Monday, January 7, 2013

Professor Seidman's Final Exam in Constitutional Law 101


Please indicate the correct answer using a two pencil. There is only one correct answer for each question.

1) The First Amendment right to freedom of speech is

a) an unalienable right of liberty, endowed by our Creator, according to the Declaration of Independence
b) essential to our representative democracy
c) a basic human right that no government may abrogate
d) a pleasing nostrum prescribed by rebellious slave owners 230 years ago that is not legally binding on the U.S. government.

2) The First Amendment right to free exercise of religion is

a) our first freedom-- freedom of conscience-- on which all of our other freedoms depend
b) the right of Americans to live according to the dictates of their faith without undue interference by the government
c) a corollary to the prohibition of an Establishment of Religion, which emphasizes the Constitution's prohibition against government interference with religious life in America
d) a superfluous dictum penned by eighteenth century Deists to mollify religious radicals in the colonies, of no binding relevance to modern American law.

3) The Right to a Speedy Trial by an Impartial Jury is

a) a pillar of American jurisprudence
b) an essential protection for citizens from illegitimate prosecution
c) a reflection in the criminal justice system of the ultimate sovereignty of the American people
d) a quaint habit derived 230 years ago from English common law that is optional in modern American jurisprudence

4) The right to Equal Protection of the Law is

a) the assurance that the law will be applied equally to all American citizens regardless of accidents of race, sex, wealth, etc.
b) the explicit Constitutional expression of a fundamental principle of justice
c)  the basis for the Incorporation Clause, which applies the Bill of Rights to the states
d) a sop given by guilt-ridden dead white men to blacks after the Civil War, that is no longer binding on legislatures or courts

5) Even for a law professor who openly incites sedition, tenure is

a) an absolute right which can never be abrogated.
b) an absolute right which can never be abrogated.
c) an absolute right which can never be abrogated.
d) an absolute right which can never be abrogated.


  1. I understand what you're saying, doctor.

    Leftists are hypocritical on this, to be sure. For them, any part of the Constitution they don't like (which is most of it) is a suggestion. They can pretend to respect it by claiming that it's not absolute. That way they can portray themselves as believing in the fundamental principles while making a supposedly narrow common-sense exception. These narrow exceptions have a way of becoming larger and larger over time.

    Senator Chuck Schumer is the poster boy for that one: >>I believe there ought to be limits because the First Amendment is not absolute. No amendment is absolute.<<

    No amendment is absolute? How about the Thirteenth? Let's not get carried away with the abolition of slavery, senator. We can still have our Thirteenth Amendment while simultaneously making ever-widening exceptions to it. Right? Unless the senator believes that the Thirteenth Amendment is absolute, in which case he's contradicting himself.

    No, as a leftist, Schumer just believes that most parts of the Constitution are bad and should be ignored whenever they conflict with an agenda item. Yes, we know that there's a Second Amendment right to bear arms, but we need guns off the streets. Yes, we know there's a First Amendment right to free exercise of religion, but the government wants all employers to provide abortifacents. Yes, we know that the First Amendment guarantees the right to free speech, but a small documentary film company made a movie that was negative of Hillary Clinton, and that's not really fair.

    And on and on it goes.

    Tenure, on the other hand, is absolute. There are no modifiers, no secret if's and's or but's. It's means just what it says it means.

    You, on the other hand, are hypocritical as well. You're a tenured professor, aren't you? How'd you like your tenure stripped away because of a position you took?

    I understand that Seidman is wrong. He's so wrong it isn't even funny. I'm not arguing that with you. I'm simply saying that his tenure protects him even when he's wrong.


    1. @JQ:

      [You, on the other hand, are hypocritical as well. You're a tenured professor, aren't you? How'd you like your tenure stripped away because of a position you took?]

      Did I ever say that my tenure should protect me regardless of what I advocated publicly? What if I advocated that doctors perform criminal acts, and taught that to my students? What if I advocated that doctors should give patients drugs to sedate them, and then make them sign over their life savings to the doctor? What if I wrote an op ed in the New York Times asserting that doctors should use their ability to write prescriptions to become drug dealers? What if I taught this to my students? Should tenure allow me to continue teaching this stuff?

