"WHY SHOULD WE CARE WHAT THE CONSTITUTION SAYS?"

Louis Michael Seidman, On Constitutional Disobedience (Inalienable Rights Series) (Oxford & New York: Oxford U. Press, 2012) ("If judges are more likely to act out of pure sense of constitutional obligation than political actors, then we can measure the extent to which constitutional obedience protects civil liberties by looking at the judiciary's record in providing such protection against the opposition of political actors. Since courts are systematically more likely to act because of obedience, the frequency of such cases provides an indication of how much effect obedience has on civil liberties." "As it happens, this is a subject that has fascinated many scholars in recent years, and their conclusions are virtually unanimous. Over the course of our history, judges have only occasionally moved in a forceful way to counter the all-things considered judgment of political actors when civil liberties were at risk." "For example, in the early years of the Republic, Congress enacted the Alien and Sedition Acts, which constituted perhaps the most egregious violation of First Amendment rights in our nation's history. The law prohibited criticism of government officers, and Federalist officials used them to prosecute and jail large numbers of Republican politicians and newspaper editors. The Supreme Court never had occasion to rule on the constitutionality of the acts, but lower federal judges enforced the laws with gusto." "Throughout the Progressive Era, the Supreme Court did little or nothing to counteract pervasive violations of the civil rights of African Americans. On the contrary, with only a very few exceptions, the Court upheld racially discriminatory laws. The Court finally struck down racial segregation in the mid-1950s, but only after approximately half the country had come to oppose it and, then, only with a symbolic decision that remained almost entirely unenforced. [] Serious enforcement did not come until the 1960s when southern segregationists suffered major defeats at the polls. When white backlash emerged and the political winds shifted again, the Court quickly retreated...." "During World War II, the Court upheld the forced relocation of thousands of loyal Japanese American citizens to what amounted to concentration camps.solely because of their national background. It also upheld the execution of American citizens alleged to be enemy saboteurs after hasty findings by a military commission and without the benefit of formal trials...." "The bottom line, then, is that even though courts are more likely to act out of constitutional obligation than political officials, courts have done relatively little to protect minority rights. Of course, there are counter examples...." Id. at 110-112. From the bookjacket: "What would the framers of the Constitution make of multinational corporations? Nuclear Weapons? Gay marriage? They led a preindustrial country, much of it dependent on slave labor, huddled on the Atlantic seaboard. Many of the Founders believed that it was appropriate to own human beings, that women had no political rights, and that only people owning property should vote. Yet we still obey their commands, two centuries and one civil war later. According to Louis Michael Seidman, it's time to stop." "In On Constitutional Disobedience, Seidman argues that, in order to bring our basic law up to date, it needs benign neglect. This is a highly controversial assertion. The doctrine of 'original intent' may be found on the far right, but the entire political spectrum--left and right--shares a deep reverence for the Constitution. And yet, Seidman reminds us, disobedience is the original intent of the Constitution. The Philadelphia convention had gathered to amend the Articles of Confederation, not toss them out and start afresh. The 'Living Constitution' school tries to bridge the gap between the framers and ourselves by reinterpreting the text in light of modern society's demands. But this attempt is doomed, Seidman argues. One might stretch 'due process of law' to protect an act of same-sex sodomy, yet a loyal-but contemporary reading cannot erase the fact that the Constitution allows a candidate who lost the popular election to be seated as president. And that is only one of the gross violations of popular will enshrined in the document . Seidman systematically addresses and refutes the arguments in favor of Constitutional fealty, proposing instead that it be treated as inspiration, not a set of commands." "The Constitution is at its best, a piece of poetry to liberty and self-government. If we treat it as such, the author argues, we will make better progress in achieving both.").