The U.S. Constitution: Outdated, Archaic and Evil?

| October 1 2013
Shane Krauser

The call for Americans to give up certain freedoms in the interest of safety rages on. From drones in the sky to cameras on the streets, we are sacrificing our freedoms in the name of a lie. And the nasty lie is two-fold: We are told we must sacrifice liberty for security and that the Constitution is the root of the problem.

There is an anti-constitutional sentiment that has taken root in America, which sees the U.S. Constitution as an evil to be eradicated. This position ultimately disrupts and undermines the rule of law and the very idea of America.

Case in point is Professor Michael Seidman. In January 2013, Professor Seidman, constitutional law professor at Georgetown University, initiated an unprovoked attack on our charter of freedom.

Professor Seidman claims that we should give up on the document, which contains “archaic, idiosyncratic and downright evil provisions” and then, ironically, proceeds to lecture us on what parts of the document our culture should keep and which we should toss. In an almost royal tone that rivals King George III, Professor Seidman wants to play fast and loose with the rule of law, the very problem with our current system of governance.

Professor Seidman claims that the Constitution “has a pernicious impact on our political culture,” puts our society in bondage, and is the cause of America’s breakdown. Here is where Professor Seidman misses the point.

Thomas Jefferson insisted that those in authority must be bound by the “chains of the Constitution.” And he was right. “Constitutional bondage” is precisely what protects our right to speak out against the government, to assemble in places where others would not want us, to practice our religion even where others may disagree, own firearms even in the face of government-perpetuated fear, and the right to be left alone in our homes despite government’s curiosity to find out what’s inside.

Without a Constitution, how is the majority prevented from infringing on the rights of the minority? Does Professor Seidman propose that we just trust the legislative and judicial branches to arbitrarily take care of governing as they see fit? Without a Constitution and short of violence, what remedy do the American people have against an executive that has gone rogue? According to Professor Seidman, our elected representatives should be a law unto themselves with no real, legitimate checks and balances.

To advocate that individuals in power come together and have “intelligent debate” as to what the rules should be is a utopian fantasy. What makes Professor Seidman believe that the rule of law established through debate would not be disregarded just as the Constitution is often disregarded?

As James Madison made clear, “If men were angels, no government would be necessary.” More to the point, if men were not inclined towards power, constitutions would be unnecessary. Like it or not, well-intentioned people inside and outside of government hurt others. More concerning than that, tyrants destroy.

Professor Seidman expresses discontent with the politicizing of various issues, including the Second Amendment. Here is where we can find some short-lived common ground.

Most people despise the politicization of these issues where elected representatives use tragedies to score political points. However, to say that government should not be in the business of protecting the liberties of the people, especially the minority, leaves but one alternative: The tyranny of those in control. As Milton Friedman makes clear, “A system which depends on the right man is a bad system.”

This is where I part ways with Professor Seidman. Fundamental liberties should not be up for a debate or for politicizing, and our Constitution makes this clear through the words “shall not infringe”, “make no law”, and “reserved to the people and to the states.” In other words, politicizing would be minimized if we adhered to the Constitution.

Recall that the Constitution’s primary objective is not to tell the governed what they may or may not do. Rather, it instructs the government about what they can’t do to the governed. The Constitution embraces timeless principles that have withstood the test of time and are the essence of America, such as the separation of power, the division of authority, the enumeration and protection of rights, popular sovereignty, and rule through a republican form of government.

If we don’t like the content of the Constitution, we can change it through the amendment process. It is designed to be difficult so that a radical majority cannot just change the rule of law on a whim. They must engage certain obstacles first. We are running a country, not a business. Governing is supposed to be a tough game.

Admittedly, America is dealing with issues today that the framers likely never anticipated. However, anticipating the problems of the future wasn’t the objective of the Constitution, and it is not the objective today. The essence of the U.S. Constitution and of America stands upon two immoveable piers: Men and women are born free, and men and women with power cannot be trusted. As a result, we restrict power in order to minimize tyrannical impulses.

As Professor Seidman rages on, his apparent ace in the hole is the fact that some of the framers were slave owners. In other words, although they may have been smart, they were also evil so we should disregard any work they performed in creating the greatest bastion of freedom the world has ever seen.

