Progressive/ Liberal Polemic That Moves The Conversation Yet Doesn't Go Through To The Logical Conclusion. Lysander Spooner once said, during the early Reconstruction period, that "Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize" (Spooner; No Treason: The Constitution of No Authority, Appendix; 1870), and this is the same essential point that Seidman makes in proclaiming what he terms "Constitutional Skepticism". Argued from a progressive/ leftist perspective of current American politics, Seidman's text here uses at least one hyperbolic source (the oft-cited and yet demonstrably inaccurate and misleading GunViolenceArchive), stretches certain terms to implausible yet popular within his political allies lengths (claiming the events of Jan 6, 2020 in Washington DC to be an "insurrection"), and generally parrots progressive/ leftist talking points about at least two Supreme Court justices, the "problem of gun violence", etc. All of this noted, within this particular sphere, Seidman actually makes his case reasonably well that the Constitution of the United States of America is, as Spooner proclaims, "of no authority". And *to that point* and from the given perspective, Siedman is truly solid. Where he needs to expand his thinking a bit further is that he ultimately concludes that a more current Constitution, written by and binding on the "current generation" (which he fails to define, and fails to acknowledge that in any average human's lifetime are three separate generations alive at any one time nor determine which of those generations should be allowed to bind the others according to his thinking) would be actually better than the one written so long ago and claiming to be binding forevermore. No, this is where he would actually do well to examine the writings of Spooner and other *anarchic* Constitutional Skeptics of American history and discuss his thoughts on their ideas as well. For, as Spooner then concluded his discussion quoted above, "But whether the Constitution really be one thing, or another, this much is certain that it has either authorized such a government as we have had, or bas been powerless to prevent it. In either case, it is unfit to exist" - taking his own Constitutional Skepticism to its actual logical conclusion, which Seidman refuses to do. Still, this is very much a book that could actually help the overall political discussion both in the US and elsewhere, and it is one that many indeed need to read. Very much recommended.

The US constitution is a pain. Everyone’s forever arguing over it, whether it’s a living or a dead document, what exactly the Founders meant by how they phrased things, who is or isn’t totally loyal to it, and whether or not a bunch of wealthy white slaveowners should be dictating to the country from the grave, 300 years later. Now, Louis Seidman has put out an absolutely sterling analysis of the issues in From Parchment To Dust. It is beyond fair; it is uncomfortably fair. It can make readers wonder at their own values: how they have misjudged their own side as well as the other side. Seidman scores direct hit after direct hit, making points on every page worthy of their own books. There’s a lot to absorb here.

In example after example, in sector after sector and in incident after incident, Seidman shows that no constitutional argument is clear, simple, or decisive. Everyone can twist it to make it seem that it reflects their own view. In the Civil War, the seceding southern states had the temerity to claim they were the true patriots who supported the constitution, not the northerners. Slavery was clearly permitted in the documents; they were proudly exercising their constitutional rights. It was northerners who were breaking the rules.

Franklin Roosevelt abused the hell out of it, all the while claiming to support it (in his own special way) as he remade the federal government into an activist and caring service.

Abe Lincoln’s Emancipation Proclamation, the largest source of pride of any presidency, is a dramatic document cited endlessly for its simplicity, power and fairness. It is, at the same time, totally unconstitutional. Only Congress can make laws. Amending the constitution is a forever process involving every state government. So Lincoln just did it himself. Very few would argue against it, even today.

Worse perhaps, today we claim to respect the constitution, take pride in it, and have institutions to prove it, but that’s not quite correct. Seidman says “There is way too prevalent an assumption that our existing institutions are pretty good, or at least the best that anyone could expect. That assumption is enforced by willful blindness about how these institutions actually function, and a lack of imagination about how they might function.”

For example, Americans “admire an institution like the military because it is a place where people serve selflessly and for the common good without partisan bickering. It is a place where there is no backtalk, no argument, and, they suppose, no politics.” Nothing could be farther from the truth, as scandals over contractors, outsourcing, bloated deals, incompetent operations, rape and religious outrages, jealousy, revenge, reprisal, pettiness and much more are daily features of the US military. Its high trustworthiness is not merited, he says.

There is the administrative crisis, in which Congress passes the shells of laws and tells various agencies to fill in the blanks with new regulations. Congress does not have the power to offload that responsibility; it is theirs alone.

The second amendment has been twisted and perverted out of all reasonable shape, with seemingly 330 million different interpretations of what it means in America today.

Worse still might be the Supreme Court, even more highly rated than the military. Three hundred years of inconsistent decisions have clearly demonstrated political influence, corruption, personal animus and ulterior motives, making the whole country suffer. “The quasi-religious claptrap that surrounds the Court – the robes the justices wear, the marble temple in which they are housed, the solemnity and formality of the oral arguments that they conduct – are meant to symbolize the grandeur, neutrality, impersonality and majesty of The Law, and of the Constitution whence it derives.” In other words, the Wizard of Oz behind the curtain. “For the constitutional skeptic, more than just argument is required. The Court should be the object of derision, mockery and contempt. We need to start making fun of the pomposity pretensions of the justices.”

In several pages of bullet points, Seidman then shows how corrupt, incompetent, prejudiced and even infantile Supreme Court justices have been, as well their baffling momentous and contradictory decisions that issue from the bench. The bottom line is SCOTUS is nothing to be venerated the way it operates.

As for its constitutional responsibilities, SCOTUS is not there to rewrite laws or change the direction of the country as it prefers; it is there to weigh the constitutionality of laws that Congress passes – one of the many checks on power the Founders put in place. Instead, SCOTUS has gone off the rails in its own direction(s). It reports to no one, with justices employed for life, to the ridiculous point of deciding the 2000 presidential election by itself. In a simple vote of its nine members, the majority of whom were appointed by Republican presidents, it voted Bush in. No one was surprised at the result. “Anyone looking at the entire sweep of the Court’s history would understand that the Court has pretty consistently stood with the most shortsighted and venal impulses in American society.” In case you missed the point.

