was there.

While I started out listening firmly in the camp of “strict interpretation” of the Constitution, I was shocked at how Seidman swayed me into his camp. Over a long period of time, no document is going to provide checks and balances on various factions in society. And as Seidman clearly demonstrated, the Constitution is/was full of things that are undesirable, acceptance of slavery being the most grotesque. A society whereby the “laws” evolve over time feels far more natural, less “top down”, and certainly far more Hayekian.

Russ – I think that many of us need to reconsider our interpretation of the rule of law within the US.

Feb 18 2013 at 5:52am

I have a lot of disagreements but I think I can boil them, or at least the main one is this: “It is reasonable for the government to make laws constraining individuals where you don’t have to convince 49% of the people but it is unreasonable to make laws constraining the government?”

Taft B
Feb 18 2013 at 2:59pm

Your guest keeps putting up the straw man argument that ‘we should’t defend the constitution by saying that men 100+ year ago said so.’ I don’t hear anyone saying that. Intelligent people talk about the various specifics in the constitution and argues them on the merits. No one that I know says we should do this or that simply because a given founding father said so and that no other thought or defense is needed. If someone did say that it would be a child-like argument and shouldn’t be taken seriously anyway.

Feb 22 2013 at 2:08am

This is one of those annoying podcasts where Roberts abdicates making a clear argument for his position in the name of collegiality, and thereby lets down the side.

Seidman repeats many times that the Constitution is an imposition on the present of the authority of the long dead, but that gets things exactly backwards. The Founders are revered because their Constitution established a form of government which worked for a considerable period of time, trhereby demonstrating the validity of its underlying principles. When a gun rights advocate dismisses some measure as unconstitutional his point is not that the measure is wrong because Madison ruled it out, but that it is wrong because Madison got it right, and the US Constitution has it right.

The term “straw man argument” should have passed Roberts lips, but evidently couldn’t.

Feb 25 2013 at 12:29pm

The big weakness in Seidman argument is that he repeatedly claims justification using the example that an argument of constitutionality is given without need for explaining why and that this is some how authoritarian. He stopped his exploration of causality here.

The problem is not that no reason need be given, the problem is that the citizens of the nation are taught less and less about civics and constitutional republics.(I believe this has been done intentionally) Reasons for constitutionality can and should be given when a question arises. The problem lies in the failure of maintaining an informed electorate. His philosophy is filled with straw man arguments and confirmation bias.

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Podcast Episode Highlights
0:33Intro. [Recording date: January 23, 2013.] Russ: Before introducing today's guest I want to thank everyone who emailed me your favorite episodes of 2012. I appreciated knowing what you liked and I'm happy to announce the virtually every episode was someone's favorite. But more than that, I so much appreciated the feedback you gave me about EconTalk generally, how you listen, what you've learned from it, how it's touched or changed you. It was very inspiring. And it makes me want to make 2013 bigger and better, so please keep listening; please keep sharing the program with your friends and family. And here are the top 10 episodes as voted by you--and there are actually 11 because there was a 3-way tie for 9th. So, going from 11--9th, was the three-way tie--going from 9 down, they were as follows:
  • 9. Zingales on Crony Capitalism, Yong on Science, Barofsky on Bailouts
  • 8. Autor on Disability
  • 7. Cochrane on Health Care
  • 6. Turner on Organic Farming
  • 5. Anderson on Manufacturing
  • 4. Davidson on Manufacturing
    The top three were very close together, so close that given the lack of scientific reliability of this poll I'm just going to list them in alphabetical order:
  • 3., 2., and 1. Munger on Locke, Taleb on Antifragility, and Taubes on Why We Get Fat.
So again, thanks so much. If you missed any of those please do check them out, and I hope we'll do this again every year.
2:09Russ: Now for today's guest.... His latest book is Constitutional Disobedience. Mike, welcome to EconTalk. Guest: It's a privilege to be on your show. My ambition is to make the top 10. Russ: Yeah, good luck. That's my ambition with every show. And to make it hard for our listeners to choose, which many people, to my gratitude, satisfaction, complained about. Our topic for today is a rather provocative piece you wrote for the New York Times on December 30, 2012, titled "Let's Give Up on the Constitution." It's an unusual stance for a professor of Constitutional law. You open the piece saying, "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." Strong words. You've got a lot of feedback on this piece, I'm sure. What's your argument? Guest: Well, the argument is really very simple, and actually I would have thought not all that controversial. The basic insight is this: 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. That is to say, the people who wrote the Constitution. Now, that's not to say that they didn't get some things right. There are some terrific things in the Constitution, and just to clarify, I did not say the Constitution was evil. I said some provisions of it are evil. And we can go into which ones. But some provisions are certainly not evil. But my basic point is this: For those provisions that are worthy of our respect, we ought to follow them because they are worthy of our respect and not because it so happens that people thought they were worthy of our respect several hundred years ago. So, that's the basic argument. Now, obviously there's much more to it. And there are a zillion objections that people can make, but I assume we'll get into all of that as the conversation goes on.
