Who Killed the Constitution?

A transcript of the Lew Rockwell Show episode 003 with Tom Woods.

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ANNOUNCER:  This is the Lew Rockwell Show.

ROCKWELL:  We’re very lucky today to have Dr. Tom Woods.  Tom is senior fellow in American history at the Mises Institute.  He’s a columnist at LewRockwell.com.  And if you haven’t read his past columns, it’s one of the archives that really pays taking a look at.  He’s a very prolific guy not only in columns but he’s the author of eight books, and his most recent one is called Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush.  He wrote this with Professor Kevin Gutzman, who teaches at Western Connecticut State University.

And, Tom, tell me a little bit about this book, especially — I don’t know how many people listening to this podcast are going to share a similar feeling but I’ve always been somewhat of a Constitution skeptic in the sense that I think the Federalists, as Murray Rothbard put it, staged a coup in Philadelphia over the far more Libertarian Articles of Confederation.  Hans Hoppe points out that every single adoption of a constitution in world history, so far as he can tell, represents a step up in government power and centralization.  So why should we care about the Constitution, if it, indeed, was killed?

WOODS:  Right.  It’s a good question.  It may deserve to be buried — (laughing).

Well, my own thinking on the subject is that I have no superstitious reverence for the Constitution.  The reason that I like to study it though is that I am persuaded by what Hans says that, of course, it’s utopian to think that if you have a government, and you have a document that’s supposed to restrain that government but that government interprets that document, what on earth do you think is going to happen?  Do you think it’s going to remain limited to the powers in that constitution?  What possible incentive would it have for doing that?  To the contrary, what should we expect to happen?  We should expect it to find every loophole and stretch it to the limit.  We should expect it to educate the population to believe that this is a wonderful feature of the society.  I mean, everything that has come to pass is almost implied in the initial premise if you just work it all out.  So, no, it’s not that I have some reverence for the Constitution.

Sometimes when I write about the Constitution, people will say, you know, Libertarians don’t really care one way or another about the Constitution, per se; it’s liberty that we care about.  But my response to that is I couldn’t agree more but that I’m interested in how it is that so-called limitations on government are cast aside or ignored.  I mean, how governments do this fascinates me.  How governments take just some clause, whose meaning we can, in fact, determine with some degree of certainty, and turn it not — they take it from a limitation and turn it into a positive grant of power.  It’s a fascinating thing.  It’s a fascinating process for me to observe.   And that’s really what we’re doing here, is just observing how they do this, because it’s so interesting.  It’s not because we’re writing a book about, oh, for heaven’s sake, if only we could get back to the Constitution everything would be fine.  Even if we could, there would still be problems.  It would be a good start.  But we’re much less naïve than that.  But it’s just an interesting phenomenon to observe how you take something that says — talks about not abridging the freedom of speech and then you throw Eugene Debs in jail for giving a speech.  How does that happen?  That’s the phenomenon we want to observe.

And, by the way, Lew, that’s actually the argument that most turned me away from being a sort of traditional, old-fashioned constitutionalist, a constitutionalist-type conservative and into a more radical Libertarian, were precisely these arguments that governments are not restrained by pieces of paper.  They cannot possibly be.  And once you realize that, then that just opens up a panorama of alternatives that you never considered before.

ROCKWELL:  Although, I guess, as Murray also pointed out, that it’s a great thing to be able to use the Constitution if you can, rhetorically, to show that the federal government, the Supreme Court, the Congress, especially the presidency is violating what it claims to be bound by and what they would claim as the founding organic document of the American state.  Who has been the worst offender if we look at the three branches of government?  Who, in terms of ripping up the original interpretation and using it as a grant of power, as you say?  Is the main problem the Supreme Court?   Is it the presidency?  Is it the Congress?

I might just mention a very funny line by Joe Sobran, who was saying he was, “reconsidering the parliamentary system; maybe it was better than the American system.”  And somebody said, well, that’s ridiculous because, of course, there’s no written constitution in England and, therefore, the parliament can just, by majority vote, in effect, amend the Constitution.”  And Sobran said, “You mean versus here where it takes the majority vote of five to four to amend the Constitution”?

(LAUGHTER)

WOODS:  That’s right.

Well, Lew, let me just start by commenting on the point you made about what the Constitution can be used for.  It can be used as a rhetorical bludgeon.  And that’s I think the very useful thing because the federal government uses this document for a purpose.  It doesn’t use it to govern by, obviously, but it does use it to build up its own legitimacy.  So if it can be shown that it has complete contempt for this document, it helps to undermine the legitimacy of the regime.  And I think that’s a worthy aim.

