The Politically Incorrect Guide to the Constitution

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As we read on this site yesterday, Kevin R.C. Gutzman has just released The Politically Incorrect Guide to the Constitution. For what my opinion is worth, this is one of the most important books of the past 25 years. There is absolutely nothing like it, anywhere.

The Politically Incorrect Guide to the Constitution is not another of the toothless and forgettable laments about the death of the Constitution at the hands of activist judges that we read from time to time from the right-wing pundit class, though of course Gutzman decries both of these things. This is a far more sweeping, much more fundamentally devastating indictment of the Supreme Court, of the "legal training" that raises up ever more people to perpetuate its record of dishonesty and usurpation, and of the American regime at large — which rests on the legal fictions Gutzman shreds in his book.

To those who weep over the Constitution’s neglect these past 50 or 100 years, Gutzman shows that defiance of that document has gone on from the beginning, starting in the 1790s. An expert on colonial and early republican Virginia, Gutzman knows the Virginia ratifying convention inside and out. He knows the promises made to the people, and the assurances that Virginia’s ratifiers inserted into that state’s ratification instrument. And he shows that Jefferson and his allies were faithful to those principles and promises, and that the so-called Federalists and their present-day apologists (which includes just about everybody) were not.

The five or ten lines from The Federalist that Straussians and other centralizers cite on behalf of their nationalist reading of the Constitution are also dealt with. Gutzman, in fact, is the Straussians’ worst nightmare. Their interpretation of the nature of the American union does not survive Gutzman’s study. (You’ll also read about the true influence — which, contrary to popular belief, was actually very slight — of The Federalist.)

John Marshall, Chief Justice of the United States from 1801 to 1835, comes in for some serious scholarly thrashing as well. Marshall is all too typically held up as an idol before conservatives and even libertarians, and he remains a central icon of early American history. For Gutzman, Marshall is an outright opponent — and a dishonest one at that — of the legal principles on which the people of the states were promised their new government would be based. Where else can you find such an iconoclastic portrayal? (The inconsistent James Madison, too, winds up with his share of bruises.)

Gutzman also treats a great many politically incorrect subjects from a constitutional perspective. I won’t spoil the surprise by giving everything away, but if you happen to have a thing for being told the truth rather than lies, you’ll read and cheer.

It’s going to be fun to watch the so-called constitutional lawyers try to attack Gutzman’s book. And try they will — of that you can be sure. But Gutzman, who holds a law degree as well as a Ph.D. in history, is uniquely positioned to parry any such attacks: unlike his opponents he actually knows early American history, not just a string of unfounded Supreme Court decisions purporting to be "constitutional law."

An expert on both history and law, Gutzman has some choice words for the way law is taught today:

Legal education today is much different from what it was in John Marshall’s day, or even early in the twentieth century. When Thomas Jefferson and Edmund Randolph, John Marshall and Patrick Henry studied law, they did so by reading treatises in what was called the science of law. Common-law study was in its nature historical and theoretical, and familiarity with the history of England was essential to it.

Now, however, American law students are almost universally subjected to the case method. Their texts are collections of judicial opinions, or in a few cases of statutes, with absolutely no historical context…. In short, if the judges make a particular false assertion about the Constitution in numerous cases, students reading those opinions have no way of recognizing that assertion’s falsity. They are provided no tools for analyzing judges’ claims — only with scads of the opinions incorporating those claims.

This is one reason, Gutzman says, that "legal training should not be confused with an education."

Now there will always be some libertarians who — missing the point — will insist that they do not care about the Constitution, and by extension about a groundbreaking book like this. All they care about is liberty, regardless of the words of any Constitution, which they do not consider binding anyway.

My purpose is not to disparage this point of view, which in large measure I myself share. I simply happen to find it significant that from the very beginning, politicians and judges, in order to justify their departure from the understanding of the Constitution that was peddled to the people at ratification time, employed arguments that were exactly the opposite of what they themselves had told Americans in order to get them to ratify the Constitution. This is obviously an important proselytizing point for libertarians, since it shows how governments and their "constitutions" really end up working. Gutzman’s book also provides a fascinating glimpse at how the state transforms institutional restraints on its growth into mandates for that growth. (Bertrand de Jouvenel did something similar for European history in his book On Power.) And it asks, if only implicitly, whether in the long run any piece of paper can really be a match for the state’s predatory instincts. I can hardly imagine a libertarian or a serious conservative who wouldn’t find these questions worth asking.

Although I was revisiting much familiar ground as I read this book, even I was shocked at how dishonest the federal courts have been over the years. And Gutzman just eviscerates all of it, slashing and burning everything in sight, and holding up the ludicrous series of fictions that pass for "constitutional law" to hilarious derision.

Gutzman isn’t supposed to do any of this, of course, since the continuation of the racket depends on popular ignorance. To the legal establishment he is like the man who shouts out in the middle of the show how the magician is really sawing the woman in half.

Thankfully for him, it is impossible to dig up anything insensitive that Gutzman wrote a dozen years ago and, in the typical manner of commie agitprop, pretend it’s relevant to assessing the merits of his book. Google searches reveal only that he’s been published in top academic journals like the William and Mary Quarterly, the Journal of the Early Republic, the Journal of Southern History, the Journal of Politics, the Virginia Magazine of History and Biography — and the list goes on, for quite a while. The crazies might actually have to listen to what he’s saying and address him on the merits of his case. That’ll be a first.

No such radically Jeffersonian overview of American constitutional history, from its colonial and revolutionary antecedents all the way to the present, has ever been written. Every American needs the information in this book. Naturally, the guardians of fashionable opinion certainly don’t want them to have it, and neither does anyone in the political establishment.

So what are you waiting for?

Thomas E. Woods, Jr. [view his website; send him mail] is senior fellow in American history at the Ludwig von Mises Institute. His books include How the Catholic Church Built Western Civilization (get a free chapter here), The Church and the Market: A Catholic Defense of the Free Economy (first-place winner in the 2006 Templeton Enterprise Awards), and the New York Times bestseller The Politically Incorrect Guide to American History.

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