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Flatiron Hot! News | January 17, 2018

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New York Times’ Louis David Seidman Right to Oppose Constitutional Originalism, Wrong to Trash U.S. Constitution

New York Times’ Louis David Seidman Right to Oppose Constitutional Originalism, Wrong to Trash U.S. Constitution
Eric Shapiro

On December 31st, The New York Times published an editorial titled: “Lets Give up on the Constitution.” The Flatiron Hot! Pundit respectfully disagrees. Whether you consider yourself an adherent of Constitutional Originalism or subscribe to the notion of a living Constitution, America’s founding document is a bedrock of U.S. politics that has done more good than harm over the course of nation’s history. The Founders, particularly Thomas Jefferson, James Madison, Alexander Hamilton, John Adams and George Washington designed it to be highly adaptable, and it is this adaptability that has allowed it to keep pace with historical change.

Louis David Seidman is correct in pointing out that the U.S. political system is broken. Confidence in government is at an all-time low among Republicans and Democrats alike. Be that as it may, abolishing the U.S. Constitution is not the answer to our political woes. On the contrary, America’s founding document can be part of the solution, just as it has been in numerous times of crisis since it was ratified at the Constitutional Convention of 1787.

The Constitution was not intended as an absolute guide, but rather a basic foundation. The Federalist Papers reveal the Founding Fathers as, above all, pragmatic individuals. They realized that any enduring governing document must also be a flexible, living one. Thomas Jefferson went so far as to claim: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants,” suggesting by implication that government must be radically restructured on a periodic basis in order to meet the changing needs of the people.

Fortunately, Jefferson underrated the Constitution’s capacity to maintain relative peace. Article V, in allowing for amendments to the document, has been remarkably effective in resolving political crises, with the glaring exception of the Civil War.

Constitutional literalism, much like religious fundamentalism, is unfaithful to the spirit (or even, as it claims, the letter) of its architects’ intent. Originalism, far from being objective, more often than not serves as a thinly-veiled justification for conservative political positions. It blatantly ignores inconvenient examples of generally-accepted ways American government has changed since 1787.

As students of history, the framers of the Constitution were aware that government must evolve with the times. Recognizing human beings as imperfect, it only followed that any governing document designed by human beings would reflect that imperfection. And flawed the U.S. Constitution was (and still is)–its original sin was the institution of slavery. The 3/5 compromise is a reminder of the pernicious evil of racism, still lurking just beneath the surface of politics centuries later.

The Founders certainly held views that are racist by today’s standards. Nevertheless, that does not make the Constitution, predicated on years of enlightenment and humanist thought, inherently worthless. Yes, Jefferson is a hypocrite for keeping (and bedding) slaves even as he condemned the institution of slavery. But dismissing the framers of our Constitution as “a group of white propertied men who have been dead for two centuries, [know] nothing of our present situation.. that thought it was fine to own slaves” is overly simplistic.

To say that James Madison, Thomas Jefferson, George Washington, Benjamin Franklin and other prominent founders offer no valuable guidance because they were products of their time does not make historical sense. Racial equality is a relatively new concept. Are we to discount the wisdom of every statesman and philosopher that lived prior to its emergence?

It is clear from their writings that the prominent Founders were, to varying degrees, uncomfortable with the idea of slavery. Jefferson and Madison, in particular, believed that the institution was living on borrowed time. However, rejecting the 3/5 compromise would have resulted in no United States. It is a cruel paradox of history that without the evil of slavery, America would not exist as it does today.

None of this is to say that the Founders bear no moral responsibility for their actions. Could they have done more in their lifetimes to undermine slavery and speak out against discrimination? Perhaps. But suffice to say, they certainly had nuanced and varied views on the issue.

Morality aside, it is one thing to call Constitutional literalism a flawed, harmful ideology. It is quite another to advise throwing away the Constitution. Utopian visions of social democracy, socialism, Marxism and leftist anarchism are just that: visions. Liberals and progressives should concentrate on working through the system to change it from within through the amendment process and other means, drawing on the worthwhile prescriptions of the Constitution while discarding those elements that are relics of a bygone age.

Despite its considerable flaws, the U.S. has maintained a free civil society for centuries by adhering to the principles, if not the letter, of the Constitution. It would be foolish to throw that all away in favor of the vague alternative Seidman suggests. Rather than entertaining wild fancies of abolishing the Constitution and forming third parties, the left should work to build a more effective political force in America, just as conservatives did with the Tea Party.