Is Constitutional Obedience Damaging America?
That is the question raised in the latest Econtalk podcast, wherein Russ Roberts interviews Constitutional law professor Louis Michael Siedman.
Siedman argues that one of the central principles of US government, that the Constitution is the supreme law of the land and all government activity must be concordant with it, is fundamentally flawed. This is an unusual position for a Constitutional law professor to say the least, but it makes for a fascinating discussion between Siedman and Roberts, who is much more in favour of constitutional limits.
If you have a spare hour, I strongly recommend listening to the podcast, for one thing its a master class on civilised discussion between two opposing viewpoints. Roberts pushes back on Siedman’s arguments, but never tries to shut him down.
I thought this would make for a good topic of discussion here at the League. Does it make sense to require government to adhere to the Constitution? In case you don’t have time to listen to the podcast, you can read the transcript at the podcast’s page.
Here are Siedman’s main arguments:
- There are successful countries with no Constructional limits (The UK, New Zealand and Israel), and many utterly dysfunctional governments have constitutions.
- It is irrational to grant people who have been dead for centuries more power over the government than living people have.
- It is authoritarian (his word) to allow people to shut down a policy idea by constitutional fiat. Policy debates should be driven by reasoned argument, not “this is unconstitutional so shut up”.
- The immense difficulty of amending the US Constitution has made it too unwieldy to be useful. There are many issues in which the government has to ignore it to get things done, from the profound (the Emancipation Proclamation) to the mundane (the term lengths of senators for a new state).
- Any constitution is subject to interpretation and must be enforced by some part of the government of the day. In practice, the government of the day can get away with a lot of unconstitutional activity at the moment.
- The Supreme Court often has to employ a lot of interpretation to fit the issue in front of them into the framework of the Constitution. This makes their task very subjective and political, which calls into question the official role of the Supreme Court as dispassionate arbiters of law.
Personally, I find Siedman’s arguments a little dubious. He spent way to much time pushing the “why do we care what these old dead guys think?” question, which strikes me as a little besides the point. There is a standard principle that a law last indefinitely unless it is explicitly sunsetted or until it is repealed I mean, New Zealand’s Crimes Act (the Act that covers basic crimes like theft and murder) is 105 years old now, I very much doubt any New Zealander still lives who was voting age at the time it was adopted. Does that mean that people should feel free to ignore it? Or is 105 still too young? Just how old does a law have have to get before we declare it obsolete? I really don’t see why the Constitution should be treated differently.
I’m also somewhat suspicious of the “it’s too hard to amend” argument. Is it too hard, or is it just that a sufficient consensus doesn’t exist on the big issues? The whole point after all is to counter majoritarianism. Simply saying that the majority can’t get its way is an insufficient critique. If it is indeed too hard to amend the Constitution, why not call for the amendment process to be amended? Or for that matter, call for a convention and start from scratch. For all that Siedman favours using persuasion over coercion, he seems to feel little need to persuade the people with the power to amend the Constitution to do what is in their power to do.
The one argument of his I did think was worth considering was the argument from futility – that in practice the Constitution is already routinely ignored, so what’s the point? I don’t know how inevitable this is, but if it is largely inevitable that a Constitution will be ignored then there isn’t much point in having one.
Overall, I wish Siedman has done some more thinking about which alternative to the <i>status quo</i> he preferred that, without that vital context it was very difficult for me to really get to grips with his arguments.
So what do the rest of you think about this question? Does it makes sense to limit the government with a Constitution? If so, what limits should be imposed and how easy should they be to change?