Who Killed the Constitution?

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Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush. By Thomas E. Woods Jr. and Kevin R.C. Gutzman. Crown Forum, 2008. Viii + 259 pages.

The question posed by the title of this book raises a further question, as the authors are well aware. If the Constitution is indeed dead, why does this matter? American conservatives have in past days been accused of "Constitution worship": why should we care whether actions of the government conform to this particular legal document? Woods and Gutzman respond that the Constitution provides a way to limit the government. It is far from the best conceivable arrangement; but while we stand under its legal authority, we should use it as a weapon against the state’s continual grasp for power.

They put the point with characteristic force:

To be sure, our federal government has perverted beyond recognition the system that the Founding Fathers created. The chief restraint on government officials is merely their sense of what they can get away with. Nonetheless, the Constitution can still serve a purpose, as it remains a useful bludgeon to employ against government power grabs. By calling attention to what the Constitution really says, we can alert the people to just how consistently and dramatically their fundamental law has been betrayed. (p. 202)

Woods and Gutzman have selected twelve cases to illustrate this disregard of the Constitution. By no means are all of these examples of judicial misconduct; the legislative and executive branches have been as least as guilty as the judicial in seeking to enhance government power.

One instance of what we are up against took place immediately after World War I. In 1917, Congress passed the Espionage Act and in the following year, the Sedition Act. These forbade with heavy criminal penalties attempts to interfere with the American war effort, especially with recruitment of troops. Under this harsh legislation, many people were imprisoned, including the famous socialist Eugene V. Debs, who ran for the presidency in 1920 from his jail cell.

The legislation blatantly violated the text of the Constitution. The First Amendment states that "Congress shall make no law … abridging the freedom of speech"; and as Justice Hugo Black liked to say, "’no law’ means ‘no law’." Congress had earlier violated the First Amendment with the Sedition Act of 1798; but along with the Alien Act of the same year, it was repudiated by Thomas Jefferson and was generally regarded as a disaster. Nevertheless, the Supreme Court said that the Espionage Act was constitutional.

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July 31, 2008

David Gordon [send him mail] is a senior fellow at the Ludwig von Mises Institute and editor of its Mises Review. He is also the author of The Essential Rothbard. See also his Books on Liberty.

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