LewRockwell &#187; Kevin R. C. Gutzman

The Railroading of Blagojevich

Kevin R. C. Gutzman — Tue, 06 Jan 2009 06:00:00 +0000

The subordination of even the most important operations of state government to even the least such of the Federal Government impresses itself upon the mind in virtually every day’s news. Consider the current impeachment drama in Illinois.

The prosecutor, U.S. Attorney Patrick Fitzgerald, told the Illinois legislature that it should not allow Governor Rod Blagojevich to subpoena key Obama functionaries. As the Illinois House of Representatives considers the question of his impeachment, his counsel, Edward Genson, asked the committee to subpoena 21 witnesses. Included on the list were soon-to-be Obama chief of staff Rahm Emanuel and close Obama aide Valerie Jarrett.

Of course, Genson is no dummy: he knew that this request bade fair to make the Democrats who control the Illinois House of Representatives blink by at least postponing the impeachment hearings. After all, Democrats in Illinois do not want to embarrass Obama during the transition to his administration. Yet, there is no denying that Emanuel and Jarrett may possess information relevant to Governor Blagojevich’s (a fellow Democrat’s) defense.

How do we know that? Because people in the office of Prosecutor Fitzgerald himself recently interviewed them both about his investigation of the governor.

Also on the list was Representative Jesse Jackson, Jr. Jackson has publicly conceded that he considered himself to be in the running for appointment to Obama’s old seat. Jackson also publicly identified himself as the unnamed person in a Fitzgerald filing whose agent allegedly offered Blagojevich something in return for the post. Although Jackson denies having been behind any such quid pro quo offer, surely he too has evidence that Blagojevich is entitled to have the Illinois House’s impeachment committee hear.

Republicans on the committee agreed with the governor. Majority Democrats did not. The committee rejected his request.

Fitzgerald cautioned that to grant Blagojevich’s request might be to thwart his criminal investigation. But what alternative is there?

Rod Blagojevich was elected to the highest office in Illinois’s gift by a margin of over 10% of the vote. He received the votes of more than 1,736,000 Illinoisans when reelected at the 2006 election. The question whether he should be removed from office by the Illinois General Assembly is of more significance than any criminal prosecution, even one so significant as that of a governor accused of political corruption in the office of the governor. (If the evidence is so clear-cut as Fitzgerald claims, Blagojevich likely could be both accorded a fair impeachment process and subsequently convicted of whichever misdeeds he committed.)

Obama loyalists in Illinois politics, of whom there are legions, have every incentive to refuse to allow the governor to subpoena people close to Obama. Yet, they obviously cannot put it quite that way. How, then, should they put it?

One member of the committee asserted that Blagojevich’s attorney intended by asking that these witnesses be called "to turn this [that is, the impeachment process] into a circus or sideshow." But the governor has a right to a full defense, and the people of Illinois have a right to a full hearing. To allow Blagojevich’s counsel to subpoena witnesses in possession of relevant evidence is a minimal requirement of due process. The committee can still correct its error. It should correct its error.

Fitzgerald said in the press conference in which he laid out his charges for the public that Blagojevich was an eminently corrupt public official. That may well be. Interestingly, one might note that the statute Fitzgerald is enforcing against the governor bases Congress’s claim of power to criminalize corruption in state office on the Constitution’s Commerce Clause. One really wonders at the idea that conspiring to sell Jesse Jackson, Jr. a Senate seat is interstate commerce. No one takes this idea seriously; rather, it is based on a common lawyers’ corruption — yes, corruption — of language. On simple federal arrogation of state power. This corruption has far more far-reaching consequences than anything Blagojevich is accused of having done.

Whether Blagojevich will be run out of office without being allowed to mount a defense is ultimately for the people of Illinois, through their elected representatives, to decide. Blagojevich was an unpopular governor even before Fitzgerald’s allegations against him became public, and Democrats in the legislature seem predisposed to accept the U.S. attorney’s unproven allegations. It seems they will allow him to be railroaded from office. It may be that the Illinois legislature will decide that the imperatives of a low-level Justice Department employee, the U.S. Attorney for Illinois, are more significant than the imperative to conduct a full and fair impeachment inquiry before tossing out an elected governor.

All of this is not to say that Blagojevich, formerly a three-term U.S. representative, has ever demonstrated any interest in proper federalism either. In fact, his lawyer threatens to appeal to the federal judiciary if he is displeased by the Illinois legislature’s behavior in the case.

Still, if Blagojevich is not allowed to present a defense, no one should mistake that he is being railroaded in the name of protecting Barack Obama and others from potential embarrassment. To this outsider, it seems that Illinois Democrats’ priorities are skewed.

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.

Obama Is Bush III

Kevin R. C. Gutzman — Mon, 05 Jan 2009 06:00:00 +0000

The 2003 invasion of Iraq was sold to the public at the time as being justified in part by Iraqi dictator Saddam Hussein’s possession of weapons of mass destruction and his harboring of al Qaeda terrorists. In the wake of the Bush Administration’s 2003 invasion of Iraq, word leaked out that several prominent figures around Bush long had wanted to invade Iraq; for them, 9/11 was the perfect cover, and the WMD and al Qaeda arguments mere window dressing. By the time the world knew the justifications were false, Iraq had been conquered and Saddam had been removed.

President-elect Barack Obama now says that he is going to reverse the current course of the US economy. This contraction, largely the result of the popping of the Fed-induced housing bubble, would come to a natural end in a matter of months anyway. That’s how the market works: if there is a government-induced binge, the fever breaks and the patient can return to health.

But the average American has been brought up to believe that good economic times are the results of proper government policy, and that bad times result from its absence. Like some 18th-century physician with a bag full of leeches, knives, glasses, purgatives, and emetics to leach, bleed, burn, and blister a sick man before inducing diarrhea and making him vomit, government hovers over the American economy, eager to make him sick in the name of restoring his health.

We have seen the same scenario play out many times in American history. The finest medical care available in America killed poor George Washington in 1799, and the latest economic voodoo caused the recession of 1929 to last a decade and one-half.

When finally the government laid off the taxpayer and the business owner in 1945, the US economy boomed. What a remarkable example of statesmanship! The lesson historians drew was that not only was Franklin Roosevelt, the bleeder and blisterer who had stretched the previous recession to seven times the normal length of an American recession, a great statesman, but so was Harry Truman!

Barack Obama, it seems, wants to be judged in the same way. His soon-to-be-predecessor, George W. Bush, has emulated Herbert Hoover in responding to the current contraction with a spate of inapt federal measures: nearly $1,000,000,000,000 in handouts of newly-printed dollars to US banks and insurance companies have yielded no discernable result. In fact, federal "oversight" appears to have been totally absent, as the same inept colossi whose institutions tottered on the brink of insolvency before this great looting of the taxpayer now claim not to know where the money went.

What to make of this? Why, that more of it is "needed," of course. Thus, $17,000,000,000 was handed over by Bush and his minions to insolvent American automobile manufacturers. No moral, philosophical, or constitutional justification of handing, say, GM — with a current value of —$60B (that is, negative sixty billion dollars) — a few billion was even attempted. No one said how this "loan" would make the great Midwestern dinosaur solvent. Why not? My prognostication? Because it won’t.

All this "act of statesmanship" has done is keep GM in business so that GM can demand more money from the government in a few months. And more a few months after that. And more a few months after that.

The calculations here are almost entirely those of brute politics. GM is "too big to fail." That is, its unions control so many votes that they, like plains-state senators demanding agricultural subsidies, can twist this gift out of the taxpayer. Comes word now that the steel companies are lining up at the trough. Surely the paleoconservatives will muster the same arguments in their favor as served so well in the case of the Big Three: great countries manufacture their own steel; steel workers are highly paid; some of them were navy SEALs; my sister doesn’t want her husband to lose his job at the steel plant; and (the only one that really matters) if the Republicans don’t join the Democrats in this measure, highly organized and politically mobilized steel workers will vote Democratic forevermore.

I predicted that the Big Three would get our money. I predict that other decrepit industries will follow.

AIG spent part of its federal gift on lavish retreats for senior executives. Chrysler put some of its taxpayer "loan" into advertising to "thank" taxpayers. This obscenity was rather akin to Stalin "thanking" the kulaks for their land.

Barack Obama just announced that he plans to have the federal government resolve the economic problem in part by "modernizing" libraries and offering tax reductions to "workers." The library gambit is all about pork-barrel politics: every substantial community has a library, and so a measure like that will mean a federal expenditure in every congressman’s district. Since the early nineteenth-century days of Henry Clay (Pat Buchanan’s hero), greasing the skids that way has been part of the art of buying votes. No need to explain how expropriating money from its owner to purchase a new rug or computer for a library helps the economy.

Tax reductions to "workers," in classic Keynesian analysis, are a wonderful way to address economic contraction because "workers" (that is, unskilled employees) tend to spend a higher proportion of their income than the more affluent. Obama’s conclusion, then, is that America, with virtually the world’s lowest rate of savings, suffers at present from too much savings and too little spending. He wants to reduce the savings rate even further. This is what Keynesianism has given us: gigantic debt and ever-declining savings, despite the fact that everyone knows that societal investment (read: savings) is necessary to heighten the future standard of living.

