Does America need the Constitution?

The First Page of the Constitution of the United States

The First Page of the Constitution of the United States
Source: Wikimedia Commons

No, according to Louis Michael Seidman. He wants to keep the government but toss the Constitution, arguing that it was written by a very specific set of people from a very different time period. So, rather than debate the merits of an issue, we debate what people who died a long time ago would’ve thought about it. He also makes the very good point that we shouldn’t depend on the Constitution to secure our natural rights like freedom of speech.

The issue with the U.S. Constitution (and really any written document) is that it can be tortured to mean just about anything. And since government has a natural tendency to grab power, politicians can easily interpret the Constitution in order to do so (case examples: the Commerce and the Necessary and Proper Clauses).

As a restraint on government, the Constitution has proven remarkably ineffective. Then again, it’s not clear to me that a U.S. government without the Constitution would be much better. Here’s more from an interview with Seidman, conducted by Amy Crawford at Smithsonian Magazine:

What would we gain by giving up constitutional obligations?

It would improve deliberation and rhetoric about issues that divide us—gun control, for example. Now, to the horror of most of my friends, I am actually quite skeptical about gun control. But that’s a subject on which reasonable people can disagree. But what happens when you start thinking about constitutional obligations? All of the sudden the argument is not, “How are you going to enforce this? Would it actually prevent violence? Would it cause more violence?” The argument is about, “What exactly did the word ‘militia’ mean 200 years ago? What is the relationship between the ‘bear arms’ clause in the English Bill of Rights and the American Bill of Rights?”

Those are questions that historians ought to have some interest in, but they’re completely irrelevant to the issue of gun control in 21st century America. Without enlightening us, arguments of constitutionalism unnecessarily divide us. Now, all of the sudden, instead of talking about a policy decision that reasonable people could disagree about, we’re talking about whether one’s opponent is really an American, whether they are violating the document that defines us and creates us as a nation.

(See the rest at Smithsonian Magazine:

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