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Criticize the Constitution? Blasphemy!

Late last year, The Chronicle Review published a cover story on Louis Michael Sediman and the Constitution. In his interview with The Chronicle’s Alexander Kafka, Seidman explains that he began questioning the role of Constitution in the early 1970’s while clerking for Thurgood Marshall, and then working for the D.C. public defender, experiences which offered him the opportunity to see Constitutionalism in practice. Seidman asserted that invoking the Constitution in any political argument is “profoundly beside the point” distracting us from what policies would be best in regards to our most contentious issues: health care, gun control, antiterrorism, and so on.

This generated the first of a series of vituperative responses surrounding the publication of On Constitutional Disobedience. Published in February by Oxford as part of the Inalienable Rights series, the book became a lightning rod for many who were offended by Seidman questioning whether the Constitution should still be the centerpiece of our government and legal system. He began receiving the angry emails after the New York Times published an op-ed adapted from the book. “I’ve received over a thousand abusive emails…the vast majority I can only describe as abusive and offensive. Hundreds are anti-Semitic; a few threaten physical violence,” he explained.

The volume grew after an appearance on CBS Sunday Morning and the EconTalk podcast with Russ Roberts. Seidman and his correspondents have generously allowed us to reproduce their exchanges below.

From: Nick Karr
To:Louis Seidman

Mr. Seidman-

I’m writing to say thank you for your recent interview with Russ Roberts on EconTalk. I found it incredibly thought provoking, and has given me a new perspective on the role that The Constitution plays in our society.

To be completely forthcoming, when I first read your piece in the Times, my initial response was one of anger and disdain for your position. I consider myself to be quite conservative, and also a “strict constructionist.” As such, the Constitution is sacrosanct.  Yet at the same time, I also would like to think of myself as being an open minded and critically thinking person. I am realizing, however, that much of what I believe might be more dogma than based on rationally formulated arguments.

I am a huge fan of Mr. Roberts program, in large part based on what I perceive to be his openness to allowing those that he might not entirely agree with to express their opinions. Your interview was much less “threatening” to me, as I already had a certain level of trust with his show. The interview allowed greater opportunity, as I see it, for you to develop your argument in a way that was not possible in the op-ed of a newspaper.

While I still might not agree with your position, primarily in what I can summarize as the “devil you know, devil you don’t know” concern about rewriting or abandoning the constitution, I still can appreciate the idea of at least questioning how much we really currently adhere to the Constitution.

As an orthodox Jew, I accept the Torah as being true.  I am a religious person, and this is a tenet of my belief system. But the Constitution is not a religious document, although I’m sure that there are those who would disagree with me on this. That being the case, blind obedience to a document written by man deserves to be critically analyzed.

Thank you again for your work,


From: Louis Seidman
To: Nick Karr

Dear Nick,

Your email is tremendously gratifying to me. Thank you so much for sending it. You have made my day! It’s something of a mystery to me why people with religious sensibilities are not more sympathetic to my position. Just as you say, the Constitution was written by men who were in some ways quite extraordinary, but who were, after all, men and therefore flawed (sometimes in quite extraordinary ways as well). Worship of the Constitution is a kind of idolatry, and it seems obvious that when the Constitution  comes into conflict with our more fundamental commitments, it ought to give way.

Anyway, one of the great things about writing the book that I’ve just published is that it provides an opportunity to exchange ideas with interesting and thoughtful people like you. Thank you!



* * * * * * *

From: Matthew Barton
To: Louis Seidman

I listened with interest to your conversation on Econ Talk…

I think the most significant point which you failed to address is precisely why the constitutional limits on the coercive power of government are important… In this regard, your argument is entirely positivist…

Whether they are precisely correct or not, these constraints permit a spontaneous social order (ie., kosmos) to emerge that, as Hayek so thoughfully articulated in “The Use of Knowledge in Society” incorporates more knowledge than can be known to a single mind…

Yes, structure of government is deliberately organized – that is, it is a taxis – but the power that organizes this structure should be limited to the adminstration of government and not toward directing the affairs of individuals in the service of particular aims… And as was mentioned, there are mechanisms by which the limits to government’s monopoly on power can be altered – and the difficulty with which they are employed ensures that only those changes with which most agree will be enacted…


Matt Barton

From: Louis Seidman
To: Matthew Barton

Dear Mr. Barton,

Thanks for your thoughtful email. The email raises issues that are too complicated to explore fully in a short response. I’ll limit myself to the following observation: Whether and how a constitution constrains government power depends on what the constitution says. For example, one might imagine a totalitarian constitution that required the government to regulate every aspect of our lives. Obedience to this constitution hardly serves the end of creating a spontaneous social order.

Whether our constitution restrains government power and restrains it in the right way depends on one’s conception of freedom, and that conception is contested in our society. If a given constitution – perhaps our constitution, depending on one’s point of view – embodies the wrong conception of freedom, then obeying it retards rather than advances human liberation. On the other hand, if it embodies the right conception of freedom, then people will follow its terms not because of a duty to obey, but because they think that it is the right conception of freedom. So, either way, constitutional obedience plays no role in protecting human freedom.

If you are interested in more than a barebones version of this argument, you might look at Chapter 4 of my new book. In any event, one of the great things about writing a book like this is that it gives me the opportunity to exchange views with interesting and thoughtful people like you. Thank you for writing.


Mike Seidman

This correspondence exemplifies the best that can come out of good university press publishing: encouraging smart dialogue that challenges readers, students, and also the author. As Seidman writes to Nick Karr: “one of the great things about writing the book that I’ve just published is that it provides an opportunity to exchange ideas with interesting and thoughtful people like you.”

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