This episode lays out a different way of thinking about the US Constitution as of 2025. (How different it is from Tushnet’s is something we discuss in the episode and will continue to worry over.) Seidman begins by describing what the Constitution as written in 1789 was designed to do then—set up a government, set out some compromises between then-important political forces in a sort of peace treaty, and state some general aspirations the new government might hope to advance. He then asks whether adhering to the Constitution of 1789, particularly by treating it as in general enforceable by the courts, is necessary—or even useful—as a way of keeping the government running, maintaining social order in the face of disagreement, and guiding the nation toward implementing attractive values. His answer is, “Decidedly not.” Along the way Tushnet offers some support and some criticisms, and the discussion opens the way to exploring our differences in more detail in a subsequent episode.

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