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Let’s Give Up on the Constitution -

Let s Give Up on the Constitution NYTimes com


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As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: 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 might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

I did wonder what right the President had to buy Louisiana Territory.

Seems like every American President tests (and expands) the limits of Presidential power.

But so do most Congresses. What gives Congress the power to limit the debt ceiling? Not the Constitution. I wonder if contesting that power will be taken to the Supreme Court...

Apparently you don't need a background in history (i.e. Anglo-Saxon-Norman legal history) to teach Constitutional Law.

People who insist on absolute fealty to the Constitution are really insisting upon respect for the common law, the unique character of it's British form, and it's (at the time) over 1200 year old history.  The Constitution glanced over the judiciary branch because jurisprudence was already well settled in English law by the 18th century (and historically tended to repeatedly revert towards Ibero-Celtic common law after repeated periods of repressive legislation).  

It doesn't matter what nominally treasonous slave owning white men from 1787 thought of issues, because nothing they did was the slightest bit original.  We shouldn't be asking what would James Madison do, but what would Alfred the Great do?

of course not, only a law degree... =p

and that's part of the problem... law is history.

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