5:00Russ: Let's start with the basic point that we should just take the good parts. I'd start with the problem that what you and I might think are the good parts might not be the same. And what do we do then? Guest: Of course not. So, we have to work that out the way we work everything else out in our society. And by the way--I don't think that--getting rid of constitutional disobedience would lead to the dismantling of the basic things we are used. So, we have long traditions in this country. We have ways of doing things. Even some things that if we started over again, we might do differently, it might not be worth changing. So I think much of the structure of our government would easily survive. There would still be a House and a Senate, and probably, though not necessarily a Supreme Court. There would be states. The President would serve for four years. But the one thing that would be different would be if somebody challenged one of those arrangements, it would not be a sufficient answer just to say: Well, you can't do that, just because the Constitution prohibits it. Russ: So, how would we decide when faced with one of those choices? So, for example, a lot of people don't like the Second Amendment. People don't like parts of the right to bear arms. Some people don't like the First Amendment, which they consider freedom of speech or religious freedom. So, let's say you and I disagree about a piece of those, or members of Congress disagree. How would those be settled without reference to the Constitution? Guest: That's a terrific question. I'm going to start with an unsatisfactory answer. Or one that I think you'll find unsatisfactory. But then if you'll let me, I think I might make it more satisfactory. So, the unsatisfactory answer is: I don't know exactly how those things would be worked out. They would come out the way they came out. Now, let me elaborate on that in a way that may make it more satisfactory; and I'm going to make a couple of points. The first point is this: There are other countries in the world that don't have Constitutions. The United Kingdom most prominently; but also New Zealand, Israel. Those countries, the last time I looked, haven't evolved into chaos. They work things out and they come out the way they come out. Even though nobody is allowed to say: You can't do that because it's unconstitutional. So, we have some models out there and we know this is not a crazy idea, that it works. The second point is, you mentioned the Second Amendment and the First Amendment. Russ: They're just two of my favorites, so I just picked those. Guest: Okay; well those are two good ones. And they happen to come at the beginning, so we can talk about them. As it happens, the situation you describe without a Constitution exists with one. So, certainly the First Amendment and to some extent the Second Amendment are written in very ambiguous language. Russ: Agreed. Guest: And people now disagree, and disagree fiercely about what the First and Second Amendment mean. So it's not as if those amendments standing alone resolve the controversy. We have the controversy anyway. And we have mechanisms for settling the controversy, and I don't think those mechanisms would go away if we got rid of constitutional obligation. Russ: Right, but the mechanisms are well-specified. So, I think the challenge would be you need to get the mechanism. Guest: Well, they are not so well specified, actually. So, if you actually look at the Constitution it's not at all clear, for example, that the Supreme Court has the last word on the meaning of the Constitution. That is a practice that is long-standing; it's part of our traditions. But it's not clearly in the Constitution. Russ: That's true. So that is a norm--what Hayek would call 'the law,' even though it's not legislated. That has emerged as how this system works. But I presume that's what you want to change. So, if you want to change that--and I certainly agree with you that it's-- Guest: You mean the Supreme Court being the-- Russ: Being the arbiter. Guest: No. I actually--well, I think the Supreme Court shouldn't be the arbiter of what's constitutional. I don't take a position on whether we ought to have an elite body somewhat separated from the political branches that imposes its views of political morality on the country. And has the last word on that. I think actually there's something to be said for that. There are obviously some things to be said against it. But my argument doesn't entail eliminating a body that served that function. What the argument does entail is that the body that serves that function ought to be honest about what it's doing. And in fact if you look at how the Supreme Court settles disputes about political morality in our country today, there's very little that ties that, or nothing that ties that to the Constitution. 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.