      This is not about "tenure", understood as legal protection for discussing controversial views.

      This is about the appropriate response to a incitement to the most destructive criminality imaginable in a constitutional democracy-- an incitement made by a professional who is charged with the responsibility for protecting the constitution.

      I would not expect my tenure to be enforced if I advocated and taught criminal behavior.

      In Seidman's case, if he had advocated AMENDING the Constitution to eliminate the Constitution, I would have no objection to his right to say that and be protected by tenure. That is a viewpoint. It is not an incitement to crime.

      IGNORING the Constitution is a crime. Tenure should not protect incitement to crime.

    2. >>Tenure should not protect incitement to crime.<<

      What about encouraging civil disobedience? I think we need some civil disobedience right now, against the Obama administration and his oppressive mandates.


    3. Why should "civil disobedience" be any different? I have great respect for civil disobedience, and support it in appropriate circumstances, but if you break the law, you need to be ready to accept the consequences of breaking the law.

      Advocating breaking the law and then expecting your tenure to be respected in a way that you did not respect the law for others is not "civil disobedience". It is an elitist assertion of privilege. It is the assertion that "the law constrains others, not me".

      If you are going to flout the law to make a point, you need the balls to accept the consequences. If you sit down to block traffic in protest, you should expect to be arrested. You are not "special" and above the law. That applies even if your cause is just.

      In the case of Obama's oppressive mandates, if we defy them, we should expect penalties. We are not above the law. Hopefully, judicial review will find that the mandates are unconstitutional, etc, but we have no right to expect that we will not be sanctioned for ignoring the mandates. We are not exempt from the law.

    4. I agree with everything you just said about accepting consequences. That's part of civil disobedience.

      I'm not however, saying that advocating breaking the law is a form of civil disobedience in and of itself. I'm asking you this: if a university professor suggested, cajoled, or hinted that civil disobedience was the proper response to the illegal unconstitutional contraceptive mandate, should that professor be fired despite his tenure? I say no.


    5. @JQ:

      Good question.

      Tenure protects expression of differences of opinion.

      Breaking the law, or advocacy of breaking the law, is not just "expression of difference of opinion".

      I don't believe that any tenured professor who advocates law-breaking should be protected absolutely by tenure. If a tenured professor advocates law-breaking, the decision about that individual's employment status should be made without reference to tenure. Tenure does not put a person above the law.

      There are plenty of situations in which non-tenured faculty would not and should not be fired even if they advocated law-breaking. A professor who recommended that Rosa Parks sit in the front of the Birmingham bus should not be fired. Nor should a professor who advocates defying the contraception ban.

      The employment decision must be prudent and proportionate-- advocacy of non-violent defiance of arguably unjust law would not normally justify firing any professor, with or without tenure.

      Advocacy of serious criminality-- murder, terrorism, sexual assault, ignoring the Constitution by officials sworn to uphold it-- is another matter entirely. It is not protected by tenure (in my view), and it is a serious enough matter to justify terminating a professor. Tenure does not protect from incitement to commit serious crimes, which is exactly what Seidman incited.

  2. Liberals respect the Constitution, they just don't fetishize it. That's what Hoo said.

    By which they mean that they follow it when it's convenient and not when they don't.

    I respect tenure, I just don't fetishize it. Maybe if this professor gor his ass tossed, the liberals might understand that being true to a principle is not a "fetish".


  3. Well, this discussion about tenure is interesting, but what I really want to know is...

    How did Sandra Fluke do on the test? I wonder if she got some "extra credit"?

  4. I was wondering if you saw Professor Seidman on Fox News with Megyn Kelly.

    He made a truly astonishing admission.

