I am pleased that a scholar of Professor Tribe’s distinction should come to the defense of our Constitution.  Yet, as I pointed out in an earlier post, Professor Tribe is of the school of legal jurisprudence which allows the Supreme Court to effectively revise the Constitution to adapt it to changing circumstances.  Professor Seidman’s argument that we must abandon constitutional strictures in order to assure a fresh political conversation is the logical extension of Professor Tribe’s own philosophy.  If the Supreme Court is not obligated to respect the original written Constitution, why should anyone else be?

 The Wall Street Journal and Megyn Kelly have asked Professor Seidman the obvious question: why he did not look to amending the Constitution rather than abandoning it altogether?  He rejected this approach because the amendment process is too “arduous.”  (The link is to a report in the ABA Journal because the Wall Street Journal site is restricted.)  He has a point in that our Constitution is currently the most difficult in the world to amend.  However, if Professor Seidman finds the amendment process too arduous, isn’t the better solution to reform the amendment process to make it less arduous?  A re-invigorated amendment process would provide an orderly method to incorporate the democratic debate Professor Seidman professes to favor without the risks of justifying a free-for-all of constitutional disobedience (“constitutional disobedience” is the name of his forthcoming book).

One suspects though that his critique, which goes back at least to Woodrow Wilson, is really about supplying a rationale for members of the ruling elite like Professor Seidman to disregard aspects of our Constitution which they dislike.  A functioning amendment process might actually let the hoi polloi, such as those nasty Tea Party people or genuine populist progressives, have a voice in our Constitution.  They might even ignore wise members of the law school professoriate like Professor Seidman (and Tribe).  It might even make the first three words of the Constitution (We The People) more than a poetic rhetorical flourish.

The “amendment amendment” is content neutral.  By breaking the congressional monopoly on initiating amendments, it opens the amendment process to popular participation, which is one of the most important values of sincere progressives.  An alliance of constitutionalists and sincere progressives could command the political and popular clout to force two-thirds of Congress to initiate the “amendment amendment.”  Once out to the States for ratification, it should be quite possible to reach the three-fourths threshold in state legislatures no matter their political makeup since the “amendment amendment” will vest them with a significant new constitutional status.

Now, many on both sides of this alliance may be nervous about the proposed amendments the other side might introduce with this new procedure.  However, I would suggest a broader view.  Almost all Americans are peripheral subjects of our modern imperial center in Washington, D.C.  We are faced with major issues about the nature of our nation.  Every bit as much as constitutionalists, sincere progressives believe that those decisions should be made by the people.

The “amendment amendment” is not about what those decisions are.  It is only about assuring that the decisions are made at the level closest to the people, the States, where grassroots input is most effective.  Any one who believes in democratic governance should support this.

Indeed, the “amendment amendment” may well be the purest test available to separate those politicians who truly believe in government “of the people, by the people and for the people” from those who really prefer government “of the Supreme Court, by the federal bureaucracy, and for the Washington power elites.”  Its only effect is to move control of our Constitution away from the Supreme Court and Congress in Washington, D. C. and to the people in their States.