ABA Journal


Constitutional Law

Law Prof Who Urged Abandoning the Constitution Gets Abusive and Threatening Emails

Jan 3, 2013, 01:10 pm CST


"Why not amend rather than abandon the Constitution?"

Indeed. The courts do it all the time. That is how they have gradually written those old, dead guys out of the picture, while still retaining at least some limits on governmental power.

By B. McLeod on 2013 01 03, 1:25 pm CST

It's my understanding that many of the drafters of the Constitution thought it would change over time - clearly, they misjudged on how difficult they made the amending process. (Over-reaction to the Articles, perhaps?). Since they were looking at needing a majority of a much smaller number of states - 13, originally - they probably didn't realize how arduous the amending process would become as we got larger. It was designed to be difficult, but not impossible. Now, it's way too long and almost impossible because of how we've grown.

By RecentGrad on 2013 01 03, 2:19 pm CST

The Constitution of the United States is a single, integrated document, representing a compact among the states and among the people. The Constitution is predicated upon the (apparently) old-fashioned notion that governments “derive their just powers from the consent of the governed”. To put it more bluntly, the moral right of a government to use coercive authority is only justified when that authority derived from the people over which that authority is exercised.

If those who occupy the seat of the national government fail to abide by those provisions in the Constitution that are ideologically inconvenient to them (usually provisions that limit the powers of the legislative or executive branches of the National government), surely they can't expect those of us who live - - - both physically and culturally - - - well outside of the Beltway to VOLUNTARILY obey the dictates of the instrumentalities of that same government. When a government lacks moral authority, all that it has to compel obedience to the Rule of Law is brute force. There IS a reason, after all, why officials of our National government are required to solemnly promise “to protect and defend the Constitution of the United States.”

Professor Seidman has the right to speak and write without harassment. Indeed, I applaud Professor Seidman for reducing to writing and putting out for public discussion what many of our elites have long believed, but have been afraid to utter in such a public fashion.

With that said Seidman’s ideas should be quickly and unequivocally rejected by all in or near the seat of the national government. I am not kidding when I say we are playing with fire here, since the voluntary obedience to the Rule of Law by most of the population is what holds us together. In my mind, what is at stake here is nothing less than the continued existence of the United States of America in its current form. When I read Seidman’s article I immediately remember the prediction Russian academic Igor Panarin made about four year ago about the break up and disintegration of the United States.

By Yankee on 2013 01 03, 3:55 pm CST

So the yokels have put down their 'shine and mustered the courage to anonymously threaten the professor over his exercise of one of the most important rights enshrined in the Constitution, the right to express disagreement with our form of government.

The Constitution is not the Koran, it doesn't purport to be God's word and absolute truth. Many countries around the world have different political institutions than ours, some of which are better in certain aspects, some of which are worse. It's a shame that in this country, any call to learn from others scares so many. Oh well, yokel on 'Murrica.

By NoleLaw on 2013 01 03, 3:58 pm CST

@3 - I agree with you, because I'd like to see the United States of America stay together for awhile longer, at least!

However, I do think that we have to figure out how to fix this system before the stressors on it reach a breaking point. For better or worse, it is practically impossible at this point to amend the Constitution -- as quipped previously by #1, "amendments" are now the political opinions of the jurists, and it is increasingly difficult to tell raw judicial activism from genuine Constitutional interpretation. (I suspect that it's a continuum where one's take on the question is more or less reasonable.)

It's difficult to condemn Seidman when the very authors of the Constitution did almost *precisely* what he is proposing by recognizing that the Articles of Confederation were broken and acting beyond their authority to create the U.S. Constitution itself.

And after all, ignoring the Constitution has a certain pedigree. As Lincoln quipped when blatantly ignoring the Constitution, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"

Not that I'm saying we've reached that level of urgency, of course. Just thinking rhetorically. I suspect that only history can determine whether one who willfully ignores the constitution is villain or savior.

In short, I think Seidman's point (or part of it, at least) is well-taken. We either choose to fix our broken system, or we choose to live in it until it inevitably breaks.

By Another Andy on 2013 01 03, 4:05 pm CST

@5 I absolutely do not concede the point that we need to "figure out how to fix this system." As designed, the Constitution was intended to be tough to amend. Put in other words, the system isn't broken, although our politicians, pundits and government officials surely are.

The supermajorities required in Article 5 of the Constitution necessarily challenge us to find solutions that would appeal to the vast majority of citizens. The Constitution will not and should not bend to our current era of divisive politics, brinkmanship and cram downs.

I personally believe that it is right time to call a Constitutional Convention of the type contemplated by Article 5 of the Constitution for the purpose of "for proposing Amendments". Such a Convention would get put Congress entirely out of the amendment process.

(I would also propose that this Convention meet at a location well outside of the Beltway that better represents the geographic and political center of the country.)

By Yankee on 2013 01 03, 5:07 pm CST

I'm pretty sure the founders thought the Articles of Confederation were also swell then they wrote them. When they did not work they did not hesitate to dump them in favor of the Constitution.

If the Constitution does not work, amendment is one way to deal. Another is to dump the Constitutoin in favor of something that works better. It's not sacred.

But whether by amendment or wholesale rewriting, we need to seriously rethink our current non-Parliamentary syustem of government. Adopting a parliamentary system may be the only way to eliminate the paralytic gridlock that our current system permits.

By AndytheLawyer on 2013 01 03, 6:09 pm CST

@7 I'm curious: What would be your proposed vehicle for "dump[ing] the Constitution in favor of something that works better."?

By Yankee on 2013 01 03, 6:20 pm CST

@8 - I'm not sure what you mean by "vehicle" (mechanism for approval? or are you asking what the poster would implement in its place?) -- but I think one of Seidman's points is that if those guys could do it, so could we. And I think that's a very positive message.

I think it's hard to remember that the Constitution is important for exactly the reasons that you point out in #3 -- not because of a status quo argument or because its authors were wiser, morally superior, or more intelligent.

What I think is almost more interesting about Seidman's message is how much it echoes what I've heard atheists say about the Christian Bible. In the end, the debates are actually somewhat similar in that they both are asking -- "Why govern yourself by what someone thought a long time ago?"

By Another Andy on 2013 01 03, 6:29 pm CST

@ 9 - "if those guys could do it, so could we."

Not only that, but we have well over two centuries of experience with the present Constitution and a mountain of knowledge of all sorts of political institutions across the board that simply was not conceivable to the framers. We are arguably in a much better position to design a political system than they. And I in no way mean to downplay the genius of the Constitution, especially considering the historical context in which it was written. Some of the judicial amendments to the Constitution, to borrow McLeod's quip, on the other hand...

By NoleLaw on 2013 01 03, 6:37 pm CST

The irony here is that the Constitution already has been abandoned, or to quote Garet Garrett, "the revolution was." Anyone making a serious comparison of the Constitution as written and the Constitution as re-imagined by the federal government and its courts (which are supposedly inferior to the Constitution) cannot avoid this conclusion.

By logos on 2013 01 03, 6:53 pm CST

@9 I meant "mechanism for approval".

The reason I ask is because IF the mechanism is a "constitution for approving amendments" with a subsequent radification by three-quarters of the states as described in Article 5 of our current constitution, I'd be open to replacing the current compact that binds the states and people together with something new.

By Yankee on 2013 01 03, 6:58 pm CST

i don't really believe in a living constitution, because it is pretty clear the 4th amendment needs CPR.

By defensive lawyer on 2013 01 03, 7:31 pm CST

I've crossed paths with Prof. Seidman many times in my life and I'm saddened that he would display his ignorance in public with something so silly. What the Professor fails to understand is that the Constitution, flawed as it may be, provides a check on State power. As he admits in his article, State action has to be justified in a Constitutional context, but after 40 years as a legal educator, he doesn't seem to grasp the idea that context equals restraint.

Yes, England has no constitution, but they have other checks on State power. The Soviet Union enacted a fantastic 1977 Constitution under Leonid Brezhnev, but with an all-powerful State, their document was worthless. What is important is the role of the document, not the document itself and this seems to fly right over Seidman's head.

Our current Government has seen fit to eviscerate the Constitution in its current form. Limits on habeas corpus, a watered down Fourth Amendment, violations of the Full Faith and Credit Clause are but a few of the violations of the past decade. However, I would ask the Professor, what restraints will exist without the Constitution? Does he trust President Obama to always do the right thing absent Constitutional restraints? Does he trust John Boehner? Al Franken? Sarah Palin? The Professor writes "Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism". I think the Native Americans, former Slaves, people forcibly Sterilized, WWII Japanese-American internees, victims of the Tuskeege experiments, blacklisted Communists, Moslems, Occupiers and many others would disagree with you.

Yes, those dead white guys were pretty mean. They were drunk when they wrote the Constitution (water would have killed you then, so they drank alcohol all day, it was safe). They owned slaves. It's all there in the document for anyone who would deny this truth, on those points the Professor is correct. But again, he fails to recognize that the Constitution did change and did eventually guarantee rights for all Citizens of the United States, not just wealthy white male landowners. To say we should give up the document because of "archaic, idiosyncratic and downright evil provisions" is the white guy's answer. Why not a national dialogue on Slavery or genocide? Beacuse that is hard, Professor. Your solution is easy. Then again, the Nazis and the Communists were easy too, at first.

the system they created has run our country for over two centuries while others have collapsed in financial crises, civil wars and revolts from lesser crises than we ever faced. Seidman is an even greater fool now than when I first met him many years ago. He does not abusive or threatening email, but he should heed the expression, if you can't take the heat, stay out of the kitchen.

By KG on 2013 01 03, 8:20 pm CST

"The supermajorities required in Article 5 of the Constitution necessarily challenge us to find solutions that would appeal to the vast majority of citizens."
In what way? Article V doesn't require a supermajority vote of citizens, or ANY vote of the citizens. You could get an amendment passed with the votes of a couple thousand (out of 300 million+) citizens (if their interests aligned).

The first purpose of the supermajority requirements is to provide stability. Compare the experiences of the states that allow constitutional amendments by popular vote... their constitutions become bloated (and occasionally self-contradictory) and change so often it's hard to do long-term planning (both public AND private). Oregon's legislature recently had a special session whose only purpose was to assure the state's largest corporation that income taxation methods won't change for the next several years.

The second purpose of the supermajority requirements is to reduce the likelihood of decisions made in haste hamstringing the government's ability to function effectively.

Even if we did rewrite the Constitution, it's not like we'd throw out everything that made them (the Constitution AND America) great. We'd take what was good about it, and reset things so that "the Founding Fathers" whose opinion on everything matters in determining the actions (or lack thereof) of government, is us, and not a bunch of guys who haven't seen the topside of the ground for 200 years or so.

I give it about a 0% chance of success, given how divided the nation is, that you could create a new document to replace the Constitution to widespread acceptance. But there are already a huge number of people who disagree on just what it is that the current Constitution says about things, too.

By James Pollock on 2013 01 03, 8:37 pm CST

KG, I'm going to ask you how you never noticed that the Constitution checks noone's power. As a practical matter, it is the broad power of public opinion which checks government power. When the public wants something, Congress tends to pass it, whether it's Constitutional or not. Ditto for exercise of Presidential power. What halts these branches is the tension between them and the air of legitimacy carried by the judiciary, not the Constitution. If the Constitution checked power, there'd be no need for judicial review.
Whether you substitute something (whether it be a substitute "Constitution 2.0", or some other practical limitation on government power doesn't matter, if it works. Yeah, that's a pretty big "if", but that's why the Constitution has authority and the Articles don't... the Articles didn't work, and the Constitution does. The Professor's point (the Constitution was written for a different nation in a different time facing different challenges, and thus might not be the best possible solution for the current nation, in the current time, facing current challenges. Treating him as a legal heretic for pointing this out is not really useful. (I disagree with him on the advisability of attempting to replace the Constitution, but my faith is strong enough to withstand the doubts of a nonbeliever or two.)