The Clay platform was based chiefly on the idea of "internal improvements," meaning federal financing of roads and bridges throughout the country. Again, if roads were built throughout the country with money provided by the Federal Government, locals would see the wonderful benefit of supporting Henry Clay. Obama understands this perfectly well.

Like the Feiths and Abramses, the Cheneys and Wolfowitzes, and like George W. Bush himself wanting war with Iraq and seizing on the first excuse that came to hand, Obama has been handed a perfect cover for doing what he was disposed to do all along. An orgy of public spending outstripping even the super-profligate Bush’s was the desire of the leftward-most senator before the contraction, and he can justify it with economic bunk now.

As CNN.com reports, “Economists from across the political spectrum agree that if we don’t act swiftly and boldly, we could see a much deeper economic downturn,” Obama said. “That’s why we need an American Recovery and Reinvestment Plan that not only creates jobs in the short-term but spurs economic growth and competitiveness in the long-term.”

But "economists from across the political spectrum" do not "agree." Keynesians and Chicago School monetarists who slathered credit for the bubble on Allan Greenspan and failed to predict its popping, which they still find inexplicable, agree. Austrian School economists who castigated Greenspan during the bubble, forecast the current contraction, and see worse to come as a result of the government’s response, disagree. Vehemently.

But, as one of the Austrians recently said, "Being right is overrated." They are now in the position of the bystander who cannot reach the child in time to push him out of the way of the bus. Obama has adopted Bill Clinton’s tactic of referring to all government spending as "investment," but his taxing and borrowing to pay for wasteful government programs will only make matters worse.

The American economy is like big, healthy George Washington that fateful day in 1799. How much quackery will the government inflict?

Reduced saving means reduced future standard of living. Heightened government spending means reduced saving. Taking money from the politically weak to give it to the strong is King John’s model of government. And George Bush’s. And Barack Obama’s.

In recent days, some paleoconservatives have labeled observations such as these "ideological," people who object to the Big Three Rip-off "ideologues." Was Robin Hood an "ideologue"? Was King John a "statesman"?

There is still time for Obama to decide that unlike the second Bush, he is not going to follow King John in taking money from everyone else for the benefit of the well connected. He can still refuse to follow Bush in exploiting others’ misery for his own ideological ends. The signs are not promising.

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.

The Federal Constitution Is Dead

Kevin R. C. Gutzman — Tue, 29 Jul 2008 05:00:00 +0000

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.

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.

Virginia’s Example Inspires the World

Kevin R. C. Gutzman — Thu, 15 May 2008 05:00:00 +0000

Today is the 232nd anniversary of the inauguration of the American Revolution. It was on May 15, 1776 that Virginia’s ruling revolutionary May Convention adopted the resolutions that Virginians understood, according to young James Madison, as launching the ship of independence.

The first of the Virginians’ resolutions called for the adoption of a declaration of rights. The committee appointed to draft that declaration, chaired by George Mason of Gunston Hall, soon reported a document establishing the Lockean foundation of Virginia’s assertion of home rule. All men are born free and equal, it said, and when they enter into a state of society, they cannot be deprived of their basic rights.

The balance of the Declaration of Rights was devoted to explaining the relationship between citizens and government and to enshrining some of the basic rights of Englishmen, such as the right to trial by jury and the right to have militia, not professional soldiers, be the government’s first recourse.

The Avalon Project of Yale University has helpfully posted the final version of the Declaration of Rights of 1776 online. In doing so, however, it mistakenly identifies Mason as the Declaration’s draftsman. Although Mason did the lion’s share of the work, there were two important areas in which the final text was a product of the entire Convention.

First, at the beginning, Mason would have had the Declaration state simply that men are born free and equal and that they cannot be deprived of certain basic rights. When his committee reported its draft to the full Convention, however, it met the objection that such a pious statement either would soon yield social convulsion (in case it were actually implemented by an abolition of slavery) or, in being ignored, would teach Virginians not to respect their Declaration of Rights. That is why the Convention added the caveat that when they enter into a state of society, men cannot be deprived of their rights. The slaves were not entering into the Lockean compact that was creating republican Virginia.

The other change to Mason’s handiwork came in the final provision. Mason, a self-described "Man of 1688" (the Glorious Revolution), had said that Virginians were entitled to the fullest "toleration" in matters of religion. Madison objected to this language, noting its implication that the state knew best. His alternative proposal was that Virginians were to enjoy the "free exercise" of religion. The house, including Mason, agreed.

Thus began the American tradition of declarations of rights. The work of George Mason and his colleagues would serve as a template for other states’ declarations of rights, for the French Declaration of the Rights of Man and Citizen (Virginian Thomas Jefferson helped his friend the marquis de la Fayette in the composition, so it is unsurprising that some of the French provisions were virtual translations of the Virginian versions), and, through the influence of French law, of those of former French colonies around the world. Ultimately, several of the Virginian ideas made their way into the UN version.

This was not the most important work of the May Convention, however, but only its prelude. Next came the real work: adopting a permanent republican constitution. Like the other colonies, Virginia had been arguing for years that its sole legal link to Great Britain was through the Crown. Virginia patriots said that their House of Burgesses should have the primary role in the government and repeatedly ran off royal governors whose policies or personalities they found unacceptable. According to them, their colonial constitution was a mirror image of Britain’s, and so their 1776 constitution established a very similar government.

The Virginia Constitution of 1776 was the first written constitution adopted by the people’s representatives in the history of the world. Beyond the fact that it was a written constitution, there was, as anyone who knew Mason might have predicted, basically nothing innovative about it. The first governor of republican Virginia, Patrick Henry, took the oath of office on June 29, 1776.

How significant were these events? Congressman Thomas Jefferson repeatedly wrote home while it was being drafted to ask to be relieved of his congressional duties. As he explained it, this was what the war was about; it would be better to have the poor constitution the British were trying to force on the colonies without a fight, he said, than to win the right to force a bad one on themselves.

When the Convention’s leaders omitted to send someone to take his place, Jefferson sent a proposed constitution to Williamsburg for the Convention’s consideration. It arrived too late to have much influence, but the Convention did use Jefferson’s preamble. Poor Jefferson, for his part, had to content himself with staying in Philadelphia and drafting the Declaration of American Independence.

In one of the classic cases of sour grapes in American history, Jefferson spent the rest of his life complaining that the Constitution of 1776 was illegitimate. It had been adopted, he insisted, by a body that had not been given power to adopt a constitution. Never mind that the Convention’s leadership, including Henry and Mason, had considered this argument and rejected it. (If the Convention had the power to declare independence, they reasoned, it obviously must have power to replace the king’s government with something else.)

In time, Virginia would adopt a more Jeffersonian constitution. Whether that document was superior to its predecessor is debatable. What is not is that Virginia’s example continues to inspire the world.

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 (forthcoming from Crown Forum on July 8, 2008).

The Trouble With Judicial Restraint

Kevin R. C. Gutzman — Wed, 07 May 2008 05:00:00 +0000

On Monday, April 28, the Supreme Court of Crawford v. Marion County Election Board allowed Indiana to continue to require voters to produce government ID before they vote. The reasoning of the plurality was notably non-constitutional. So, too, were some of the conservative endorsements of the Bush Court’s handiwork.

The editors of National Review Online, in an editorial posted April 29, evaluated matters thus:

The decision in Crawford … underscores the importance of nominating conservative justices who understand the importance of judicial restraint. More than half of the states have passed laws requiring the presentation of some form of identification in order to vote. It is easy to imagine a more activist court overturning those democratically enacted laws based on a few liberal groups’ spurious claims of democracy denied.

While they were right to approve of Crawford, the editors of conservatism’s flagship publication displayed notable confusion about the issues at stake in today’s judicial culture.

"Judicial restraint," in and of itself, is not a virtue. The idea of judicial restraint first gained currency in legal academia in the first third of the twentieth century. Then, it was the slogan of such as Felix Frankfurter, an Ivy League law professor and high ACLU mucky-muck who wanted conservative activists to cease imposing their laissez-faire vision on America.

The laissez-faire Supreme Court, in particular, was partly in the right and partly in the wrong. In a series of cases, the Court of the late nineteenth and early twentieth century disallowed wage and labor legislation passed by both state and federal legislatures. The Court was right to do this in regard to the congressional statutes, because, as the justices said, the Tenth Amendment represented the constitutional principle of federalism — that control of those matters had been reserved to the states.

Frankfurter and other devotes of "judicial restraint" in this context argued that democratic majorities generally deserved to have their way; in other words, they wanted both state and federal laws regulating the economy to be validated by the federal courts, despite the fact that the federal ones were clearly unconstitutional.

With the so-called "Revolution of 1937" (which, as Edward White has shown, was actually far more complicated than that), "judicial restraint" had its day. In other words, the Court got out of the business of keeping the Congress from grabbing at power that had been reserved to the states.

The Revolution of 1937 did not mark the first occasion on which the Supreme Court omitted to enforce the line between state and federal legislative authority. Rather, in the 1819 case of McCulloch v. Maryland, the Court allowed to stand a federal law incorporating the second Bank of the United States. James Madison, one of the Constitution’s chief draftsmen, wrote in response that if the people had known in 1787—88 that the Court would read the Constitution as it had in McCulloch, they would never have ratified the Constitution.