    "I'm not even saying, we shouldn't have for example, a supreme court, which is a matter of political morality which will stop the government from overreaching. I do think that if we have a supreme court, they ought to be honest about what they're doing, um, so that when they decide cases like cases about gay rights or about affirmative action, they stop pretending that they're getting those outcomes somehow from the constitutional text, which is nonsense."

    Wow! Now there's some honesty! The court has been making it up as they go along for a very long time. They decide what they think is right and fair then seek out a constitutional justification as an afterthought. That's the rule of men, not the rule of law. And a few women too, I suppose, but mostly men.

    --Francisca S.

    1. @Francisca,

      I agree. This is all about the rule of men, not of law.

      I'm surprised at his candor. Perhaps he feels that his faction has enough influence now that they can tell the truth about what they're up to.
      He's probably right. They probably no longer need to lie about their dismissal of the Constitution.

    2. @Francisca S.

      You mean there's no right to butt sex in the Constitution? Or to kill the unborn? You mean that the separation of church and state clause isn't there either? The right to serve in the military?

      I've been trying to find those clauses for years. I guess I can stop looking now.

      The Torch

    3. The Torch,

      The authors of the Constitution (and its amendments) had no idea how America would develop. The way in which it is applied is a matter of convention and the application of court cases, in particular the Supreme Court, in response to new laws or situations.

      Australia and America have constitutions with almost identical wording about freedom of religion. America has separation of state and religion. Australia doesn't. The High Court (the Australian equivalent of the Supreme Court) has decided that it's perfectly OK for the Australian taxpayer to subsidize religion in public schools or even subsidize private religion-based schools.

      It's the interpretation of the constitution that's important.

  5. Definition of irony: a Robert Bork fan criticizing someone else for questioning the Constitution.


    1. @Boo:

      Here, I'l translate it into 'moron' language so you can understand:

      Seidman advocates that government officials ignore the Constitution, which is a crime.

      Bork advocated a specific interpretation of the Constitution, which is jurisprudence.

      Crime. Jurisprudence. Not same.

    2. Prof. Seidman's "crime" is to point out that many parts of the Constitution are so ambiguous and open to interpretation that you can drive a truck through them.

      The second amendment is a great example. For more than a century it was interpreted as the right of states to maintain well-armed militias. Until in the 1970s the NRA started a campaign to change that interpretation. They have eventually won, with 5 conservative justices on the Supreme Court in 2008.

      That is a great example of a living Constitution. It means whatever lawyers and judges decide it means. Which brings us to Prof. Seidman's main point. The Constitution was written a long time ago. Its language is vague, which makes it open to interpretational abuse.

      And if this nation only holds on to freedom of speech and other important rights only because some dead guys said so 200 years ago then this nation is in trouble.

      One last point. Prof. Seidman is an expert on constitutional law. The role of an expert is not only to endorse that which they know but also to question the orthodoxy. This is what Seidman did with his book and opinion piece.

      An ability to question the orthodoxy is highly valued by Dr. Egnor when it comes to science of biology. Then he goes all-out to defend those who question the orthodoxy (Prof. Behe comes to mind). Guess what? He does not seem think that questioning orthodoxy should be allowed in other fields like Con Law.

      Fortunately, demands to fire Prof. Seidman will not have much impact. Georgetown will not cave in to these preposterous demands. Tenure is not sacred, but it plays an important role in allowing people in academe freedom of thought. Demands to fire Prof. Seidman make Dr. Egnor look like an intellectual midget.


    3. @Hoo:

      I'll write this in moron language so you'll understand:

      Seidman did not "question orthodoxy."

      Seidman advocated criminal acts on the part of government officials, to wit ignoring the Constitution. He did not counsel a different interpretation of the Constitution, or a different theory of the Constitution. He explicitly advocated ignoring the Constitution. Ignoring the Constitutional rights of citizens if you are a government official is a federal crime:

      Seidman, a leading law professor, recommended that thousands of federal officials (and millions of state and local officials) violate federal law.

      What federal laws did Behe recommend that people violate?

