The Constitution is Neither Dated nor Advisory

The New York Times was one of the few newspapers in the world that couldn’t find the space to write a story about my TSA work. Not the defeat the body scanner video, not the multiple lawsuits and petition to the U.S. Supreme Court, none of it. They did, however, find space to publish an op-ed by a Georgetown University law professor who dedicated a piece to trashing the Constitution and calling for it to be, essentially, considered a piece of advice rather than binding law: Let’s Give Up on the Constitution, by Louis Michael Seidman.

I don’t understand how a constitutional law professor, or attorney of any kind, can make such claims. Lawyers take an oath to defend the Constitution, and having a man who hates the Constitution teach the future lawyers of the country about that document is absurd, and I believe the exact reason why we find judges that are so willing to bend the constitution to their will.

I wrote the following reply op-ed to the NYT, which I’m sure they’ll publish ASAP.

In Georgetown University constitutional law professor Louis Michael Seidman’s op-ed published by the Times on December 30th, a man who is teaching the attorneys, judges, and politicians of the future preaches that our founding document is too “ancient” to be relevant to today’s issues, and we should ignore its “evil provisions.” He argues that we can instead keep our cherished rights through checks and balances between the branches of government, “tolerant debate,” and “engaged citizens.”

I’ve spent the last 2 years working to hold our government to the promises of the Constitution in my battle against abuse by the Transportation Security Administration. I am thankful that I have the Constitution behind me when I step into court. Arguments advanced by the government so far in my litigation have included requests to deny me a trial altogether, requests to consider only government-produced evidence, and a request that constitutional claims relating to TSA policies be filed within 60 days or be forever forefeited. The Constitution gives me the legal backing to demand to be heard and meaningfully petition my government for redress. Neither public debate nor checks-and-balances has yet stopped the TSA from using machines to photograph us naked at the airport, nor from putting their hands on the genitals of both our grandparents and grandchildren. There are many “engaged citizens” left in tears after prison-style airport searches of themselves and their familes wondering exactly how they can direct their anger towards the pursuit of change. Many conclude that there’s not much that can be done.

If the Constitution did not exist, or somehow becomes advisory rather than compulsory as Mr. Seidman fantasizes, short of armed revolution, they would be right. Checks and balances between branches of government are useful, but the ultimate check is against the will of the people, and the foundation of that is the document that spells out what we the people have empowered and forbidden our government to do. It is a crystal clear history lesson that every government that ever was has relentlessly sought to gain as much power as it possibly can. There is no doubt that over 200 years later, a black-and-white notice of the people’s demand for freedom of speech, fair elections, due process, protection from unreasonable search, and (dare I say it) the right to be armed (and not just for hunting, but for defense against criminals and tyranny alike) is still relevant and necessary. With the help of this “ancient text,” we can avoid a situation in which the people are left with no recourse but to fight their government as those in Lybia were forced to do after their government shut down the “tolerant debate” of the engaged citizens.

The problem of “infidelity” to the Constitution described by Mr. Seidman comes from judges, politicians, and government lawyers who decide that their judgment is superior to the document that founded the greatest nation on this earth. Where could they possibly have imparted the idea that such an arrogant disregard of the will of the people was acceptable? Perhaps they studied law at Georgetown University.