By James Pollock on 2013 01 03, 8:48 pm CST

Remarkable how some law professor can express so little historical understanding regarding why the document and topic he studied and taught for decades contains certain provisions.

By Cheeser on 2013 01 03, 9:59 pm CST

@16 It will take a whole lot more than an "air of legitimacy carried by the judiciary" (or the other branches of the national government) to keep the National government a float. Although the black robes, business suits, and granite (as well as the other props that suggest gravitas) might move the low information citizen, in the end they'll take you only so far.

When government officials regularly flout the rule of law (laws only apply to the 'little people'), it undermines the legitimacy and moral authority of the government in the eyes of the citizenry. Our friends within the beltway having been playing with fire for a while. Not a good situation that we're in.

By Yankee on 2013 01 03, 10:10 pm CST

@18 - I wholeheartedly agree, but I think that it's more complicated than demonizing Washington. I think it's just a prime example of human nature. Power corrupts. The peculiarly American problem is that we have a rigged, two-party system. Because there're no viable third parties, the only other party to realistically vote for is likely going to be so out of step with a person's political opinions that it would take an inordinately large amount of "corruption" on one side to vote the other way.

By way of example: What possible corruption among the Republican party would it have taken for you to actually react against it by voting Obama? (Not singling you out, the reverse question could be posed to anyone on the opposite side.)

If the answer is that it would be practically impossible (and I think that we could name misconduct on both sides indicating that we are willing to overlook a great deal of misconduct), then I think you have your answer as to why it can only get worse.

And of course, reasonable people can often disagree on what "flouts the rule of law" and what doesn't...

I don't think we need a whole new Constitution, but I do think we have to consider amending it to abolish the two-party system.

By Another Andy on 2013 01 03, 10:22 pm CST

@19 I likewise would not envision a "whole new Constitution" but an Amended and Restated document , most likely based upon principles of big tent federalism. The national government would be organized around those functions where there was broad consensus that the national government would do a better job than state governments.

With respect to cultural/religous matters, and the scope of the welfare state, we would all have to give up on the idea that the national government can (or even should) seek to homogenize the culture, and generally adopt a live-and-let-live attitude about these matters, at least as far as the national government is concerned. (To the extent that you've ever watched Star Trek and are familiar with the "Prime Directive", I can imagine all of us committing to resist using the power of the national government to modify those aspects of state or regional government that we find repulsive.)

I imagine that different states and regions would develop in dramatically different ways under this system. (I can also imagine an enhanced role for interstate compacts and regional government.)

As to"abolishing the two-party system", I personally can't imagine how you can do that any more than you can abolish human nature itself, since people in every country and every age naturally seek to leverage their power by forming coaltions with others (I am sure you are familiar with Game Theory.)

By Yankee on 2013 01 04, 3:14 am CST

I would be OK if we could just get a nice, used constitution.

By B. McLeod on 2013 01 04, 6:09 am CST

@21 You suggest: "I would be OK if we could just get a nice, used constitution"

I understand that a slightly used (1977 model year) Soviet Constitution is available. With an astonishing 174 articles it is probably one of the best buys out there.

By Yankee on 2013 01 04, 11:59 am CST

I thought the laws and treaties passed by the UN were the new American constitution and laws of the land as we move toward a one world order and one world government.

By tim17 on 2013 01 04, 3:43 pm CST

Perhaps when you finish your high school civics class you'll know better.

By NoleLaw on 2013 01 04, 3:56 pm CST

As a European federalist, writing from the Old Continent, I would be happy to take the current text of the United States Constitution for a hoped-for United States of Europe if you Americans want to trade it in for another model.

On the other hand, you might want to consider the difficulty which Europeans have had in adopting a set of rules to make the European Union work even in its current very imperfect state. Don't trade in the old model unless you are pretty sure that you can get something effective to put in its place - and that that something will be acceptable to the American people.

By Manofiona on 2013 01 04, 3:59 pm CST

The scorn heaped upon this so-called "professor" is well earned. Heat, kitchen, stay out, etc.

Hopefully he's not a delicate little flower.

By BoredBarrister on 2013 01 04, 4:46 pm CST

Nothing terrifies me more than the idea of the present Congress writing a new US Constitution from scratch.

Just thinking about that concept makes me want to take a shower but I know that won't let me feel clean.

By Tyrone on 2013 01 04, 5:04 pm CST

As one, I find his "white propertied men" slur offensive: it's racist, sexist, prejudiced and stereotypical. Equally invalid as the anti-Semitic remark he recieved.

there are many people of his ilk who love to throw out the "old white men" label as if any of those qualities, none of which are acquired, are pernicious and reprehensible. They use it discussing courts and management--and continue to use it when statisitically incorrect.

Why not spit out the fact that none of them had driver's licenses, too?

I have no quarrel with his expressing his view objecting to the Constitution (most of it) or its parts. In many ways I agree. There is validity to questioning whether the process established then is relevant now; we do it all the time, especially with press/internet and arms/handguns. Just no need to be insulting about it.

By Hadley V. Baxendale on 2013 01 04, 5:07 pm CST

How tiresome, another law professor gone senile before retirement. Clearly Georgetown should redeploy Seidman in teaching courses on a subject he could still respect, say 'Comparative Law' or 'Society and Law'--- or just quietly retire him to the library commitee.

By Hoya on 2013 01 04, 5:20 pm CST

"I don't agree with this gentleman's opinion. Why, I think I'll attack his intellectual capacity instead of stating the reasons for my disagreement. That will show him a thing or two, eh wot?"

"Jolly good, sir. Jolly good."

(This is much more effective when read with an English accent, btw.)

By Another Andy on 2013 01 04, 5:29 pm CST

Yeah it was not much of a piece. Let's junk it! But keep the parts I like! It helps shill his book I guess.

If he's surprised by the reaction he has never read the online comments to pretty much every article ever written anywhere on a politically sensitive topic. But the First Amendment was one of the parts he liked, so OK.

By John L on 2013 01 04, 5:31 pm CST

The Constitution is the underpinning and justification for all law in the United States and in the individual States. For the nation to abandon the Constitution would be like the Episcopalian Church abandoning the Bible. Oh, wait.... they actually did abandon the Bible. How's that working out for ya?

By William A. Wheatley on 2013 01 04, 5:50 pm CST

The US Constitution was devised in an era when there were no other models to choose from, so the Framers set up a system like the parliamentary one they knew in Great Britain. But they had a "House of Lords" chosen by the governments of the states, a lower house elected by the people of the states, and a temporary "king" chosen by majority vote of a group of electors, who were selected by the states and were supposed to be the wisest and most meritorious men each state could find. It's also pretty clear from the Federalist Papers and the Constitution itself that they expected Congress to run things and the president to spend his time executing its laws. It's also clear from the Federalist Papers that the system was not designed to be very efficient, lest it infringe too much on states' rights.
Now, by contrast, we have a party system where the presidential electors are pledged in advance to one party or the other, and the President is the most powerful person on earth, with a huge staff and the largest military force in the world. None of these things were anticipated by the Framers of the Constitution.
And most important, the Framers never anticipated a situation where the President and Congress would be controlled by opposing parties, each trying to keep the other one from accomplishing anything, and the country would lurch from crisis to crisis with no one having final authority to do anything about it.
What we need is a modern parliamentary system, where the President is the leader of the majority party in Congress and there are new elections if he loses that majority. That way, when something big had to be done the government would have the ability to take action. (This is the style of government even the United States recommends to newly independent nations setting up new governments – we would never recommend the mess that we have). And nothing about a parliamentary system would be incompatible with a bill of rights, protection for the rights of states, or an independent judiciary.
But we can't get this big a change by tinkering with the Constitution as it stands. Instead, we need another Constitutional Convention, which the present Constitution allows. It will never happen unless the present system utterly collapses.

By Mike-NYC on 2013 01 04, 5:53 pm CST

I find Yankee's posts convincing, but not on the merits of his argument.

The Constitution does not, as a practical matter, act as a check on state power, and our system should work fine without it.

HOWEVER, if the people (such as Yankee, and probably a majority of Americans) believe that it does, and they believe in the Constitution as a kind of glue that holds us together and keeps the goverment from trampling over us, then it has great value.

By Stephen on 2013 01 04, 5:54 pm CST

What I find silly, or perhaps dangerous, in the op-ed was that the author wanted to throw out the "evil" portions of the constitution, but not al of it. Clearly, he knows what portions are evil, and which portions are just. He is the wise philosopher king.

What this article was really all about was that he's presently finding the constitution is blocking his desired political objectives from being obtained, and those structural restraints of the documents must then go. Obviously, as the wise ruler of us all, he's not concerned with the absence of restraining mechanisms causing the country to lurch suddently in the other (obviously the wrong_ direction.

The Democratic party had control of the House of Representatives exclusively from WWII until 1992, and during that time they pretty much were able to get most of what they wanted. It's been a bit more difficult the last 20 years, and thus the constitution is the problem, and needs to get "fixed."

One last thing. I think there's a reason very few attempts are made to amend the constitution. It's a lot easier to get 9 judges to make stuff up then it is to follow the tedious process set forth in the document. Besides, you may not be able to get what you want. Easier to rely on the Supremes.

By tommyguns2 on 2013 01 04, 5:54 pm CST

By the way, when talking about modifying the Constitution (as opposed to discarding it) remember that the States are still sovereign, and that if you want to take powers from the States of the People and give them to the Federal Government, you can't do it without EACH state's permission. I would hold the opinion that an amendment that purported to do that would be invalid in any State that did not vote for that Amendment, or would be free to leave the Union if the Union chose to enforce that Amendment on it.

By William A. Wheatley on 2013 01 04, 5:57 pm CST

@36 - Constitutional Amendments do not, in fact, require each State's permission. States joined the Union knowing that the Constitution could be amended without their agreement. They signed in under that rule.

Now, maybe they have the right to leave the Union -- at least the original 13 do, or the states that were carved from them, in my opinion -- but they cannot argue that Amendments that are properly ratified under the Constitution are invalid simply because they do not agree.

By Another Andy on 2013 01 04, 6:05 pm CST

While I agree with the professor's sentiments (I'm sceptical of any text that purports to tell me how best to live, let alone one that is hundreds of years old), I'm afraid the surgery required here to fix the obvious* problems with the US constitution would kill the patient.

*by obvious, I mean obvious to me. I fully expect that what I think is obviously wrong is not what others think and therein lies the problem.

By S. McKoen on 2013 01 04, 6:09 pm CST

The US Constitution, for me, is a great work of art.
Not unlike the Europe '72 version of Sugar Magnolia.
Both are merely part of the long strange trip we are on.

By DeadHead on 2013 01 04, 6:13 pm CST

I agree that the States have pre-agreed that amendments properly passed and ratified are enforceable against them even if they have not ratified them. However, I think the exception to this would be amendments that reduced the state's sovereignty. A certain amount of the sovereignty of the states was taken from the states and given to the federal government in the Constitution. I would argue that an amendment cannot take further sovereignty away from a state without that state's permission. While the amendment may be valid, I would argue that any state that disagreed with an amendment that reduced its sovereignty would have the right to leave the Union.

By William A. Wheatley on 2013 01 04, 6:13 pm CST

Seems like an valid point of view. Why aren't there term limits on congressional seats, for example? What's sacrosanct about congressmen and women suffering from dementia or a system that emphasis career over public service? I don't know about 'evil' but there's no reason why the document should be viewed as a holy text.

By So, what wrong with what he said? on 2013 01 04, 6:17 pm CST

I don't think anyone said the Constitution is a "holy text." It is, however, the mandatory underpinning for all law in the United States. Any law purporting to contravene it is necessarily invalid on its face.

By William A. Wheatley on 2013 01 04, 6:21 pm CST

@40 - There was recently an entire thread about the right to secede that you might find interesting.

My opinion is that the original states and those carved from them probably have the right to secede. I'm not sure that I agree that the rest of the states have a right to leave -- and if they do, I think they should should, at minimum, have to purchase their land from the federal government.

