Questions for Professor Seidman

In this week's Econtalk podcast, Louis Michael Seidman argues that we should abandon the constitution because there is no reason to be ruled by the dead hand of the founding generation and because many of the provisions are evil or simply don't make sense.

One question occurred to me: What is so objectionable about the founding generation establishing constitutional law that binds future generations? Isn't that the way all law works? That is, law is created by a particular generation, but is binding on all future generations within the political jurisdiction until changed. I don't see anything particularly egregious about the constitution that would separate it from other laws in this regard.

Seidman also argues that we really don't want to be bound by the constitution, because we ignore it when it conflicts with our policy preferences. So, in the podcast Professor Roberts would say X is wrong and shouldn't happen, and Seidman would say, yes, but X is happening under the current constitution, so X only illustrates my point that the constitution doesn't work.

Two points here. First, It would have been good if Professor Roberts was armed with some cases where constitutional principles were venerated against a majority-enacted law, to show that the constitution does protect minority rights. The Supreme Court certainly strikes down some laws as unconstitutional. Citizens United and Heller are two examples. Liberals must agree that some Supreme Court cases striking down democratically elected laws came out right from a policy perspective. I would have used those cases to at least get Seidman to admit that those cases would have remained on the books under his alternative scheme.

 Second, while he kind of made the argument at the end, I wish Roberts would have made the seen-and-unseen argument more forcefully. It may well be that the some oppressive laws were not passed because of the fear they would be struck down, but we don't see those laws. Additionally, the good parts of the constitution that Siedman argues everyone would accept in his counter-factual world of no constitution, may be uncontroversial precisely because they are spelled out in the constitution, and have been observed for 250 years with good result. A consensus has been built as a result of the constitution that may not otherwise exist.

[I may update this post as more thoughts occur to me.]