One of National Review Online’s legal bloggers has written at great length in celebration of Chief Justice John Marshall’s performance in McCulloch. Although his academic writings are obscure, his perch at NRO gives him great potential influence. Alas, it seems that his anti-Madisonian endorsement of "judicial restraint" may sway unsuspecting conservatives away from originalism and toward support of the the position on this question that has always been favored, from John Marshall through Felix Frankfurter to the present, by devotes of unfettered congressional majorities.

The NRO blogger is not alone. Some conservative commentators have been led by the federal courts’ career of judicial legislation these past 70+ years to the forthright conclusion that democratic majorities should always have their way. What they favor is not constitutional government, however, but the absence of constitutional restraint. Proponents of constitutionalism hold that federal courts should not be bound by the notion of "judicial restraint," but should instead be in the business of doing what federal judges swear to do: uphold the Constitution. If that means they must be active strikers-down of unconstitutional statutes, so be it. Judicial activism is only lamentable when the judges actively ignore the Constitution.

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 (forthcoming from Crown Forum on July 8, 2008).

Neocons vs. the Real Constitution

Kevin R. C. Gutzman — Sat, 23 Feb 2008 06:00:00 +0000

Imagine yourself asked by a magazine editor to review a book with whose subject matter you are somewhat familiar, but about which you are far from expert. The book, based on five peer-reviewed articles in top academic journals in the field, makes arguments totally at odds with your preconceptions. You find them distasteful. What do you do?

If you are neocon Matthew Franck reviewing my book, The Politically Incorrect Guide to the Constitution, among other things, you make groundless assertions about the author. So, Franck says, "Gutzman is a neo-Confederate who resents the course our history has taken since the first day of the Philadelphia Convention."

As I demonstrated in this space mere days ago, despite the efforts of Mr. Franck’s monarchist and nationalist heroes, who told the state legislatures that their aim in Philadelphia would be to draft amendments to the Articles of Confederation but who instead attempted to substitute a national government for the old federal one, the Philadelphia Convention’s product was pretty much to my liking. Hamilton, Madison, and friends were defeated in Philadelphia, and the people were sold a limited government with only the powers that were "expressly delegated." The new Constitution did not include, for example, unlimited legislative power in Congress, nearly limitless jurisdiction for federal courts, or a congressional power to veto state laws, nor did it eliminate the state governments’ role in choosing members of Congress — all despite Madison’s best efforts.

Any literate person who read my book would know this. Once again, Mr. Franck has left us with three alternative explanations: 1) that despite his implicit claim, he did not actually read The Politically Incorrect Guide to the Constitution; 2) that he does not understand plain English; or 3) that despite understanding what it said, he has mischaracterized the argument of The Politically Incorrect Guide to the Constitution intentionally.

As to Franck’s calling me a "neo-Confederate," Dictionary.com says, "Ad hominem attacks on one’s opponent are a tried-and-true strategy for people who have a case that is weak." Apparently this explains Mr. Franck’s characterization of me as a "neo-Confederate." According to Reference.com, "The term u2018neo-Confederate’ describes a political and/or cultural movement based mainly in the U.S. Southern states that is characterized by a celebration of the history of the Confederate States of America (CSA) and support for the CSA’s aims. Neo-Confederate issues may include states['] rights, such as nullification (in which state laws override federal laws), and a pro-Confederate view of history, particularly regarding the American Civil War and the role of slavery in that war."

I am not a neo-Confederate. I have never celebrated the Confederacy, nor do I downplay the role of slavery in the sectional crisis of the 1850s and ’60s. I do not support the CSA’s aims. There is nothing in The Politically Incorrect Guide to the Constitution along those lines. So what can Franck mean? Is he once again being either dishonest or incompetent?

Perhaps he is simply using the term "neo-Confederate" in reference to my argument that secession was constitutional. As I showed here, however, two of the leading Federalist spokesmen in the Virginia Ratification Convention, speaking on behalf of a five-man committee including James Madison and John Marshall, said that it was, and New York and Rhode Island joined in this assertion, so what more evidence might one adduce? A tendentious "scholar" such as Franck, after the fashion of the Blacks and Brennans of the world, could simply ignore or deny these facts — as indeed Franck does ignore them in his book on Marshall and his ilk. (I suspect that incompetence is the explanation for that omission, but it may be deceitful.)

I note too that pace Franck, I am not a "self-described conservative," as that phrase seems reserved these days for supporters of John Yoo and apologists for the New Deal.

It is actually the Francks of the world who are unhappy with what happened in the Philadelphia Convention and the ratification process. Not for them the actual explanation of the Constitution offered by such as Edmund Randolph, James Wilson, and Charles Cotesworth Pinckney. I am, his editors say in their headline to his "review," "Whistling Dixie" in calling attention to the actual history of the Constitution. If by that they mean to say that restoring an accurate understanding of that document, piercing the fog bank of misinformation that Marshall, Franck, and other politically correct defenders of unlimited government such as they have buried the Constitution under is a forlorn hope, they may well be right.

One common tactic that the liars have adopted is to invoke Great Names in defense of their assertions. Franck notes that I say that, in his words, "Madison — Madison! — is an untrustworthy guide to understanding the Constitution," as if this were a scandalous point. But Madison was a notorious flip-flopper in his own day, and with good reason. It was Madison who in 1791 argued that Hamilton’s Bank Bill was unconstitutional, before he in 1816 called on Congress to pass a new bank bill. It was Madison who in October 1787 wrote to Jefferson to lament the structure of the Senate, before he told the public how wonderful it was in two essays of The Federalist. It was Madison who in 1798 wrote the Virginia Resolutions threatening state interposition in response to the Sedition Act, before he in the early 1830s denied having done any such thing. It was Madison who in 1787—88 denied that a federal bill of rights was necessary, before he in 1789 insisted it was essential. And one could go on. (Those interested in Madison’s inconsistency can consult my 1994 article in Essays in History, the shorter version of same in The Journal of the Early Republic for 1995, or my 1998 article in Continuity: A Journal of History.)

Mr. Franck does not know much about Madison. In his obscure tome on judicial imperialism, for example, Franck misapprehends Madison’s thinking concerning the constitutionality of the 1816 Bank Bill, which Madison believed could be justified only by precedent, not by reference to the pre-1790 meaning of the Constitution. In other words, Madison thought that the significance of the 1816 Bank Bill as a precedent could be limited by saying that it did not reflect a general doctrine of implied powers, but only a single exception, based on precedent, to the idea that Congress had only the enumerated powers. His argument was weak, but it did not amount to saying — as Franck has him concluding — that the Constitution provided no guidance in this area. We might have concluded that this argument demonstrated the futility of relying on Madison as a constitutional oracle, if Franck had not pooh-poohed my criticism of Madison as an inconsistent interpreter of the Constitution.

Elsewhere in his "review," Franck gives his reader further reason to question his grasp of English. Thus, for example, he points out that I said that the United States "seceded from the British Empire," as if that were debatable. The United States were parts of the British Empire. They left it. What is the controversial element?

I also note in The Politically Incorrect Guide to the Constitution that the United States were not founded on the Declaration of Independence. That document was adopted by the Second Continental Congress, which, unlike today’s Congress, was not a legislature, but — to borrow the image of one of its members, John Adams — an assemblage of state ambassadors. Those ambassadors had been empowered precisely to declare independence (which in Virginia’s case was already a reality; it would have been hard for Virginia’s independence, established on May 15, 1776, to be founded on a document promulgated on July 4, 1776), not to concoct a novel theory of government and bind the states to it. According to Franck, all of these common-sense observations are "bizarre."

Franck asserts that I wish the Supreme Court had been "more activist," which simply is untrue. There is no basis for it in the book supposedly under review. I simply would have had the Supreme Court interpret the Constitution in the way that John Marshall’s committee, in a report presented by Governor Edmund Randolph and George Nicholas, promised the Virginia Ratification Convention it would be interpreted: as granting the federal government only the powers "expressly delegated." Since Franck devotes an entire chapter of his obscure book to praising Marshall’s failure to do precisely that in McCulloch v. Maryland (1819), it is unsurprising that he does not sympathize with me here. I note that James Madison, on reading the Court’s opinion in McCulloch, objected that if the people had known that the Constitution would be interpreted that way, they would never have ratified it. A Supreme Court interpreting the Constitution in this way would have been notably less activist, as the chapter of my book on the Marshall Court, for starters, makes abundantly clear.

Truly, it pains one to receive a negative review of his work from a reviewer so evidently unfamiliar with the topic. I judge by reading Franck’s review, along with the book he wrote, the book he edited, a speech he gave at the Heritage Foundation, and some of his blog entries on National Review Online, that he is typical of the run of constitutional experts: his learning in the era of the American Revolution extends to having read judicial opinions, The Federalist, scattered writings of some prominent nationalist politicians, and secondary works on all of the above. This seems to have persuaded him of his own expertise, the absence of which screams through every line of his "review." (Imagine such a pygmy slighting John Taylor of Caroline, for whose constitutional writings Thomas Jefferson had the highest praise and whom congressional colleagues called the very image of a republican!) While some are ignorant, others are just impervious to reality. As the highest authority put it, "They who have ears to hear, let them hear."