12:03Russ: Now we're finding some common ground. Because I would argue, and I'm sure all our listeners out there are thinking the same thing, that your viewpoint's been adopted for a long time. That we have, except in a few protected areas--speech, religion, guns, maybe those three--the Court has pretty much let Congress have its way. Certainly in economic regulation, certainly in taxation and what's allowed, certainly in how Congress spends our money. All those areas, the Constitution is given a sort of lip service, but if necessary they get around it. And that goes back to Franklin D. Roosevelt, if not earlier. Guest: A place where we might disagree--I think the Constitution has had very little to say about the protected areas. So, for example, let's talk for a moment about the prohibition on segregated education. 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. Indeed, the galleries that watched Congress pass the 14th Amendment-- Russ: The 14th Amendment being-- Guest: The equal protection clause. That's what the Court relied on in Brown vs. Board of Education. Russ: In 1954. Guest: The galleries that watched Congress pass the Fourteenth Amendment were segregated by race, by order of Congress. And Congress had passed a law segregating the schools in the District of Columbia. So, that's a case where one of the pillars of our understandings of the country was created in violation of the Constitution. And indeed, Justice Robert Jackson, one of the most revered members of the Supreme Court in the 20th century, made clear to his colleagues when he voted for Brown that he himself thought the Constitution did not--he himself thought the result could not be grounded in the Constitution--but that he was voting for it nonetheless on grounds of political expedience and morality. And there were many other examples like that. So, when people say the country is going to fall apart if we start disobeying the Constitution, one I say in response is: Look around you. Many of the things that have in fact kept the country together have been blatant violations of the Constitution and were understood by the people who did them as violations at the time they did them. Russ: Of course, some people think the country is falling apart. Guest: And it may be. But I don't think many people think it's falling apart. For example, because Thomas Jefferson purchased the Louisiana Territory. But Jefferson himself made perfectly clear that he thought that was a violation of the Constitution. And he did it anyway because he thought it was best for the country. Russ: Right. I'm going to push back on that in a second, but before I do that, I want you to talk about Constitutional Disobedience generally, which you've written about; and you invoke it in your article, arguing that it has a long history. You mention Jefferson. Talk about some other examples that you might want to refer to. Guest: Before I do that, I hope you won't mind if I just say it is a real pleasure to have an intelligent conversation with somebody who is skeptical about my argument. Over the last several weeks, I've gotten something over 1000 abusive emails, many of them anti-semitic, some of them threatening violence. So this is a pleasure. Russ: Ditto. I get to do it every week, so I'm lucky. Guest: What a great job you have. So, you want some other examples of Constitutional Disobedience? Russ: Yeah, that are important and that you refer to in the article that I think are interesting. Guest: Ironically, we can start with the Constitution itself. The Framers of the Constitution, the Congressional directive to them, was not to write a new constitution, but to propose amendments to the Articles of Confederation. And the Articles of Confederation were very clear about the amendment process. It required the ratification by the state legislatures of all 13 states. As soon as George Washington and his colleagues got to Philadelphia they decided to disobey the directive and to violate the Articles of Confederation. They tore up the Articles, wrote a new Constitution, and provided for ratification not by state legislatures but by popularly elected conventions. And not by all 13 states, but they said that 9 would be sufficient. And indeed when the Constitution went into effect and when the first Congress met, two of the states, North Carolina and Rhode Island, had not ratified the Constitution. So, the Constitution itself, paradoxically perhaps, was unconstitutional. Other sort 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. Lincoln violated that understanding--and I think it was a correct understanding--when he issued the Emancipation Proclamation. Now, originally, this was justified as a temporary exercise of the President's war-making powers as Commander-in-Chief. But even at the time it was issued, most people understood it was much more than that; that it changed the purpose of the war and that there was no going back; and that slavery was going to be abolished. And certainly by the end of the war, that was Lincoln's understanding and that was the country's understanding. That was just clearly expressed in the Second Inaugural and in the Gettysburg Address where he says: There's a new birth of freedom. 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. That's another example. Do you want to talk about those, or I can talk about some others?
