Let's Give Up on the (Unwritten) Constitution

Recently by Brion McClanahan: A Lonely Opposition

Georgetown Law Professor Louis Michael Seidman created a bit of a stir recently with a December 30 op-ed in the New York Times titled "Let's Give Up on the Constitution." He was the subject of a similar piece for The Chronicle Review in mid-December titled "The Constitution: Who Needs It?" Both articles support his forthcoming book, On Constitutional Disobedience, a sweeping challenge to the United States Constitution. In essence, Seidman contends that because the Constitution has been disregarded for several decades, Americans should cease to pay homage to an outmoded document littered with structural problems and open to diametrically opposed interpretations, i.e. originalism and "living constitutionalism." The American people, he said, are "at a stage where there is a growing realization that a lot of constitutional law is empty posturing." He added, "This is not a stable situation." Translation: the written Constitution is dead and because our "unwritten" constitution has served Americans quite well, we should ignore the written document and follow common law precedence. If the general government in Washington passes an unconstitutional law, Seidman contends "each of us should answer with a perfectly straight-forward, but deeply subversive, two word question: u2018So What?'" Seidman makes several valid points in both pieces and in this interview, but his solution – the recognition and acceptance of the "unwritten" constitution – is dangerous, and more importantly his belief in a "national" American polity is the inherent weakness of the "unwritten" model.

Sideman told Megyn Kelly of Fox News that he opposes gun control legislation not because it is unconstitutional, but because it does not work, and he thinks that Americans should support free speech in the abstract, not because a piece of parchment "gives" that right to Americans. I agree on both points. If Americans considered gun ownership to be a natural right of self-preservation and self-defense, as William Blackstone famously called it in his commentaries on English law, then the current debate on gun control would not be taking place. Additionally, if the American public (and by default the central government) believed in reciprocal civil liberty, then there would be no need for the Bill of Rights. But they don't and historically never have. That was the greatest rallying cry for a Bill of Rights in 1787 and 1788. As Thomas Tredwell of New York said in his State Ratifying Convention in 1788 in arguing against the Constitution devoid of a Bill of Rights:

In this Constitution, sir, we have departed widely from the principles and political faith of '76 when the spirit of liberty ran high, and danger put a curb on ambition. Here we find no security for the rights of individuals, no security for the existence of our state governments; here is no bill of rights, no proper restriction of power; our lives, our property, and our consciences, are left wholly at the mercy of the legislature, and the powers of the judiciary may be extended to any degree short of almighty. Sir, in this Constitution we have not only neglected – we have done worse – we have openly violated, our faith – that is, our public faith.

Without a codification of those rights, Treadwell and others believed that the general government would run roughshod over American civil liberties and the sovereignty of the States.

Of course, Seidman can point to arguments against a Bill of Rights in support of his position. Both Alexander Hamilton and James Wilson thought that an enumeration of such rights would allow the government to abuse others. As Hamilton wrote, "Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which such restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power." Hamilton was working on the assumption – and a disingenuous one – that the government would abide by the written limits of the document. Yet, those written limits would disappear if the Constitution was scrapped in favor of the unwritten British model. Civil liberty would have to rely on the public at large for enforcement, and judging by the current state of political discourse in the United States, that would be a frightening scenario. It would take a dramatic educational paradigm shift to make most Americans believe that their fellow citizens at large are interested in the preservation of their rights. The founding generation understood that as well, which is why in addition to both governing documents for the United States, the Articles of Confederation and the United States Constitution, every State wrote a Constitution in the founding period.

Siedman is also correct that the Framers made amending the Constitution exceedingly difficult. This was pointed out both in Philadelphia in 1787 and in several of the State ratifying conventions. The Constitution was amended twelve times by the founding generation including the Bill of Rights, but only fifteen times since. Yet, if the Constitution was followed as ratified, then amending the Constitution would become irrelevant. The States, equipped with their own codified bill of rights and armed with the sovereignty and legitimacy of the people, handled all domestic issues, moral, legal, and political. Decentralization, in other words, prevented the need for amendments.

Anyone who lives in Alabama can attest to the problems presented by a strongly centralized government and a constitution that is outrageously simple to amend. At last count, the Alabama State Constitution had over 850 amendments. Local governments cannot sneeze without permission from the State. That is what Americans would be (and are) subjected to under the current unwritten Untied States Constitution. All issues would become, by default, national issues, which is what Siedman wants. Nationalism, "this (meaning the singular United States) is our country," creates an inherently uncivil climate in relation to the individual and the rights, customs, and cultures of the local community. An unwritten national Constitution may work among a generally homogenous population, but never over a diverse region like the United States. Joseph Taylor of North Carolina spoke for many in the founding generation, North and South, when he said in 1788, "We see plainly that men who come from New England are different from us. They are ignorant of our situation; they do not know the state of our country [North Carolina]. They cannot with safety legislate for us." Bay Staters thought the same of their Tar Heel counterparts. Nothing has changed. The "Chicago way" is not the Alabama way – thank God.

The unwritten Constitution that Siedman glorifies has led to the trampling of civil liberties, the suppression of free government, the destruction of individual rights, and the centralization of power in the hands of 545 elected and unelected oligarchs. What the American political system needs is a good dose of federalism and decentralization and a return to the Constitution as ratified through the Tenth Amendment. As Kirkpatrick Sale recently said in this video, "The problems that we face now, there's not a one of them that could not be solved or at least ameliorated considerably if we didn't face it at a smaller scale." I agree with Siedman that the Constitution of the founding generation is dead and that no one follows it, but by capitulating to the "So What?" mindset, the American experiment of limited, written, decentralized constitutional government would meet its ultimate doom. We might as well raise a toast to "God Save the Queen!" and forget that Washington, Henry, Adams, Jefferson, Rutledge, Dickinson, Franklin, or Sherman even existed.