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 (forthcoming from Crown Forum on July 8, 2008).

Recovering the Actual Constitution

Kevin R. C. Gutzman — Sat, 16 Feb 2008 06:00:00 +0000

One of the chief obstacles to the recovery of the actual Constitution from the judges and their sycophants is the type of "education" to which fledgling lawyers have been subjected in law school. In general, they have read a heap of judicial opinions, most of them based on nothing more than the judges’ personal political preferences. They are taught to respect, even revere, these judicial products as if they were the Constitution itself — although in fact they are in many ways the Constitution’s perfect opposite.

Alongside the case method of instruction as an obstacle to any attempt to reclaim authentically constitutional government in the United States is the tendency to worship a few early American politicians. In the hands of the West Coast Straussians, this Founders worship distorts the truth about the establishment of the current federal government so very greatly.

Take, for example, the "review" of my book, The Politically Incorrect Guide to the Constitution, in the latest issue of The Claremont Review of Books. There, Matthew J. Franck brandishes his unhistorical "learning" to embarrass himself mightily.

Take, for example, this pearl of wisdom:

He [meaning Yours Truly] tells us that the Constitutional Convention was attended by three groups: u2018monarchists’ like Alexander Hamilton, u2018nationalists’ like James Madison, and defenders of u2018the primary place of the states’ in the Union. He then ridiculously declares that the third group won all of the decisive arguments at Philadelphia and in the ratification campaign, only to have their authentic constitutionalism betrayed by the authors of The Federalist, the administration of George Washington, the early Congress, and the Supreme Courts of John Jay and John Marshall.

Here we have a clear illustration of the fact that it is takes more space to refute falsehood than to level it.

Yes, Franck is right that I assert that three groups — monarchists, nationalists, and federalists (as distinguished from Federalists) — attended the Philadelphia Convention. His implication is that this is a foreign idea, one that only a crackpot could have come up with. Where did I get this idea? Why, from none other than Luther Martin, a delegate to the Philadelphia Convention.

Even a cursory familiarity with the course of the Convention, from Alexander Hamilton’s long, infamous speech in favor of monarchy, through the nationalist Virginia Plan’s defeat, to the signing of a federal — not a national — constitution, bears out my description. Since Franck may not be alone in his ignorance of what happened in Philadelphia, however, let us consider his statements. He says that I ridiculously claim that people who favored a federal over a national government carried the day in Philadelphia, and that they then got their way in the ratification process in the several states, as well.

The leading virtue of my account is that it is true. Take the fate of the monarchists’ and the nationalists’ alternatives: the avowed monarchist Hamilton conceded in the course of calling for a president for life, senators for life appointed by the president, a presidential power to appoint governors, etc., that Americans were not likely to accept his model. Only one other delegate, and that one obscure, is thought to have sympathized with him. (Yet, of course, through his acolyte John Marshall, Hamilton would soon have a formative influence on American "constitutional law.")

For their part, the other defeated group, nationalists such as Madison, are a more interesting case. Madison is perhaps the best example of an early American politician whose influence is exaggerated in popular and academic history. Because of the existence of an expensive, government-sponsored Madison papers project, and because of the fact that he helped author The Federalist, it is very convenient to study his writings. For scholars uninterested in digging into the context of Madison’s work, the ease of teasing out his opinions poses a fatal temptation to equate Madison’s ideas with those of "the Founders."

But how representative of the Philadelphia Convention was Madison, really? He was the chief author of the Virginia Plan, which would have created a national, in the place of the old federal, government. In other words, where the states’ role had been primary from 1775 to 1787, Madison wanted to reduce them to a secondary status and make the central government primary.

To that end, he proposed in the Virginia Plan to give Congress general legislative authority and to empower the national judiciary to hear any case that might cause friction among the states, to give the Congress a veto over state laws, to empower the national government to use the military against the states, and to eliminate the states’ accustomed role in selecting members of Congress.

The third group — those who wanted to retain the states’ primary role in the federal system — defeated every one of these, the leading arguments of the Virginia Plan. After its first rejection, James Madison repeatedly raised the issue of the national veto over state laws, and his efforts repeatedly went down to defeat. Although the Convention adjourned on September 17, Madison wrote to Thomas Jefferson on October 24, 1787 lamenting this "necessary" expedient’s omission from the Constitution.

In fact, the idea of "national" government was thoroughly thumped in Philadelphia. So unpopular was it that when Pennsylvania’s James Wilson, a Philadelphia Convention nationalist, made his famous speech at the Philadelphia State House on October 6, 1787, he began by contrasting the state constitutions to the proposed federal Constitution. As he put it:

When the people established the powers of legislation under their separate [that is, their state] governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.

Another way of putting this is that the nationalist Virginia Plan had been defeated in Philadelphia in favor of a federal plan. Congress had only the powers included in "the positive grant." Had he any concern with learning the truth of the matter, Franck might find assurances that the proposed government was to be federal, not national, in the records of its friends’ arguments in South Carolina, Virginia, Massachusetts, and New York, as well.

As I mentioned above, people are taught to worship the Founders with a quasi-religious reverence. It is a powerful rhetorical trick, then, for one fearful of the teaching of The Politically Incorrect Guide to the Constitution such as Franck to note that I criticize several prominent historical figures for betraying the people who relied on this promise that the new government would be federal, not national. Among those people, he says, were the Jay Court, the Marshall Court, majorities of the early congresses, and George Washington. How could I say such a thing?

Once, mine was not so controversial a point. Consider the only really significant decision of the Jay Court: that in Chisholm v. Georgia (1793). There, the Supreme Court laid claim to jurisdiction over a type of case that the Constitution did not clearly give it. The response was swift: Congress passed in 1794, and the states ratified in 1795, an amendment making explicit that the federal courts did not have jurisdiction over such cases, the Eleventh Amendment. Another way to put this is that the Supreme Court acted as if the Virginia Plan had been adopted in regard to this kind of case, and the people said, "No, we meant it: we want a federal, not a national court system! You may only hear these few types of cases!"

The congresses of the 1790s behaved in unconstitutional ways, as well. Most notable of Congress’s unconstitutional acts were the Sedition Act of 1798 — hooted down in the halls of history as a violation of the Tenth and First Amendments, exactly as the early congress’s critics said it should be at the time — and the Bank Bill of 1790. Space prohibits us from developing this point further at present, but I should note that in 1800, the Federalist Party of John Marshall, which had dominated Congress for eleven years, was voted out of power, and within a short time, it literally ceased to exist!

Why? Because it insisted on reading the Constitution as a national one. It insisted on betraying the promise that the federal Congress would have only the powers of "the positive grant expressed in the instrument of the union."

So, whose account is "ridiculous," that of The Politically Incorrect Guide to the Constitution, which says what James Wilson said at the State House in 1789? Or is the ridiculous account that of the Jay Court in Chisholm, the early Congresses that passed the Bank Bill and Sedition Act, and West Coast Straussians such as Mr. Franck?

The high point of the betrayal of the people’s Constitution, the one that they were told they were getting and very narrowly voted to accept, came in the Marshall Court of the 1810s and 1820s. More on that, and on Mr. Franck’s ill-informed "review," anon.

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 (forthcoming from Crown Forum on July 8, 2008).

The Real Constitution

Kevin R. C. Gutzman — Mon, 11 Feb 2008 06:00:00 +0000

My book, The Politically Incorrect Guide to the Constitution, explodes a small academic cult’s account of the federal Constitution. Thus, when it appeared last summer, I knew that the West Coast Straussians, also known as Jaffa’s Minions or the Cult of Father Abraham, would have a choice: they could either ignore my book or distort it.

In the Winter 2007/2008 issue of the West Coast Straussians’ house organ, The Claremont Review of Books, one of their lesser lights undertakes a "review" of The Politically Incorrect Guide to the Constitution. I put the word "review" in quotation marks because Matthew J. Franck’s essay is merely a string of unsupported falsehoods masquerading as scholarly appraisal, with a bit of gratuitous insult thrown in for good measure.

Take this, for example:

[T]he founders understood the Constitution to be a compact of the American people acting within their states, not a compact of the states as independent peoples or political sovereigns. On behalf of limited self-government, it divided authority between the states and the national government, but it granted states no right of nullification or secession….

Alas, not only is the idea of one entity’s (in this case, the American people’s) compacting with itself nonsense, but the claim that the Constitution was not ratified by thirteen sovereign states conflicts with the plain facts of the matter. As does the idea that it excluded a right of secession.

The Articles of Confederation, the first federal constitution of the United States — the one that was in effect when the Constitution was drafted and ratified — said in their second article that "Each state retains its sovereignty." Nothing had occurred between the Articles’ ratification in 1781 and the Constitution’s ratification in 1788 to deprive the states of their sovereignty.

Where can Franck have gotten a contrary idea? Likely from John Marshall’s opinion in McCulloch v. Maryland (1819), one of the most outstandingly oily acts of judicial arrogation in American history. On behalf of the Supreme Court, Marshall there "corrected" "counsel for Maryland" (Philadelphia Convention Framer Luther Martin) on the nature of the Union.

