Table Of Content

5.625 × 8.75 SPINE: 1.0625 FLAPS: 3.5 Political Science $27.99 U.S. Early Praise for From Parchment to Dust “A bracing defense of a thoroughgoing skepticism about the veneration Americans F give our Constitution but also a bracing defense of a thoroughgoing democracy all r the way down. Seidman’s acute mind pierces through the pieties of conventional talk o For some, to oppose the Constitution is to m about the Constitution to reveal why we should rely on debate among ourselves about oppose the American experiment itself. But what we should do rather than foisting responsibility off on the Constitution—or leading constitutional scholar Louis Michael P worse, on to the Supreme Court.” Seidman argues that our founding document a —Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School r has long passed its “sell-by” date. From c Parchment to Dust is Seidman’s fascinating h “At once provocative and engaging, bracing and stimulating, Seidman blows (and yes, mind-boggling) argument that we m the dust off of settled views about the Constitution with skill and knowledge. Even don’t need the written Constitution at all. those who disagree will find his questions and analysis memorable and instructive: e As Seidman shows, constitutional n like the sand irritating the oyster, pearls will result.” t skepticism and disobedience have been present —Martha Minow, former dean of Harvard Law School and author of t from the beginning of American history, even Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech o worming their way into the Federalist Papers. D Louis Michael Seidman is the Carmack “Seidman magnificently applies his coruscating intelligence to the constitutional And, as Seidman also points out, no people pieties of judges, lawyers, and pundits alike, clearing the ground for a new and vital u alive today had any role in the promulgation Waterhouse Professor of Constitutional Law form of skeptical constitutionalism, and winnowing our constitutional heritage for a s of our constitutional rules. at Georgetown University, a former clerk for t bright thread of truth and decency. Timely, incomparable, and vital.” In this short, sharp, and iconoclastic Thurgood Marshall, and a major proponent of the critical legal studies movement. He is the —Aziz Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law book, Seidman defends not only constitutional School, and co-author, with Tom Ginsburg, of How to Save a Constitutional Democracy L skepticism, but also the skeptic’s co-author of a casebook on constitutional law constitution—a constitution grounded and the author of several academic books on the “Everyone in the country should read this book. If you love the Constitution, read o u in inclusiveness, tolerance, and restraint, Constitution. He lives in Washington, DC. it. If you hate the Constitution, read it. Just read it. Louis M. Seidman is one of our i rather than in ancient and arcane text. He greatest living constitutional scholars. After you’ve read his brilliant book, you’ll s never think about the Constitution in the same way again.” M offers a brief history of the phenomenon of —Rosa Brooks, constitutional skepticism and then proceeds to Scott K. Ginsburg Professor of Law and Policy, i Georgetown University Law Center, and former counselor to the undersecretary of defense c a masterful takedown of our most cherished, h constitutionally enshrined institutions and a “Makes the case—strongly and at times irrefutably—that our almost 250-year-old beliefs, from the Supreme Court (“an arrogant e Constitution simply is not working anymore . . . an important call to attention.” l elite in robes”) to the very concepts of civil —Barry Friedman, Jacob D. Fuchsberg Professor of Law, NYU School of Law S rights, due process, and equal protection— e all of which, he argues, are just pretenses i “The genius of Seidman’s book is that the author is two steps ahead of the reader d for preserving a fundamentally rigged and at every turn. Every reader will appreciate the arguments, and every one of us m inequitable status quo. is bound to become a more interesting dinner companion, whether our friends a Rather than rely on the specific wording are to the left or right of us.” n of a flawed and outdated document, rife with —Saul Levmore, William B. Graham Distinguished Service Professor of Law, “Madison’s mistakes,” Seidman proposes University of Chicago Law School instead a new, not-yet-written version that www.thenewpress.com better reflects our shared values and leaves it to people currently alive to determine how these values will play out in contemporary Author photo by Georgetown Law School society. Jacket design by David Shoemaker From Parchment to Dust_jacket.indd 1 8/3/21 11:32 AM From Parchment to Dust The Case for Constitutional Skepticism Louis Michael Seidman 4P_Seedman_ParchmentToDust_36615.indd 3 6/22/21 11:39 AM To Lyra, in the hope that she grows up in a better world 4P_Seedman_ParchmentToDust_36615.indd 5 6/22/21 11:39 AM C O N T E N T S Introduction 1 one We the People, Part 1: The Problem of Democracy and Representation 15 two We the People, Part 2: Some Modest Proposals 29 three Establishing Justice: The Problem of the Supreme Court 40 four Promoting the General Welfare: The Problem of Economic Distribution 73 five Securing the Blessings of Liberty, Part 1: The Problem of Civil Liberties and Cultural Power 95 six Securing the Blessings of Liberty, Part 2: Civil Liberties and Cultural Power Today 112 seven Establishing a More Perfect Union: The Problem of Rights and Rhetoric 135 eight Insuring Domestic Tranquility: The Problem of Violence 155 nine Ordaining and Establishing This Constitution, Part 1: Early American Skepticism 178 ten Ordaining and Establishing This Constitution, Part 2: Skepticism in the Progressive Era 216 4P_Seedman_ParchmentToDust_36615.indd 7 6/22/21 11:39 AM viii contents eleven Ordaining and Establishing This Constitution, Part 3: Modern Skepticism 230 twelve Bending Toward Justice? 