    4. Sorry, Dr. Egnor, I do not speak moron.


    5. Dr. Egnor,

      Prof. Seidman does not advocate the crimes listed in the statutes. He does not attempt "to coerce or deceive a citizen to surrender his Constitutional Rights." In fact, he quite explicitly says that freedom of speech and other rights listed in the Constitution should be preserved.


    6. *sigh* Back to Moron dialect.

      Seidman advocated that legislators, executives, and judges no longer consider the Constitution binding. He advocates that they pick and choose which aspects of the Constitution they like, and ignore the rest.

      "Government officials go ahead and ignore the parts of the Constitution you don't like" is advocacy to commit federal crimes, because government officials who violate the Constitutional rights of Americans are committing federal crimes.

      The Constitution constrains the government, and the government does not have a choice about which parts of it to obey.

      If Seidman had made an argument about a particular interpretation of the Constitution, or about legally amending the Constitution, that would be fine.

      Advocating IGNORING Constitution, in whole or in part, is advocating a federal crime.

      The issues are simple and clear. If Moron is not the proper language to use for you, please stammer out the language that is.

    7. Dr. Egnor,

      Perhaps this is how you see it. However, you should acknowledge that Prof. Seidman's actions do not fit any of the statures listed at your PDF link. None.


      P.S. The use of moron dialect is not helping the communication. I do not understand it. In case you wish to switch to gibberish, I do not understand it, either. It's America, so please speak American.

    8. @Hoo:

      Would you agree with Seidman, then, that blacks do not have a legally binding Constitutional right to equal protection of the laws?

      Of course you and I and Seidman agree that blacks SHOULD have equal protection, but you and Seidman believe that that protection is not a Constitutionally binding protection.

      If we may ignore the Constitution, why exactly should the President serve 4 years. Why not 40? He can choose, and he is the commander in chief of the military, so he can deal with dissenters.

      Would he be committing a crime if he activated the military to maintain himself in power for 40 years? If he did not commit a crime by violating the Constitution, exactly what law would he break?

    9. Dr. Egnor,

      In fact, we may allow a President should serve 40 years—at least in principle if the country decides that it is in its best interest. It is extremely unlikely that it will.

      But let us not pretend that the only thing that stands between this country and tyranny is the US Constitution. There are liberal democracies with no constitution and there are tyrannical countries with beautifully written constitutions. It is the will and culture of a people that sustains good governance.

      Seidman's points are obvious to anyone who makes an effort to understand what he says. You do not seem to be among such people. Perhaps it is a side effect of reading American Thinker, I don't know.


    10. I never said that Seidman's points weren't "obvious". Of course they're obvious.

      Lefties have been ignoring the Constitution for a century, and now one of them has the balls to publicly advocate making it formal.

    11. Dr. Egnor,

      Prof. Seidman's points may be obvious, but you do not seem to understand them. You ought to swear off American Thinker in the morning! And in the evening, too, if you can find strength.


    12. I asked you a question about equal protection of the law for blacks.

      Is that protection provided by the Constitution?

      Is the Constitution binding on the government?

      Should it be?

    13. Dr. Egnor,

      You are asking silly questions. In fact, there is no need to ask them. Prof. Seidman and I agree that the US Constitution has many things that need to be preserved. Equal protection is among them, and Prof. Seidman explicitly wrote that in his opinion letter.

      As it appears that your memory fails you, let me quote directly from Prof. Seidman's letter:

      This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

      I hope this helps. Don't hesitate to ask more silly questions!


    14. Do we have a Constitutional obligation to provide equal protection of the law?

    15. As a "materialist scientist," I certainly do not.


    16. Bork advocated ignoring the 9th amendment. If I knew how to translate that into whatever language is below moron, you might be able to understand it.


    17. Bork didn't advocate ignoring the 9th amendment. He advocated not reading into it things that weren't there. He subsequently expressed the view that it should be interpreted as stating that the People retain the right to constrain the states in ways beyond the Constitution.

  6. He compared it to an ink blot. I assume that before he subsequently expressed his views, you wanted him fired and tried for sedition?