But in terms of who’s most responsible, what I can say is that, in our book, we don’t give the usual sort of right-wing lament that, you know, it’s just a runaway Supreme Court, and where do these crazy liberal judges come from.  Well, you know, look, these crazy liberal judges, so called — and they’re not all liberals who are responsible for this, by the way — but given that they’re nominated by presidents and approved by Congress, it seems unlikely that it’s just some mystery that, all of a sudden, for heaven’s sake, how do we have these crazy justices.  This sort of passing the buck, we don’t take lightly.

So instead, we’re sort of inclined to say it’s a three-way tie.  I mean, the Supreme Court has been responsible for all kinds of outrages as they have rubber-stamped what the federal government has been doing.  But, you know, the executive branch has been a complete disaster as well.  And here’s an area where, a lot of times when you deal with the various chapters of the Federalist Society, which is the confederation of conservative and/or Libertarian law school groups, a lot, but not all of the students who are attracted to that seem to have a kind of, in my view, misplaced sympathy for the executive branch.  They’ll let the executive branch get away with a lot.  And I don’t want to say that that’s true or false.  I’ve spoken at a lot of Federalist Society chapters and had much success there.

But the executive branch has been engaged in a lot of unilateral activity that is not authorized by the Constitution, by means of executive orders, for example.  You talk about, just as almost a trivial case but typical, is in the early 1940s, you had Franklin Roosevelt, who, by executive order, declared that from now on the top income tax rate would be 100% for incomes above $25,000 — 100%.  And Congress finally intervened and overruled him and said that that would undermine the war effort if we were taking everybody’s money over $25,000.  “People wouldn’t work hard enough for the war machine, so we can’t do that, Mr. President.”  So, thank heavens, we had the Congress to step in.  But that type of thing has gone on just — certainly, all through the 20th century.  There was a lot of it under Lincoln.  But, unilateral exercise of power by the executive, and then the Congress retroactively approves a lot of these, in effect, legislative acts by the president.  So there are cases like that.

And a lot of times, presidents we are taught to admire in our history textbooks are guilty of all kinds of infractions against the Constitution.  I mean, you know, your sort of left-wing high-school teacher doesn’t like George W. Bush but will teach you to admire Harry Truman.  Well, Truman had exactly the same view of the president’s war powers that George W. Bush has.  He thought he could seize the steel mills.  He would not rule out the possibility of seizing the newspapers and the radio stations.  You just go down the line.  You had an assistant attorney general — I was pointing this out at a rally this weekend — who, when he was confronted in federal court and asked, “If the president appointed a subordinate to take you into custody and execute you in the morning, do you really believe you have no power to enjoin this”?  And the assistant general under Truman replied, “I’ll have to think that one over.”  I mean, that’s the sort of thing we would expect under George W. Bush, but it’s been true all though the 20th century with all the so-called great presidents.  So the executive branch is at least as responsible for what we’ve seen.

And, of course, the Congress seems to believe that if it has a majority vote in the Congress, there is no constitutional impediment to taking over the entire health care system; just pretty much anything.  In fact, in the 1990s, when Bill Clinton’s solicitor general was asked, “Can you come up with one area of American life that you believe the federal government would have absolutely no constitutional authority to intervene,” he just stood there stupefied and he had absolutely no answer.

So it seems like it’s really been a kind of collusion of the three branches, which is what Jefferson feared.  Thomas Jefferson was not one of these fans — or I would say Jefferson was of the belief that mere division of power into three branches doesn’t guarantee a thing.  What does that guarantee?  It just means that they’ll just have to work together to go after the liberties of the people.  Well, big deal.  That’s exactly what they would do and that’s what they have done.

ROCKWELL:  You know, it’s funny that Jefferson was the one significant founding father not to be involved in the war.  He wasn’t a general.  He wasn’t a colonel.  Sometimes there seems to be something unfortunate about putting men into positions of military command and for the rest of their lives they feel everybody else should continue to obey them.  They make very unfortunate presidents.

But I want to ask about the Constitution today, Tom.  It still seems to apply for things like — I don’t know — senators should only serve six-year terms versus eight-year terms.  But does it actually — are there any remnants — I mean, are there any actual — does it still have the power to restraint government or is it just entirely a dead letter as — Bush supposedly said that it was a dead letter.  Is it, in fact, a dead letter or is there any hope for those of us who would welcome any kind of a tool to try to beat back the totalitarian state that seems to be growing in this country.

WOODS:  Right.  Well, of course, Bush’s remark about the Constitution involved language that would make this not a family friendly podcast, so that was good of you to say that he simply called it a dead letter — (laughing).