Martin, according to Marshall, did not understand what had happened in the Philadelphia Convention of 1787 which wrote the Constitution (where, as it happens, Martin had played a significant role in defeating nationalists’ efforts to create a national instead of a federal government, and where Marshall had not been a delegate) and the subsequent ratification process. Despite Martin’s claims that the Constitution was the act of the thirteen states and granted the federal government only the powers expressly delegated, it had been the act of one American people, Marshall said, acting in thirteen parts (or something; Marshall’s description of the process is nonsensical).

Marshall’s McCulloch account was simply inaccurate, as Marshall perfectly well knew.

Indeed, in the Virginia Ratification Convention of 1788, the chief spokesman for the advocates of ratifying the Constitution without first amending it was Governor Edmund Randolph. As the convention drew to a close, neither side was certain whether the advocates or the opponents of immediate ratification would win.

Randolph, also a Framer in Philadelphia the summer before, assured the people of Virginia, as embodied by their delegates, that the Constitution’s opponents were far more worried about the Constitution than they needed to be. The Constitution, he said, granted the federal government only the powers it was "expressly delegated."

He read Article I, section 8′s grant of powers to Congress, then insisted that the Constitution did not endanger the freedom of religion, because no power over religion was "expressly" granted. He repeated this argument in various forms numerous times.

Summing up, Randolph — who for ten years had been republican Virginia’s first attorney general, and who soon would become the first attorney general under the federal Constitution — said that the import of ratification would be shaped by "the stile of the ratification." He meant by the ratification instrument — the actual language of the motion on which the convention voted when it voted for ratification. He would include a statement that the new government was being given only the powers "expressly delegated," and he would subjoin a statement that the people could reclaim the powers they had granted if those powers were "perverted to their oppression."

George Nicholas of Albemarle County, who was understood to speak for James Madison and who would soon become the first attorney general of Kentucky, joined Randolph in explaining the significance of the ratification instrument in this way. He also added the following:

If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted — I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.

Who were the thirteen parties Nicholas had in mind? Remember, according to Franck, "the founders understood the Constitution to be a compact of the American people acting within their states, not a compact of the states as independent peoples or political sovereigns." There seem to be four possible explanations of the conflict between Franck’s assertion and the Randolph-Nicholas explanation of ratification’s significance: 1) that Franck has an imperfect command of English; 2) that Franck is unaware what "the founders" actually thought, despite his implicit claim to expertise; 3) that Franck dishonestly has mischaracterized what "the founders" thought; and 4) that although entirely familiar with their arguments, Franck has decided that Randolph and Nicholas were not representative of "the founders."

In regard to possibility #4, I note that Randolph and Nicholas were among the five members appointed by the Virginia Ratification Convention to draft an instrument of ratification. So were James Madison and John Marshall. When the committee reported the instrument of ratification, Randolph explained it as having precisely the import he had said it would have when he first broached the idea. Nicholas agreed. They were the only members of the committee who spoke. James Madison and John Marshall said nothing to contradict them, thus implicitly assenting to Randolph’s and Nicholas’s — that is, the committee’s — explanation.

Assurances that only powers "expressly delegated" were being granted to the new government were offered by leading Federalists in at least four other states (South Carolina, New York, Massachusetts, and Pennsylvania). Assurances that states could reclaim the powers they were granting the federal government (that is, secede from the Union) were made in at least two other states (New York and Rhode Island).

Thus, assuming that Franck is a competent scholar, choice #4 is not appropriate. Let us gratuitously assume that he is competent. You must choose then, dear reader, whether you prefer choice #1, choice #2, or choice #3.

All of this is made clear in The Politically Incorrect Guide to the Constitution. (If you prefer a peer-reviewed, scholarly version, try Kevin R. C. Gutzman, "Edmund Randolph and Virginia Constitutionalism," Review of Politics 66 (2004), 469—97, or Virginia’s American Revolution: From Dominion to Republic, 1776—1840 (Lanham, Maryland: Lexington Books, 2007), chapter 3.) When Franck characterizes this portion of The Politically Incorrect Guide to the Constitution as evidence that I dislike the Constitution, then, he is engaged in academic quackery. What I dislike is not the Constitution as explained by Randolph and Nicholas on behalf of a 5-man committee including Madison and Marshall, but the scaffolding of dishonesty his heroes (including Marshall and sometimes, alas, Madison) have built around it and the truckling he and other such "scholars" render to the usurpers.

There is much more of that particular commodity in Matthew J. Franck’s "review," on which more anon.

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 (forthcoming from Crown Forum on July 8, 2008).

Mr. Franck, Meet Mr. Randolph

Kevin R. C. Gutzman — Mon, 11 Feb 2008 06:00:00 +0000

Kevin
R. C. Gutzman Archives

Buy
this book

My book, The
Politically Incorrect Guide to the Constitution, explodes
a small academic cult's account of the federal Constitution. Thus,
when it appeared last summer, I knew that the West Coast Straussians,
also known as Jaffa's Minions or the Cult of Father Abraham, would
have a choice: they could either ignore my book or distort it.

In the
Winter 2007/2008 issue of the West Coast Straussians' house organ,
The Claremont Review of Books, one of their lesser lights
undertakes a "review" of The Politically Incorrect
Guide to the Constitution. I put the word "review"
in quotation marks because Matthew J. Franck's essay is merely a
string of unsupported falsehoods masquerading as scholarly appraisal,
with a bit of gratuitous insult thrown in for good measure.

Take this,
for example:

[T]he founders
understood the Constitution to be a compact of the American people
acting within their states, not a compact of the states as independent
peoples or political sovereigns. On behalf of limited self-government,
it divided authority between the states and the national government,
but it granted states no right of nullification or secession….

Alas, not only
is the idea of one entity's (in this case, the American people's)
compacting with itself nonsense, but the claim that the Constitution
was not ratified by thirteen sovereign states conflicts with the
plain facts of the matter. As does the idea that it excluded a right
of secession.

The Articles
of Confederation, the first federal constitution of the United States
— the one that was in effect when the Constitution was drafted and
ratified — said in their second article that "Each state retains
its sovereignty." Nothing had occurred between the Articles'
ratification in 1781 and the Constitution's ratification in 1788
to deprive the states of their sovereignty.

Where can
Franck have gotten a contrary idea? Likely from John Marshall's
opinion in McCulloch v. Maryland (1819), one of the most
outstandingly oily acts of judicial arrogation in American history.
On behalf of the Supreme Court, Marshall there "corrected"
"counsel for Maryland" (Philadelphia Convention Framer
Luther Martin) on the nature of the Union.

Martin, according
to Marshall, did not understand what had happened in the Philadelphia
Convention of 1787 which wrote the Constitution (where, as it happens,
Martin had played a significant role in defeating nationalists'
efforts to create a national instead of a federal government, and
where Marshall had not been a delegate) and the subsequent ratification
process. Despite Martin's claims that the Constitution was the act
of the thirteen states and granted the federal government only the
powers expressly delegated, it had been the act of one American
people, Marshall said, acting in thirteen parts (or something; Marshall's
description of the process is nonsensical).

Marshall's
McCulloch account was simply inaccurate, as Marshall perfectly
well knew.

Indeed,
in the Virginia Ratification Convention of 1788, the chief spokesman
for the advocates of ratifying the Constitution without first amending
it was Governor Edmund Randolph. As the convention drew to a close,
neither side was certain whether the advocates or the opponents
of immediate ratification would win.

Randolph,
also a Framer in Philadelphia the summer before, assured the people
of Virginia, as embodied by their delegates, that the Constitution's
opponents were far more worried about the Constitution than they
needed to be. The Constitution, he said, granted the federal government
only the powers it was "expressly delegated."

He read
Article I, section 8's grant of powers to Congress, then insisted
that the Constitution did not endanger the freedom of religion,
because no power over religion was "expressly" granted.
He repeated this argument in various forms numerous times.

Summing
up, Randolph — who for ten years had been republican Virginia's
first attorney general, and who soon would become the first attorney
general under the federal Constitution — said that the import of
ratification would be shaped by "the stile of the ratification."
He meant by the ratification instrument — the actual language of
the motion on which the convention voted when it voted for ratification.
He would include a statement that the new government was being given
only the powers "expressly delegated," and he would subjoin
a statement that the people could reclaim the powers they had granted
if those powers were "perverted to their oppression."

George
Nicholas of Albemarle County, who was understood to speak for James
Madison and who would soon become the first attorney general of
Kentucky, joined Randolph in explaining the significance of the
ratification instrument in this way. He also added the following:

If thirteen
individuals are about to make a contract, and one agrees to it,
but at the same time declares that he understands its meaning,
signification and intent to be, what the words of the contract
plainly and obviously denote; that it is not to be construed so
as to impose any supplementary condition upon him, and that he
is to be exonerated from it, whensoever any such imposition shall
be attempted — I ask whether in this case, these conditions on
which he assented to it, would not be binding on the other twelve?
In like manner these conditions will be binding on Congress. They
can exercise no power that is not expressly granted them.

Who were the
thirteen parties Nicholas had in mind? Remember, according to Franck,
"the founders understood the Constitution to be a compact of
the American people acting within their states, not a compact of
the states as independent peoples or political sovereigns."
There seem to be four possible explanations of the conflict between
Franck's assertion and the Randolph-Nicholas explanation of ratification's
significance: 1) that Franck has an imperfect command of English;
2) that Franck is unaware what "the founders" actually
thought, despite his implicit claim to expertise; 3) that Franck
dishonestly has mischaracterized what "the founders" thought;
and 4) that although entirely familiar with their arguments, Franck
has decided that Randolph and Nicholas were not representative of
"the founders."

