Boston University Law Review
Mike Seidman’s book, On Constitutional Disobedience, offers an impressive challenge to constitutional fidelity. With much of it, my book Against Obligation is on all fours – we both share the view that our Constitution’s meaning should not be bound by past sources. Seidman seems to go further, though, and reject the bindingness of the Constitution as a text. What does it mean to ask whether the Constitution itself obligates? Most of the Constitution doesn’t set rules for citizens; rather, it establishes powers, and what we might consider conditional obligations, for officials. All government officials in the United States swear an oath of fealty to the Constitution, and thus, despite one’s views on political obligation generally (in Against Obligation, I argue that there is no general, content-independent, moral duty to obey the law), one might think that in taking their jobs, officials in the U.S. accept the Constitution and are bound by it. In this essay, I also respond to some of Seidman’s critiques of my book.
Abner S. Greene,
What is Constitutional Obligation?, 93 B.U. L. Rev. 1239
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/512