by Tessa Greene
“The people who wrote [the Constitution] knew nothing about industrialization or the internet or the war on terror or the National Football League. They’d never heard of Bill Gates, or Albert Einstein, or Adolf Hitler, or Lady Gaga. These were people who knew nothing of our present country, so why on earth ought we to treat their beliefs, their hopes, their ideas, their obsessions as our own?” (1)
This is the argument Mike Seidman, a Georgetown University law professor, makes for abolishing the Constitution. In his TEDx talk, Seidman attempts to persuade his audience that the Constitution is an outdated document no longer needed in the United States.
Seidman certainly is not alone in that view. A quick search will quickly find publications like the New York Times (2), the Boston Globe (3), and even the American Constitution Society (4) calling to abolish what they consider to be a broken and antiquated Constitution. But are they right? Does the fact that the Constitution was written over 200 years ago mean that it is no longer relevant today?
Seidman states that he believes those who defend the Constitution hold the burden of proof in this debate (1). It is surprising to hear that sentiment coming from a law professor; after all, in the legal system, the burden of proof is not held by the defense but by those bringing the charges. It seems illogical to claim that if no one has proved today that we should still have a Constitution, that must mean we shouldn’t. But let’s humor the idea that the burden of proof does rest on those defending the Constitution. What does our case look like?
We can find Exhibit A in the Case for the Constitution by glancing across the pond at Britain, the motherland of the United States. Britain has no official, codified constitution, but makes rulings based on statutes and precedence (5). While there is allegedly some form of free speech rights in Britain, without an official Constitution guiding their government, there is very little to stop them from punishing speech—including memes and comments on the internet—that they deem offensive. As a result, hundreds of people are arrested every year for their speech (6). Compare that to the United States, where our Constitution protects our right to say almost anything we want, and the Supreme Court will strike down any law that infringes on that right. I say that is a very strong piece of evidence in favor of the Constitution.
Britain gives us a second piece of evidence by sporting some of the strictest gun regulations in the world. Legal gun ownership is limited to sports rifles and shotguns, and even then, you must present a “valid reason” to own a gun—and home defense is not considered a valid reason (7). Another country that cracks down on gun control is Canada. In 2022, Justin Trudeau enacted an immediate ban on buying or selling handguns in the country (8). How could he do that? Because the Canadian Charter of Rights and Freedoms does not guarantee any right to bear arms (9). But in America, our Second Amendment gives us the right to own firearms without having to justify a reason to the government and without allowing a politician to strip that right on a whim. That is another piece of evidence in favor of the Constitution.
If we move a bit further across the world, another exhibit in the Case for the Constitution can be found in Hong Kong, where in 2019, protestors filled the streets to fight against a law that would allow people in Hong Kong to be extradited to mainland China to face prosecution (10). Protestors feared that this would allow the Chinese government to essentially abduct advocates of democracy, journalists, and foreign business owners and deny them a fair and reasonable trial—or any actual trial at all (11). In the United States, the Sixth Amendment to the Constitution guarantees our right to a speedy trial by an impartial jury. It also grants us the right to have a lawyer to represent us. We don’t need major protests to protect our basic right to a trial—and even if we did, the first amendment grants us the right to peaceably assemble, and to petition the government for a redress of grievances. All of those rights are certainly a reason to be glad we have a Constitution.
The Constitution isn’t perfect, of course. It certainly would be worth considering amendments like Supreme Court term limits or abolishing the commerce clause to further restrict government overreach. There is also a good case for limiting bureaucracy in the government. But for Mike Seidman and others who want to abolish the Constitution, amendments are not enough. Seidman argues that we don’t need to worry about our liberties being infringed upon because … he just doesn’t believe it would happen (1). But that is where his case crumbles. More and more, we see Americans fighting against laws and policies that violate their rights—whether that’s the difficulty of getting a gun in New York or politically driven social media platforms censoring speech. Not only that, but each piece of evidence we’ve examined from other countries demonstrates just how easy it is for governments to take away the rights of the people. While the founders may not have known about Lady Gaga or the NFL, they certainly knew a thing or two about human nature and the nature of government. They knew that a government left unchecked can easily overstep its boundaries and restrict individual rights. That is why we have the Constitution: to protect individual rights. We can certainly make changes to the Constitution as needed—that is why we have an amendment process. But with or without new amendments, the Constitution has undoubtedly been the most effective document at protecting people’s rights for the past 230 years, and that seems to be a pretty strong case for keeping it in place.
- TEDx Talks. (2014). Let’s throw away the Constitution! Mike Seidman at TEDxGeorgetown. https://www.youtube.com/watch?v=gSqUUvEHjng
- Doerfler, R. & Moyn, S. (2022). The Constitution Is Broken and Should Not Be Reclaimed. https://www.nytimes.com/2022/08/19/opinion/liberals-Constitution.html
- Hasbrouck, B. (2022). The case for overhauling the Constitution. https://www.bostonglobe.com/2022/07/05/opinion/democracy-take-2/
- Edelson, C. (2021). Our Constitution Has Failed: It’s Time for a New One. https://www.acslaw.org/expertforum/our-Constitution-has-failed-its-time-for-a-new-one/
- The Law Academy. (2023). The UK Constitution | Public Law. https://www.youtube.com/watch?v=_s1Uvr_2Sm4
- Stossel, J. (2021). Life, Liberty and the Pursuit of Happiness. https://www.youtube.com/watch?v=6P6ZJBFnSmU&t=48s
- Live and Invest Overseas. (2022). 6 Countries With The Most Strict Gun Laws. https://www.liveandinvestoverseas.com/lifestyle/countries-with-the-strictest-gun-laws-in-the-world/
- Heyward, G. (2022). Trudeau orders an immediate freeze on the sale of handguns in Canada. https://www.npr.org/2022/10/21/1130608885/justin-trudeau-canada-handgun-sales-freeze
- Pedwell, T. (2014). Is gun ownership a legal right in Canada. https://www.cbc.ca/news/politics/is-gun-ownership-a-legal-right-in-canada-1.2723893
- Hollingsworth, J. (2019). Hong Kong Protesters Hold Biggest March in 5 Years, Political Group Says. https://www.cnn.com/2019/04/29/asia/hk-protest-extradition-intl/index.html
- 11. Griffiths, J., Cheung, E., & Lee, C. (2019). More than 1 million protest in Hong Kong, organizers say, over Chinese extradition law. https://www.cnn.com/2019/06/08/asia/hong-kong-extradition-bill-protest-intl/index.html