Constitutionless

I heard about Constitutional law professor Louis Michael Seidman’s radical-sounding argument to ignore the Constitution though the general media. I thought he was a flake.

I must admit, when I began listening to this week’s EconTalk podcast and found out that he was the guest, I nearly turned it off.

I’m glad I was lazy enough to keep it rolling. I discovered that the impression I got of Seidman through the general media was wrong (surprise, surprise).

I also discovered that his conversation was remarkably similar to part of the discussion we had in the comments of my previous post Profits and Ballot Boxes.

And, I found I agreed with Seidman on quite a lot.

For example, Seidman doesn’t believe that the unconstitutionality of a government action is a valid argument against taking that action. He thinks we should discuss the merits of the policy and decide from there. I agree. I think the founders agreed, too, as evidenced by their inclusion of Article V: Amendment. 

I would add that this applies to government action that is constitutional. Just because an action is constitutional doesn’t make it right.

Of course, there are a certain group of people who should care about the constitutionality of a government action. They’re called judges.

However, I did disagree with Seidman on some things.

Seidman made a point similar to Wally in the comments (just before the 55 minute mark): the founders are not all-knowing so and it’s arrogant to assume they could think things through for generations hundreds of year after they wrote the Constitution.

I was surprised that Seidman — an advocate for discussing merits of issues — made this point. It doesn’t matter if the founders were limited in knowledge or lived hundreds of years ago. What matters is whether the Constitution (or a specific part of it) has merit. So,it seems reasonable to consider in the discussion of merits of government action why the founders were for or against those actions, rather than dismissing their positions outright. We might learn something. To commit my own fallacy, how many of us have written Constitutions that, by and large, have kept a country growing and improving for well over 200 years?

I do recommend listening to the podcast.