It's all just sophistry, of course, as the states have no *practical* ability to secede. I do find the legal theories behind it fascinating, though.

By Another Andy on 2013 01 04, 6:22 pm CST

What a whining little dork Seidman is. He suggests abandoning a constitution and then complains that many vehemently object? He calls a text many believe has a sacred origin arising out of centuries of thought "evil" and then bitches because some folks call him a fool? He suggest a form of revolution and then objects when those opposed offer to take up arms against him? Can he be this stupid? Apparently so.

The notion of having a written document that describes the powers of government -- yea, even circumscribes them -- seems "evil" to Seidman and his many fellow travelers on this site. Let's toss it all aside and just make it up as we go. Let's not be a society of laws, but one of men whose latest opinion be whatever a majority of citizens say it is -- or whatever knuckleheads like Seidman insist it must be because, well, because folks like him just know better.

Pretty clearly, the Left has jumped the shark.

By What a Simpleton on 2013 01 04, 6:27 pm CST

@41. I don't think it is a holy text. It can be amended, the process is straightforward, but is not easy. That is the problem. I think the author knows full well that the changes he wants are not achievable by the amendment process. I think the goal was the the constitution sholuld only be amended when a supermajority has agreed that the nation has substantially changed. I doubt that has occured with respect to the changes the author wishes to make. Therefore better to chuck the whole thing and allow the philosopher kings to rule. Sure is a good thing that he's a member of the ruling class.

By tommyguns2 on 2013 01 04, 6:28 pm CST

@45 - I think that's a very wise sentiment. Frankly, I don't understand why you all aren't *begging* me to rule you. But then, as mortals, you are not rational actors.

Come. Enter the Benevolent Dictatorship of Andy, Lord of Diet Coke and Legal Punditry.

By Another Andy on 2013 01 04, 6:31 pm CST

Many--perhaps most--of the comments above demonstrate that democracy came too early to America. More's the pity.

By General Cornwallis on 2013 01 04, 6:40 pm CST

Yankee, to say "the system isn’t broken, although our politicians, pundits and government officials surely are," ignores one simple truth -- The politicians, pundits and government officials we have to deal with today are a product of that system. So, the system is broken, as it is now incapable of producing a government that can work, no matter how wonderfully you all think it would work in some idealized rational non-self-interested world of perfect Platonian-princes.

By Michael on 2013 01 04, 6:40 pm CST

@48 - I'm inclined to agree. And I think that we could -- if we could sit down and hammer it out anew -- shape the system in such a way as to disincentivize a two-party system.

I think we should be clear, because, "the system is broken" isn't really helpful or completely accurate. I think that the framework of the three branches is fine. What I think "broke" along the way was the election system that permits two parties to hold the country captive between them.

By Another Andy on 2013 01 04, 6:43 pm CST

@49: Fair point -- "System is broken" was just too convenient of a quick hit rhetorical moment, but you are right that it means nothing.

(Personally, I've come to believe that the two-party problem is a logical outcome of the current scheme that we'll never get past, even if we start to interject kludgy work-arounds like the ranked-choice vote. In the end, when faced with the notion of having to make sure the least-evil choice gets a majority, since otherwise you're completely overwhelmed by the choice you feel is evil, we will all most rationally tend to the only choice on a ballot that has any chance of reaching a majority. Nader voters notwithstanding. Although it obviously comes with its own special set of hells, I think the only way to avoid the two-party problem is to go with the system most of the rest of the democratized world has adopted, a parliamentary system, which, along with the ability to allow multiple parties to succeed has other advantages such as an easy ability to turn over quickly if it loses public support, short election cycles (yay!), and while a government is in power it can actually do what it said it would do while getting elected. Checks and balances are frankly over-rated, at least in a system that has an easy ability to call for the no-confidence vote. (Remember the check-balance notion was largely one to avoid the power of a sovereign king, not one to balance a competing political party's aspirations.) No system is perfect, and I doubt parliaments will be 100% wonderful, but I submit they would work better than our system does.)

By Michael on 2013 01 04, 6:58 pm CST

@48 You write: ". . . politicians, pundits and government officials we have to deal with today are a product of that system . . ."

You could not be more wrong.

The politicians, pundits and government officials we have to deal with today are a product of the society in which we live. The "system" didn't produce these guys and gals; our schools, families, towns and culture produced them.

And, Yes, the culture is indeed broken.

As Tocqueville noted years ago: "“When America ceases to be good, she'll cease to be great!” ~

By Yankee on 2013 01 04, 6:58 pm CST

So you want to replace the Constitution of the United States of America. Have thought about what you want replace it with
Until you find something better I think you should keep it

By LegalBird on 2013 01 04, 6:59 pm CST

If the Constitution actually (as oppossed to the crap they invente din Heller) permits cretans and crazed wackos to own weapons, it's time to use it as toilet paper. I would flush the whole system down the toilet to prevent one more inncoent life from being extinguished based on our nation's gun obsession. But Seidman wants a system in which there are no actual rules, just equities, which will always support every new wacked out left wing fantasy. Transvestites are already gaining legal protection. Born that way? Gimme a G Damn break, PLEASE!

By MIKE on 2013 01 04, 7:07 pm CST

#25 Bravo! Finally someone who "gets it" Rather than amend or throw out the Constitution why not take 2 critical steps: (1) term limits for all members of Congress (hopefully returning the intent of those serving to the best interest of the country and away from focusing on career building) and (2) abolishing the electoral college and going to a popular vote (obviously the electoral college does not accurately reflect the will of the people). I am a firm believer in the Constitution but the last 20-30 years of Washington's intrusion into US citizens daily lives needs to be curtailed and scaled back.

By Energyguy on 2013 01 04, 7:09 pm CST

Much of the federal chaos experienced today arises from departures from the Constitution. The Republican majority in the House avoided the fiscal (cliff, curb, slope) by abandoning the unconstitutional Hastert Rule whereby a republican majority would not let bills be voted on the floor without a majority of republicans in favor. The US Senate has been neutered by an extra-constitutional 60 vote requirement arising from one senator's announcement, often anonymous, that he will supposedly filibuster the bill, without any filibuster actually occurring. The particularly craven, extra-constitutional pledge to Grover Norquist not to vote for tax increases, as defined by Grover, without Grover's ok does not need extended discussion. The original constitution which barred women from voting and approved of slavery in the southern states had more than its share of faults but Churchill's description of democracy applies equally to the constitution, "iit's the worse system in the world-except for all the rest."

By rosslaw on 2013 01 04, 7:10 pm CST

@52 - Japan, in fact, has a very good Constitution. We should know -- we wrote it.

By Another Andy on 2013 01 04, 7:11 pm CST

@54: The electoral college was devised in order to prevent the president from being selected based on the will of the people. It was intended to remove the selection of the chief executive from ordinary politics. Perhaps we should go back to the original method of selecting electors, who originally weren't elected, but appointed by the States. I don't object to term limits, but that requires a Constitutional Amendment, a process that was designed not to be easy.

By William A. Wheatley on 2013 01 04, 7:12 pm CST

@51 - You're both right. Society and our political system create, inform, and re-create each other. They are the product and producer of the other -- they are influenced, and influence in return.

They conspire together to divide us between red and blue, when the truth is many shades of... purple?

By Another Andy on 2013 01 04, 7:14 pm CST

So, why would some law professor bother to advocate abandoning the US Constitution, long after this has already happened? Just consider the Patriot Act and the National Defense Authorization Act, and the actions of an executive who orders the homicide of persons on his "Kill List" without even the pretense of due process.

The government of the United States has become a vast criminal enterprise. So long as any of us recognize the US Constitution as the foundational law of the state, it stands as an indictment of the murderous tyrants that have gained control of the Federal Government. THAT is the only rational motivation for Seidman's screed. He is their servant and sycophant.

By Gene on 2013 01 04, 7:17 pm CST

@53: The Constitution does not "permit" anyone to keep and bear arms. It forbids the infringement of the pre-existing individual right of the people to keep and bear arms. Congress -- and the states -- can regulate the conditions of this just as they can regulate the conditions of the exercise of speech and the exercise of religion, which are pre-existing rights similar to the right to keep and bear arms. We already have laws that prohibit cretans and crazed wackos to keep and bear arms. That's what the background checks are for. The problem is that courts have decided that cretans and crazed wackos have the right to privacy, and thus the ability of society to identify cretans and crazed wackos for the purpose of preventing them from keeping and bearing arms has been frustrated. We must find a way to identify those whose mental instabilityy could pose a threat to themselves and others and remove from them the ability to acquire, keep and bear arms.

By William A. Wheatley on 2013 01 04, 7:18 pm CST

"If the government becomes a law-breaker, it breeds contempt for the law. It invites every man to become a law unto himself. It invites anarchy."

This insight of Brandeis's describes the United States government today, and goes a long way toward explaining why Seidman felt the need to write his piece. The Constitution may simply be ignored, as it has been since at least 9/11 (in overdrive), with impunity. What's a law professor to do with that behavior while being committed to defending the rule of law?

By Wortmanberg on 2013 01 04, 7:19 pm CST

But here's the real issue. From the late Arthur Leff of Yale Law School: "Unless there is a God who is Himself goodness and justice, there can be no ultimate moral basis for the law. For if there is no God, nothing can take His place. No human standard - no person, no group of people, no document is immune from challenge."

Sadly, Professor Seidman is just a sample of where our Godless society has brought us. We are doing what is right in our own eyes; no wonder God has forsaken this country. Hasn't the pendulum swung too far?

By Sad in Colorado on 2013 01 04, 7:21 pm CST

Threats? I'm aghast! You would think that "a self-governing people who can settle our disagreements through mature and tolerant debate" would refrain from that sort of behavior, "out of respect," although "not obligation."

By TigerNacho on 2013 01 04, 7:24 pm CST

@62: Sounds like you're suggesting we need to adopt god's law - Sharia, right? Oh, you meant YOUR god. What about HIS god? And HERS? Who picks which god?

By Michael on 2013 01 04, 7:24 pm CST

@62 Amen!

By Yankee on 2013 01 04, 7:29 pm CST

@62: I mostly agree with you, but I disagree that God has forsaken this country. He would never do that. Rather, most Americans are practical atheists (even if they pretend to be Christians), who have rejected Divine protection. He always extends the offer of His protection, but these fools reject it.

By Gene on 2013 01 04, 7:32 pm CST

@64: Yours is a transparent straw man argument. Try logic for a change and you might become interesting

By Gene on 2013 01 04, 7:37 pm CST

Actually, Michael, the Framers did exactly that--but they did not, as some assert, pick the Judeo-Christian God's law. Instead the law was written to reflect Natural Law, and the Declaration of Independence was a call to return to it. Natural Law's tenets coincide with many religions' tenets (e.g. don't steal), but that does not give one religion a lock on law. Read Russell Kirk if you want to know more (and natural law is not "law of nature; " it pertains to humans). Read the Virginia Declaration of Religious Freedom if you want to see how the framers thought--and that they did not prefer one religion over another. Even atheists will agree with natural law, except perhaps some expositions about its source.

And for those who like to consider the Constitution and its system in the historical context, consider this: The guy who was elected was president, and the second place was vice president. Obama/Romney in the white house together. When a second party was formed to run against the one first party, it was regarded by many as treasonous. But if you stop and think about it, a second party must always develop (perhaps the start of Marx's dialectic wasn't so far off?)

By Hadley V. Baxendale on 2013 01 04, 7:40 pm CST

To paraphrase Richard Dawkins, only religion can cause good people to do bad things. God's law somehow always seems to turn out to be "a law confirming whatever life choices I happen to have made myself", rather than some objective framework. May God protect us from a government based on God's law!

By E on 2013 01 04, 7:40 pm CST

@58 "They conspire together . . ."

Please unpack that for me, Andy. Exactly who is conspiring here?