Does the hypocrisy of the minority of the founders invalidate the Constitution? Does the truthfulness of a statement depend on the virtue of the person making it? It should be abundantly clear to a person who has taught constitutional law for 40 years that our nation, including the elimination of slavery, is the result of adherence to, and utilizing the machinery of, the Constitution rather than the disregard of it.

America’s ongoing reverence of the Constitution is not the problem. Its fascination with it is certainly the answer. Indeed, if we would adhere to the document, the many problems that Professor Seidman notes would almost certainly vanish. Our choice is clear: Rule of law or rule of tyrants.

Shane Krauser is the director of the American Academy for Constitutional Education, a partner with the firm of Davis Miles McGuire Gardner, an adjunct professor of constitutional law, and a radio talk show host in Phoenix, Arizona. Follow on Facebook: www.facebook.com/aafce1776

9 comments
phoenixlaw
phoenixlaw

Beginning mostly with the New Deal era in the late 1930's, Progressives have sought to enlarge the scope of federal  power to promote social welfare and manage the national economy.  The New Deal doctrine ran directly counter to traditional constitutional doctrines stressing a limited federal government and a high regard for personal freedoms. Since then, the Supreme Court has ratified greatly enlarged national power and abandoned its historic solicitude for the rights of property owners, effectively re-writing the Constitution.  Perhaps the most damaging decision was WICKARD v. FILBURN (1942) which granted Congress almost unlimited authority to govern commerce. 


Customary wisdom celebrates the Supreme Court as a defender of individual liberty, but in reality, the Court has radically revamped the Constitution, and in the process has failed in its duty to restrain government. 

dleeper47
dleeper47 moderator

Good post!

Rather than put their faith in a timeless set of principles, expressed in documents that can live forever, Leftists continue to invest their faith and confidence in a person whose lifetime is limited and whose words and character can change in an instant.

Be it Mao, Lenin, Hitler, Castro, Chavez, or Obama, they do it over and over again with the same result. Their unspoken belief always seems to be: "Hey, this guy is different ... this time I'm sure we've found The One." Over and over, they're played for suckers, and by the time some of them realize it, it's too late. 

Once set through mal-education in government schools and university indoctrination, there seems to be no cure for the mindset of "finding the right man" to run a benevolent Big Government utopia. Over and over, hope triumphs over experience. 

http://www.westernfreepress.com/2011/02/17/the-lefts-tragedy-of-misplaced-confidence/

dleeper47
dleeper47 moderator

@phoenixlaw 

Amazing. You're spot on this time. Especially regarding Wickard v Filburn, which aside from Dred Scott and Plessy v Ferguson is arguably the most wretched SCOTUS contrivance in our history.

Those other two travesties have thankfully been reversed, but as far as I know, no case has ever explicitly reversed Wickard.  It stands as horrid precedent to this day, no?

WesternFreePress
WesternFreePress moderator

@dleeper47 It occurred to me recently that the utopia they seek—so elusive using state force—could actually be approached more closely by applying libertarian principles. In a libertarian paradise, communities would be a lot closer than they are now. That would create some of the sense of collectivity they want. Free-market prosperity would do far more to level outcomes than any effort to do so by force and fiat. That would give them the equality of outcome that they seek. The free market also tends to ignore race and other superficial characteristics far more than anything (a man cares not the color or creed of a man who harvested the wheat in his bread). That would give them the fairness to all that they claim to seek.

WesternFreePress
WesternFreePress moderator

@dleeper47 @phoenixlaw I certainly don't think anything has come along to explicitly overturn Wickard. Interestingly, didn't the Obamacare decision constitute the first application of the brakes on Commerce Clause jurisprudence since Wickard . . . ?

rofomoreno
rofomoreno

@phoenixlaw @WesternFreePress @dleeper47 Boom! ...Boom! ...Boom! ...Boom!

Likewise! Thumbs up and on my heels, lawman!!!! "Since then, the Supreme Court ... effectively re-writing the Constitution"

This must be some kind of commentary of Intervention from the Divinity ... a proof positive, God, ideology and common sense do sometimes move in mysterious ways.