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No sooner was the Constitution in place than our leaders began ignoring it. Thomas Jefferson thought every constitution should expire after a single generation. When Abraham Lincoln issued the Emancipation Proclamation, he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.
The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution should give us pause. The two main rival interpretive methods, "originalism" (divining the framers' intent) and "living constitutionalism" (reinterpreting the text in light of modern demands), cannot be reconciled. Whichever your philosophy, many of the results — by definition — must be wrong.
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.
The writer is a professor of constitutional law at Georgetown University, US
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