By Yankee on 2013 01 04, 7:41 pm CST

A parallel process in Article V of the Constitution for the adoption of amendments calls for the calling of a constitutional convention by Congress upon the application of the legislatures of 2/3 of the states. While such a convention's purpose is limited to proposing amendments, in reality in could propose a wholly new system as happened with the 1787 convention, which was called to amend the Articles of Confederation. At one point in the 70s over thirty states had passed such a resolution motivated by budgetary concerns.

By Thomas Quinn on 2013 01 04, 7:43 pm CST

Looks like the Right's posse of chickens**t email harassers hasn't diminished since I wrote a VERY POLITE, CIVIL letter to one of the right-wing professors who uses to spew hate and fear in 2008. He wrote an unflattering article about my letter at and thoughtfully included my full name (not this one) and email address. How did I know he did that? I woke up with three hundred emails in my inbox calling me dirty names. People subscribed me to hundreds of listservs. The harassment continues to this day.

By Olivia LaRosa on 2013 01 04, 7:44 pm CST

Not sticking to this thread, but, if the good professor merely wanted a best seller, and a national stage, he just got it.

By Tom Youngjohn on 2013 01 04, 7:47 pm CST

Olivia, I'm sorry someone did that to you. I guess chickens**t email harassers exist not only on the left, but the right as well. Incidentally, I didn't know there were any right-wing professors left. I only knew one, when I was in college back in the '60s.

By William A. Wheatley on 2013 01 04, 7:51 pm CST

@70 - Society and "the system." Pardon my melodramatic phrasing. Hahaha!

@69 - I am not a fan of Dawkins' views -- I agree with Higgs that he's simply become another type of vituperous fundamentalist. But I agree with you here. Thankfully, so did our Founders. There literally has not been a moment in our history where people did not blame anything and everything on departures from divine (or at least "cosmic") will.

By Another Andy on 2013 01 04, 7:55 pm CST

@74 - I had a rarity. A right wing law professor. He retired; I was in his last course. He spent more time making fun of women being supreme court justices and calling them "honey" than doing Constitutional analysis. He will not be missed.

By Another Andy on 2013 01 04, 7:56 pm CST

With what does Seidman propose to replace the Constitution, either as a source of authority for the government's actions, or as the basis for a judicial check on them? And who will be the authors?

Napoleon once said that a constitution should be short and obscure, and ours qualifies. Obscurity confers power and discretion on the interpreter, which in our case is a judiciary enjoying tenure during good behavior.

The largely ambiguous work of those 200 year old propertied white guys writing in secret, as amended 80 years later by another bunch of propertied white guys, and as continually revised according to the opinion of the elite of the bar, gives pretty good service. I'd rather trust John Roberts and Antonin Scalia, with whom I often disagree strongly, than the work product likely to emerge from any freely and democratically elected constitution making body. Would you trust a body composed similar to the US Congress to write us a new one?

By Jack Cerf on 2013 01 04, 7:58 pm CST

@ 56 - Another Andy, if you rue the two party system here, why laud the essentially one-party system of Japan?

By NoleLaw on 2013 01 04, 8:00 pm CST

It is clear to me that none of you do any work on a Friday afternoon. Zounds! I should have saved my men for fighting at the weekends!

By General Cornwallis on 2013 01 04, 8:04 pm CST

Truly, is there any other occupation in America that even approaches the uselessness of "law professor"?

By Just Some Bloke on 2013 01 04, 8:08 pm CST

@78 - Japan has a one-party system, but it is based on consensus. The one party cannot go too far in any one direction without losing its consensus among the "sub-parties" that make it up. So, in a technical sense, it is "one party," but like any parliamentary system, that party is held in a fairly moderate place because of its need to maintain a consensus position.

I don't find that perfect, but I do find it vastly superior to this country tearing itself in half based not on objective fact and reason, but on simplistic opposition to whatever the "other side" wants. Brilliantly, the media allows people to believe they are taking positions when, in fact, they are being *given* them based on the political identities.

Actually, the reason I commented at all was that it seemed odd to imply that the U.S. Constitution was superior to those countries' -- especially superior to one that the U.S. basically wrote!

By Another Andy on 2013 01 04, 8:11 pm CST

@80 - I would say "Speaker of the House."

Wah, wah, waaaaaaah! *rimshot!*

Thanks folks, I'll be here all week. Tip your waitresses, please!

By Another Andy on 2013 01 04, 8:15 pm CST


I will only observe that in those cities dominated by a single political party, informal coalitions inevitably form and show their face during the primary (you might call them 'parties within party').
This is why I believe until somebody demonstrates to the contrary (and I have an open mind about this) that political parties are a natural outgrowth of human nature rather than a result of a design flaw in the political process.

By Yankee on 2013 01 04, 8:16 pm CST

"In this Constitution-free world, the president would have to justify military action with more than a reference to his powers as commander and chief." This would be a better state of affairs. Currently politicians can evade rigorous public policy discussions by hiding between vague constitutional powers. This not acceptable in a democracy. We deserve a discussion on the merits.

When you study constitutional law for 40 years, you see how it is a politically manipulative tool, largely empty of content. Invoking it should not be a trump card that insulates a politician--or judge--from public discourse.

By Realist on 2013 01 04, 8:17 pm CST

@ 81 - That same point can be made about our system. There are clearly factions with each party here.

Personally, I do not think that a two party system is necessarily an evil, as long as there is real competition between the two. Unfortunately, where, as here, the political parties get to draw their districts, real competition is quickly stamped out. In Florida, for example, only about half of legislative seats are ever contested by two parties. The state as a whole, however, is split about 50/50 between R and D. Take politics out of redistricting and you solve most problems you might have with a two party system.

Also, and this is directed to many posters here, we are not in some sort of unprecedented time of political gridlock, polarization, and overall national catastrophe. Do yourselves a favor and look up a periodical from the 1890s and see what vitriol each side heaped on the other. We are still a bit tame by the standards of yesteryear.

By NoleLaw on 2013 01 04, 8:34 pm CST

Seems like the good professor has been hugely successfully in publicizing his upcoming book.

By IndyCanary on 2013 01 04, 8:37 pm CST

@85 Although I agree that the "vitriol" has been around for a while (indeed, well before the 1890s), the national debt numbers, the percentage of adults outside of the work force numbers, the illegitimacy numbers etc all tend to establish that we have a "national catastrophe" on our hands.

By Yankee on 2013 01 04, 8:45 pm CST

@62 and 65 - you say God has forsaken us. How do you know? How do you know she ever favored this country? What did we do to deserve it? Slavery? Attempted genocide? Now that we have abolished slavery and Jim Crow and stopped killing Native Americans and given women the right to vote and passed human rights laws and stopped hanging horse thieves God has decided we no longer merit her favor? What do we have to do to get back in her good graces?

By redwood on 2013 01 04, 8:46 pm CST

As an Air Force Officer and as an Attorney, I am sworn to uphold the Constitution of the United States. Moreover, I took that oath freely, and without any mental reservations or purpose of evasion. I don't see any way to just walk away from the US Constitution, either ethically or even practically. Fortunately, our constitutional government system is also backed up by fifty state constitutions, even though hardly anyone knows what is in his own state's constitution. The provision for amending, and also the parallel provision for holding a constitutional convention, cumbersome though they be, are intended as guards against tyrannical government, so I would be loath to take some quick escape, no matter how persuasive Prof. Seidman tries to be. Also, if we cast out the constitution, we also cast out the bill of rights, and then how can Prof. Seidman be so sure he can continue to make his provocative comments without fear of reprisal ? (After all, he doesn't know whether the free speech guarantees are in his state's constitution)

To paraphrase Churchill, our constitutional democracy is probably just about the worst form of government, except for everything else that has been tried.

By Yenrab of Syr on 2013 01 04, 8:47 pm CST

The always lovely Megyn Kelly grilled the heck out of Professor Seidman during this afternoon's edition of Fox News' America Live. I was surprised by how doopy and flat-footed Seidman sounded; Georgetown is a top law school after all, and its professors tend to be on the bright-side.

By Yankee on 2013 01 04, 9:15 pm CST

#86 has spotted the grift! Quick! Someone strike up the vaudeville routine and dance him off the stage!

By Uh oh! on 2013 01 04, 9:18 pm CST

Comment removed by moderator.

By Jason on 2013 01 04, 9:20 pm CST

@74. Very good point.

@89. Yes. I think even the professor who is the subject of this chain took an oath to uphold the Constitution when he obtained his license to practice law as an officer of the court.

By William A. Wheatley on 2013 01 04, 9:26 pm CST

To all those going on about how wonderful and flawless our Constitution is because there is nothing better, consider the following. I think the following statement " order to form a more perfect union" is somewhere in the Preamble to the Constitution. While the learned Professor may have taken his argument too far by suggestion the Consitution be thrown into the thrash, I don't see anything wrong with seeking to achieve that "more perfect union' by tweaking certain provisions of the Constitution as has already been done 29 times. I would propose making the amendment process simpler e.g. constitutional amendments may be done through popular referendums rather than the now almost impossible method. Let's say we wanted to put term limits to our federal legislators (which would go a long way to fix our current gridlocked system), we can put it on the ballot during a presidential election.

By ReaganNYC on 2013 01 04, 9:27 pm CST

@94: To do what you propose would, in itself, require a Constitutional Amendment. Actually, I didn't hear anyone claiming that the our Constitution is wonderful and flawless. I suspect that all who have commented have nothing against the idea of amending it when there is sufficient public mind to do so.

By William A. Wheatley on 2013 01 04, 9:30 pm CST

#89 - that's easy. He just wants to throw out the parts he finds objectionable. The other stuff he's OK with. So we'll be OK as long as he always around to tell us what's what.

I just thought it was funny to characterize the U.S. Constitution as an illegal document, which I suppose is accurate if you're looking at it from a certain point of view. Maybe he's King George III reincarnated come back have his last word on the subject.

Anyway, I suppose on one level it would be nice if we (the non royal we - as in we as a society) could just disregard the parts of the Constitution we don't like or add stuff we think should be there, but we kind of do that in a way already, right? I mean, it is potentially an enormous pain in the ass to fiddle with the blasted thing, but it seems we've managed to do (remarkably) well finding stuff that the framers, in their haste, seem to outline explicitly in the document. To me that, the coolest thing about it and why I like it so much. Vive la Constitution! I guess I'm mixing my memes (or metaphors?). Whatever.

And don't get me started at how laughable the notion is that a law should be disregarded JUST because its "archaic, idiosyncratic and downright evil provisions." Boy, if we started to do that a lot of attorneys would be out of work!

By Uh oh! on 2013 01 04, 9:35 pm CST

@95: I believe there is more than sufficient public mind to end congressional term limits if you took a rough poll. Now, based on the method provided for amending the Constitution (the method is in the Constitution itself, and therein lies the crux of the problem), it is practically impossible to amend the Constitution today. How how do you go about fixing a flaw in something when the proposed method of fixing the flawed thing is in the flawed thing itself. You can see the flawed thing would need an external intervention to be fixed.

By ReaganNYC on 2013 01 04, 9:38 pm CST

And the short answer -- really -- is that there is no best option here. It's just a balancing act.

No, the Constitution shouldn't be able to be amended every time the majority gets a bee in its bonnet over whoever they want to discriminate against this era. The Constitution *is there* to protect certain rights from the tyranny of the majority.

Yes, it was supposed to be difficult to amend. But I offer that, in our contemporary paradigm, Amending the Constitution is now impossible for all practical purposes. And I don't think that was the intent either, nor am I certain it is wise.

But no, we also don't want judges being our only source of "amendments" based on their personal political beliefs. Citizens United was bad -- but it could be worse. And it may *get* worse if we can't keep our Court relatively balanced (and I mean that in *both* directions).

The bummer of course, is that even if we had a fix, we probably couldn't implement it because the powerful don't want to leave power and we couldn't amend the Constitution to *implement* any fix.

But if I could name one big fix that I think would help most in the long run, it would be tight limits on the reign of the Supreme Court Justices, and maybe even a requirement that the parties of the justices remain balanced.

