For the better part of a decade (and probably longer), there has been a cottage industry among liberal commentators dismissing the Constitution as broken and outdated. In 2011, for example, Time magazine’s Richard Stengel announced that the Constitution has no place in a society with text messaging and Lady Gaga.
So when Georgetown law professor Louis Michael Seidman wrote a New York Times op-ed admonishing America to just “give up on the Constitution,” most conservatives dismissed him as another liberal picking and choosing which parts of the Constitution to keep. However, Mr. Seidman’s argument is more radical than the usual liberal critiques of the Constitution.
Mr. Seidman doesn’t want to get rid of parts of the Constitution. He wants to scrap the entire Constitution as a source of law.
He writes that the Constitution lacks any discernible meaning. It’s “obvious” that “much” of our “constitutional language is broad enough to encompass an almost infinitely wide range of positions.”
Accordingly, judges, presidents and congressmen are never dispassionately interpreting the Constitution, but always reading their own policy preferences into it. In essence, Mr. Seidman says, everybody picks and chooses what they want to do and calls it “constitutional.” The only difference between Mr. Seidman and everyone else would be that he is honest about it.
Yet Mr. Seidman’s premise is wrong. There aren’t infinite potential meanings to the Constitution.
Indeed, the Constitution is crystal clear about many things. Moreover, thanks to commentaries, pamphlets, letters, well-documented debates and drafting records from the Founding Fathers, the meaning of the Constitution is, in fact, knowable. James Madison’s “Notes on the Convention” offer a detailed account of the drafting of the Constitution. The Federalist Papers and Justice Joseph Story’s “Commentaries on the Constitution” clearly explain the meaning of the Constitution. Using these works as a model, “The Heritage Guide to the Constitution” offers a comprehensive explanation and analysis of every clause in the Constitution.
Despite what Mr. Seidman writes, many provisions of the Constitution have clear, uncontroversial meanings. The president must swear an oath to preserve and defend the Constitution before taking office. The House has to keep a journal. No person shall be convicted of treason without “the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
There is no question that the Constitution creates two houses of Congress (not one, or five), that representatives must be at least 25 years old to serve, or that “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner.”
To be sure, there are controversial provisions, and throughout American history there has been robust disagreement about the meanings of specific clauses and powers. Who can suspend habeas corpus? Can Congress use its spending power on internal improvements? Must the president enforce every law? Does the First Amendment protect anonymous speech or obscenity?
Still, because the Constitution’s meaning is knowable, as Reagan administration U.S. Attorney General Edwin Meese has explained, the document merits a particular approach. “Where the language of the Constitution is specific, it must be obeyed. Where there is demonstrable consensus among the Founders and ratifiers as to a principle stated or implied in the Constitution, it should be followed,” he writes. “Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself.” Such an approach does not “remove controversy, or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law.”
Mr. Seidman is wrong. The Constitution’s language is not “broad enough to encompass an almost infinitely wide range of positions.” Much of the Constitution’s language leads inexorably to one correct answer. Even the toughest, thorniest clauses still yield only a narrow range of possibly correct answers.
Constitutional disobedience? No, thank you.
Julia Shaw is research associate and program manager at the B. Kenneth Simon Center for Principles and Politics.
By Elaine Donnelly
Extending sexual misconduct to combat units