Does the US Constitution do more harm than good? Last year, the most important social welfare legislation since the New Deal, the Affordable Care Act, was nearly invalidated by the Supreme Court on grounds that Congress does not have the power to require people who can afford to purchase health insurance to do so or pay a tax. This term, the Court may strike down both the University of Texas’s affirmative action program and a Voting Rights Act provision that has had a central part in curtailing racially discriminatory voting practices in the South. Three years ago, in Citizens United v. Federal Election Commission, the Court ruled that the Constitution bans limits on corporate spending on elections. And who can forget Bush v. Gore, in which five conservative members of the Court invoked the Constitution to stop a Florida recount and effectively installed George W. Bush as president?
These and other decisions, coupled with the experience of several decades under a Supreme Court controlled by conservative justices, have led many liberal legal scholars to question the value of constitutional judicial review in our democratic system. Harvard Law School’s Mark Tushnet and former Stanford Law Dean Larry Kramer have argued that we should “take the constitution away from the courts” and instead empower “the people” to make constitutional decisions—a curious prescription in light of the fact that the Constitution was designed as much to check “the people” as to limit government.
Others, such as NYU Law School’s Barry Friedman, have argued that the Court really only follows the election returns, and therefore does not in fact serve to protect liberty against intolerant majorities. And Harvard Law School Professor Michael Klarman has maintained that when courts do get out ahead of the main currents of opinion, as in Roe v. Wade, they often set off a conservative backlash that does more harm than good for the right for which protection is sought.
Louis Michael Seidman, one of the country’s leading constitutional scholars and my colleague at Georgetown Law, seeks to raise the stakes. In his latest book, On Constitutional Disobedience, he argues that we should give up on the Constitution altogether. He maintains that we need to question not just individual decisions of the conservative Supreme Court, and not just the Court’s power to have the last word on constitutional questions, but the entire enterprise of constitutionalism. He contends that little good and much evil flows from our perceived obligation to be bound by the Constitution. It has rarely protected civil liberties. It distracts us from the “merits” of a given law or action, since we argue instead about whether it accords with what a small and exclusive group of men thought more than two centuries …