By Another Andy on 2013 01 04, 9:39 pm CST

@98: I wonder how you'd go about any "big fix" without a branch likely to be adversely affected by the proposed fix (in your example the Supreme Court) pointing to some provision in the Constitution from which they derive the thing you are trying to fix (read take away). You realize this would mean resorting to the near impossible task of amending the Constitution to get over this hump. So we can all just concede we are dealing with a document that is almost impossible to amend (something the Founding Fathers did not envisage). In the face of this problem, what have our elected politicians and unelected judiciary done. They have simply invented crafty means of amending the Constitution by using terms such as "original intent", "living document" and intepreted the document to suit their political whims.

By ReaganNYC on 2013 01 04, 9:57 pm CST

@99 - I wholeheartedly agree. And hence why I have some sympathy for Seidman. The system has made itself unfixable from the inside -- has insulated itself from change.

I just don't know that there's a solution -- well, not one that any of us would find desirable.

By Another Andy on 2013 01 04, 10:00 pm CST

@86 (and others): I am not ready to admit that it is now impossible to amend the Constitution.

@97: I'm not sure there is yet "sufficient public mind" for an amendment. Sufficient public mind, in effect, requires 2/3 of the people in 2/3 of the states. For a really important matter that grips the "public mind" that is still doable. While we're at it, we could (if there were sufficient public mind) amend the method of amendment. I would not advocate making it easier, but I would favor the ability to initiate an amendment by referendum.

@98: What sort of balance would you like to see on the Supreme Court? -- 1/6 conservative Democrats, 1/6 moderate Democrats, 1/6 liberal Democrats, 1/6 conservative Republicans, 1/6 moderate Republicans, and 1/6 Liberal Republicans, or some other mix? Each of our two large parties is composed of a spectrum of factions; and there are smaller parties out there that could be allied with one or another faction within one or the other of the two major parties. Or would you prefer a Supreme Court that is composed of radical centrists? History shows that despite party affiliation, most justices do not toe the party line. That's as it should be.

By William A. Wheatley on 2013 01 04, 10:02 pm CST

@101 - I know, there are significant hurdles to "balancing" that may make it practically impossible. But I'm not willing to say that with enough brainstorming, we couldn't figure out something close.

By Another Andy on 2013 01 04, 10:07 pm CST

What is stressed is the system of federalism envisioned by the founders. Since the Civil War the nation has been on a piece by piece quitclaim of state soverignty to the federal government, in exchange for federal money for what should be the responsibility of each state, to wit: education, welfare, health, in short, everything except what only the feds can do; currency, bankruptcy, the common defense, and those otherwise enumerated powers. None of this works without the consent of the governed, but the "consent" has been given by representatives who think things will be "better" if only we had more money with which to do them, but not taken out of the hide of our citizens, rather, from the great bank on the Potomac. Before we abandon federalism, let us try it out again, and if unworkable, then proceed to wholesale change the document on which it is based.

By hw3 on 2013 01 04, 10:08 pm CST

@99: Only the Legislative Branch and the States get a say in the Constitutional Amendment process. The President and the Supreme Court have no say. The Supreme Court can't weigh in, either, on the "Constitutionality" of a Constitutional Amendment. Once adopted following the procedure provided in the Constitution, it is automatically Constitutional, and it automatically supersedes any other provision of the Constitution adopted previously that is in conflict with it.
@103: I agree. Let's try federalism again. This can be done State by State. Any State can simply take back jurisdiction over what the Federal Government took over using Federal funding, by refusing the funding and doing its own thing.

By William A. Wheatley on 2013 01 04, 10:29 pm CST

Tarnishes the profession of "law professor." Just another one demonstrating he is not living in the real world of the practice of law. Maybe he should be an expert witness on the law of governance in that Socrates re-trial before Judge Posner. On the other hand mauybe he should give our Constitution another chance (of maybe another century or two); It and our government are still babies in the grand scheme of history, and in another century China (which has survived several forms of government) may render both and this ranting professor's ideas obsolete..

By Realist on 2013 01 04, 10:41 pm CST

@105 "Maybe he should be an expert witness on the law of governance in that Socrates re-trial before Judge Posner."

Take a look at his interview today on Foxnews with Megyn Kelly. FWIW, I am not a fan of Fox or their ideology, but Seidman presented himself as a nutjob and had his head handed to him. I doubt he would last long dealing with the likes of Judge Posner. It is distressing to see Georgetown tolerate such a decline in scholarship and sad to see him go off the rails like this. He was much more articulate a decade ago.

By KG on 2013 01 04, 11:11 pm CST

This country has been leaderless for the past few decades, last few presidents being but a joke and government - a bad joke. An old obsolete Constitution has helped the country not to fall apart in a time like this. Of course, our dear Professor seems to have overlooked this simple truth.

By Anna Gray on 2013 01 04, 11:12 pm CST

Duh? Yes, the system for amendment is too arduous, indeed the most difficult in the world. However, rather than abandon any sense of orderly government to Professor Seidman's free-for-all of constitutional disobedience, why not reform the amendment process to make it more feasible and participatory, while still maintaining super-majority thresholds to balance orderly change and continuity? For such a proposal, see

By Timely Renewed on 2013 01 05, 12:23 am CST

@106 In Professor Seidman's, he was charmed by the very lovely Miss Megyn.

By Yankee on 2013 01 05, 12:46 am CST

The Prof's argument is heretical and outrageous. But lots of vigorous discussions start that way, and it's damned interesting.

What's disappointing is that the "threats" thing is the headline. Buck up, folks, it's sticks & stones that hurt, not silly-ass emails.

By Roger Curry on 2013 01 05, 1:03 am CST

OK.....put the US Constitution in the trash can and then what? Turn over the creation of a new "document" to the current Congress? the same folks who approve legislation and haven't read it? ....or academics like Seidman? LOL yeah right.

By WINGCMDR on 2013 01 05, 2:18 am CST

As one who swore an oath to defend The Constitution against all enemies foreign or domestic I do view the document as sacred. Also, I view divided gov as a wonderful thing. It amuses me that some of you think an unbridled George Bush or Obama would be a good thing. Granted, they have used the Constitution as a kleenex, but the idea of having any of our present or recent leaders designing a new system feels me with concern. I would much rather they not get along and not pass unmitigated disasters such as Obamacare or invasions of Iraq.

By Army Lawyer on 2013 01 05, 4:17 am CST

Mayans - Two to beam up!!

By Bob Norman on 2013 01 05, 5:37 am CST

With two Gtown degrees, including my J.D., I'm kinda embarrassed by this guy. I don't remember him as one of the leading lights at the Law Center, that's for sure. His PR campaign to promote his book (ie., his NYT Op-Ed) should be seen for what it is, and without diminishing my alma mater. Last year, we Hoyas had Sandra Fluke; this year, Prof Seidman. Ms. Fluke has a bright future vs. the good professor (who clearly saw better days maybe a few decades ago - BEFORE he started at Gtown!).

By Hoya Times Two on 2013 01 05, 8:08 am CST

The greatest nation ever in the history of the world was formed and prospered under the constraints of the United States Constitution. (I mean “greatest” in terms of economic prosperity, military might, and freedom of its people.) Had our federal government remained under those constraints, subject to duly ratified amendments, we might have been able to continue as the greatest nation on the planet. It is only because We the People have ignorantly allowed the federal government to grow beyond constitutional bounds that we are going to suffer stagnation and decline. It is only because people listen to “sages” like Seidman that our nation is being led into tyranny (via collectivism, leveling, socialism, communism, or any other name you wish to assign to it).

By healthynut on 2013 01 05, 9:04 am CST

I agree fully with your statement in #3. Well said.

By Pacific on 2013 01 05, 10:48 am CST

Many of our current officials while taking an oath of office to uphold the Constitution, do not follow the Constitution. There should be consequences for this. Instead our rights are being trampled.

By Pacific on 2013 01 05, 10:53 am CST

@117 Instead our rights are being trampled.

Which of your rights are presently being trampled?

By Johnny Yuma on 2013 01 05, 6:25 pm CST

HMMM!! Anything not expressly stated in the Constituion is "reserved to the states" or something like that.Excuse the paraprhase but the constitution is up stairs in my suit coat pocket.

There is a consistent political "stalemate." The recent "non Fiscal Cliff" being the perfect example of something which could have been agreed to pretty much anytime. And yet, despite this we don't vote out people that consistenly do this "to the people."

A constitutional convention is much more "workable" than amending the Constitution given the consistent stalemate by our elected leaders. . If you want to read something read "The More Perfect Constituion" which address things like term limits, including the Presidents, etc. etc. which every colony had when the Constitution was drafted by persons who agreed to give up things that made them powerful.

By Robert Paul Norman on 2013 01 05, 6:28 pm CST

@115 The greatest nation ever in the history of the world was formed and prospered under the constraints of the United States Constitution

Actually, it was formed under the Articles of Confederation, the USA's first constitution. Because it wasn't prospering, the Articles were superceded by the present Constitution.

By Johnny Yuma on 2013 01 05, 6:28 pm CST

Nothing against the comments (including mine of course). But comments and op-ed pieces get us nowhere. We need action. Political Action followed by consistent policy. And, please all branches of governement "hope" and "change" and "fairness" are not polices.

The Constitution (capital letter intended) is the Perfect example (capitals intended again) of the art of political compromise. A Constitutional Convention (capitals intend.....) gives the best chance to effect that aim.

I turned of the notify bc I am going Goose Hunting (not with Dick Cheney by the way) but with my sons. SO stay away from the 2nd amendment or change it. I've got guns. And, I turned off the personal information check mark also - so no one know exactly where my guns are!!


By Robert Paul Norman (from this point Two to Beam Up on 2013 01 05, 6:48 pm CST

In 1860, leading up to the Republican Nominating Convention, the then-leading candidate, William Henry Seward, happened to remark that there was a "higher law" than the constitution. This eventually turned off enough convention delegates to the point that Abraham Lincoln (who chose to follow the constitution as written) rather than Seward became the 16th president of the United States.

In other words, the notion of something other than the constitution being the supreme law of the land has already been rejected. This is not the only instance. As I recall, Justice Marshall felt that Marbury v Madison turned on the supremacy clause.

My point is that our dear friend Professor Seidman seems to think there is or ought to be a higher law than the constitution, and we should be following that. Unfortunately, that "higher law" as such is only in Prof. Seidman's head and is entirely of his own construction. God help us all if that should ever become the Supreme Law of the Land!

God Bless the Constitution of the United States of America!

By Yenrab of Syr on 2013 01 05, 6:56 pm CST

Lincoln was also a much better wrestler.

I doubt that God cares much about the Constitutiton - he has sparrows to keep track of, after all!

I think the Constitution created by people, has to be taken care of by people and changed by people. Me, I would prefer reasonable ones.

By Two to Beam Up on 2013 01 05, 8:05 pm CST

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By kato on 2013 01 05, 10:19 pm CST

As I read the professor's comments, one of his criticisms was that the framers (of course, revolutionary insurgents in their day) "acted illegally under existing law." I am not sure how the professor missed this when taking his various oaths to support the constitution, and in the course of forty years of allegedly teaching it. A necessary corollary of his point is that, in order to ever arrive at a valid constitution, we would have to cede control back to the British Empire (or so much of it as remains) and then ask the United Kingdom for permission to frame an independent constitution. The validity of all treaties (including land acquistions) concluded during the period of our illegal rebellion against the lawful authority of the United Kingdom would be in doubt, as would alll judicial decisions. Presumably, Parliament and the House of Lords would be some years in determining which of them all the United Kingdom might consent to ratify at this point.

