The Muddled Thinking of a New York Times Intellectual

On Dec. 30, the New York Times editorial page featured what has to qualify as one of the most intellectually vapid columns of the year. And considering the source, that’s saying something!

Louis Michael Seidman says we simply must do away with our blind obedience to the Constitution!

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Huh? Obedience to the Constitution? Really?

Since when?

The federal government has utterly ignored constitutional limits for the last 100 years or more. With the logical acumen of a 13-year-old, Seidman makes this very point, spending a large portion of his allotted space in the Grey Lady chronicling federal usurpation of power. This constitutional law professor from Georgetown University winds up his dissertation on constitutional infidelity with this brilliant observation.

In the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.


So let me follow the Seidman logic trail here. We’re teetering on the edge of fiscal chaos. The American system is broken. And it’s all because of our obedience to the Constitution. But nobody really takes the Constitution seriously. Really, they never have. That led us to where we are today: prosperous, without a hint of chaos or totalitarianism. But the system is broken. And we need to ignore the evil Constitution to get things back on the right track.


Did this maven of dime store academia get his constitutional law degree out of a Cracker Jack Box?


On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans

by By Robert A. Mikos, CATO Institute

The American Constitution divides governmental power between the federal government and several state governments. In the event of a conflict between federal law and state law, the Supremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies. There are, however, important limitations to the doctrine of federal supremacy.

First, there must be a valid constitutional basis for the federal policy in question. The powers of the federal government are limited and enumerated, and the president and Congress must always respect the boundary lines that the Constitution created.

Second, even in the areas where federal authorities may enact law, they may not use the states as instruments of federal governance. This anticommandeering limitation upon federal power is often overlooked, but the Supreme Court will enforce that principle in appropriate cases.

Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states’ prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been—and cannot be—preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.