Well, I think at this point, I mean, if they can get away with what they’re doing, what they’ve been doing for basically a hundred years that — I mean, if this isn’t a dead letter, then nothing is a dead letter.  But as I say, it still can serve the purpose of showing the American people that this is obviously what, for example, presidential war powers were intended to be.  That’s not even controversial.

When Mitt Romney — I can’t even believe I would waste my time mentioning this guy’s name.   But when Mitt Romney said in that Republican debate over the question of whether he could deploy troops to Iran on his own authority that he would consult his lawyers, you know, my immediate thought was, if you even think this subject is debatable, then you’re unqualified for the office.   It is not debatable.  And there aren’t — you know, a lot of times people will say, well, you never know what the Constitution was supposed to mean and this and that.  That’s a debate for another day.  But when it comes to something like war powers, that is clearly a case where all the evidence is on one side.  All the evidence is on one side.  There is basically nothing for presidential unilateralists to point to in the Constitution, the ratifying conventions, American history, early court decisions; there’s nothing they can point to.  And yet, today, you know, we think it’s not unusual at all for the president to do as he wishes.

And for this president, George W. Bush — and we wanted to mention George W. Bush specifically in our book title, and so we did — with his presidential signing statements, whereby, along side the ceremony of signing a bill, he will insert a statement in which he goes down and lists the provisions that he either is not going to enforce or will enforce in a different sense from how they were intended.  And, for example, there was one — this is maybe even one of the minor examples — but it was a defense appropriations act that said that no money that is set aside in this act should be used to involve American troops in any conflicts going on in Columbia between the government and the rebels, that only for defensive purposes and in a last resort should any military action be taken with this money.  And President Bush responded that he will interpret that clause as being “advisory” in nature.  So you know — (laughing) — “I’ll take that under advisement, but if I want to do what I want to do, I’m just going to go ahead with it.

So it does seem to me to be a dead letter.  But as I say, it can be a useful wake-up call for a lot of people.

And, you know, when you look at some of the things that the Supreme Court has let the federal government get away with — I mean, the favorite sort of classic example showing how FDR transformed the courts, the Wickard v. Filburn case, 1942, when you had a farmer who was growing wheat for his own use on his own land that he consumed or fed to his livestock, and the federal government was arguing they could regulate that because that was interstate commerce.  And he couldn’t see how consuming his own produce on his own land was interstate commerce.  And the answer was that because he hadn’t acquired that wheat from another state and he might have, then he had indirectly influenced interstate commerce and, therefore, they could regulate it.  I mean, that has been the sort of touchstone of how you interpret that Commerce Clause ever since.

And it was only in the 1990s, the mid ’90s, that in a very, very weak way — that was repeated only one other time in the Morrison case — but in the Lopez case in the mid ’90s,  it was too much even for the Supreme Court when the federal government said, we have the right to regulate guns in school zones — even though 40 states were already doing that — on the grounds that if students fear there might be guns in the area, at their school, they won’t be able to concentrate as well, and if they can’t concentrate so much, they won’t be as educated; if they’re not as educated, they won’t be as productive, and if they’re not as productive, they won’t produce as much in the way of goods for interstate commerce so, therefore, we can regulate them.  That was a little bit much even for the normally indulgent Supreme Court.

But as we show in the book, that was the — the argumentation used in that case was very limited.  And anybody who thought this meant we were going to see a great revival of federalism or restraints on the federal government were going to be disappointed.  And it, as it turns out, hasn’t happened.

ROCKWELL:  Well, Tom, thanks so much.

And I want to highly recommend this book, Who Killed the Constitution?  Like anything Tom Woods has written, this book is fun to read, easy to read, eloquent.  You’ll learn a lot in a very — a way involving no pain.  It’ll tell you about the very unfortunate history of the Constitution in this country.  It will help stimulate you to want to do something about it and about the over-weaning power of the government.

And, Tom, I hope you’ll come back and talk to us on two other occasions about your book, The Politically Incorrect Guide to American History, which was on The News York Times best-seller list for a long time, as well as my favorite book of yours, The Church and the Market.

So, Tom, thanks very much, and great to have you.

WOODS:  I look forward to that.  Thank you.

ANNOUNCER:  You’ve been listening to the Lew Rockwell Show, produced by LewRockwell.com, the best-read Libertarian website in the world.  Thanks for listening.

ROCKWELL:  Well, thanks so much for listening to the Lew Rockwell Show today. Take a look at all the podcasts. There have been hundreds of them. There’s a link on the upper right-hand corner of the LRC front page. Thank you.

Podcast date, July 23, 2008

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