I am not in favor of any of the foregoing. The professor ignores consideration of the point that the framers "thought it was fine to own slaves" precisely because that was permitted in the colonies under British law. He also ignores the reliance which many generations of immigrants have placed on the precept that Britain did not rule the land to which they were going. Similarly, a number of nations, at various points over the centuries, have surrendered to "the United States of America" in apparent wars, in open reliance on a belief that the United States existed as an independent nation. I do not see how, at this juncture, it would even be possible to put everything back as it should be according to Seidman, and (more importantly) I do not see why anybody in this country (with the possible exception of the indigenous tribes) would want to. The professor seems to be not very smart at all, so I am glad I did not obtain my degrees from that school where they are paying him to teach people.

By B. McLeod on 2013 01 05, 10:51 pm CST


By KATO on 2013 01 05, 11:04 pm CST

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By KATO on 2013 01 05, 11:19 pm CST


By KATO on 2013 01 05, 11:24 pm CST

The Professor, committed the unconstitutional crime of treason, he should be fired from Georgetown University Law Center.

By KATO on 2013 01 05, 11:27 pm CST

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By KATO on 2013 01 05, 11:35 pm CST

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By KATO on 2013 01 05, 11:42 pm CST

Now is not the time, Kato. It is not the time.

By B. McLeod on 2013 01 06, 12:02 am CST


By KATO on 2013 01 06, 12:16 am CST

I remember the days when paranoiacs had more interesting compulsions than radically rising up... to defend the constitutional status quo.

By NoleLaw on 2013 01 06, 12:20 am CST

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By KATO on 2013 01 06, 12:25 am CST

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By KATO on 2013 01 06, 12:28 am CST

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By Two to Beam Up on 2013 01 06, 12:35 am CST

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By KATO on 2013 01 06, 12:54 am CST

I withhold judgement but basically, I'm with Deadhead @39. If the current Constitution continues to permit personal ownership of machine guns and bazookas, I favor wholesale change. But if the growing public support of recreational pot and gay marriage is upheld, I'm inclined to continue on the long strange trip. But then, I also favor Red State secession at will, so maybe my opinions aren't the most temperate.

By MattDC on 2013 01 06, 1:28 am CST

No. 137, I forgot to put mine in quotes, but I read yours with a French accent, and I'm pretty sure we've got the same Kato in mind.

By B. McLeod on 2013 01 06, 4:20 am CST

Who was that amusing then annoying, and now banned, regular--Ellyn Somebody? Had the wired referenced to her husband (we picture sitting meekly in the corner, hostage like?)
At least she used CAPITALS intermittently to make her POINT.

Oh well, even the trolls get their say. He's over at the Nitrous Oxide forum. too.

By Hadley V. Baxendale on 2013 01 06, 4:49 pm CST

The famous "Ellen Barshevsky."

By B. McLeod on 2013 01 06, 5:16 pm CST

"What is the flying velocity of of African swallow." (No. 140 and 141).

No. 141, Hadley v. Baxendale was the case my contract professor used for our first 6 WEEKS of Contracts 1. As we babbled on he would often say: "These words, THEY MEAN something." I use that a lot.

Of course, Justice Bork was nominated for the Supreme Court at that time, as well. And now, I don't remember who even got appointed. Anyone??

I know it wasn't Jerry Garcia, though I do have a couple of his ties (because they look great) and a tie by Jerry Garcia is nearly as bizarre as some of the comments.

I also tell laywers all the time that every situation has a rock lyric that is applicable, as a former musician myself. Think I will try this one - before I look at my lottery tickets:

"Saw a deadhead sticker on a cadilac - a little voice inside my head said, don't look back, you can never look back."

I remember that is the Eagles but I don't remember who was confirmed in place of Justice Bork. HMMMMM!!!! Where the hell are those lottery tickets.

By Two to Beam Up on 2013 01 06, 5:22 pm CST

MATTDC@139, the Constitution doesn't "permit" anything with respect to guns. If forbids Government from infringing the pre-existing, individual right of the people to keep and bear arms. That doesn't mean that Congress is unable to issue some regulations with respect to guns. By regulations enacted by Congress individuals cannot own machine guns and bazookas without special federal permits. They can't own assault rifles either. The guns the anti-gun crowd calls assault rifles are not assault rifles. Further, there is no evidence that any anti-gun regulations has ever had any negative effect on crime.

By William A. Wheatley on 2013 01 06, 7:23 pm CST

The professor has a point but his proposed solution was not wise or feasible. The very idea of original intent - over 200 years after the fact is nonsensical. How can anyone devine the intent of people whose only experience with firearms was with flintlocks and muskets? How can anyone know what manner of second amendment they would have crafted had they been able to foresee automatic weapons and 100 clip magazines? How would they have reacted to 20 dead children killed by a crazy man with a weapon they could not have have conceived of? It is true that tighter gun regulation may not reduce crime especially if everyone is allowed to keep whatever firearms they currently own. But that is no reason not to try some common sense measures like closing the "gun show" loophole and more thorough background checks and make anything more than a ten round clip illegal. We have to get over our reverence for the Constitution. The framers weren't saints. They were just wise men (maybe we would have had a better document if you wise women had some input), but they were incapable of predicting the impact of technology on the future of our country. We don't need a new Constitution, but it does need to be updated and modernized.That, however, is impossible in the present political environment. Over 200 years later this country continues to be divided over how much govenment to have. We need an honest national discussion about how much govenment is too much. Conservative complain that their rights are being trampled on by the government but they never seem to be able to articulate what rights they are being deprived of. They complain that government is too big but do a poor job of explaining how it can be made smaller and how that will benefit the majority. And liberals won't acknowledge that there are limits to what government can and should do. And so we muddle on talking at each other but not listening.

By redwood on 2013 01 06, 9:06 pm CST

The framers probably realized the majority of the people would be too stupid to come to a sensible agreement about many aspects of government, and so left the constutution and the courts to supply the working rules to run the country while the politicians are busy shouting at each other.

By B. McLeod on 2013 01 06, 9:41 pm CST

When I teach con law to HS kids - my first statement if always "the federal government is a limited government" per the Constitution. Stop looking to them for help.

Just one example that is very timely, "the rights of the people to bear ARMS, SHALL NOT be infringed." The framers knew there would be advances in weapons. They could have written muskets, cannons, spears, bows and arrows or clubs - they are all arms. But they made it general? Why did they do that?

SO "the People" could protect themselves from whatever Arms were used against them. And, without the governement deciding it for them, or asking the governement how to do it.

I don't worry that the government is fractured. I worry that is so slow.

For instance, the National Guard (formerly the miliita BTW) is in Afghanastan. If someone breaks into my house, what possible sense does it make for me to wait for one of them to fly home through 12 times zones, to protect me. None, obviously.

I have to be able to do it myself.

By Two to Beam Up on 2013 01 06, 10:39 pm CST

Two to Beam Up@147, I could not agree with you more. A broken government is much more benevolent than a tyrannical government. Our only means to prevent a tyrannical government (other than the Constitution itself) is an armed populace. If the government treats the Constitution like just a piece of paper, then there is no one to enforce it other than the armed population. Why do I carry a gun? It's much easier than carrying around a Stryker Brigade -- or a policeman.

By William A. Wheatley on 2013 01 06, 11:36 pm CST

Two to beam up - you don't know any better than the rest of mankind what the framers had in mind when they drafted the Second Amendment. They may just as well have been concerned about fending off Indian attacks, slave rebellions or their English overlords. I don't know where you live that you are so concerned about protecting yourself. It's not so dangerous here. But if someone breaks into my home a load or two of 00 buckshot will do a lot more damage than an assault rifle. Actually though a .50 calibre machine gun or a bazooka might be more effective, but I might take out a few of my neighbors as well. If your theory of the meaning of the Second Amendment is correct how can Congress ban machine guns and bazookas or private ownership of nuclear weapons? I think the only reasonable interpretation of the Second Amendment that can be attributed to the framers is that Congress cannot make any law that infringes on the right to own flintlocks, muskets, tomahawks or skinning knives. Although you could probably make a case for a muzzle loaded cannon.

By Redwood on 2013 01 07, 12:39 am CST

To To Beam Up: Oh, but we do have ample evidence of exactly what the founding fathers had in mind regarding the Second Amendment, from the contemporaneous papers, articles, and correspondence, which have been well-published and researched. They had in mind (1) the need of a citizen to keep and carry arms to protect himself and his family and neighbors against criminals, Indians, thugs, and anyone else who would threaten them; (2) the need of the citizens to form into ad-hoc militia, using their own weapons, to (a) defend their immediate communities against attack by Indians, mobs, or invaders if the military was not positioned to make a quick response; and (b) to overthrow the government if it became tyrannical. It is clear that they desired the citizens to have the ability to keep and bear arms of a type similar to those that might threaten them. This was their clear intent.

By William A. Wheatley on 2013 01 07, 3:03 pm CST

While the Second Amendment is an important part of our Constitution, it is not the topic of the article we have been discussing, which means the string has gone off-topic. The original topic was whether the Constitution should be abandoned. I think the consensus of this forum is that it should not be abandoned, but that perhaps it should be amended. I doubt many of us would agree as to what part of it should be amended. The Bill of Rights is not one part I would amend. I would suggest that further comments be directed at the original topic.

By William A. Wheatley on 2013 01 07, 3:26 pm CST

@150,151 I think you missed my point. It is hardly off topic to point out the difficulty in trying to apply a document over 200 years old to legal, ethical and moral issues that have arisen precisely because of modern technology. The Second Amendment is a perfect illustration of that. Neither you nor anyone else can possibly know how the framers would have crafted a Second Amendment had they known about the death and destruction one mentally ill person can cause with weapons they likely could not conceive of. As long as the judiciary thinks it can make that determination our Constiution does not always work in many respects.

By redwood on 2013 01 07, 4:09 pm CST

@152: I concur. To all who think strict adherence to a 200+-year old document is the only or even the best way forward, consider the fact that historically, societies that have failed to adapt to the ever-changing times have ultimately crumbled. While I disagree with the learned Professor's suggestion that our Constitution be abandoned, I believe we as a people need to face up to reality and consider amending the document to better reflect the times in which we live instead of allowing a politically motivated judiciary "interprete" the document into oblivion.

By ReaganNYC on 2013 01 07, 5:07 pm CST

@152, I was not accusing you of going off-topic. It's just that the topic - in many of the posts, including some of mine -- degraded into a discussion of the Second Amendment. @153, I agree with you in general, except that strict adherence to the Constitution, regardless of age, is necessary for the legitimacy of law in this country, since all laws are dependent on it. I endorse the idea of amending it. The Constitution itself anticipates and enables this. The only thing that prevents amendment is lack of a public consensus for a given amendment. I would not advocate amending any of the Bill of Rights, as I believe that they are fundamental rights that exist regardless of law. Further, there is no evidence that any legal restriction - or lack of legal restriction - on gun possession has ever affected the crime rate at all in any direction. In fact, the evidence is that in all cases, gun violence has increased when gun restrictions have increased. The issue of a madman using a gun to produce mass carnage is a separate issue. The issue is more about his madness than it is about the private possession of guns.

By William A. Wheatley on 2013 01 07, 6:34 pm CST

@154: Without devolving into the gun debate (which is off-topic here), I'd just respond to your statement that "...a madman using gun to produce mass carnage..." The so-called "madman" would not be able to produce mass carnage if the gun he lays his hands on can only fire 1 or 2 bullets. So the issue is, to a great extent, the type of guns that individuals are allowed to possess. If a regulation says an individual can only have a gun that fires a maximum of five rounds, that limits potential victims to five should a madman get his hands on the gun. The number of bullets a gun can contain is proportional to the number of potential victims in case a madman gets the gun.

By ReaganNYC on 2013 01 07, 7:08 pm CST

Have we really had 150+ commenters with nobody noticing (or choosing to mention) the phrase "commander AND chief" [sic]?! (*sigh*)

By jalp on 2013 01 07, 9:13 pm CST

@154 I don't disagree with your last three sentences. But it is far easier, notwithstanding the politics, to make common sense gun regulations than to identify a potential mass murder in time to stop the mass murder. Will gun regulation be effective immediately? Probably not but in time it should be somewhat of a deterrent. And there is no reasonable argument not to try. The only thing that anyone will be deprived of is the joy of firing off multiple rounds at a firing range. It is more fun to blow things up with artillery but so far the gun lobby has not recommended allowing everyone to possess a canon. If protection is the issue it seems to me that a handgun with a six or eight round clip would be much more accessable in the event of a break-in which is the only real threat. A shotgun would be just as effective and you don't need much time to point it in the right direction. America has the most liberal gun laws in the world and the most gun violence. Why can't you make that connection?

