The Times Gives Up
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
Talk about your constitutional moment. These columns have been predicting for three years now that America is entering what we have called a “constitutional moment,” in which our politics have become so divisive that ever more questions would expose the bedrock of the Constitution. Sure enough, America has gone to that very mat on everything from Obamacare, to same sex marriage, to gun control, to monetary policy, to whether civil rights law can be applied to the hiring of clergymen and women, to interstate commerce, to . . . well the docket gets more exciting every week.
Now, in the face of this great swelling of faith in our fundamental national contract, the New York Times has offered a new strategy — abandoning the Constitution altogether. It runs the brainstorm out under the headline “Let’s Give Up on the Constitution.” The piece carries the byline of a professor of constitutional law at Georgetown University, Louis Michael Seidman. He asserts that “observers are reaching the conclusion that the American system of government is broken” but that “no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.”
If this had been published on April Fool’s day, readers of the Times would have slapped their knees and guffawed. But what is one to make of the fact that the Times has issued this piece in apparent seriousness? It starts with Professor Seidman complaining over the way the Senate is being stymied in the fiscal fight by the constitutional requirement that revenue measures originate in the House. “Why should anyone care?” he asks. “Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?”
The internal logic, if that’s what it is, is just bizarre. Why does the fact that some of the House members were defeated for re-election make the House illegitimate? Wouldn’t that be the sign of the legitimacy of the process? If the House is illegitimate, why is he complaining about the grotesqueness of the Senate? If both are illegitimate, what does he want, George III? The Times’s writer confesses that “[a]s someone who has taught constitutional law for almost 40 years,” he is “ashamed” that it took him “so long to see how bizarre all this is.” Writes he:
“Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action.”
Our own sentiments have always been with the radical abolitionists. But it’s not true that the authors of the Constitution thought it was “fine to own slaves.” Some of them did, and some didn’t. The convention at Philadelphia was filled with men who comprehended the moral wrong of slavery. This point has been underscored by no less a figure than W.E.B. Du Bois, who in his account of the constitutional convention asserts that in the debate on slavery “the moral arguments were prominent.” Du Bois quotes George Mason as having “denounced the traffic in slaves as ‘infernal’” and Luther Martin as calling it “inconsistent with the principles of the revolution, and dishonorable to the American character” and John Dickenson as asserting that “[e]very principle of honor and safety demands the exclusion of slaves.”
There is no doubt that many of the Founders owned slaves and that a terrible compromise was forced at Philadelphia. It tarnished the founding for nearly a century. Nothing can ever remove the stain of it. The fact is, though, that slavery is no longer permitted by the Constitution, and in the end it was purged from the Constitution by means of an amendment process the same Constitution established. Professor Seidman would have us believe that the ratification of the 13th Amendment was done in an unconstitutional way. Does it then follow in his mind that slavery should be deemed legal?
The hostility of the Times to the Constitution is not a recent development. When the 112th Congress opened its work by reading the Constitution from the floor, the Times issued an editorial calling it “a ghastly waste of time.” It wants the courts to use the Constitution to require the states to issues licenses for same-sex marriage, vouchsafe the power of the Congress to require Americans to purchase health insurance, to authorize the states and local administrations to ban the carrying of arms, but it also wants Americans to disobey the Constitution as they see fit.
It will be illuminating to see how far the Times takes its latest lament, particularly because these days the Left generally seems to see the Constitution as a threat more to the liberal than the conservative cause. Here at the Sun we’ve tried for years to press the point that the Constitution is neither a Republican nor a Democratic document. Liberals have won some of their greatest battles by wielding the Constitution. So have conservatives. It’s not our place to advise the Times on how to run its newspaper. But we’d encourage the Times to cheer up. If it doesn’t like the Constitution it could lead an effort to amend it. Such would be a better course than giving up.