20:17Russ: No, that's fine. I think--what's interesting of course--I think most if not all listeners would say those were good things. They happened. The question is: What road to we go down if we risk leaving the rule of law? Guest: I'm not for leaving the rule of law. Russ: Well, hold on. So, we've left the rule of law--to me, we've left the rule of law lots of times. You gave the example of the Louisiana Purchase, ending slavery. Those are good things. I like those. But there are lots of things that we've done that I think are bad things. I'd like to state your argument a little further. You point out there are countries that don't have a constitution that thrive. There are many countries that have a constitution that are awful. Guest: Exactly. Russ: The Soviet Union had one. But of course there are many countries that don't have them that are awful. And the countries that thrive without one often are parliamentary; we're not. I think that's part of the reason that they are able to have the system they have. I don't understand it thoroughly; I'm not an expert. My worry is that things that are now ruled out, through both norms and the Constitution, would get on the table. Let's talk about our friend James Madison, who was worried about factions. You think the Constitution currently plays any role in restraining the rewards that go to special interests? I think it's pretty bad right now. I think it's unconstitutional, how special interests are often treated in the United States. And how industries are often benefited, at the expense of the rest of us. Financial industry being one. Farmers, agricultural industry being another. I think those are all unconstitutional. I think the bailout, the rescue of many of the financial sector companies in the last crisis was unconstitutional. I think the aid to farmers is unconstitutional. And we could debate whether they are good things or not; a lot of them are good things even though they were possibly unconstitutional. Do you think that this would open a door to some rather unpleasant politicking that right now is off the table? Guest: It seems to me you've really assisted my argument. All of the things that you just mentioned are things that happened with Constitutional Obedience in place. Russ: Correct. Guest: And that shouldn't surprise us. Because when you get down to it, what the Constitution is, is a piece of paper that's in the National Archives. The Constitution doesn't have any troops, it doesn't order anybody to do anything. In the end, the glue that holds us together is not in a piece of paper and not in decisions made 250 years ago, some of which make sense, some of which don't. The glue that holds us together is the willingness of Americans now, or the ability of people like us to persuade Americans now, to do what's in the best interest of the country. So, look: Americans have a disturbing habit of thinking for themselves; and if you say to somebody, so you think that aid to agricultural is unconstitutional. So, if you say to somebody we ought not to have aid to agricultural, and the person says, well, why not; and you say: I'm not going to give you any reasons, I don't have to give you any reasons, you've got to think aid to agricultural 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 agricultural 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. Russ: I guess I take a different perspective on that. There are many things I know that I cannot persuade people of. And we'll talk about those in a minute--things that are deep philosophical differences that people have trouble convincing their opponents of. But if I think about-- Guest: Well, okay--sorry, I didn't mean to interrupt. Russ: But if I think about aid to farmers, I know the farmers--most of them, not all of them--most of them like it. I remember talking to a Congressional staffer--I may have told this story on the air before, I apologize to listeners--but it's a story that bears repeating. I remember talking to a Congressional staffer who was left of center. His Representative, who he worked for, was a Democrat representing an inner city constituency, definitely left of center. And one of the things I said we could all agree on is that the quotas that limit how much sugar comes into the United States are not good for America as a whole; they mainly benefit 10-20 families. Something like that. And when I finished, I could hear him on the phone, kind of sheepishly say: Well, it's actually closer to 5 families. It's even worse than it appears. Guest: It's appalling. Russ: Yeah, it's appalling. Guest: That is a result, by the way, that occurs in a regime of Constitutional Obedience. Russ: Well, you could say that. I would argue that it is the fruit of your philosophy writ large, which is: Don't really pay attention to it; pay lip service to it. The discussion should be--what we agree on is that we don't pay a lot of attention to it now. And I also agree with you that it would be better to be honest about it than to pretend. But the question is: Which direction should we head? You are suggesting we should continue on that path. I'm suggesting we go back. I'm going to lose, probably. I think you are going to win. Tide of history. Guest: Well, so here's the essence of my argument against your position. I think when you tell people this is the way it has to be whether you like it or not and I don't have to give any arguments in support of it, that's deeply authoritarian. It's just authoritarian. And by the way, I don't think you have to do that. You're obviously just an intelligent person. You have arguments to support your positions. Russ: Why aren't I winning? On the quotas. Not on how big government should be. Guest: You know, look. We live in a very big, complicated country. You don't always win; I don't always win. But there are some kinds of ways of winning that seem to me ought to be off the table. And one of them is just the insistence that it's my way or the highway, and you don't have a choice about it; and you're not even entitled to a recent explanation for why the outcome is correct. If I could, let me give you another example. This may surprise you, but I'm more or less against gun control. I'm very skeptical of it. And I'm eager to talk to people about gun control. But if we are going to have the conversation, it seems to me my obligation is to tell you why I think it's objectionable. And I think I have a bunch of good reasons. I think it's not going to work, and if it did work it would be too costly. So I think it's a mistake. And I'm happy to talk to people about why. But here's something I don't think I ought to do. I ought not to say: I don't have to give you any reasons why gun control is bad. It's enough that 250 years a bunch of people living in a radically different country with things that were called guns that bear no relationship to the things we now have that we call guns, that those people might have--and by the way, it's not perfectly clear that they did--but that they might have been against gun control in their society. And therefore you've got to be against it in your society. I don't think--if I were a proponent of gun control I wouldn't be satisfied with that answer. And I don't think people should be satisfied with it. They're entitled, people now are entitled to reasons why policies that other people advocate make sense in our country, not some other country that doesn't exist any more.