In regard
to possibility #4, I note that Randolph and Nicholas were among
the five members appointed by the Virginia Ratification Convention
to draft an instrument of ratification. So were James Madison and
John Marshall. When the committee reported the instrument of ratification,
Randolph explained it as having precisely the import he had said
it would have when he first broached the idea. Nicholas agreed.
They were the only members of the committee who spoke. James Madison
and John Marshall said nothing to contradict them, thus implicitly
assenting to Randolph's and Nicholas's — that is, the committee's
— explanation.

Assurances
that only powers "expressly delegated" were being granted
to the new government were offered by leading Federalists in at
least four other states (South Carolina, New York, Massachusetts,
and Pennsylvania). Assurances that states could reclaim the powers
they were granting the federal government (that is, secede from
the Union) were made in at least two other states (New York and
Rhode Island).

Thus, assuming
that Franck is a competent scholar, choice #4 is not appropriate.
Let us gratuitously assume that he is competent. You must choose
then, dear reader, whether you prefer choice #1, choice #2, or choice
#3.

All of
this is made clear in The Politically Incorrect Guide to the
Constitution. (If you prefer a peer-reviewed, scholarly version,
try Kevin R. C. Gutzman, "Edmund Randolph and Virginia Constitutionalism,"
Review of Politics 66 (2004), 469–97, or Virginia's
American Revolution: From Dominion to Republic, 1776–1840
(Lanham, Maryland: Lexington Books, 2007), chapter 3.) When Franck
characterizes this portion of The Politically Incorrect Guide
to the Constitution as evidence that I dislike the Constitution,
then, he is engaged in academic quackery. What I dislike is not
the Constitution as explained by Randolph and Nicholas on behalf
of a 5-man committee including Madison and Marshall, but the scaffolding
of dishonesty his heroes (including Marshall and sometimes, alas,
Madison) have built around it and the truckling he and other such
"scholars" render to the usurpers.

There
is much more of that particular commodity in Matthew J. Franck's
"review," on which more anon.

February
11, 2008

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 (forthcoming from Crown Forum on July
8, 2008).

A Neocon Myth

Kevin R. C. Gutzman — Tue, 15 Jan 2008 06:00:00 +0000

Bradley C.S. Watson’s recent essay in The Intercollegiate Review, "Creed and Culture in the American Founding," establishes a false choice between an America "founded upon a principled understanding of natural rights" and an America that "grew primarily from a set of inherited or customary understandings." In fact, the American Revolution did not establish a unified American perspective at all.

The reason is that there was at the time of the Revolution no "America," in the political, intellectual, or religious sense, because there was no "America" in the constitutional sense. There was no American nation, only a federation. That federation was first informal (in the days of the Second Continental Congress), and then formal (first under the Articles of Confederation, then under the federal Constitution of 1788). Its content was dependent entirely upon the wills of thirteen "free and independent states," to borrow a phrase from a much-cited, though often misunderstood, authority.

Why does Watson offer us an alternative reading? Apparently because he is a proponent of a (Straussian) creedal understanding of the United States. Thus, he says that "Our Creed" "by the common assent of supporters and detractors both, is most notably expressed in the second paragraph of the Declaration of Independence with the assertion that u2018we hold these truths to be self-evident, that all men are created equal.’"

Watson certainly is correct that this is a widely held view. It is an odd one, nonetheless, to draw from a document whose point is that people in a geographic section (the colonies) of a larger political community (the British Empire) have a right to break with that larger community in case they judge the government of the whole to be behaving in a way that is inimical to their rights. How, precisely, did the statement to which Watson draws attention, thus decontextualized, come to be "our" creed? Watson does not ever exactly say — and with good reason.

Consider the case of Virginia. At the onset of the Revolution, the Old Dominion, oldest of the king’s colonies, extended to what is now Wisconsin. It had the largest population of whites and the largest population of blacks of any colony, and it already stood foremost in provision of talent and manpower to the cause of independence.

Virginia established its independence of Great Britain on May 15, 1776, by the May Convention’s resolutions to craft a declaration of rights, draft a constitution, and enter into federal and treaty relations. On June 29, 1776, Patrick Henry assumed the governorship of newly republican Virginia. Since Virginians were loyal to the dispensation of 1688, they first adopted the Declaration of Rights, and then implemented their new constitution — the first written constitution adopted by the people’s representatives in the history of the world.

Did Virginia do these things at Congress’s bidding, or in cooperation with any other colony? No, it did not. Rather, it behaved as an independent republic, a state on a par with Sweden, Spain, France, and Britain herself.

Watson mentions that the Virginians’ Declaration of Rights included a statement of the idea that all men are born free and equal. His intention here is to attempt to homogenize the experience of the thirteen colonies-cum-states in subscribing to an American creed.

How can one tell? Because he does some interesting bowdlerizing on the way. Thus, Watson says, "The Virginia Declaration of Rights (1776) claims that u2018all men are by nature equally free and independent,’ with certain u2018inherent rights’ that they cannot by u2018compact’ divest themselves of.’" Watson’s account is faithful to the draft language submitted by George Mason’s committee to the full Convention, which proposed having the Declaration of Rights say, "THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity …."

What Watson omits from his account, however, is the fate of Mason’s language in the full Convention. On being reported, it met with the immediate objection of Robert Carter Nicholas — who, as the last colonial treasurer, was the highest-ranking colonial Virginia official to take the Patriot side. Nicholas said that if the statement that all men were born equally free and independent were true, he would have no problem recognizing it, but it was untrue. Thus, adoption of such language at the birth of republican Virginia would place Virginians in the very unenviable position of having to choose between ignoring their own professed principles, on one hand, and enduring enormous social convulsions, on the other.

What Nicholas meant, of course, was that this language was inconsistent with the continued existence of slavery in Virginia, where an enormous portion of the population (as much as two-thirds in Tidewater and neighboring Southside counties) consisted of African slaves. His colleagues had a ready solution: they inserted Edmund Pendleton’s Lockean language "when they enter into a state of Society" before the statement that government was responsible for protecting men’s rights.

What is one to make of this? Simply that republican Virginians, who at the time inhabited the only colony of the thirteen that was already independent, decided even before July 4, 1776 to exclude blacks from their society. Since they were not entering into a state of society with the whites, but were being kept as what Jefferson called a captive nation, the republic’s government need not concern itself with their rights.

What relationship did the Declaration of American Independence have to this discussion? Specifically, how did Congress’s promulgation of the famous second sentence affect the shape of the newly republican Virginian polity?

Simply, not at all. Virginia’s congressmen had been instructed to have Congress declare "that these colonies are, and of right ought to be, free and independent states." In giving its ambassadors to the Congress ("congressmen") this instruction, Virginian leaders must have been thinking along the lines of Benjamin Franklin’s famous statement on another occasion that revolutionaries must all hang together, or they would surely all hang separately. They wanted other states to establish their permanent independence, as none joined Virginia in doing before July 4, because being the only colony to have broken with the Empire was not a comfortable position; hence the third of those May 15, 1776 resolutions.

Virginia’s congressmen, like their colleagues from several (but not all) of the colonies, had authority to enter into such a declaration. Let us remember, however, who these congressmen were: they were attorneys from their states. They had limited authority to speak for their states in exactly the manner their states told them to. As John Adams put it, Congress was a meeting place of ambassadors, not a proper legislature. It did not have any authority independent of the states’ instructions.

It certainly did not have authority to launch the separate polities from which Congress’s members came on some common enterprise on behalf of a half-baked formulation of Lockean theory (which, of course, everyone knew perfectly well to be nothing but a fantasy, a legal fiction, a politicians’ fairy tale) first concocted in Thomas Jefferson’s bedroom, then revised in a committee meeting room, and finally burnished by the full Congress.

Watson notes that there is in the Declaration of Independence a long list of accusations against King George, and that that list is commonly overlooked today. Also commonly overlooked today is the gravamen of the Declaration: that the thirteen former colonies "are, and of right ought to be, free and independent states." That was the only thing the Congress was entitled to declare. It was not empowered to create a single nation of the thirteen nations (that is what a "state" was in the eighteenth century — a nation). It certainly was not in a position to bequeath a creed upon the rest of us, nonsensical or not. Even if we did not know that the philosophical predicate of the Declaration would not have been accepted unanimously by the states if they had been asked to accept it — and we absolutely do know that — we certainly do know that no one empowered the Congress to draft a creed, acceptable or not, or to bind the states to it.

Watson’s essay is distorted, from start to finish, by the assumption that there was a single American people speaking through a single American state, apparently informed by a single colonial tradition, in the time of the Revolution. It is full of phrases such as "the founders," "the founding," and "our culture," when what one must understand to apprehend the Revolution are the divergent (often completely contradictory) motives impelling different states first to establish their independence, then to participate in the Revolution, and finally to create the federal Constitution.

