Let’s Just Cut Down Some of the Trees. One Tree Actually. That Big One Over There.
Is “Giv{ing] Up on the Constitution” on your list of resolutions for 2013? It’s on Louis Michael Seidman’s.
I get his point, and I disagree with it. I like that the Constitution has been a drag on powerful presidents, finger-in-the-wind senators, a sometimes capricious judiciary, and an often fired-up citizenry. It had its flaws in the past, has others even now, but the Constitution also has mechanisms to correct those problems. It’s also worth mentioning that the Constitution has little or no bearing on much of what passes for law nowadays. In other words, not every legal issue is a constitutional issue.
In any case, to Professor Seidman, I’d respond with the words of Robert Bolt–through the mouth of Sir Thomas Moore–in his play A Man For All Seasons:
More [to his soon-to-be son-in-law William Roper]: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat?
This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down (and you’re just the man to do it!), do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
Even Mr. Seidman acknowledges some good things in our Constitution: free speech, equal protection, things like that. He’d like to keep them. And so would I. But how secure would those rights be without a Constitution? Not very, I worry. They’re under attack even now. Fish in a barrel they’d be if we amended the Constitution out of existence.