"Give Up on the Constitution"

Georgetown Professor Louis Michael Seidman says we should not follow the Constitution, but doesn't give any actual reasons why. The reasons he gives for why it is bad to follow the Constitution are actually good.

He's also flatly incorrect about several things.

Right off the bat, he incorrectly says that if a President had "doubts" about the Constitution, this is equivalent to "Constitutional disobedience." Obviously, no, it's not. He further says some Presidents "disobeyed" the Constitution "when it got in their way," which is also incorrect: while this happened sometimes, it was never, for any President -- including Obama -- the normal course of action.

He incorrectly claims that a President can be someone that someone "rejected by a majority of the American people" can be elected President, but since we do not actually have a popular vote, we obviously cannot know that a majority of people reject him (since many people in a particular state might not vote at all, or vote for someone else than their favored candidate, because the person who wins that state is already settled, such as in Texas or New York or California, etc.), even if the votes cast for that winner constituted a majority of the American people, which they do not.

He also incorrectly claims that the rule of law means following the Constitution's provisions "because a bunch of people who are now long-dead favored them two centuries ago." No, we do so because the rights he calls "important and inspiring" are only guaranteed through adherence to that rule of law, and if we arbitrarily ignore what he calls "not so inspiring," we lose the guarantee of everything else.

I agree with him that we should not have natural-born citizenship as a requirement for the Presidency, but he gives no argument that we should simply ignore this, rather than amend the Constitution to change it.

His primary example, though, is gun control. He says that instead of having debate about what is best for the country today, we turn it over to lawyers and judges to discuss whether the Constitution allows it. I'm going to turn his question back on him: So what? That is why we have the Second Amendment, to explicitly undermine the idea that taking away gun rights could be a legitimate exercise of the powers of the government.

And yes, when someone tries to take away my rights, the "temperature" of the discussion increases. He may see that as needless, but I see it as a natural way to ensure that my rights don't go down without a fight.

He doesn't say why this is bad, he just asserts that it is. Why not put the First Amendment under the same "debate"? There's many times in our history when a majority of people would've been in favor of taking away some or all First Amendment rights. It's only because we didn't "give up on the Constitution" that the First Amendment stands today.

The fact is -- and it's another way in which the Georgetown professor is incorrect -- we do not "allow people who died over two centuries ago and knew nothing of our country as it exists today" to "rule us." We make choices about whether or not to alter or abolish the government that's been given to us.

What he's missing, though, is that these people foresaw a time when rights they believed were important, would be spat upon by others, and so it takes some extra-democratic effort to do so. This is the only way in which we can reasonably guarantee the "important and inspiring" provisions we all hold dear. That it is hard to violate the Second Amendment, that a mere democratic majority cannot do so, is a good thing.