My nominee for the William Higinbotham Inhumanitarian Award is Georgetown University law professor, Louis Michael Seidman. Seidman wrote an op-ed in the New York Times during the midst of the budget and tax battle between the president and Congress in December suggesting that we should no longer think we have an obligation to adhere to the requirements and procedures of the U.S. Constitution. As Seidman puts it:
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
Seidman thinks that political leaders should just do what is “best,” not worry themselves with the legal niceties of an archaic document:
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. Is it even remotely rational that the official should change his or her mind because of this divination?
Remember this wasn’t a classroom exercise with a group of law students meant to provoke critical discussion. This was an essay in the house organ of the Democratic Party in the midst of a struggle over budget and tax issues. The clear implication is that if the president doesn’t get from Congress what he thinks is best for the country, he should ignore them and just do the “right thing” anyway. I’m not the only one who read the piece this way; here is Paul Peterson’s take:
If a call for constitutional disobedience is openly advocated in the nation’s leading liberal newspaper, one must assume similar arguments, phrased more carefully, are being elaborated by skilled attorneys inside the White House.
Peterson continues, suggesting that the Seidman op-ed was carried by the NYT as intellectual justification for an executive branch power-grab of enormous proportions:
As the administration begins its second term, it is expressing extreme frustration at the constitutional powers held by the House of Representatives. To counter, the administration is threatening to catapult presidential power to levels attained only by such Machiavellian politicians as Otto von Bismarck, who consolidated executive power vis-a-vis the German parliament and local fiefdoms in the late 19th century.
Peterson lists the president’s threat to ignore the debt ceiling, the Senate use of a simple majority vote to curtail the super-majority barriers to passing legislation particularly threatening to minority interests, the expansive use of regulatory powers to make what are effectively new laws without congressional authorization (with examples from environmental issues, No Child Left Behind, and healthcare), and effectively changing immigration law by publicly announcing that the executive branch will not enforce large portions of the existing law. Whatever you may think about the merits of each of these issues, this pattern of executive actions represents a remarkable centralization of power and subversion of Constitutional checks and balances. Peterson warns that the long-term implications are ominous:
Clearly, the president has shown a willingness to interpret his constitutional authority and the laws of the land about as freely as Bismarck did 150 years ago. The German chancellor got away with his power grab for many years, though by so doing he laid the groundwork for 20th century political disasters.
To be fair, it is not just the current president who has been using extra-legal and un-Constitutional means of accumulating more power. The imperial presidency has been a one-way ratchet of increasing executive power for decades. But the rate of centralizing power in the president has accelerated in the last two administrations. Yes, our country faces challenges, like terrorism and financial difficulties, but are these challenges really greater than the Cold War, civil rights, the Great Depression, industrialization, etc…?
Even in the face of great challenges we need our Constitutional system of separation of powers, federalism, and the attending decentralized nature of checks and balances precisely because there are legitimate disagreements about how best to meet those challenges. Presidents shouldn’t just do the “right thing” regardless of Constitutional procedures, as Seidman suggests, because it isn’t really obvious what the right thing is. We have to follow Constitutional procedures because they ensure that competing visions of solutions can be heard and compromises achieved. This often results in improvements in the quality of government solutions as well as protection for minority interests. And if you think that compromises achieved under Constitutional procedures are lower quality than solutions derived from the best judgment of a central authority, I suggest that you consider North Korea, Syria, Soviet Union, Egypt, etc…
Eventually there will come a day when someone the New York Times hates will be president and perhaps control majorities in both chambers of Congress. When that day comes, don’t you think it would be wise for them to have preserved the non-majoritarian procedures of our Constitution and political tradition? I distinctly remember them feeling that way when Bush was president.
What is the origin of this recklessness of wishing to prevail in a current political conflict by destroying the Constitutional procedures that protected us in the past and could again in the future? Why does the New York Times find a receptive audience to arguments about just doing the “right thing” at the expense of the Constitution? I suspect, but cannot prove, that it has something to do with the changing nature of social studies in our schools. Social studies used to consist primarily of civics, with a focus on understanding and appreciating our system of separation of powers, federalism, and the virtue of checks and balances. That version of social studies has been eclipsed by one focused on social justice. Students are learning about the importance of doing the “right thing” perhaps “by any means necessary.” So, it should come as no surprise that there would be a receptive audience to claims that getting the “right” marginal tax rate trumps Constitutional procedures. That’s how little a growing cadre of elites now think of civics.
There is a name for central authorities doing what they think is best regardless of the law and governmental procedures. It is fascism. For contributing to the intellectual defense of this neo-fascism, Louis Michael Seidman is worthy of the William Higinbotham Inhumanitarian Award. As the criteria for the award require, he displays the arrogant delusion of trying to shape the world to meet his own will. Let’s hope he really is delusional and we do not see a triumph of his will.