29:53Russ: Well, I totally agree with that. Obviously. I don't think it's--to say, okay, you lose, I win, Constitution. That's a way to shorten the discussion. It's not a way to educate or learn or persuade. I think we should talk about the reasons for things. But to suggest that, because the Founders ruled certain things off the table and because they set up a particular structure of governance that it's therefore authoritarian--I think, if I may say so, misunderstands the goal. Guest: I'm sorry. Maybe I'm misunderstanding, but I think you may be misunderstanding what I said. I'm not saying what the Founders did was authoritarian. I'm saying that telling people now that I don't have to give you any reason for the policy that I favor; you just have to accept it because the Constitution says it--I think that is authoritarian. Russ: But the reason that one invokes constitutional rules isn't because I want to get my way. Because there are many things the Constitution should, I think, dictate and prevent that many of us might think are good or bad or disagree about. The whole idea of constraint is to avoid mob rule. It's to avoid the power of factions. To live in a world where 5 families in Florida and the Dakotas, because they grow sugar beets and sugar cane, can extract large sums of money from the rest of us because they can--and they do have a little story about--I don't know if they do; they don't bother to have a story. But I'd like that to be off the table. I think that's immoral. Guest: But you'd like it to be off the table because it's immoral, not because the Constitution prohibits it. Even if the Constitution didn't prohibit it, you'd want to it off the table. Russ: Uh, no. I would argue--actually, what I'm trying to argue, maybe not particularly well, is that the Constitution restrains the misbehavior of human beings where those kind of-- Guest: Well, evidently not. Because there are those 5 people evidently getting these sugar subsidies that you think are immoral. Russ: So, which way should we go? Should we go towards your world, where we have to persuade the body politic--whatever that means--to not allow that? To make the case against it--which has been made, very successfully I think, but you could debate that; or should we go toward my world, where certain policies like that are off the table because they lead to that kind of misbehavior? Guest: Again, I think you are arguing more from my position than yours. I don't have any problem saying certain things should be off the table because they lead to misbehavior. I have a problem saying they should be off the table because people 250 years ago thought they led to misbehavior. Even if those people are wrong. And by the way, I do think you are, if I could say so, you are overstating some the extent to which the Constitution in fact provides the kind of settlement that you value. For this reason: Much of the Constitution is written in very broad language and very ambiguous language. And that fact has allowed people both on the left and on the right--and I think both sides are equally guilty of this, if guilty is the right word--it's allowed them to read their own preferred settlement into the language. Russ: Absolutely. Totally agree with you. Guest: And so, 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. It leads to people--it raises the temperature; it leads to people accusing each other of being traitors to the country. Russ: Heretics, essentially. Guest: Heretics. And that's bad. So I'd much rather, again, take that off the table. If you want to talk about faction, for example, and special interest legislation, and indeed, if you want to quote Madison, who had some very smart things to say on that subject, I don't have a problem with that. Madison was a bright guy and he got some things right. He got some things very wrong, also. He happened to own other human beings. But using Madison's argument is fine. Saying you've got to do this just because Madison said so or because you put it in the document, is not fine. Especially since reasonable people can disagree about whether it's in the document.
