Over at Cold Fury, there is an article that thoroughly fisks the idea recently put forth by a constitutional professor, of all people, that the constitution itself is illegitimate and frequently ignored.
Read it in all it's fisky glory:
When un-American, Constitution-hating Constitutional law professor Louis Michael Seidman penned his NYT screed in favor of abandoning the Constitution officially (as opposed to stealthily, as has been done already), I wrote that the Constitution was no longer functional not because of some flaw in the Constitution itself, but because it had been “ignored, and, ultimately, destroyed.” Now Rob Natelson has gotten down to the nuts and bolts of it:
Based solely on the assertions in his article, Professor Seidman appears to know little about the background of, and principles underlying, the document he is charged with teaching. The list of his historical inaccuracies and omissions is long. Following is merely a sample:
As part of an attack on the Founders, Professor Seidman repeats the ancient calumny that the Framers ignored limits on their authority by drafting a new instrument rather than merely proposing amendments to the Articles of Confederation. The truth is that when the authorizing commissions are read, not anachronistically, but in light of 18th century language and law, they show that 48 of the 55 Framers had authority to recommend a new document. Four of the remaining seven did not sign. One (Hamilton) subscribed in an individual capacity.
Those who adopted the Constitution, Professor Seidman tells us, were “white propertied men.” He is apparently unaware that the document was debated and ratified through one of the most democratic procedures conducted up to the time. All levels of society participated in the debate, and the electorate choosing delegates to the state ratifying conventions included (in some states at least) women, poor people, and free African-Americans.
He further attacks the Founders as men who thought it was “fine to own slaves.” In fact, the prevailing opinion among them was that slavery violated natural law, and was doomed to extinction. They backed up that opinion with action: In the 11 years between Independence and the Constitution’s drafting, eight of the 13 states had begun the process of emancipation, 10 had abolished the slave trade, and two others had restricted it. In urging ratification, the Constitution’s advocates, particularly in the North, emphasized that it might hasten the end of slavery.
Professor Seidman also writes that once the Constitution was adopted our leaders immediately “began ignoring” it. No one who has spent much time in early post-Constitution political debates can believe that. Those debates reveal much consideration of constitutional issues, and often a very high quality of discussion. Thomas Jefferson, for example (as Professor Seidman concedes), agonized over the constitutionality of the acquisition of Louisiana. He did not “ignore” the issue. Unfortunately, Jefferson had been in France during the Virginia ratifying convention, or he would have understood that the Constitution authorized territorial changes through the Treaty Power.
Although it is true, as Professor Seidman states, that politicians have violated the Constitution, it is rarely true that we have been better off for it. The breaches have included incarceration of innocent citizens during World War II, ill-advised attempts to micro-manage the economy through monetary and regulatory policy, and unrestricted spending. We have lived to rue them all.
America performed brilliantly when constitutional limits were honored. As those limits have eroded, we have lost our edge: Economic growth has slowed, the civic fabric has frayed, and we have fallen into fiscal crisis. The fault, therefore, is not in the Constitution. It rests in politicians who disregard it and in scholars, jurists, and other citizens who encourage them to do so.