The Constitution Cannot Save Us

A radical argument by the leading constitutional scholar that American constitutional law lacks the resources to address our current problems, and risks making them worse

“A sharp-edged and well-informed takedown of one of America’s sacred cows.” —Publishers Weekly on Mike Seidman’s From Parchment to Dust

Constitutional theorists on the Right and the Left are united in the belief that constitutional law and review by the Supreme Court are crucial to the success of the American experiment. Both sides believe that, on issues ranging from affirmative action, reproductive freedom, and gun control, to economic regulation, regulation of speech, and the role of religion in American society, popular democracy is just too dangerous to go unchecked.

In a radical and paradigm-shifting argument sure to change the debate about the rule of law in the age of Trump, leading constitutional law scholar Louis Michael Seidman argues that the American Constitution lacks the resources to address our current problems, and that reliance on it risks making the challenges that face us worse. Seidman, called “one of our greatest living constitutional scholars” by Georgetown University Law professor Rosa Brooks, understands that a natural reaction to the current danger is to shore up the foundations of constitutional theory, uniting in the defense of “the rule of law.” But he sees this response as gravely mistaken and bound to fail. As he writes in the introduction, “no one should be fooled into thinking that a legal strategy will stop the broad thrust of the Trump revolution.”

Seidman reviews and critiques prevalent constitutional theories on the Right and the Left, from originalism to “living constitutionalism,” highlighting ways in which they fail to meet the current moment. Instead, he charts a different way forward. If both sides ended their dogmatic insistence that divisive social issues can be definitively settled by a piece of aging parchment, we might ease political tensions and begin a respectful and productive debate about the deep grievances that are tearing the country apart.