35:10Russ: I'll agree with you and I'll disagree with you. The disagreement is that: those of us who like the Constitution, I don't think we're saying, Oh, well Madison said so, therefore it's true. It's not an argument of authority. It's an argument about limits to human reason, the limits to political discourse, the limits to political governance, that I hope we can get to at the end. 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. Guest: Right. But I think everybody does that. Russ: Fair enough. Guest: And by the way, there are some provisions--just to get back to an original point--in the Constitution that are not ambiguous, but that I think almost nobody would favor today. And either produce or have the potential to produce really bad outcomes. So, just to give you one example-- Russ: Pick one. Guest: This one--I live in the District of Columbia. I confess to living inside the Beltway. So this one hits home in a literal sense. The Constitution is quite unambiguous that the residents of the District of Columbia are ruled directly by Congress and that they have no vote for the people who rule them. Now I just don't think there are many Americans today who would say that's a good idea. It's appalling. Russ: Why? I have to say it, but I find it interesting that that's what you invoke. Because that's where--it seems to me, and maybe I'm being unfair to you--that's where you want to head. Right? Would you feel that much better? The fact that you don't vote? I get to cast one vote for my Representative. I've never voted for him, my actual Representative. I've voted against him every single election. I'm stuck. And so in some sense, I am unrepresented. I understand the process. So, you are unrepresented also, in a worse way. I accept that. But you are subject to the wisdom and whims of 435 people--is it 435 or 535? Guest: Well, 535 including the Senate. Russ: No, but is the Senate-- Guest: We don't have a vote in the House; we don't have a vote in the Senate. Russ: All right. But who rules Washington, D.C.? Is it the House and the Senate? Or just the House? Guest: The House and the Senate. Russ: Okay, so 535, somewhat well-meaning, flawed human beings--you are subject to their whimsy. And it stinks. That's what I worry about in a world without a Constitution, or a world-- Guest: But the Constitution, as you just said, because of the Constitution, my situation is even worse than yours. Russ: Fair enough. Guest: Another example. Here's something just nobody would do today. The President of the United States is chosen by electors. Russ: Good example. Guest: Those electors, so far as the Constitution is concerned, they are legally free to vote for whoever they want. Russ: It's a weird thing. Guest: So we could--it hasn't happened recently, but we could have a president chosen by these 535 people who wasn't even on the ballot. Or was soundly defeated. That's just nuts. Russ: Soundly defeated, not just by the majority but by the state electoral process that we accept. Guest: Right. So, I can't imagine there's anybody who thinks that makes sense. Russ: I'm with you there. Guest: Okay. Russ: We should probably change that. And it's costly to change it. Right? Guest: Right. More than costly. As a practical matter it's impossible. Russ: Well. Guest: Or almost impossible. We haven't had--the Constitution hasn't been amended for several generations, and there's a good reason for that. Of all the national constitutions, it's not only the oldest but also the hardest to amend. So we are stuck with these nutty 18th-century judgments.
39:50Russ: Well, let me say something on behalf of gridlock. Which I think was the impetus for your piece. You are writing at a time when we are about to go over the fiscal cliff, potentially; you invoke fiscal chaos in your first paragraph. Let me give you a counterpoint and let you react to it. 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. If you go back to the recent string of Presidents--Reagan to Bush I, Clinton to Bush II to Obama--aren't you a little glad that none of them got close to what they actually would have wanted? That we didn't swing wildly from the ideological and philosophical views of those different Presidents? Instead, they push a little bit at the edges and we move in a general direction. I think that's a good thing. Guest: So, again, sorry to keep repeating myself, and maybe I'm misunderstanding you, but I think you're making my point. So, what you just did is exactly what, to be pompous about it, is what a citizen in a democracy ought to do--that is to say, you advanced a position and then you made an argument for it. That's the obligation all of us have when we talk to each other. What you didn't say is we ought to have gridlock because James Madison thought it was a good thing, and we don't have any right to disagree with his judgment 100 years ago. You explained why it's a good thing now. And those are good arguments. People make arguments on the other side. I'm not sure quite what I think of it. But what I am sure is those are the kinds of discussions that we ought to be having. Russ: But I don't think gridlock is a good idea because James Madison is really smart. Guest: I know! Good for you. Russ: No, but I do think it's a good idea because it's the product of a system that Madison and others thought was a good idea, that restrained what people at the time, any one point in time, no matter how smart or wise they were, thought it was a good idea. That it's a good idea to have limits on what centralized power can do. That's what I see as the wisdom of the Constitution. Not the wisdom of those particular men. Guest: There's a subtle distinction here that I think is really important to get a hold of. So, 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. I could give you just another sort of trivial example. But it's one of my favorites. 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 becomes the first new state. And in the resolution making Vermont the first new state, Congress provides 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. When Alaska was admitted, a back-then Senator raised his hand and said: Wait a second; this is unconstitutional. And the manager of the bill told him to sit down and shut up, because this is the way we do things. And it's the way we ought to do things. We ought to have staggered election of Senators; in fact, that's one of the mechanisms that prevents action, the fact that people aren't all elected at the same time. But this was a glitch. You know, it was a long, hot summer in Philadelphia. They didn't have any air conditioning. And they made some mistakes. And this was a mistake; and so, very sensibly, what we've done is just ignored it. And last time I looked, there wasn't rioting in the streets, at least not because of this. God in his holy anger hadn't struck us down with bolts of lightning. Life goes on, and we're the better for it.