243 Acknowledgments 251 Notes 255 Index 297 4P_Seedman_ParchmentToDust_36615.indd 8 6/22/21 11:39 AM Introduction Why should one be a constitutional skeptic? Consider the follow- ing facts: In four out of the last eight presidential elections, a candi- date became president even though a majority of voters chose someone else.1 In two of these elections, the winner did not even receive a plurality of the vote.2 Virtually all the money and attention in presidential elections is devoted to a tiny number of swing states that determine the outcome. By 2040, 30 percent of the population of the United States will control seventy of the one hundred seats in the United States Senate.3 Nine individuals, appointed for life and responsible to no one, regularly make crucial and unreviewable decisions about matters such as the structure of healthcare in the United States, the na- ture of marriage, and the powers of the federal government and the states. Former California governor Arnold Schwarzenegger and former Michigan governor Jennifer Granholm might have become serious presidential candidates but for a senseless, centuries-old constitutional provision requiring that the president be a “natural born” citizen. All the justices on the Supreme Court insist that they are neu- tral and apolitical public servants who do no more than follow “the law” as it is written. Yet they are nominated by a process 4P_Seedman_ParchmentToDust_36615.indd 1 6/22/21 11:39 AM 2 from parchment to dust drenched in raw partisanship, and their votes regularly align with the partisan views of the people who appoint them. Republican presidents have appointed thirteen of the last sev- enteen justices to the Supreme Court4 even though they won the popular vote in only five of the last fifteen elections.5 The last Democrat to serve as chief justice was Fred Vinson, whose brief and undistinguished career ended more than sixty years ago. Be- fore that, one has to go back to Edward White, who fought on the Confederate side in the Civil War. (Even White was nominated for chief justice by a Republican, but his initial appointment to the Court was by a Democrat.) The future of gun control in the United States turns on the Supreme Court’s guess as to what people in the eighteenth century—who knew nothing of assault weapons, modern police forces, or mass shootings—meant by “the right to bear arms.” The Constitution protects the right of people who want to make movies catering to individuals who get sexual pleasure out of witnessing the sadistic crushing of innocent animals.6 Yet it doesn’t explicitly protect the rights of women, and it does nothing to protect the rights of all of us to a world that is not ravaged by global warming. Huge popular majorities favor measures including more effec- tive gun regulation, limitations on campaign spending, and re- building of our national infrastructure, yet because of the political structures that the Framers imposed on us, we are unable to enact measures accomplishing these objectives. Customs of accommodation and constraint that keep our government functioning are rapidly eroding. For example, politicians now threaten a catastrophic default on the national debt to get their way, will not commit to respecting the results of elections, and refuse to compromise with their political opponents even when compromise is in the interests of both sides. But the Consti- tution does nothing to prevent this erosion, and all sides of political debate use constitutional rhetoric to bludgeon their political opponents. 4P_Seedman_ParchmentToDust_36615.indd 2 6/22/21 11:39 AM introduction 3 These facts, and many more like them, should make any sen- sible person skeptical about our Constitution and about the role it plays in modern political culture. And yet, constitutional skeptics almost never get a fair hearing. Instead, our politics are saturated by reverence for an ancient and anachronistic document, written by people many of whom owned other human beings, and never endorsed by a majority of the inhabitants of our country. Liberals and conservatives, Democrats and Republicans, congresspeople and Supreme Court justices all insist on their own, partisan ver- sions of constitutional obedience while our political culture col- lapses, crucial public needs go unmet, and the ties that bind us together as a country fray. We need to understand that conventional constitutionalism is irrational and wrong. It attaches religious significance to a decid- edly secular and deeply flawed document. It is standing in the way of saving our country. It has got to stop. The first step is coming to a greater understanding of what constitutional skepticism is all about, especially since constitutional skeptics are skeptical about more than one