I frequently bait the law professoriate with the axiom that if you really want to understand constitutionalism, and the U.S. Constitution in particular, don’t take constitutional law at an elite law school. There you will only receive systematic mis-instruction in the subject.* Joe Knippenberg reminds me that my AEI colleague Walter Berns always said that the problem with law professors is that they taught constitutional law, not the Constitution. Hence most constitutional law professors treat the Constitution as a plaything from which to extract whatever outcome they want.
In some cases the general wording of clauses of the Constitution (like the Fourth Amendment’s “unreasonable” search and seizure clause) does require exercising judgment about how to apply the text to changing circumstances and technology. But then there are those pesky clauses written with sufficient specificity (such as the “embarrassing” Second Amendment—as some liberals call it) that not even the inventive Cass Sunstein can find a clever interpretive workaround to generate the desired liberal result. At such times this impulse yields to the suspicion that many liberals don’t really like the Constitution at all, and would junk it if they could.
Woodrow Wilson professed this openly. But the Founders built well, knowing that the Constitution—the documentary embodiment of the Rule of Law replacing the Rule of Man (or Rule of the King, as practical matters had it in the 1780s)—would work only if it became an object of reverence in place of a monarch among the people. As such, directly attacking the Constitution has always been a non-starter in American politics. Instead, liberals typically repair to the doctrine of the “living Constitution.”
Thus it is helpful when a liberal’s impatience with constitutionalism yields to the impulse to rip the façade away and declare their contempt for the Constitution. Georgetown Law School professor Louis Seidman thus does us the favor of candor with his New York Times op-ed today entitled “Let’s Give Up on the Constitution.” The first paragraph is enough:
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.
The article is really not worth bothering with further. There’s active commentary about it going on all over the blogosphere today. (Start with Jonathan Adler and Wesley Smith if you are a glutton.) As I sometimes like to say, “Our Constitution may not be perfect, but it’s better than the government we’ve got.” Those “evil” and “archaic” provisions are why, despite 100 years of largely successful “Progressive” assault against our constitutional principles, the United States is still the freest nation in the world.
Let’s hope the higher education bubble breaks first and hardest at our intellectually corrupt law schools.
* There are a handful of isolated worthy exceptions, such as Mike McConnell at Stanford, Richard Epstein at NYU, Randy Barnett at Georgetown, Gerard Bradley at Notre Dame, John McGinnis at Northwestern, and most of the happy band who appear on the Volokh Conspiracy. But as a proportion of the law professoriate they have to represent less than 5 percent of the total.