Academic journal article Boston University Law Review

Critical Reflections on Seidman's on Constitutional Disobedience

Academic journal article Boston University Law Review

Critical Reflections on Seidman's on Constitutional Disobedience

Article excerpt

At first glance, Louis Michael Seidman's term "constitutional disobedience" is strange. When the U.S. Constitution directs or forbids action, usually it is understood to be action on the part of government officials rather than ordinary citizens. And those officials take an oath to support the Constitution -- an oath required by the text of the Constitution itself.1 Seidman's book, however, is not best understood as a manifesto urging government officials to violate their oaths and abandon support for the Constitution.

Is it a call to action on the part of ordinary citizens? Some passages support this reading. For example, Seidman suggests in passing that perhaps "all of us have a natural duty to share fairly in the arduous but important work of undermining constitutional obligation."2 Here, however, he seems more to be tweaking "natural duty" theories of political obligation than speaking seriously about our actual duties as citizens. More serious is his suggestion that individual citizens participate in a movement of cultural change by responding to each "claim that something is unconstitutional . . . with a perfectly straightforward, but deeply subversive two-word question: 'So what?'"3 Significant cultural change, such as shifts in views about same-sex marriage, has happened, Seidman says, in significant part "by ordinary individuals who challenge conventional wisdom supporting the status quo."4

But here Seidman seeks not so much "constitutional disobedience" from ordinary citizens as "constitutional irreverence." In other passages, Seidman seems to seek something much deeper -- something like an abandonment of constitutional discourse altogether.

With respect to both citizens and legislators, Seidman calls for a shift away from claims that the Constitution requires or forbids certain governmental choices and toward more straightforward, "all-things-considered"5 political debate about "how to solve real, modern problems"6 and "about what will produce the best country."7 By focusing our attention instead on what the Constitution requires, permits, and forbids, Seidman contends, constitutional discourse has had a "destructive impact."8 It has, he says, distracted us from "the merits" of "the real issues."9 "[C]onstitutional argument," Seidman claims, "has become a partisan political weapon" that has contributed to our "broken" political dialogue.10

Seidman sometimes presents this development as the working out of an inbuilt tendency of constitutional discourse. The idea of self-governance, he says, is inconsistent with the idea that constitutional norms can trump the people's present-day "unfettered decisions about the questions that matter most to them."11 Further, Seidman contends, "[w]hen arguments are put in constitutional terms, they become absolutist and exclusionary."12 Constitutional arguments operate by locating one's opponents "outside the bounds of our community" and in this way they "have poisoned our political discourse."13 The solution: "[O]ur disagreements ought not to be expressed in terms of constitutional obligation."14

In his preference for open, unfettered political debate over tendencies toward judicial supremacy in constitutional interpretation, Seidman is not unusual in contemporary progressive legal circles. Many have touted the Constitution outside the courts, often looking to social movements as interpreters and transformers of constitutional ideals, and in the case of Seidman's friend Mark Tushnet in particular, looking to legislatures as constitutional interpreters.15 With Seidman, however, we get the progressive distrust of constitutional courts but not the faith in either social movements or legislatures as constitutional interpreters or transformers. In that sense, Seidman's attack on former orthodoxies in constitutional theory is much more radical.

What place does the Constitution have, then, in the wide-open political debate that Seidman prefers? Here Seidman seems ambivalent. …

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