thing. At the specific level, they are skeptical about many in- dividual provisions in the United States Constitution— provisions that entrench unjust, anachronistic, undemocratic, and unworkable requirements, practices, and limitations on our polity. Also at the specific level, they are skeptical about many individ- ual decisions made by the United States Supreme Court— decisions that purport to interpret the Constitution but that in fact impose contestable and sometimes downright evil, idiosyncratic judicial judgments on the rest of us. On a more general level, they are skeptical of the proposition that our country’s fate should be determined by a deeply en- trenched, essentially unamendable document, written centuries ago in a very different country, by people who held views radically different from those of contemporary Americans and who had no notion of our modern circumstances. 4P_Seedman_ParchmentToDust_36615.indd 3 6/22/21 11:39 AM 4 from parchment to dust Similarly, they are skeptical more generally about the role that a group of unelected, often partisan judges play in our polity. Contrary to conventional opinion, over its history the Supreme Court has been populated by lawyers who on average are of decid- edly ordinary intelligence and ability, who have gained their seat through political or personal connections, and whose work prod- uct has been marked by arrogant misjudgments that have done serious harm to our country. More generally still, constitutional skeptics worry about Con- stitution worship and Court worship—the uniquely American reverence for the Constitution and for the Supreme Court. This attitude denies our own responsibility to create the kind of country we want to live in. On the broadest level, skeptics worry about the way that the Constitution encourages Americans to formulate ordinary political disputes in terms of “rights” that are absolute and nonnego- tiable. The tendency exacerbates political tension and obstructs authentic dialogue that actually has the potential to persuade par- ticipants. It is driving the country toward irreparable fissure. In this book, I elaborate on all these complaints, and I defend the proposition that, taken together, they form a coherent and unified skeptical stance toward conventional American constitutionalism. Of course, the reader might prefer to consider them individually. She might be persuaded as to some of my claims but not others. If that is so, I will claim a (partial) victory. There is, however, one skeptical claim that I will not be mak- ing in this book. My argument should not be read as an attack on constitutions or constitutionalism in all times and places. At the beginning, constitutions may be necessary to get a polity off the ground. Constitutions may, at least for a time, resolve other- wise intractable disputes. The drafting of a constitution can be an act of national liberation and promote national solidarity. At one time, our Constitution may have served all these functions. But for us, that time was a long time ago. I am writing about how the American Constitution functions in our own time and place. I 4P_Seedman_ParchmentToDust_36615.indd 4 6/22/21 11:39 AM introduction 5 will leave to others who know more about it the debate about how other constitutions function in other societies. Even with this caveat, I have no doubt that defending constitutional skepticism is an uphill fight. In our cultural and intel- lectual tradition, skeptics often get a bad rap. Skeptics are said to be doubters, cynics, and mindless destroyers. Pervasive skepticism can blind us to moral truths, block us from meaningful commit- ments, and paralyze us in the face of evil. And there is a well- known logical problem with skepticism: Don’t pervasive skeptics have to be skeptical of their own skeptical stance? These are important criticisms, but they oversimplify what the constitutional skeptic really thinks. Part of the problem is caused by confusing constitutional skepticism with global skepticism. A global skeptic, as I am using the term, is skeptical of all moral and political judgments. She believes that one moral claim (say, that the state should not interfere with acts of marital intimacy) is no stronger or weaker than another moral claim (say, that the state should not interfere with the release of pollutants into the atmosphere). There is no necessary connection between global skepticism and the kind of constitutional skepticism that I defend in this book. In fact, many global skeptics have been conventional con- stitutionalists. They have defended American constitutionalism just because, they believe, the Constitution provides a way to resolve disputes without resort to problematic moral and political claims. Conversely, if one scratches the surface of a constitutional skeptic, one usually finds a disappointed idealist. Constitutional skepticism entails a doubt about whether things are working as they should. That doubt, in turn, must be generated by a com- parison to an ideal of how things ought to work. In other words, constitutional skepticism is almost always rooted in some sort of normative judgment. This normativity often takes the form of a vision of substan- tive social justice—a conception of what people deserve and what is necessary for human flourishing. Constitutional skepticism 4P_Seedman_ParchmentToDust_36615.indd 5 6/22/21 11:39 AM