A recent temper tantrum made its way onto the editorial pages of the NY Times by Louis Michael Seidman, a man claiming to be a professor of Constitutional Law at Georgetown University titled “Let’s Give Up on the Constitution“.
In this dystopian view of the founding of our current union turned mobocracy, Seidman points to Americans’ alleged devotion to the “archaic” relic known as the Constitution and in the process adds to the case FOR modern, American secession. “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.”
Nice and that is just the paragraph de prius. In a make believe Congressional ante chamber in 2012 he envisions:
“…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.”
I can only deduce by “evil” Seidman is citing slavery and assume by “illegal” he means to say the States whom ratified the Articles of Confederation in 1781 never bothered to secede from them so they could accede to the new Constitution in 1787, 88, 90, 91. Much of the “Tea Party” has their Amy Kremer sized panties tied up in wads over this “outrage” but give Seidman his due, he is stating “Compact theory” on the Constitution. This basically means, as nearly everyone alive in North America from 1788-1832 knew, that the States were voluntary parties to, what Jefferson called “a compact whose style is The Constitution of the United States“. (see the Kentucky Resolutions of 1798)
Now, lest the reader believe that your faithful correspondent is about to serve up another American defender of secession, that is not my direct aim but this fama clamosa will be accomplished indirectly. In his epic work Political Philosophy, the English Lord Brougham included a chapter on the American Constitution (as he compared it to the English). To the question of whether the Constitution established an “indivisible union” of the Socialist Bellamy, channeling Lincoln, regurgitating Webster or a voluntary compact of Sovereign States who chose the Constitution as their preferred government of union, Brougham, an ocean away, sans the slaves concluded:
“We have now seen that this Constitution professes to lay down certain fundamental laws, which are binding not merely on the subject but upon the Congress itself, and upon all the State Legislatures. Hence arises this anomaly, that the supreme power is fettered: there is not, properly speaking, a supreme power; Congress is tied up : that is done by the American Constitution, which in ours is held impossible; the hands of the Legislature are hound; a law has been made which is binding on all future Parliaments.”
“When we at first contemplate this state of things, it appears to be sufficiently anomalous; and yet a little reflection will show us that it is, at least to a certain extent, the necessary consequence of the Proper or Perfect Federal Union. There is not, as with us, a government only and its subjects to be regarded; but a number of Governments, of States having each a separate and substantive, and even independent existence, originally thirteen, now six-and-twenty, and each having a legislature of its own, with laws differing from those of the other States. It is plainly impossible to consider the Constitution which professes to govern this whole Union, this Federacy of States, as anything other than a Treaty, of which the conditions are to be executed for them all; and hence there must be certain things laid down, certain rights conferred, certain provisions made, which cannot be altered without universal consent, or a consent so general as to be deemed equivalent for all practical purposes to the consent of the whole.”
“It is not at all a refinement, as we have already remarked, that a Federal Union should be formed; this is the natural result of men’s joint operations in a very rude state of society. But the regulation of such a Union upon pre-established principles—the formation of a system of government and legislation in which the different subjects shall be not individuals but States—the application of legislative principles to such a body of States—and the devising means for keeping it’s integrity as a Federacy, while the rights and powers of the individual States are maintained entire—is the very greatest refinement in social policy to which any state of circumstances has ever given rise, or to which any age has ever given birth.”
It should be observed that the “rights” of a State, “maintained entire” must include the fundamental right to self government. You can only have self-government if the right of choosing the forms of that government are guarded and sacred. This would naturally include the right of secession FROM what was acceded TO-The Union under the Constitution.
Michael Louis Seidman’s plea for a national democracy, loosely cobbled together by some ever-changing written-in-pencil instrument (calling it a Constitution is oxymoronic), is an important contribution to our ongoing discussion about the reorganization of the American Union because it helps establish both the utter futility of the current system and unwittingly provides energy to [r]epublican efforts to re-found or in the words of the Framers assists in contemporary attempts at “more perfect unions”.