Jonathan Adler’s response to Seidman is realbad. First, as we warned would happen, he is lured into confusing Seidman’s label for his view with what that view actually is. Consequently, he thinks Seidman is proposing that constitutional actors routinely ignore or disobey constitutional provisions they do not like.
Unlike Seidman’s actual proposal — do away with public justifications of the policy that cite constitutional values — this actually strikes me as quite a sensible thing for constitutional actors to do. Specifically, they should not take the Constitution into account in their deliberations exceptinsofar as they need to draw on it for political legitimacy. Jonathan Adler gives five stupid objections:
1. “[T]he Constitution itself provides for its own revision to cure deficiencies: Article V. This amendment process has allowed for dramatic changes to the document, from the Bill of Rights and the Civil War Amendments to women’s suffrage and changes to election procedures.”
This objection is incomplete — more, obviously incomplete — without an assessment of whether Article V works well. The fact that it has been used to make some amendments does not prove that it works well, only that it has sometimes been used. To evaluate whether it works well one needs a baseline, which Adler does not bother to supply.
2. “Seidman conspicuously ignores the various policy measures throughout our nation’s history that would have remained the law of the land were it not for the Constitution, including numerous restrictions on the freedom of speech and the detention policies struck down by the Court in Boumediene.”
Seidman’s argument, even on Adler’s misunderstanding of it, does not depend on the proposition that the Constitution has never been used to promote desirable policy, so he has no need to deal with these historical examples. Instead, Seidman’s argument (misunderstood) is that we should now replace scrupulous fidelity to the Constitution with a mixture of fidelity to those constitutional policies that are valuable — “[f]reedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property” — combined with a far larger dollop of constitutionally unimplicated moral and prudential decisionmaking by constitutional actors.
3. “Seidman suggests that liberal constitutional values such as the freedom of speech and religion, equal protection, and due process ‘are important, whether or not they are in the Constitution’ and that ‘we should continue to follow those requirements out of respect, not obligation.’ But our political history shows quite clearly that the political process is more than willing to trample such principles . . . the whole point of a constitution is to prevent such abuses.”
Yes, and as Seidman indicates he would retain those parts of the Constitution and “something like the Supreme Court” in order to enforce them. When he says we should follow those requirements “out of respect, not obligation” what he means is that we should continue to enforce those requirements because they are desirable, not just because they appear in the Constitution.
4. “Seidman writes that if we followed his advice: “The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.” So supreme court opinions would be nothing more than policy briefs and appeals to moral principle? It seems to me that is a recipe for undermining the legitimacy of judicial review and ultimately relegating all such questions to the political process — and producing quite a few results I doubt Seidman would much like (e.g. greater limits on expression, lesser protection of criminal defendants, and more expansive national security authority).”
This comes closest to rejecting Seidman’s actual argument and so is the least objectionable of Adler’s complaints, but it is still incorrect. First, eliminating appeals to constitutional text, or even to the ancient Constitution more broadly conceived, does not foreclose appeals to constitutional tradition or communitarian values or some source other than abstract moral principle or policy that resonates with the American ethos. Second, policy arguments and moral arguments routinely appear in Supreme Court decisions already (albeit alongside constitutional arguments) and the legitimacy of judicial review is still strong.
5. “[Seidman] seems to want to keep judicial review, but just for those constitutional provisions he likes, but that’s hardly the basis for a principled argument for “constitutional disobedience,” as such.”
The principled argument for Seidman’s position — judicial review to enforce only a certain subset of current constitutional values — is that only those constitutional values promote a good society. You can disagree, but that doesn’t mean that what you disagree with isn’t rooted in principle. This is obvious.