Wednesday, January 2, 2013

Seidman on Constitutional Disobediance

Louis Michael Seidman's a Con Law scholar and an advocate of ignoring the Constitution (at least to some extent). His column in today's New York Times is here. I have at least half a foot in his camp, and wholeheartedly agree that blind and unbending obedience to a 200-year-old document is not the litmus test for whether or not a country possesses a viable constitutional democracy. I'm looking forward to reading Seidman's forthcoming book.

UPDATE: In response to Seidman's op-ed, "Blowhard, Esq." writes (here):

Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources. 
Right, but their traditions are not our traditions. What works for Britain and New Zealand might not work here. How’s that democratic flowering going in the Middle East, by the way? Do you think that example might hold some lessons?
It seems to me "Blowhard" has it exactly backwards: the legal, historical, and political traditions of the UK (and New Zealand) are our traditions, and not the traditions of countries in the Middle East, where the combination of overthrowing old tyrants and holding elections hardly constitutes a system of constitutional, representative democracy. US governance institutions, including the constitution itself, have strong roots in British legal institutions and philosophy. Our common law is the English (and Welch) common law, with (mostly) minor adjustments. The presumption that the US would become more like Egypt, rather than, say, Canada, if we did not have our (current) written Constitution is beyond presumptuous; it is ridiculous.

I won't go on to note the many factual assertions Seidman makes about US constitutionalism, which "Blowhard" simply ignores. I wonder, however, what "Blowhard" makes of the frequently articulated (including by the US Supreme Court) trope that the US Constitution is "not a suicide pact" (see here)?

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