Epstein Responds to Seidman Op-Ed on Constitutional Disobedience

Our Obsolete Constitution?
Richard A. Epstein
Defining Ideas
January 8, 2013

By common consent, our constitutional system of government is broken in some deep way that resists any short-term fixes. Anyone who has witnessed the fiscal cliff saga must fear that the brinksmanship so evident between the Republicans and Democrats is rapidly becoming par for the political course. Now that the negotiations have been completed and the debt limit battle looms nigh, it is clear that our nation’s political problems have gone from bad to worse.

Our modern constitutional system seems to be weighed down by non-stop political crises, from entitlement reform to labor relations. With each new crisis comes a short-term fix. Over time, these fixes will only exacerbate the nation’s long-term problem of living beyond its means—for now, short-term interest rates remain low enough to fund the nation’s tidal wave of debt.

What, if anything, should be done about our political crises? On this question, a recent New York Times op-ed by Georgetown Law Center professor Louis Michael Seidman gives precisely the wrong answer. In his piece, “Let’s Give Up on the Constitution,” Seidman attributes the current “fiscal chaos” to an antiquated Constitution to which we should owe scant respect. In this vein, he dismisses the founding fathers as “a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves.” Why therefore should anyone care about what James Madison thought when he wrote the Federalist papers nearly 225 years ago?

Richard A. Epstein


Canada before 1981

Canadian constitutional expert Peter Hogg said that Canada's system of government before 1981 (which ensured parliamentary supremacy) was not worse than the current system where unelected judges regularly intervene to strike down laws.