CBS Runs Segment Called 'Let's Give Up On The Constitution'
From Georgetown law professor Louis Michael Seidman:
I've got a simple idea: Let's give up on the Constitution. I know, it sounds radical, but it's really not. Constitutional disobedience is as American as apple pie. For example, most of our greatest Presidents -- Jefferson, Lincoln, Wilson, and both Roosevelts -- had doubts about the Constitution, and many of them disobeyed it when it got in their way.
To be clear, I don't think we should give up on everything in the Constitution. The Constitution has many important and inspiring provisions, but we should obey these because they are important and inspiring, not because a bunch of people who are now long-dead favored them two centuries ago. Unfortunately, the Constitution also contains some provisions that are not so inspiring. For example, one allows a presidential candidate who is rejected by a majority of the American people to assume office....
The saddest thing about the whole thing is that a lot of people would be fine with doing away with the constitution. They actually say that we have too many freedoms. It's not a make believe guy, I've seen him with my own eyes. So deceived.
I feel the powers that be are well on there way to annulling all the amendments. For instance , freedom of speech, go out there and speak out against morality, abortion, ect , you know where this is going, see how they will shut you down. Look at how wussification we've become. Can't say this, can't do that, don't offend this one or that one. That's just how I feel . I think I'm not the only one who sees what's happening. And we allow it. We speak about it, contact our congressmen but it seems to do no good. I thought the govt worked for us. Seems like the govt is working to enslave us. Maybe I'm wrong. All opinions welcome
Lex, In the American system, the law can only be changed in an orderly manner. The Congress cannot lawfully pass a ban on private gun ownership, for example, while the second amendment to the Constitution remains in force. To do that would be to violate the rule of law in this country. To lawfully pass a law banning private gun ownership, our legislators would first have to annul the second amendment to the Constitution. That is not going to happen, however, because Americans would strongly oppose annulling any of the first ten amendments to our Constitution, which secure certain rights to the people-- among them the right to keep and bear arms. So what Seidman is advocating is really outright lawlessness, in terms of our American legal system. By urging legislators simply to ignore the Constitution, so that they can pass any law they feel is expedient in the modern world-- no matter what the Constitution says-- he is really urging the abolition of the rule of law in this country. His position is definitely an attack on the idea that the law is king; for in this country, elected officials have no legal authority whatsoever to pass any law that violates the Constitution.
Martin wrote: Nevertheless, Locke took many ideas from Rutherford in developing his 'social contract' theory. Both believed that in a society founded on principles of justice and freedom, the law is king, not the reverse.
Nevertheless the law can be king and you can have: 1. a king, and, 2. a sovereign legislature that is able to repeal any previous legislation.
As you noted,
Martin wrote: Lex, Our form of government in the United States allows for the Constitution to be changed, so in that sense, the people are above the Constitution, since they can change it through their elected officials.
so you also agree that previous legislation and constitutional provisions can be changed. Seidman's views (to the extent outlined in the short article) need not be outside of the remit of Lex Rex, and are only different in degree and methodology, and not in principle, from yours.
Nevertheless, Locke took many ideas from Rutherford in developing his 'social contract' theory. Both believed that in a society founded on principles of justice and freedom, the law is king, not the reverse.
I won't argue with you over terminology. John Locke assimilated the concept of Lex Rex from Rutherford, but he modified it-- so it is not a concept 'set in stone.' It can be and has been modified by different thinkers. The basic meaning of the term "lex rex" is "the law is king;" it points to the idea that a free people are ruled by established laws to which rulers themselves are subject, as opposed to being governed by the arbitrary will of men who are not subject to the law. If Seidman held to the rule of law, as understood by our nation's founders, he would be advocating amending our Constitution by an orderly process, not "giving up" on it. What he is touting is political heresy, from the standpoint of American ideals about what the "rule of law" means.
Lex, Our form of government in the United States allows for the Constitution to be changed, so in that sense, the people are above the Constitution, since they can change it through their elected officials. That's the meaning of the phrase "government of the people." But legislators elected by the people are not free to ignore the Constitution as it stands in passing other laws (such as gun control laws), which is what Michael Seidman appears to be advocating. He would set legislators free from the restraints placed upon them by the Constitution, because of its age. They are not free to do that, however, since we are a nation governed by laws to which elected officials are themselves subject. We are not a nation governed by the arbitary will of elected officials who ignore established law. That's what "lex rex" means in an American context.
Martin wrote: What no legislator can ever do without becoming a tyrant, however, is to ignore the Constitution. In this country, it is not "rex lex" but "lex rex"-- the law itself is our king, not any man.
Anachronistic confusion. Lex Rex was a doctrine promulgated in a context where parliamentary sovereignty prevailed. It is fully consistent with the position outlined by Seidman.
"Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty, and is supreme over all other government institutions, including executive or judicial bodies. The concept also holds that the legislative body may change or repeal any previous legislation, and so that it is not bound by written law (in some cases, even a constitution) or by precedent. " (Wikipedia)
A strong and vigorous, sovereign legislature democratically accountable to the people is a check on the power of the executive and an unelected activist judiciary.
Randall wrote: Inspiring words! "This is our country. We live in it, and we have a right to the kind of country we want. We would not allow the French or the United Nations to rule us, and neither should we allow people who died over two centuries ago and knew nothing of our country as it exists today. If we are to take back our own country, we have to start making decisions for ourselves, and stop deferring to an ancient and outdated document."
Inspiring to whom? Am I missing sarcasm here? This "outdated document" is the foundational law of this country. It is not outdated for it provided means by which it can be updated so whatever it is is current and up to date. If there is something about it that requires change, go through the lawful process and change it. Lacking that, it ought to be obeyed and lawless rebels ought to be driven back in their attempts to overthrow this document and this country.
Randall, I'm not sure how you find "inspiring" the words about refusing to let people run our country who died over two hundred years ago. What the "learned professor" means by that is that we should no longer allow a 200+ year old document called the U. S. Constitution to put restraints on modern-day legislators. The only problem with that way of thinking is that the Constitution, despite its age, is still the highest legal standard in our land. If there are things in it the professor regards as outmoded, and if he can get enough people to agree with him, then he change the Constitution by amending it. What no legislator can ever do without becoming a tyrant, however, is to ignore the Constitution. In this country, it is not "rex lex" but "lex rex"-- the law itself is our king, not any man.
Inspiring words! "This is our country. We live in it, and we have a right to the kind of country we want. We would not allow the French or the United Nations to rule us, and neither should we allow people who died over two centuries ago and knew nothing of our country as it exists today. If we are to take back our own country, we have to start making decisions for ourselves, and stop deferring to an ancient and outdated document."
The Constitution is not simply 'advice' to present-day legislators on how to govern the country. It is the binding law of the land. Politicians who think the Constitution can be ignored, or who think it imposes no restraint on their legislative authority, should be kicked out of office for promoting tyranny. As John Locke said, "The legislative or supreme authority cannot assume to itself a power to rule by extemporary arbitrary decrees, but it is bound to dispense justice and decide the rights of the subject by promulgated standing laws." The Constitution represents the highest "promulgated standing law" in our nation, and whoever thinks it can be ignored is not fit to govern a freedom-loving people who desire a government of laws, not men.