The lawless, pointless idea of “disobeying the Constitution”

Thanks to Seidman’s muddled thinking, it is not even clear what “disobeying” would look like. In a failure of nerve, he concludes his essay by mumbling something about how we should all “make a good-faith effort to understand the views of others.” The conclusion is well-nigh inescapable that Seidman himself has been arguing in bad faith. All this épater la bourgeoisie rhetoric was trotted out to soften up his readers, persuading them to consider relaxing the strictures of the Constitution in ways that suit his purposes. The “living Constitution” school of thought (which Professor Seidman notes in passing without mentioning his own membership therein) began similarly, with the Progressives’ depreciation of the founders and their Constitution, and their clever turn toward “reinterpreting” the Constitution rather than “disobeying” it–which is to say, their turn toward disobeying it while paying lip service to it. This at least had the merit, to borrow from La Rochefoucauld, of being that hypocrisy in which vice pays tribute to virtue…

Compared to the true revolutionaries of our founding, Professor Seidman is a weak sister. If he really thought our Constitution was beyond redemption, he could say so, and follow the revolutionary argument to its real conclusion. What’s really going on here is the final collapse into utter intellectual bankruptcy of the “living Constitution” approach to our fundamental law. Thanks to the pioneering work of the late Robert Bork and other early originalists, and the many who have followed in their path, “living constitutionalism” has been utterly discredited. The result is that the adherents to the latter school have largely fragmented into two groups, those who claim that they too are “originalists” after all (while changing really nothing about their views) and those who have decided simply to attack the Constitution. Neither group, when all is said and done, really has much to say that is of any use.