By redwood on 2013 01 07, 9:29 pm CST

@157, the first of my last three sentences was a statement of fact, not of opinion, so I guess you disagree with facts. There are probably several million guns of the type used in the Sandy Hook shootings out there, and very few have been used in any crimes. In fact, there are more than 300,000 actual licensed machine guns in private hands, and, according to the FBI, not one of these has ever been used in any crime. There are a great many guns that come standard with ten-round magazines, including many handguns. These are favored by self-defense advocates and used by the police. Would you ban them? If you do, the police won't have them either, because no manufacturer can afford to make guns only for the military and the police. If multiple-round magazines are banned, I will be deprived of the joy of defending myself against an armed gang of hoodlums. A shotgun (at least a shotgun of the type that can be concealed easily) is not much use when I am walking down a dark street. America does NOT have the most liberal gun laws in the world. Switzerland, for example, has much less strict gun laws, and REQUIRES every household to be armed. It has among the lowest rate of gun violence in the world. Further, America does not have the most gun violence per capita. I think Syria takes the cake on that, beating even Afghanistan. Given that there are about 300 million firearms legally in private hands, most of them capable of firing more than 2 or three shots without reloading, there is not going to come a time in which a madman cannot get his hands on one. Even in Great Britain, with among the strictest gun control laws in the world, criminals have no problem acquiring semi-automatic and even automatic rifles (machine guns). The citizens have the right to be armed as well as the criminals who might assault them.

Now -- back to the Constitution. We're stuck with it, until and unless we amend it. We are not capable of discarding it without discarding the entire body of US law and jurisprudence. If you want to amend it, go ahead. A proposed amendment is being introduced now, I have heard, that would, if adopted, remove term limits on the Presidency. I don't think it will succeed, because the only people I know who favor it are hard-left-socialist/Marxist Obama supporters.

By William A. Wheatley on 2013 01 07, 9:54 pm CST

Mr. Wheatley please reread my last comment. I actually did not disagree with your last three sentences. Also I apologize. I should have said 8 or 10 round clip. Your point about Syria was just silly. And with respect to Switzerland I guess there are exceptions to every rule. As somewhat who voted for Obama - twice - I would happily do so again considering the alternatives we were presented with. But I don't get why everyone who disagrees with you folks on the right must be referred to as Marxists/socialists. That certainly does not add to the dialogue and we do need open discussions about these issues. I perceived your comment to imply that anyone who voted for Obama is a Marxist. I'm not. I served my country proudly in Vietnam and would do so again and while I may be a minority among my fellow brothers in arms it is not a significant minority. The name calling serves little purpose and is often quite inaccurate. Try to maintain at least a modicum of civility.

By redwood on 2013 01 07, 10:28 pm CST

"What a whining little dork Seidman is. He suggests abandoning a constitution and then complains that many vehemently object?"

@44, the name "What a simpleton" was really the pot calling the egg black. He absolutely has the right to complain that people are making actual threats against him. I am shocked, shocked beyond belief that someone who seems to purport to be from the Right would defend threats against a man's life because you don't like what he has to say.

Read the original op-ed. Seidman doesn't find the idea of a document defining and limiting the powers of government "evil." Even a simpleton like you should be able to infer that much from the fact that he wants to replace it with an updated document {gasp!} defining and limiting th powers of government. I'm guessing that the evils Seidman refers to were things such as the implicit approval of slavery, and the valuation of black slaves as three-fifths of a person. Of course, I may be speaking out of turn when I assume that YOU and YOUR "fellow travellers" would actually agree those provisions were "evil." You are free to disagree with me, even publicly if you'd like to. And should you decide to do so, I would gladly defend with my life your right to speak your abhorent words free from threats against your life.

By Jarrod on 2013 01 07, 11:44 pm CST

@147, I think your comment illustrates why some of Seidman's arguments may be valid. I have always felt that the Second Amendment, as drafted, is completely incongruous with the Second Amendment, as implemented in modern times. Ignore for now the various restrictions on hand guns and long guns, which I think are strictly speaking unconstitutional, but which a sizeable population of Americans have implicitly accepted. When you start talking about allowing American citizens unfettered access guided missiles, chemical, biological, or nuclear weapons, or vehicle mounted destructive devices, that becomes a battle that even the most ardent Second Amendment rights advocates don't bother spending resources to fight. I agree with many out there that Seidman's conclusion is wrong--two hundred years of jurisprudence, most of which was well-decided, should be preserved if at all possible. However, within that jurisprudence you also find two hundred years of America's best legal minds whittling away at the very Constitutional protections that Seidman's worst detractors accuse him of discarding.

Somewhere along the line, people decided that it would be easier for judges to "interpret" the Constitution than for the politicians to build the consensus needed to amend it. I would rather see the Commerce Clause modified to give the federal government limited powers over a clearly delineated set of commercial activities, and have all other areas of non-interstate commerce remain inviolate, than have the federal government's powers limited by the current, strongly worded Commerce Clause... as interpretted by cases such as Wickard v. Filburn.

Many other commentors have raised great points about why it would be impractical or undesireable to rewrite the Constitution. I especially worry that if replacing a Constitution is too easy, then any new Constitution will have questionable authority right off the bat. However, Seidman's article is commendable if only for being a great starting point for a conversation about the Constitution, how diluted its protections have become even under the watch of "Conservative" justices and politicians, and more importantly, how we can fix the system without discarding it.

I don't have the answers, but I imagine that complaining about liberal Jew-Marxist HitlerBama supporters isn't one of them.

By Jarrod on 2013 01 08, 12:24 am CST

@ Tyrone #27.

I couldn't agree with you more. To go down the road of any constitutional convention and/or amendment would mean only one thing: the complete erosion of our rights and complete subjugation of our people. Imagine our current constitution being re-written by the Koch Brothers. Imagine the Constitution being supplanted and overrun with fascist corporatist ideals and rules which would then be irrevocably enshrined in a new constitution. One has only to imagine the monied class and corporate lobbyists re-arranging our entire constitutional system to suit their respective needs. My God they can't even draft a simple tax bill without corporations running rough-shod over the process. ...and some of you really want to see them get their greasy little mitt's on the one document that protects us?!?! Fools. Beware of what you ask for. You just might get it.

By Pierce on 2013 01 08, 12:53 am CST

Sorry, Redwood. I didn't read the "don't" in your first sentence. I am a quick read, but that time I read too quickly.

I DID NOT say that anyone who voted for Obama was a Marxist. I said, and I quote, " the only people I know who favor it are hard-left-socialist/Marxist Obama supporters." I did not accuse Obama supporters in general of being hard-left-socialist/Marxist Obama supporters. However, I do know that there are some of his supporters who are hard-left-socialist/Marxists (and some of them are in the White House and in Congress and the Senate). The only people whom I know who support amending the Constitution to remove term limits on the Presidency are hard-leftist-socialist/Marxists who also support Obama. That's a small, but significant and very dangerous, group.

By William A. Wheatley on 2013 01 08, 5:09 am CST

@158 & 163: Wow counselor!!! So much for civil discourse. No wonder there is such division and vitriol in our politics. You state you have "heard" of a constitutional amendment to eliminate presidential term limits and further state "the only people you know." Unless you can point to a credible source for your information, you as a lawyer should know that these sorts of statements don't pass the smell test. I wonder where you get your information - Fox News maybe. Please lets leave the McCarthy era witch hunt in the dustbin of history where it rightfully belongs. You know your argument is disingenuous when you go from ” the only people I know who favor it are hard-left-socialist/Marxist Obama supporters" to the attempt at clarification to state "I did not accuse Obama supporters in general of being hard-left-socialist/Marxist Obama supporters."

By ReaganNYC on 2013 01 08, 1:58 pm CST

@ 164 ReaganNYC
Latest Title: Proposing an amendment to the Constitution of the United States to repeal the twenty-second article of amendment, thereby removing the limitation on the number of terms an individual may serve as President.
Sponsor: Rep Serrano, Jose E. [NY-15] (introduced 1/4/2013) Cosponsors (None)
Latest Major Action: 1/4/2013 Referred to House committee. Status: Referred to the House Committee on the Judiciary.
Again see:

By Pacific on 2013 01 08, 2:37 pm CST

@165: Thanks for the info. Much better than the rant about "hard-left-socialist/Marxist Obama supporters." Now we can all see that a proposed amendment sponsored by one congressman with no co-sponsors has very little or no chance of gaining any traction. The knee-jerk reaction from commenters like #158 & 163 above adds nothing constructive to the discourse.

By ReaganNYC on 2013 01 08, 3:28 pm CST

@166: What was knee-jerk about my response? You wouldn't even know that such an amendment had been introduced if I hadn't told you, so please don't say that I contributed nothing constructive to the discourse. If opinions that disagree with yours are automatically not constructive, perhaps you should find a forum that contains only those who agree with you.

There are Marxist Socialists in this country. They didn't all vanish when the Soviet Union collapsed. They support Democrat candidates, when they support any candidates, unless they support someone of the Green Party, the Socialist Workers Party, or some other irrelevant party. They certainly wouldn't support a Republican, in my opinion. A number of self-proclaimed Marxist Socialists spoke out in support of Obama, and those I know personally do support Obama. There is nothing knee-jerk in that; I'm just stating facts.

Marxist socialism is inimical to the principles on which this country is founded. A government with Marxist socialist policies would result in armed revolution against it. I do not believe a known Marxist socialist could be elected to public office at the Federal Level. I agree with you that I think this amendment is going nowhere. Rather than attacking me for stating who I knew was in support of the proposed amendment, why don't you do something constructive and state what you think of the merits of the proposed amendment?

By William A. Wheatley on 2013 01 08, 3:50 pm CST

Mr. Wheatley - you really need to get over the paranoia endemic to the political right wing. Your posts seem to harken back to the days of McCarthyism. Red baiting has always been more harmful to the country than a few misguided souls who hoped to bring communism to America. Fear not. It does not work. The Soviet Union proved it. China and Vietnam are proving it today - they will both evolve into democracies without any help from us. The Socialist Workers Party (4,112 vots for its presidential candidate in 2012) is no more fearsome than the Red Hat Society (who didn't have a candidate but I am willing to bet that if it did she would have garnered more votes). The political divide is all about how much government we want. We ought to be able to discuss that rationally without the name callling.

By redwood on 2013 01 08, 4:09 pm CST

@167: First, like I stated above, I don't think the proposed amendment is going anywhere and I personally do not support it. ( FYI: Bloomberg, a Republican-cum-Independent manipulated term limits in NYC to stay in power- I wouldn't call Bloomberg a "Marxist/Socialist"). Second, I stand by the "knee-jerk" comment because in the hyper-ideological times we live, we seem to have lost the ability to analyze anything without resorting to unnecessary name calling. I could easily call any right-leaning movement "Fascist or National Socialist", but that would only inflame passions and damage any attempt at civil discourse. If you had introduced your topic about a proposed amendment to eliminate presidential term limits without the inflammatory qualifiers, we could have delved right into analyzing the merits of such a proposal. As you can see from our comments so far, these straw arguments derail legitimate public discourse.

By ReaganNYC on 2013 01 08, 4:10 pm CST

This is off topic --are posters traceable? If so, how?

By Pacific on 2013 01 08, 6:08 pm CST

I hope the abuse is not from any member of any Bar. In this profession we must disagree. He has a right to state what is on his mind.

