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On Constitutional Disobedience (Inalienable Rights) Hardcover – January 31, 2013


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Product Details

  • Series: Inalienable Rights
  • Hardcover: 176 pages
  • Publisher: Oxford University Press (January 31, 2013)
  • Language: English
  • ISBN-10: 0199898278
  • ISBN-13: 978-0199898275
  • Product Dimensions: 8.3 x 5.4 x 0.8 inches
  • Shipping Weight: 10.4 ounces (View shipping rates and policies)
  • Average Customer Review: 3.0 out of 5 stars  See all reviews (8 customer reviews)
  • Amazon Best Sellers Rank: #803,142 in Books (See Top 100 in Books)

Editorial Reviews

Amazon.com Review

Q&A with Louis Seidman, author of On Constitutional Disobedience

Q. What do you think are the greatest flaws with our Constitution?

A. The biggest problem with the Constitution is the amendment process outlined in Article V. It is extremely cumbersome. In fact, the American constitution is more difficult to amend than any other national constitution in the world. As a practical matter, it means that under present political circumstances the Constitution is unamendable. This means that we are saddled with a bunch of eighteenth century judgments about twenty-first century problems.

Q. What is your proposed process for revising the US Constitution?

A. I’m not in favor of revising the Constitution. I am in favor of ignoring it. The basic argument that I make is that the United States is owned by the people presently living in it. We would not want a foreign government or the UN telling us how to run our country, and we should not want people long dead to tell us either. Just as it is wrong for these people to tell us what kind of country we should have, so too it would be wrong for us to dictate to future generations.

Q. Where does Constitutional Disobedience fall within the various schools of constitutional thought? (i.e. originalism vs. living constitutionalism)

A. Originalism is the view that the constitution should be interpreted according to the original public meaning of the text or the original understanding of the framers. This approach is often impractical. Does the first amendment apply to video games or to internet chat rooms? Neither the words of the first amendment nor the intent of the framers can answer questions like this because the people writing those words did not conceive of these developments. More fundamentally, originalism forces us to obey commands that are frequently obsolete and sometimes morally odious. Living constitutionalism tries to avoid these problems by giving modern interpretations to the text. The problem with this approach is that it pretty much lets us do whatever we want to do. I have no problem with this in principle, but I do think that advocates of this approach should be honest about what they are doing: insisting that we comply with their judgments, rather than judgments derived from the Constitution’s text. I favor neither interpretive approach because I think the Constitution should be ignored rather than interpreted. This is not to say that we should disregard all the provisions that are in the Constitution. Many of these provisions are wise and just. The point is that we should obey them to the extent that and because they are wise and just, not because they are in the Constitution.

Q. How does your argument fit in with the current gun control debate?

A. As it happens, I am quite skeptical about most forms of gun control, but not because of judgments made two hundred twenty five years ago in a social context radically different from our own. What we should be debating is whether gun control makes sense in a modern context. When the debate is constitutionalized, it is turned over to lawyers, and lawyers do with it what lawyers do generally — focus very carefully on language like the original meaning of “militia” and “bear arms” and the legislative history of the second amendment. These subjects are completely beside the point. Investigation of them distracts us from the issues that should matter to us while simultaneously raising the temperature of the debate by suggesting that our opponents are being unfaithful to foundational American values.

Review


"This is a deeply provocative book from one of our most thoughtful and skeptical constitutional thinkers. Michael Seidman wants us to to own up to our Constitution's flaws, and stop mindlessly obeying it - by which he means we should stop pretending people got it all right two hundred years ago and start figuring out things for ourselves. Whether you agree or disagree, Seidman is surely right we that we must take ownership of the world we live in. Allow yourself to be provoked."--Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law


"No contemporary scholar challenges conventional conceptions about constitutional law more fundamentally than Louis Michael Seidman. In this short but profound work, he poses perhaps the most basic question of constitutionalism -- why should we ever do what the Constitution commands when we think it better to do something else? Seidman's provocative defense of constitutional disobedience may or may not convince you, but it will challenge you to rethink some of society's most foundational beliefs."--David D. Cole, Professor of Law, Georgetown University Law Center



