Louis Michael Seidman: the con

law professor v. the Constitution

Yesterday there was a big brouhaha over an op-ed of Louis Michael Seidman’s that appeared in the New York Times.

It was the type of piece that, on first reading, appears to be some sort of ironic Onion-esque parody—but sadly, it’s not. It’s also the sort of thing you’d expect from a leftist college student with no knowledge of history and no understanding of the Constitution.

But author Seidman is a well-known professor of constitutional law at Georgetown, one of the most elite law schools in the nation. He’s also a baby boomer, which is probably no coincidence, given his views (and I say this as a full-fledged, card-carrying member of that tiresome generation).

Seidman writes:

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions…

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?

Read the whole thing if you can stomach it, just for the flavor, and the exposure to the strangely tortured logic (and lack of historical accuracy) of this particular law professor. Seidman not only shows a lack of knowledge (actual? or strategic?) of the true position of most of the Founders regarding slavery, he also expresses the typical leftist position that we should throw away the wisdom of the past (wisdom? how can that be; they’re just a bunch of propertied white guys—just like Seidman, by the way) because we want to do something, and that pesky old white-guy document stands in our way.

There were many takedowns of Seidman published yesterday, such as this one by John J. Vecchione, who says Seidman’s op-ed “reads like a parody of liberal thinking”—although, unfortunately, he’s not joking. Vecchione also has a counter-proposal:

What he more seriously proposes, the radical rejection of binding any polity, is not only silly but unworkable. But we should take a small step in a very small universe and test it anyway: Get rid of tenure, and job security more broadly, at Georgetown Law. Every year, nay every minute, each faculty member should be judged on how they are doing at that instant of time. If they are found wanting by the standards of the hour they should be fired. Surely deep, radical thinkers like Professor Seidman and his confreres at Georgetown would not sacrifice the new and untried for the old, stolid, and hidebound edifice that is tenure? Why should current students suffer under the methods that were deemed acceptable by a faculty panel 30 years in the past, all of whom abjured same-sex marriage and none of whom used the Internet?

In his piece, Seidman goes on to cite instances in the past where he believes the letter of the Constitution was violated, and says we’re doing just fine nevertheless: “Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper. ” So, which is it, Professor Seidman? Is our government broken, as you say at the outset, or are we doing just peachy-keen?

Seidman then states which parts of the Constitution we should preserve—the parts Seidman likes, of course—and the parts we should jettison (the ones he doesn’t like).

This editorial makes a lot of good points about Seidman’s piece. There’s also a good old-fashioned rant about it here. And Carl Scott has a question for Georgetown Law School regarding Seidman, the very same one I’d like to ask them:

Now, granting that it is impressive, as your website indicates, that “After graduating from Harvard Law School in 1971, Professor Seidman served as a law clerk for J. Skelly Wright of the D.C. Circuit and U.S. Supreme Court Justice Thurgood Marshall,” do you not think that a professor who professes that he no longer believes his area of expertise matters, should be obliged to step aside? How can constitutional law be seriously taught by a man who thinks it is a kind of “divination?” Surely you are aware that along with Carl Eric Scott, there are 5,631 eager young professors without tenure in the nation capable of teaching constitutional law, both conservative and liberal ones, who nonetheless all think that the subject is a real one? That one can arrive at a genuinely wrong or right answer as to whether something is constitutional? So if you will not call upon the law faculty to fire Dr. Seidman, and replace him with Carl Eric Scott or another of those 5,632 (much less expensive, incidentally) professors, can you explain why you won’t? Is Georgetown University in the habit of handing the teaching of key subjects over to those who think they are worthless ones?

Not that Georgetown would ever think of doing such a thing. Steven Hayward notes that attitudes such as Seidman’s are not unusual in constitutional law professors:

I frequently bait the law professoriate with the axiom that if you really want to understand constitutionalism, and the U.S. Constitution in particular, don’t take constitutional law at an elite law school. There you will only receive systematic mis-instruction in the subject.* Joe Knippenberg reminds me that my AEI colleague Walter Berns always said that the problem with law professors is that they taught constitutional law, not the Constitution. Hence most constitutional law professors treat the Constitution as a plaything from which to extract whatever outcome they want.

He adds the one good thing we can say about Seidman’s essay:

…[I]t is helpful when a liberal’s impatience with constitutionalism yields to the impulse to rip the façade away and declare their contempt for the Constitution. Georgetown Law School professor Louis Seidman thus does us the favor of candor with his New York Times op-ed today…

As for why the Times decided to publish this piece right now, one can only conclude they see the time as ripe for delegitimizing the Constitution in order to further the leftist agenda, and seek to use Seidman’s credentials to make the argument from authority. The ground has been well prepared for this by our president, the MSM, and our educational system, so their calculations may indeed be correct.

Source: http://neoneocon.com/2013/01/01/louis-michael-seidman-the-con-law-professor-v-the-constitution/

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