Eagle Forum Legislative Alerts

Tuesday, January 01, 2013

Law prof against constitutionalism

Our top law schools today are led by leftist professors who are completely opposed to constitutional government. Here is one of them in a NY Times op-ed:
AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? ...

The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper. ...

Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book “On Constitutional Disobedience.”
No, those are not the two main rivals. The conservatives are led by Clarence Thomas and Antonin Scalia, who believe in being faithful to the text of the Constitution. Scalia is so opposed to "divining the framers’ intent" that he once said:
You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words.
Yes, we do care about how tax bills become law. The US Constitution says:
Section. 7. (1) All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

(2) Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. ...
So what alternative does the professor propose? That there be some other method of passing tax laws? He is not in favor of amending the Constitution to change it, but just ignoring it when it suits his political preferences. In short, he is against constitutional government.

Update: I just heard Prof. Seidman defend his column on the Michael Medved Show, and he is pretty clearly being bound by a written constitution. He says, for example, that he is against gun control but he thinks that gun rights should depend on the continuing political beliefs of the majority, and that there should be nothing in the constitution to protect gun rights.

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