More About the Author

After graduating from Harvard Law School in 1971, Professor Seidman served as a law clerk for J. Skelly Wright of the D.C. Circuit and U.S. Supreme Court Justice Thurgood Marshall. He then was a staff attorney with the D.C. Public Defender Service until joining the Law Center faculty in 1976. He teaches a variety of courses in the fields of constitutional and criminal law. He is co-author of a constitutional law casebook and the author of many articles concerning criminal justice and constitutional law. His most recent books are On Constitutional Disobedience (Oxford, 2012); Silence and Freedom (Stanford 2007); Equal Protection of the Laws (Foundation 2002); and Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (Yale 2001). In 2011, Seidman was elected to membership in the American Academy of Arts and Sciences.

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2 of 2 people found the following review helpful By B. Jacobs-swearingen on July 24, 2013
Format: Kindle Edition
I tend to view Seidman's thesis less as a product of sincere belief than as a dialectical exercise intended to lead to a deeper understanding of constitutional law. In this regard his book definitely succeeds in raising some very timely questions concerning the value (or possible lack thereof) of admittedly vague formulations of "inalienable rights" to things such as speech, assembly and (the big one right now) "unreasonable searches and seizure" which modern day discourse (!!!) equates with privacy.

The vagueness of these formulations is at the heart of current controversies and participants in the ongoing debate would do well to improve their critical awareness of problems in the constitution's articulation of these rights, which Seidman correctly describes as more a description of principle than of binding rule.

I would be interested in Seidman's take on a distinction between some constitutional rights - speech, assembly, bearing arms - which are "active" rights in the sense that they are exercised by the individual; and others, most notably the right from "unreasonable" searches and seizure (which I will simply refer to as "right to privacy" below), which are largely "passive" rights in the sense that they are rights to be free from interference by others. It would seem that the Constitution is a much more effective guard of the former class of "active" rights than the latter class of "passive" rights such as that to privacy; the only area in which the Constitution appears to provide any compelling guarantee to right to privacy is its protection of the right to use encryption, which is the only "active" aspect of the right to privacy I can think of.
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4 of 5 people found the following review helpful By Lindell E. Lucy on February 28, 2013
Format: Kindle Edition Verified Purchase
He had a good point, but he could have said it much better than he did. I think this book is based on an article he previously wrote. I'd recommend just reading the shorter article.
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4 of 6 people found the following review helpful By Murray J Siskind on October 6, 2013
Format: Hardcover Verified Purchase
This is a great book with huge flaws. Seidman's point is that there is no reason to obey the constitution, principally because of the absurdity of being bound, in the 21st century, to an 18th century contract. He then deftly and efficiently dispatches with many of the arguments for maintaining fidelity, such as "anarchy" will result otherwise, etc. Most cleverly, Seidman argues that the Supreme Court already is violating the constitution. How do we know? Because the justices are always accusing each other of violating the constitution in their opinions. Clearly then, as Seidman points out, if everyone is accusing everyone else of disobeying the constitution, then it stands to reason much of our constitutional jurisprudence is, in fact, non-constitutional. Has the sky fallen? No.

Unfortunately, Seidman hasn't fully "gamed out" his thesis. Once we decide to stop following the constitution, it's not clear what follows. Seidman keeps writing about what "we" will do at that point, but it's not obvious who "we" are. Once the constitution dissolves, so does the Union. After all, there's no reason for Texas, or Oklahoma, or Vermont to hitch their wagon to a "United States" if we don't have to follow the constitution. It's also not clear why we would have judicial review, or even a federal Supreme Court; but the book seems to contemplate that we will.

Compelling compliance is the primary goal of any federal government. The contractual theory of the constitution, for all its flaws, was the mechanism that allowed the federal government to force desegregation on the South, to force abortion onto unwilling states. In his intro, Seidman makes a passing reference to the "Tea Party": "For many of us, the Tea Party constitution is deeply pernicious.
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1 of 3 people found the following review helpful By Laurie Pollock on April 2, 2013
Format: Kindle Edition Verified Purchase
Imagine a lawyer who writes so entertainingly about the law! He makes a provocative argument and does his best to stay away from personal politics. This would make a superb book club book. If you can get your members to read it, they'll enjoy it and have lots to discuss!
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