45:39Russ: Well, it's a great example. And I think you are clearly right. It's an example where the Constitution was ignored. Everybody thought it was a good idea, except for the strictest of strict constructionists, that back-bencher who wanted proper protocol followed, realized it wasn't going to happen, and everyone ignored him. Which is to me not a big deal, but a little bit scary. I think the question is, I don't want to be ruled by the majority rule of Congress, and I don't want to be ruled by the majority rule of Americans. And I see the Constitution restraining many natural urges that would run amok in a world where people are busy and can't pay as much attention as the people who have deep incentives to manipulate the legislative process. I certainly agree with you that sometimes it's turned out okay. But I think that should be our default--we should respect some constraints other than the ones we place upon ourselves. Because people, in my experience, and I think in history's experience, don't do a very good job of that. Guest: I just have to say, the vast majority of people and indeed, the vast majority of law professors agree with you. So there must be something to what you are saying. And it does give me pause that so few people see the point that I'm making. And that makes me think maybe I'm just wrong about it. Russ: Well, I'm alarmed. I'm equally alarmed. Because that's so rare for me. Guest: I do think that some of this comes from misunderstanding. So, again, I don't take a position on unrestrained majoritarianism. And I certainly understand your arguments against it, and I don't think my position will [?] important checks on majoritarianism like a Supreme Court. I just think, as I said, I think the Court ought to be honest about what it's doing. I'm made very uncomfortable by people exercising power through a mechanism that is designed to fool other people about what they are actually doing. Russ: We agree on that. Guest: They ought to come clean. But if they do that then it might be for the best that elites who are removed from the political process and one hopes maybe study things a little harder would have the last word about at least some matters. I'm not fully persuaded of that. I'm agnostic. But the important point at least for our purposes is that my position does not rule that out. I'm just not talking about that. Russ: I really like your point about people who are either fooling others or maybe fooling themselves. I think the Supreme Court Justices would fall into that category, by the way, not just the advocates of particular public policies. There is something theatrically--it's the theater of the absurd, for me, when the Justices invoke reasons that they say for why they think the Constitution says what it does, when I suspect-- Guest: Well, I agree with you. Russ: They are doing what they want to do. Guest: It's a cognitive dissonance. I think it would be--being a Supreme Court Justice is quite a job. They have to live every day with at some level a knowledge that what they are doing is just dishonest. And these are bright people, many of them are good people. I don't quite know how they get up in the morning and do their jobs. Russ: I think you are reducing the chance that you'll be appointed. Guest: Well, I think you're right. Russ: You're a courageous man. Guest: It's not a job I would want in the first place. Russ: It is a very strange job. And I do think it involves a certain self-deception. And I say that respectfully because I think we all self-deceive. I don't think they are any different. But the idea somehow that the are the noble arbiters of the wisdom of the past is a little bit naive. I think they vote their politics, their ideology, their philosophy. And of course it changes over time. Some of them become different. Guest: And if I could say so, I guess I've made this point already, but this is another example of it. One of the unfortunate things about Constitutional obligation is that you have these people who are voting their politics but it gets dressed up in a way where they say, not just this is what I think, but: If you don't agree with me then you are not a real American because you are not following the Constitution. Russ: Well, it's ironic, because I'm arguing in my defense of the Constitution partly in the name of the limits to reason, the limits to reasoned debate and certainly limits to the political governance process, that it's healthy to have some overarching restraints on it. Because--I believe very strongly in the limits to reason and I'm putting myself in the Hayekian tradition and the tradition of Charles Pierce, the pragmatist who similarly--I'm very much against the Cartesian view that says if we just sit around we'll figure out what's best. Because I think self-interest in power and other things are dangerous. But at the same time I accept your point, which I think is very interesting, that in the name of using the Constitution we can make different kinds of mistakes. I just think they are smaller, I guess that's what I would argue. Guest: I'm also an admirer of Pierce and I agree with you about the reason, but in an odd way that also supports my position. Because--I think a lot of the hagiography about the Constitution ignores the limits of reason and [?] the limits of reason of the Framers. Russ: Fair enough. Guest: These were people who were exercising tremendous power and people who study the ratification carefully, it turns out these people were not saints. Big surprise there. Russ: Shocker. Guest: And they were not all-knowing. And a lot of the drafting and the ratification of the Constitution itself involved petty interest-group deals, factions, struggling for control. So it turns out--you know, the ratification almost didn't happen. And it would not have happened had Massachusetts not voted to ratify. Massachusetts would not have voted to ratify had the Constitution not been endorsed by John Hancock. And the reason why John Hancock endorsed the Constitution was because the Federalists made a bargain with him whereby they agreed to support him in the next election, if he would endorse the Constitution. And that's how it got ratified. If you think that reason is limited, then it seems to me we ought to be especially suspicious of people who think that they can think things through not just for their generation but for generations hundreds of years later. That's really quite arrogant. Russ: Yeah, I don't know if it's fair to accuse them of that degree of hubris. I think they put in the amendment process I assume because they were worried about that. Maybe it was a selling point. Maybe it was just marketing. I don't know if they foresaw how difficult it would be to amend it. But it has been amended. Just not easy. Guest: Well, it has been. Of course it was easier to amend at that time because there were fewer states. But it's been amended very few times. There were the first 10 amendments, which were part of the original bargain. Russ: Yeah, that doesn't count. Guest: And then since then over 225 years there have only been 17. The last one, the 27th Amendment is complicated. So, I won't go into it. But the last one that was actually adopted I think was 1971. That's almost 50 years ago, God help us. So we are stuck with a lot of these judgments.
