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.
"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