By Augustin Ayala on 2013 01 08, 8:24 pm CST

For the record, I am not "red-baiting." I am what most consider a moderate Republican, not a member of the far right. However, I am aware that there were in the past Communists in this country who were active agents of the Soviet Union, as was the Communist Party in this country, and that they had actively infiltrated the US Government. I disagree with McCarthy's tactics, as I think they "tarred and feathered" ordinary leftists who were not a direct danger to the government and to the national defense. Nevertheless, the Communists who infiltrated were a danger. The Communists who were active agents of the Soviet Union did not depart for Russia when the Soviet Union collapsed. They remain here, and some are active in politics.

I am not a "paranoid" right-winger. I am a moderate who is justifiably suspicious of the far left. I am not calling anyone names, and I did not call anyone on this forum names. I am simply pointing out the fact that certain Communists who are known to me personally support amending the Constitution to eliminate the tow-term limit on the Presidency. I will not raise the topic again, unless I am again challenged on it.

By William A. Wheatley on 2013 01 08, 8:33 pm CST

One of the benefits of the "Notify me of follow-up comments" box is every time I get a notification, the ABA's auto responder truncates the last word of the article title, so now it looks like:

"Law Prof Who Urged Abandoning the Constitution Gets Abusive and Threatening"

Seems like the ABA's computer wants Sideman to put up his dukes and dish some out to the haters, no? Well, good to know where the robots stand.

By KG on 2013 01 08, 9:00 pm CST

For a man who is not a "paranoid right winger," Mr. Wheatly has offered a remarkably effective and persuasive imitiation of one.

But if he insists that, in fact, he is not one, then I would ask him what a "paranoid right winger" believes and articulates that he does not.

By AndytheLawyer on 2013 01 08, 9:04 pm CST

I happen to know a couple of paranoid far-right-wingers (PFRWs). I also know a couple of far-left-wing (FLW) Communists. The PFRWs believe the following is fact:
1. There is a comprehensive left-wing conspiracy to move step by step through gun control regulations to outright confiscation of all guns in private hands.
2. Those left-wingers are actually Communists who are part of a world-wide Communist conspiracy to progressively take over the governments of the world and then establish a world-wide Communist dictatorship.
3. Obama is one of them, a secret Communist, and, in effect, the "Manchurian Candidate," fronting for them and just pretending to be an ordinary left-winger.
4. The FLWs plan to systematically infringe, step-by-step, on Constitutional liberties. Bush (who was also a FLW masquerading as a liberal Republican) began the process with the Patiot Act's permissions to the federal government to eavesdrop without warrants.
5. In addition, Obama is a Muslim who is actively supporting the Muslim takeover of the world by withdrawing US troops from Muslim lands, bowing to the supremacy of the Saudi King, and working to get Shariah law adopted in the US.

As I think you all know, I do not believe any of these things, so I am not a PFRW. Those who are, are so numerous that they give me pause. I'm a little to the right of George Bush, but a little to the left of the center of the Republican Party. That's why I have very little influence in my local Republican Party organization. I am too radically moderate to appeal to them.

By William A. Wheatley on 2013 01 08, 9:21 pm CST

Oh, and the PFRWs are buying arms and ammunition at a furious pace, along with survival foods, etc., to prepare for the coming civil war between the leftists and the true Americans.

By William A. Wheatley on 2013 01 08, 9:22 pm CST

@175: For someone who is supposedly not a PFRW, you sure know a whole lot about what they believe.

By Completely Befuddled on 2013 01 08, 9:42 pm CST

#177 -- I don't see a contradiction here. For example, I know a very great deal about what Republicans and Christians believe and yet I am neither.

By AndytheLawyer on 2013 01 08, 10:24 pm CST

Mr Wheatly-Paranoia is a mental disorder. Paranoids should not be allowed to own guns. All the more reason for common sense gun regs.

By Redwood on 2013 01 09, 1:56 am CST

@177: I know what the people I know believe -- on the left and on the right.
@179. Define paranoia. Yes, paranoia is a definable mental disorder. However, there are various degrees of paranoia. Most people are paranoid in one way or another. For example, you are paranoid with respect to those who are right of left. I agree that those who have mental disorders that could make them a danger to society should (a) be locked up until they are "well"; and (b) should not have access to guns. However, we must be careful how we define those mental disorders, and we must be both fair and rigorous in enforcing the requirement that they be locked up and prevented from having access to guns. The only realistic way to prevent their access to guns is to lock them up.

By William A. Wheatley on 2013 01 09, 4:16 am CST

In light of my post above (180) I would point out that there is a significant difference between being a paranoid schizophrenic and being paranoid. Would you lock up all who are paranoid? You would have more locked up than are walking free.

By William A. Wheatley on 2013 01 09, 4:19 am CST

Richard Epstein's excellent response to a portion of Professor Seidman's New York Times Op-Ed piece appearing at the Hoover Institute web page:

By Yankee on 2013 01 09, 2:35 pm CST

Thank you for sharing Epstein's article.

By Pacific on 2013 01 09, 2:53 pm CST

"And please excuse Juan for making that available so late in the discussion"

/s/ Epstein's Mother

By B. McLeod on 2013 01 10, 12:48 am CST

Although this string is not "about guns," it is about the Constitution, and the Second Amendment is an integral part of the Constitution. According to Vice President Biden, President Obama is considering the issuing of "executive orders" to regulation firearms. I submit that the President has no authority whatsoever to issue such executive orders and that, therefore, any such orders he issues are necessarily null and void on their face. It would be the duty of every American to resist such orders, by force, if necessary.

We are a country of Constitutional government. Anything extra-constitutional undermines our very existence as a nation of law.

By William A. Wheatley on 2013 01 10, 3:34 am CST

The same people who threaten the professor will defend to the death their right to misinterpret the constition and to twist it to cover their topic du jour.

By Family friendly firm on 2013 01 10, 11:57 am CST

Mr. Wheatley you claim in your post to be a moderate Republican to the left of Bush II who was quite fond of using the executive order tool. Yet your most recent post advocates armed insurrection which reveals a far different political philosophy.

By Redwood on 2013 01 10, 1:07 pm CST

@185 Wheatley. "the duty of every American to resist such [executive] orders, by force, if necessary."? What started as a mildly interesting dialogue on constitutional adequacy has now officially jumped the shark to ROTFLMFAO. Time to hit the eject button. See ya, folks.

By MattDC on 2013 01 10, 2:35 pm CST

@ 175 & 185: In post # 175, Mr. Wheatley ran a laundry list of what he considers PFRW positions and concluded: "I am not a PFRW." Assuming your list is not exhaustive, you'd be more than a PFRW. In #185, you state: "It would be the duty of every American to resist such orders, by force, if necessary." I believe in our democracy, we can resolve constitutional disagreements without resorting to use of force (except of course that thing in 1865). Calling for the use of force against a democratically elected government veers of the PFRW cliff and lands in treason territory.

By Know-Them-By-Their-Fruits on 2013 01 10, 3:25 pm CST

@189. Amen.

By redwood on 2013 01 10, 3:42 pm CST

Several of you have misunderstood. I am not opposed to executive orders as such. All presidents have routinely used executive orders to promulgate regulations in the implementation of laws passed by the legislative branch of Congress. I submit, however, that a President cannot legally or legitimately use an executive order to "legislate," bypassing Congress. Further, a President cannot modify the Constitution by the use of executive orders. It was only this last category, the use of an executive order to modify the effect of the Constitution, that I stated all Americans had the duty to resist, forcefully if necessary. I did not advocate armed rebellion. The Constitution has as a major purpose the prevention of democratic tyranny. It limits the power of the majority by the limitations on government power expressed in the Constitution. It requires a supermajority for several things, most notably amendment of the constitution, to prevent democratic tyranny. To use an executive order to circumvent the clear language of the Constitution is not even democratic tyranny, but executive tyranny. If Congress or the courts are unable to stop such tyranny, then the citizens must do so.

I would point out that the Supreme Court in the 1950's found that advocating armed overthrow of the U.S. Government was not illegal. I do not remember the case, but one of you bright attorneys can likely look it up. It was in a case brought involving the Communist Party U.S.A. Nevertheless, I was not advocated the armed overthrow of the U.S. government. I was endorsing forceful resistance to illegal use of force by government agents.

By William A. Wheatley on 2013 01 10, 4:57 pm CST

My Fifth Edition of Black's Law Dictionary defines "insurrection" in part to mean ". . . any combined resistance to the LAWFUL authority of the state . . ." (Emphasis Added)

By Yankee on 2013 01 10, 7:35 pm CST

@192. Precisely. My comments were in regard to responding to an UNLAWFUL exercise of authority by a democratic state.

By William A. Wheatley on 2013 01 10, 7:54 pm CST

Mr. Wheatley - I have lost count of the number of your posts which have been misunderstood. I don't know why that is. I do get the sense that it is only your interpretation of the Constitution that matters to you and everyone else is wrong. That is your perogative but the failure to recognize that someone else may have a point makes this discussion pointless.

By redwood on 2013 01 10, 8:16 pm CST

@192 & 193: Mr. Wheatley should not take solace in the fact that Yankee's quoted definition of "insurrection" is supposed to support his position, because it is not. Mr. Wheatley stated in #185 "it would be the duty of every American to resist such orders, by force, if necessary." You can immediately see that "insurrection" and "force" are two different words of the English language. You can respond to an "unlawful" exercise of authority by a democratic state by using the legal tools provided by such a state. I'm hard pressed to find a law in our democracy that calls on citizens to respond to perceived unlawful action by "force." We have laws for a reason. We are called a civilized society for a reason. I think this Republic is not close to anything that would warrant its citizens abandoning its laws to resort to settling disputes by force.

By Know-Them-By-Their-Fruits on 2013 01 10, 9:31 pm CST

The Founding Fathers recognized that the exercise of force against a tyrannical government by the citizens was legitimate. That was the basis for the Declaration of Independence, which, by the way, was signed by citizens of the United Kingdom, which had a parliament that could be petitioned for redress. The problem then was that Parliament was not listening and the Colonies had no direct representation in Parliament. In our democratic republic, if a President exercises illegitimate power against a citizen, and the citizen has no recourse other than force, I believe that force is then warranted. Until and unless that eventuality happens, I do not see the justification for the use of force by American Citizens to resist their government. However, if a federal agent, acting on orders of the President not sanctioned by Congress and not tested by the courts, shows up on my doorstep to seize my guns, what recourse do I have to prevent him from taking my guns? To take it to the ridiculous extreme, if a covert agent of the President shows up at my house with orders from the President to kill me, what recourse do I have? When is a citizen justified in taking forceful action to protect himself from his government? The law doesn't say, it has not happened since the American Revolution (unless you consider the Civil War such an event). What if it did happen? What then?

By William A. Wheatley on 2013 01 10, 10:18 pm CST

Just to make sure you all understand: so long as there are legal remedies available to the citizen, I do not believe the use of force by the citizen is justified. My "what if" is based on the assumption that an illegitimate forceful action is being taken by an agent of the government based on an illegitimate and unconstitutional order by the President, and there is not time to do anything except to acquiesce or resist this exercise of force by the government.

By William A. Wheatley on 2013 01 10, 10:21 pm CST

Mr. Redwood: I think a certain group of posters is intentionally misunderstanding what I say. I say one thing, and they quote it back to me using different words. People who are opposed to the strict construction view of the Constitution make it a point to misrepresent what strict constructionists say. If anyone wants to defeat me in argument, attack what I say, rather than attacking statements by some straw man.

By William A. Wheatley on 2013 01 10, 10:27 pm CST

Mr. Wheatley - I understood you to state that the president is considering issuing an executive order to regulate guns which you believe believe to be unconstitutional. And if he does armed insurrection would be justified. Did I misunderstand you? If not would you wait for the SC to determine constitutionality, or would your insurrection be justified because of your strict construction of the 2nd Amendment? As a side note in Michigan we have a majority of strict constructionists on our SC. They strictly construe everything to fit their political agenda.

By Redwood on 2013 01 11, 3:13 am CST

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