Constitutional Law Is Full of ‘Contradictions
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Louis Seidman finds a contradiction in the Court of Appeals overturning the Ethics in Government Act (Op-Ed, April 25). He argues that the ”judges contended that constitutional rights are best protected by political accountability and ordinary politics. Yet the 1978 Ethics in Government Act was the product of ordinary politics.” One wonders if Mr. Seidman realizes how thoroughly his discovered ”contradiction” permeates United States constitutional law. For example, because freedom of speech is necessary to preserve ”political accountability and ordinary politics,” the Supreme Court has repeatedly invoked the First Amendment to overturn acts of Congress that restrict this freedom. The Court never held that an act of Congress may restrict freedom of speech merely where the act ”was the product of ordinary politics.” Indeed, many respected theorists have attempted to construe almost all American constitutional law as a type of political ”antitrust” law through which the Federal courts are empowered to keep the ”political marketplace” and the ”marketplace of ideas” free. If Mr. Seidman senses a general contradiction in the United States Constitution, he is in good company: it is said that Kurt Godel, perhaps the greatest logician who ever lived, long refused to become an American citizen and pledge allegiance to the principles of that document because it was, to his eye, so obviously internally inconsistent. As Justice Oliver Wendell Holmes pointed out, the path of the law has not been logic, but experience. KENNETH MCKENNA New York, April 25, 1988 Source : query.nytimes.com |