On Constitutional Disobedience (Inalienable Rights)

Devotion to the written U.S. Constitution is a centuries-old American tradition. Both the left and the right avow their faith in the document, even and especially when contesting the constitutional claims of their opponents. For instance, when Tea Party supporters champion the second and tenth amendments, they're championing particular interpretations of them that their opponents read very differently. Regardless, both sides in constitutional debates virtually always look to the Constitution itself as the decisive arbiter. But should we really be looking to a 225-year old document as the final authority on contentious political and social issues? What if we decide that is acceptable to disobey much of what the Constitution says? Will it result in chaos?

In On Constitutional Disobedience, leading constitutional scholar Louis Michael Seidman explains why constitutional disobedience may well produce a better politics and considers the shape that such disobedience might take. First, though, he stresses that is worth remembering the primary goals of the original Constitution's authors, many of which were unseemly both then and now. Should we really feel obligated to defend our electoral college or various other features that arguably lead to unjust results? Yet many of our political debates revolve around constitutional features that no one loves but which everyone feels obligated to defend. After walking through the various defenses put forth by proponents of the US Constitutional system, Seidman shows why none of them hold up. The solution, he claims, is to abandon our loyalty to many of the document's requirements and instead embrace the Constitution as a 'poetic' vision of a just society. Lest we worry that forsaking the Constitution will result in anarchy, we only need to remember Great Britain, which functions very effectively without a written constitution. If we were to do this, we could design sensible institutions that fit our own era and craft solutions that have the support of today's majorities. Seidman worries that if we continue to embrace the anachronistic commands of a centuries-old document, our political and institutional dysfunction will only increase. The answer is not to abandon the Constitution in its entirety, but to treat it as an inspiration while disobeying the many particulars that deserve to go into history's dustbin.

Louis Michael Seidman is Carmack Waterhouse Professor of Constitutional Law at Georgetown University. His books include Our Unsettled Constitution, Equal Protection of the Laws, and Silence and Freedom.