The Federal Constitution Is Dead

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As Tom Woods and I demonstrate in our new book, Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush, the federal Constitution is dead. Politicians (including judges) and pundits pay attention to it only when it provides them a useful partisan argument.

Conservative intellectuals, who make a lot of noise about fealty to the Constitution, are supposed to be different from their left-wing counterparts. But consider just one of a mountain of examples.

In a July 25, 2008 article for National Review Online, neoconservative columnist Mona Charen laments George W. Bush’s unpopularity with black voters. This unpopularity, she says, is "a staggering injustice."

For one thing, she says, Bush made clear that when it came to appointments, "he might as well have believed in affirmative action." It was clear during the 2000 presidential campaign, she notes, that Bush was going to make Colin Powell secretary of state. Blacks, one infers, should be grateful for this and requite such tokenism with affection.

The irony here is that when they think of affirmative action, conservatives tell us (inaccurately, as it turns out) that the Fourteenth Amendment was intended to ban all government race discrimination, including affirmative action. (There is a chapter on this subject in our book.) Charen has lauded the Supreme Court for its handful of decisions in the late ’80s and early ’90s laying out the idea that affirmative action was illegal. Many intellectuals of Charen’s stripe also consider it immoral. Unless their guy is implementing it, that is, in which case its beneficiaries should love him for it.

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As an actual guide to federal policymakers, then, the Constitution is dead.

But that is not the end of Charen’s catalogue of reasons why blacks should admire W. She also points to No Child Left Behind (NCLB), the keynote education program of the second Bush presidency. This program has elevated "teaching to the test" to the status of a national imperative. As the father of three elementary school-aged children, I know how much of the school year is now absorbed by this imperative; as a history professor, I also recognize how significantly NCLB’s mandates have affected the amount of attention that American primary schools pay to history, which is not among the subjects of the NCLB tests.

And it’s all unconstitutional. Republicans of the Reagan stripe used to say — even as recently as 1994’s Contract With America — that the Department of Education should be abolished, because education was among the areas of policy that the people reserved to the states in making the Constitution. In fact, so insistent were the people of 1787—88 on reserving matters such as education to the states that they rejected Federalists’ promises that the unamended Constitution would be read as including this principle implicitly. Thus, the Tenth Amendment made that principle explicit.

Conservatives pay lip service to limited government — except when their guy is violating the Tenth Amendment. Then, the beneficiaries should be grateful for the Tenth Amendment’s violation. Here again, the Constitution is dead.

Then there’s President Bush’s Faith-Based Initiative, Charen adds. Under the rubric of that Initiative, which even the then-Republican-controlled Congress refused to legislate, Bush has used executive orders and other presidential power to pull religious organizations into the administration of federal programs in a way never seen in America before. If he had had his way, this Initiative would have been even more far-reaching; seemingly, all welfare efforts of the federal government would have been faith based, to judge by W.’s statements about the relative efficacy of secular and faith-based social programs.

Of course, the Tenth Amendment bans virtually all federal social programs. And the First bans programs such as Bush’s enlistment of churches, synagogues, mosques, ashrams, etc., as federal service providers. Conservatives decry flagrant violations of such clear constitutional provisions — except when their guy undertakes them. Then, blacks should love him for it.

How can we understand the mental compartmentalization that allows intellectuals such as Mona Charen to bleat about originalism, on the one hand, and to trumpet flatly unconstitutional programs on the other?

It is simple: the Constitution, as ratified, has no actual influence on them. It is just a totem toward which they bow, an arrow in the quiver of partisan argumentation, a trope for their use in crafting an intricate political argument. As an actual frame of government, in the hands of conservative pundits such as Mona Charen, the Constitution is dead. Conservatives’ favorite politicians and judges, as well as those of liberals, are among those who killed it. That is the verdict of Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.

Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776—1840 (newly available in paperback) and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.

Kevin R. C. Gutzman Archives

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