55:05Russ: But I think the fundamental issue--I want to ask you one more question--is: Are there any restraints? It's great to have self-governance; it beats the alternative; you need a system; this one has worked fairly well. If we opened it up to start from scratch, most of us I think would be against that. But if we pushed it and nudged it in various directions, which we do already, you are suggesting one sort of nudging. And I think--I just go in a slightly different direction, I think would be the-- Guest: Well, fair enough. I'm not in favor of starting from scratch. We have well-established traditions, ways of doing things, ways of thinking about things. And those would not go away if we got rid of Constitutional Obedience. Russ: That's not clear, by the way. Guest: No, nothing's clear. They might go away even if we have Constitutional Obedience. Russ: That's true. Guest: We can't know the future, and that's part of the point. So, no, nothing's clear. All of life is a risk. But I just think, to the extent we can tell, it's just very unlikely that it is this piece of paper under glass a few blocks from where I'm sitting that is keeping chaos at bay. I just don't believe it.
56:30Russ: Let me ask you a different issue to close on, which is: You got some hate mail. I'm not surprised. You implied that most professors of Constitutional law that you've heard from don't agree with you. But I'd be curious if you want to talk about what kind of reactions you've got from fellow professors, as well as how you think writing a piece like this affects your teaching. Do you think it's going to change? Or is this already something to talk about? Guest: I don't want to leave a misimpression about some mail that I've gotten. There has been a lot of hate mail, but there's also been just some ordinary people, really interesting and thoughtful comments about what I've said, some of it agreeing in parts, some of it disagreeing. And one of the great pleasures of writing a book like this is that it has given me a chance to talk to people who I never would have had anything to do with about ideas that I'm interested in; and it turns out they are interested in. So a lot of that turned out really terrific. And I've even had conversations with people who started out calling me names and yelling and screaming; and after that's sort of out of their system and we started to talk, it turns out that on some of this we actually agree. So that of course is especially satisfying. Russ: Well, we're 57 minutes into this conversation and I suspect there are some listeners who stopped listening early on. They are not hearing this part. But those who made it through their frustrations, I hope they've learned something. Because I have. Guest: Well, thank you. I've certainly learned something from it. Russ: I have, too. But talk about your teaching. Because as you say, you've been teaching this for 40 years, and you suggest in your piece-- Guest: Not quite. Close to 40. Russ: You said that you are surprised it took you this long to come to this view. How did it change and how will it change your teaching? Guest: Well, I don't think it changes it a lot, in the sense that I am preparing people to be lawyers. As lawyers, they need to understand Constitutional doctrine, and to be able to understand arguments, and to be able to advance the arguments. And to know what the law is and what the Supreme Court says. So, all that is the same. I also have absolutely no ambition to convince or indoctrinate people. A good class by my standards is one where I have had to think and the students have had to think. Not one where people come away necessarily thinking one thing or another. So, these are issues I certainly discuss in class. I raise arguments that maybe the students haven't heard before; they argue back. Sometimes if somebody's been supporting my view I argue back, because I want them to think harder. But I don't expect or even want people to come away from my classes agreeing with me. What I want them to come away 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. Russ: Have these issues--when you were starting out as a professor, you had a different perception of the Constitution, presumably. Is this perspective that we are talking about of Constitutional Disobedience affect how you teach and what you teach? Guest: It doesn't affect how I teach or what I teach. I may raise some issues that just hadn't occurred to me 20 or 30 years ago to talk about. I don't know whether you've ever seen a law school classroom. The best law school classrooms are Socratic. So, the job of the professor--my job--is to ask critical questions about any argument that a student makes, whether they are on my side or another side. Because the object is to try to get the student to think as hard as the student can think about the issue. Russ: A very admirable goal.