In an op-ed yesterday, lurefave Louis Seidman lists what he perceives to be the baleful influences of our Constitution: it has “ saddled us with a dysfunctional political system,  kept us from debating the merits of divisive issues and  inflamed our public discourse.” He argues that we should solve this problem by practicing “constitutional disobedience.” The label he has chosen is regrettably inflammatory because he does not seem to seriously propose that constitutional actors should violate constitutional commands. Instead, Seidman would retain our constitutional rights and institutions in (it would appear) more or less their present form, but he would change “the basis on which [constitutional actors] claim legitimacy [for their conduct].”
The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.
What Seidman argues for, therefore, is not constitutional disobedience but constitutional quietism: in our public deliberations, we should not invoke the Constitution or its values as often as we do. It is not clear to me that Seidman’s proposal would remedy what he perceives to be the three baleful influences of the Constitution.
1. Political dysfunction. What creates the “dysfunction” (if dysfunction there be) of our political system is not the rhetorical mode in which different actors within it seek to advance their interests, but the social and institutional powers those actors possess. This is not a necessary truth — one can imagine a situation in which one group’s interests are only capable of being advanced as long as a particular mode of rhetoric retains currency — but that doesn’t appear to me to be true of the hear and now. So without changing our institutions Seidman cannot change our political system (let alone improve it).
2. Debating the merits of divisive issues. The best way to test whether reducing the role of constitutional rhetoric in public deliberations would result in debates on the merits of divisive issues is to look to the non-constitutional arguments that are routinely made in public. These arguments occur both on their own — in those cases where everybody agrees that a hot-button topic does not implicate the Constitution — and as a supplement to constitutional debates. There is no guarantee that these non-constitutional debates do not merely replace appeal to one set of conversation-stopping norms (constitutional norms) with another (commonsense moral shibboleths, religious platitudes or economic slogans). As Seidman has recognized elsewhere, there is also no reason to think that appeals to these kinds of norms (all are supposed to have a claim on each of us) are undesirable all things considered.
3. Palliating our political discourse. It is a trope that appeals to the Constitution inflame political discourse because they imply not just that a policy is a bad idea but also that it is illegal. The problem with this trope is that it is widely understood that accusing an opponent of acting unconstitutionally is not a grave charge on the order of accusing him of violating a more routine law. Instead, accusations of constitutional infidelity stand on the same footing as accusations of corruption, accusations of treason, accusations of socialism or communism (or fascism) and demonization of the intellectual heroes of the opposite side that are the coin of contemporary political discourse. Routine accusations of constitutional infidelity are a symptom of our inflamed political discourse; they are not causes of it.
Seidman’s proposal would, at least, be ineffective. It is also infeasible, as Seidman’s op-ed ironically proves. In arguing for the reasonableness of constitutional quietism, Seidman draws heavily on the constitutional disobedience of the founders, thereby underscoring that the Constitution is so vital a source of political legitimacy that even those seeking to depart from it must appeal to it in so doing! It is a dramatic demonstration of our powerlessness in the face of ideology.