And if you did: “The preceding discussion should be sufficient to demonstrate that the Supreme Court hardly deserves the reputation that it enjoys, and there is no good reason to think that it will earn that reputation anytime soon.”

SCOTUS gets most of the flak in the book: “The Supreme Court now hides economic rulings behind a veil of misleading civil liberties rhetoric. When it wants to, the Court secretly entrenches status quo distributions of property rights while pretending to enforce civil liberties. At other times, it secretly undermines civil liberties by relying on the power of the political branches to redefine and redistribute property rights.”

How could the Founders have saddled the country with such a mess? “It turns out that distrust of democracy and the desire to establish institutions that avoided democratic engagement were the whole point of the enterprise,” he says. It was never a game of power to We, the people; it was a game of preserving power for the Founders and the people like them. It worked. All the torturous processes, the checks and balances and the amendments were very difficult to design and get approved (not that voters ever got to approve them, which is another issue). It was hard enough to get the delegates to approve them, let alone the states. The results are less than optimal, despite its saintly reputation.

Seidman demonstrates the degree of difficulty in setting up an appropriate constitution can be seen in the complex example of the Scopes Monkey Trial. This is a famous set piece where a Tennessee high school teacher was tried for teaching evolution after the state banned it in favor of biblical stories. Clarence Darrow for the teacher and William Jennings Bryan for the state were an all-star cast, and the transcript of the trial was made into a play and a feature film (Inherit The Wind).

The trial could have been about many things: freedom of speech, the rights of children to be exposed to the real world, the right of the majority to remain in their comfort zone, and so on. Or it could have been construed as science versus traditional stories, which was Darrow’s choice. He even called Bryan as a witness to defend the stories of the bible, which of course, could not be done. Still the jury convicted the teacher of breaking the law, and the state supreme court then reversed it for a net gain of zero.

But beyond the trial, how should the constitution treat the issues of majority rule, the rights of school boards, the rights of individuals, and science against traditional stories? It is not clear, obvious, or easy. All kinds of rights were competing here, and the constitution was of little help.

And then Seidman takes it one step further. In Buck v Bell, a woman in Virginia was sentenced to be sterilized because the state decided she was so stupid that it didn’t want any more like her. This too was science. It stemmed from the very fashionable theory of eugenics, in which intelligence is supposedly passed on to children. In order to raise the intelligence of the country, eugenicists wanted to prevent those they decided were feebleminded from ever having any children. It too stemmed directly from Darwin and his theory of evolution, with Darwin himself supporting it. Oliver Wendell Holmes wrote for the majority that Carrie Buck must be sterilized, concluding “three generations of imbeciles are enough.”

So is science to be the last word in constitutional issues? These two important cases say clearly not. And furthermore, can we trust the courts to rule on the merits, because while their decisions loftily cite civil liberties, their actual motives are often entirely political. They use the constitution as a shield to hide their true intents. Seidman has wonderfully detailed analyses in Scopes, Buck and Skinner, among others, exposing those ulterior motives so thoroughly hidden by constitutional niceties. In Skinner, the same court ruled against the primacy of eugenics, after it upheld it so strongly in Buck. It’s what Seidman calls “cultural power”, the power of the elite to change the direction of anything, at will. How can the 300 year old constitution defend against that? Or enable it in the first place? Where does take contradictory decisions by the Supreme Court?

Or take the Bill of Rights. Some of the Founders didn’t want one at all. Seidman shows the rights in it are neither fundamental nor self-evident. And they barely scratch the surface of what human rights should be included. It turns out to be superficial, vague and incomplete. Not something you want to manage a country by for 300 years as it grows to 330 million people of multiple races and religions.

This takes readers to the core of the problem. In their struggle to maintain power and privilege for themselves, the Founders made it extremely difficult to change the constitution. Today, with the country so polarized, it is simply not possible. So is the nation stuck with a 1790s constitution forever? Thomas Jefferson famously worried than constitutions only last a generation, about 19 years, and need to be adapted by the upcoming generation to meet the realities of that more modern society. But not the American constitution. It is cast in concrete. Americans are required to adapt to it. Or rationalize it beyond all recognition.

The hypocrisy of it all can be seen right in the document’s opening remarks: “The Preamble’s promise of ‘a more perfect union’ suggests, if it does not compel, modern definitions of liberty that will make this union more perfect.” Aside from the oxymoron of more perfect, the Founders were admitting this was not a framework for all time. But then they made it all but impossible to adapt. It is sadly unfortunate that politicians could not see their way to passing an amending amendment while that was still possible. Seidman says “During the 1912 campaign, he (Woodrow Wilson) joined (President Theodore) Roosevelt in arguing that Article V of the Constitution should be revised so as to make amendment much easier.” So it was recognized by all sides. And still no one bothered to follow through.

So where are we? Seidman is all about constitutional skepticism. Pulling back from the adoring crowd, skeptics see a constitution as an attitude, a way of living, far more than a set of laws. Taking cues from the likes of Lincoln and FDR, skeptics see the need to circumvent, to take action and solve problems in times of emergency. America, Seidman all but says, needs more skeptics and fewer fawning devotees. The constitution should not be the immutable law of the land, but a starting point that serves the people of the time. Skeptics, at least in constitutional matters, are welcomed and needed. From Parchment to Dust is itself a refreshing example of what fair-minded skepticism can bring out.

David Wineberg