Historians understand, for example, that many people in Virginia were led to break with George III not by devotion to some universalist philosophy inconsistent with the continued existence of slavery, but by considered determinations that after Lord Dunmore’s Proclamation of 1775, continued allegiance to the British Empire actually threatened slavery. William Byrd III, Landon Carter, and others became Patriots in part to protect slavery. Knowing this, one is unsurprised that not Abraham Lincoln’s attitudes about natural equality, but Robert Carter Nicholas’s, carried the day.

Virginians, having launched their republican ship of state in defense of their inherited ways — including taxation only by the General Assembly, trial by jury, self-government, and slavery, among other elements — remained defensive of their patrimony ever after. Thus, they refused to be absorbed into some great mass even when the idea pressed upon them. They ratified the Constitution only after being assured that they would remain as one of thirteen parties to a contract under it, that the new congress would have only the powers it was "expressly delegated," and that they could withdraw from the new Union just as they had withdrawn first from the British Empire, then from the Confederation. They formulated the Principles of ’98 in resistance to Alexander Hamilton’s "Anglican System in Fact." They insisted in Congress and in their state government that their state remained perfectly sovereign. Thomas Jefferson, while president, reflected this tradition in referring to the federal government as "our foreign government." Finally, when Abraham Lincoln unconstitutionally called for volunteers to enforce his creed on the Deep South, Virginia exercised its reserved right to withdraw from the Union in case continued membership in that federation proved undesirable.

So when did Virginia accept some federally enforceable creed? When did it agree voluntarily to be bound by a Western Hemisphere version of Jacobinism, forever finding new demons to conquer in the name of "Equality with the capital u2018E’"? Never.

Virginia’s experience is not unique.

There are some practices and principles to which people in the separate states subscribed during the Revolution. There were elements of shared experience in the struggle that was the Revolution. One might say the same things about various other groups of sovereigns engaged in common enterprises from time to time — say, about the Allies of World War II, the members of the Third Coalition a century earlier, or the denizens of crusader states centuries before that. The existence of significant commonalities should not blind us to the main point, however.

There is no American creed.

Rule By Judges

Kevin R. C. Gutzman — Tue, 18 Dec 2007 06:00:00 +0000

In a pair of decisions this week, the Supreme Court undertook a breathtaking invasion of Congress’s legislative authority. Despite Congress’s stated intention, federal courts will henceforth assume far greater discretion to sentence convicted criminals to whatever prison terms they like, regardless of Congress’s legislation.

Congress in 1984 adopted legislation pointing toward the establishment of federal criminal-sentencing guidelines. Those guidelines finally appeared in 1987. Their function was to ensure that people convicted of similar crimes received similar sentences, regardless of the part of the country in which they lived and the judge before whom they happened to have been convicted.

The sentencing guidelines now will be considered by federal judges as "advisory," not "mandatory," even though Congress clearly indicated that they should be mandatory. In its decision in the joined cases of Kimbrough v. U.S. and Gall v. U.S, the Court clearly thwarted the intention of Congress.

This pair of decisions reflects a long-standing campaign by federal courts, and courts (meaning judges) generally, to grab authority from voters, legislatures, and juries — in other words, the people — and exercise it themselves. The first battle in this campaign came in the early nineteenth century, when courts seized juries’ traditional power to decide matters of law. From that point, the formal system in the United States distinguished between fact finders (usually meaning juries) and finders of law (judges).

Judges’ campaign to grab power from the people has long manifested itself in what is now the tradition of using specious arguments about the meaning of the federal constitution in justification of decisions invalidating statutes and state constitutional provisions distasteful to the judges. Finally, the Supreme Court in 2000 used its power to short-circuit the constitutional process for selecting Florida’s presidential electors, when it in Bush v. Gore seized that power (lodged by the Constitution in the Florida legislature) for itself.

In Kimbrough and Gall, the Supreme Court has announced essentially that it intends to disregard Congress’s policy concerning sentencing of people convicted of federal crimes. Even though most federal criminal statutes are themselves unconstitutional (a fact about which the Court has shown no inclination to take action), one cannot help but lament that in enforcing them, federal judges have in a new way arbitrarily limited Congress’s power to devise appropriate penalties.

The only solution to the Supreme Court’s lawlessness is a campaign of amendments and impeachments. Justices who participate in such decisions deserve to be tossed from office, immediately, for the high misdemeanor of violating their oath to uphold the Constitution. If — when — Congress does nothing in response to Kimbrough and Gall, it will have given the justices yet another indication that they are free to legislate as they will.

Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution.

Beyond the Electoral College

Kevin R. C. Gutzman — Mon, 29 Oct 2007 05:00:00 +0000

In the wake of the 2000 presidential election, numerous commentators discovered what they took to be flaws in the presidential election system. For Hillary Clinton, for example, the election of George W. Bush demonstrated that the Electoral College should be abolished in favor of a French-style national election on a one-man, one-vote basis. Displaying her characteristic combination of ideological commitment and historical ignorance, Clinton opined that it simply was not right that the victory should go not to the recipient of the most popular votes, but to the winner in the Electoral College.

Writing in the Claremont Review of Books for Fall 2007, the University of Texas School of Law’s Prof. Sanford Levinson takes up the same issue. Levinson, a prominent liberal legal academic who was once my Professional Responsibility professor, concedes that "I myself would endorse deviations from pure majoritarianism." He then offers as an example of a non-majoritarian provision of the federal Constitution so contrary to majoritarian theory that no one supports it the provision for deciding presidential elections in which no one receives a majority of the Electoral College vote.

According to the Twelfth Amendment, "if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote." After describing this provision, Levinson says, "I have yet to find any defenders of the electoral college [sic] who are willing to defend this peculiar feature of the system."

Ah, Sandy, but you never asked me. I can defend the House’s role in resolving presidential elections in which no one receives an Electoral College majority as easily as the veto power or bicameralism, and certainly far more easily than universal suffrage or judicial review. And what, exactly, is wrong with it? Levinson’s objection is that in case the House had to decide the issue with each state casting one vote, "Vermont’s single representative [would have] the same power as California’s 53 representatives."

This objection echoes Thomas Jefferson’s objection to the apportionment provision of the 1776 Virginia Constitution. George Mason’s handiwork retained the traditional English, thus colonial Virginian, practice of apportioning the legislature geographically. Thus, Jefferson complained, an individual’s vote in Virginia’s least populous county was worth seventeen times as much as an individual’s vote in the most populous.

Yet, Levinson’s objection and Jefferson’s are not the same at all. Jefferson’s complaint was that fellow citizens of a common republic (Virginia) should have equal votes in elections for their chief executive, while Levinson’s is that the constituent republics in a federal republic, the states, should not have equal voices in choosing their common chief executive.

Levinson, like Senator Clinton, makes the mistake of thinking of the United States of America as a nation, not a federal republic. In Senator Clinton’s defense, she likely has been influenced to reach that conclusion by "experts" such as Professor Levinson. On the other hand, Clinton’s conclusion is affected by the fact that she desires the power of a national chief executive, not a mere federal president.

What is the difference between "national" and "federal," and why should you care? In short, a national government is, theoretically, a completely centralized one. If it has local subdivisions, those subdivisions (provinces) exist solely for the convenience of the center. This is the kind of regime that France has had since the French Revolution.

On the other hand, a federal regime is one in which the central government’s power is limited, with most power remaining in the local units (in America, the states). The United States Constitution was sold to the states during the ratification process as a federal one. It could not have been ratified on any other basis, since the Revolution had been fought in the name of the federal model outlined by Thomas Jefferson in A Summary View of the Rights of British America (1774). The national model, in which a central government was sovereign (that is, possessed of unlimited power), was the one the British Parliament adopted in the hated Declaratory Act (1766).

In that act of 1766, the British Parliament claimed to be the kind of national government adored by such as Mrs. Clinton and Professor Levinson. In such a system, it makes sense that a national poll should be taken and the candidate with the most votes should be elected. Where the electorate is understood as made up of distinct communities, of different states that preexisted the federal constitution, however, it makes sense that those communities should have equal voices in making the ultimate decision. In other words, the Twelfth Amendment followed naturally from the assumptions behind the American Revolution.

Some scholars posit that the Electoral College was expected to serve only as a filter of popular opinion, and that Congress would usually decide among the three top candidates who had been essentially nominated by the College. The advantage of such a system would be that people more knowledgeable of the candidates’ personalities, of their characters, would choose among them. A Bill Clinton, a Gary Hart, or a Richard Nixon would be unlikely to be elected in such an arena — or at least, so the argument goes. It would have pleased the father of the Electoral College, Luther Martin of Maryland, to have small states play an equal role in the ultimate selection of presidents.

Levinson wants to make the United States Government more national — less federal — by depriving the small states of their equal voices in the presidential election system. This reform would be typical of the history of the American Constitution: the small states and minority section were promised a federal system, and over time the majority section and the judges (egged on by such as Sanford Levinson) have made it more national. And they have done so while telling the minority that it had no choice but to succumb. All of which has made the system both theoretically and practically a worse system than it was originally.

If it is problematic that individual Californians’ votes count less in the Senate, in the Electoral College, and in the occasional House of Representatives voting for president than those of Wyoming citizens, the solution is easy to identify: California should be divided into numerous less populous states. If it were, its citizens’ and former citizens’ votes would count more than they do now. The subdivision of megastates such as California should occur anyway, for numerous reasons — but that is a different column.

Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution.

Lawless Courts

Kevin R. C. Gutzman — Mon, 03 Sep 2007 05:00:00 +0000

At ProgressiveHistorians.com on August 20, "Ahistoricality" offered up an absurd mischaracterization of my argument about judicial review in The Politically Incorrect Guide to the Constitution. This distortion is typical of bloggers’ treatment of books. What one learns from this is that it is a bad idea to criticize a book you haven’t read.

Judicial review, recall, is the American practice of having judges refuse to enforce laws they dub "unconstitutional." This practice was invented in America, and it remained virtually solely American until the 1980s. Although this power had been exercised repeatedly by state judges in Virginia before the federal Constitution was ratified, and although federal judges in lower courts had exercised this power before the Supreme Court did so, the power is usually associated with the Supreme Court’s decision in Marbury v. Madison (1803).

"Ahistoricality" says of my argument that, "His principle argument seems to be that Marbury v. Madison, which established the principle of judicial review, was contrary to the spirit and intent of the constitution." But that is absolutely not my argument.

If "Ahistoricality" knew anything about the Constitution, he would recognize this, as he goes on to quote me as saying, "The chief problem, it seems to me, is that although judicial review was said by the Constitution’s proponents in some states to be among the powers federal courts were intended to have — and thus is legitimate — the people were not told that it would be exercised by federal courts over state statutes. They certainly were not told that under the title of a u2018living, breathing’ constitution, the federal courts would be empowered to disallow enforcement basically of any state statute they disliked."

My chief point in The Politically Incorrect Guide to the Constitution is that while nationalists, meaning people who wanted to destroy the local self-government by elected officials for which the Revolution had been fought, were defeated in the Philadelphia Convention, the model of government that the people were sold has by now been replaced by the defeated model: a centralized one in which a national legislature exercises unfettered power and unaccountable judges’ power grows and grows. Obviously, then, when I note that judicial review exercised by federal courts over federal laws was said by some of the Constitution’s proponents to be part of the system they were advocating, I am arguing for its legitimacy to that extent.

My complaint is with the Supreme Court’s decision in Fletcher v. Peck (1810), in which the Court claimed authority to review state laws for "constitutionality." The progeny of this case have included a plethora of cases in which the Supreme Court has invented various limitations on state legislative authority without actual constitutional justification. Here we have the genesis of the Court’s power to invent "rights" to abortion, homosexual sodomy, one man-one vote, Miranda warnings, secular schools, etc. It is for that reason that I have advocated "reining in" the courts, apparently to "Ahistoricality"’s chagrin.

"Ahistoricality" says of me that, "He seems to be trying to balance state’s rights against the Federalist position (which is dubious, but let’s go with it)." Here, he demonstrates his ignorance of my argument concerning the Federalist position. Contrary to the traditional, Hamiltonian account of the Philadelphia Convention in which the Constitution was drafted and the Jeffersonian Republican Party that dominated federal politics in the first quarter of the nineteenth century, state’s rights were the key to the Federalist position in the ratification debates of 1787—89. If "Ahistoricality" read books before criticizing them, he would know that. (He might find support for this argument in my 2004 Review of Politics essay "Edmund Randolph and Virginia Constitutionalism," too. (Of course, this assumes that "Ahistoricality" actually cares to know the truth.))

He concludes by pontificating that "the fundamental problem with regard to states’ rights isn’t the courts, but Congress, and — to a greater extent now than ever before — the Executive-as-national-daddy. Reducing the role of the courts at a time when Unitary Executive theories are alive in the Administration is a recipe for disaster." Again, this demonstrates "Ahistoricality"’s utter ignorance of the American constitutional system (not to mention of The Politically Incorrect Guide to the Constitution): he had just quoted me decrying John Marshall’s decision in McCulloch v. Maryland (1819), which gave Congress virtually unlimited legislative discretion. How, then, he could turn around and instruct me concerning the real problem in federal-state relations is unclear. If he dislikes lawless executives, well, lawless courts are not the answer; for judges to usurp state legislative authority is not to return to respecting constitutional limits on presidential power.

Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution.

Dictatorial ‘Executive Privilege’

Kevin R. C. Gutzman — Fri, 03 Aug 2007 05:00:00 +0000

Bush
Administration officials have announced that President Bush will
use a claim of "Executive Privilege" to thwart congressional
investigation into the firings of several U.S. attorneys. This claim
is the latest in a long series of unconstitutional invocations of
the notion of Executive Privilege by presidents prominent and obscure.

In fact, Executive
Privilege is itself a myth unfounded in the language or original
understanding of the Constitution. The Constitution was not supposed
to give presidents power to withhold information from Congress.

When a president
invokes Executive Privilege, he is saying that despite a congressional
request for information, or even despite a congressional subpoena,
he is not going to let Congress learn what it wants to know. He,
in other words, knows better than Congress what matters Congress
should investigate.

At root of
the error behind this line of thinking is the idea that the president
is a competing policy maker with Congress, that the two political
branches in some cases may have competing views of policy and that
the Executive is then entitled to thwart the fact-finding efforts
of the Legislative Branch.

This idea is
entirely mistaken. The Executive Branch was intended by the Constitution's
authors and ratifiers to be precisely that — the executor of policies
made by Congress, not a competing power center empowered to thwart
Congress's attempts to gain information.

If the Executive
can simply refuse to allow Executive Branch personnel to testify
before Congress and refuse to pursue congressional contempt referrals,
Congress will be altogether unable to perform its legislative functions.
It will be subordinate to the Presidency in the way that Parliament
was subordinate to English kings before the establishment of Parliament's
unlimited power to investigate in the 17th century.

All of the
information-gathering agencies of the federal government, the FBI
and CIA, the NIH and Department of Agriculture, the Department of
Energy and the Bureau of the Census, fall under the Executive Branch.
Can it really be up to the president's discretion whether government
employees assigned the task of performing research of various kinds
must divulge information to Congress?

Of course,
it is not information resulting from research activities that is
at stake in the matter of the firings of U.S. attorneys, but information
that may be politically damaging to the Bush Administration. Yet,
Congress's right and need to gather information about possibly improper
behavior by Executive Branch officials are even more pressing than
its need for those other types of information.

And we know
that the draftsmen and ratifiers of the Constitution intended for
Congress to be able to call on Executive Branch officials for information
at will. In the Philadelphia Convention that drafted the Constitution,
the Committee of Detail referred to Congress as the "Grand
Inquest of the Nation" — a title used in England at that time
to refer to Parliament as the untrammeled investigatory body empowered
to impeach misbehaving officers of the Crown.

Since Congress
has the power to impeach, it must be able to root out all wrongdoing
in the Executive, and without having the Executive decide which
trails of possible wrongdoing Congress may investigate. One thought
that this principle of the Executive's duty to obey the other branches'
valid requests for information, wherever they lead, had been established
in U.S. v. Nixon (1974).

The first Congress,
full of framers and ratifiers of the Constitution, passed legislation
requiring the treasury secretary to provide Congress with information
"respecting all matters referred to him by the House of Representatives,
or which shall appertain to his office." Rep. Elias Boudinot
had noted that, "this power is essentially necessary to the
Government … it is absolutely so." No one argued to the contrary.

Secretary Alexander
Hamilton, a framer, drafted that bill, and he advised President
George Washington, also a framer, to sign it. Which he did.

It is true
that there were a few instances in the early history of the United
States in which presidents refused to supply Congress with information.
For the most part, however, the idea of Executive Privilege, like
the term itself, is a post-World War II innovation. And certainly
no administration has made so sweeping a claim of Executive Privilege
as is currently being made by the Bush Administration.

The Legislative
Branch is, as James Madison noted, the leading branch in a republican
government. It is up to Congress to decide on behalf of the American
people what information it needs, what questions Executive officials
must answer.

Refusal
to comply with valid congressional requests for information is an
impeachable offense on the part of any Executive officer who makes
the refusal. Before it comes to that, however, Congress can sidestep
the administration's announcement that it will not allow U.S. attorneys
to enforce violations of legally valid congressional subpoenas by
resuscitating the congressional power to hold individual citizens
in contempt.

The issues
at stake in this matter are far more significant than the firing
of a few U.S. attorneys, or even the fates of the Democratic congressional
majority and the Bush Administration. What is at issue is whether
Congress will defend itself against a grave threat to its basic
power to investigate matters clearly within its legislative cognizance.

August
3, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail], Associate Professor of History at Western Connecticut
State University, is the author of The
Politically Incorrect Guide to the Constitution.

Encyclopedic Knowledge and Rapier Wit

Kevin R. C. Gutzman — Mon, 23 Jul 2007 05:00:00 +0000

Tom
Woods' new best-seller, 33
Questions About American History You're Not Supposed to Ask,
is a blockbuster. Here, the author of such works as The
Politically Incorrect Guide to American History underscores
his burgeoning status as the cleanup hitter of popular libertarian
writing.

For those
familiar with Woods' work, the encyclopedic knowledge and rapier
wit on display here will come as no surprise. How fresh, invigorating,
and just plain fun it is, however, to see him turn his gifts to
some of the reigning misconceptions, distortions, and just plain
idiocies pock-marking popular (and, in many cases, scholarly) understanding
of the past.

So, for
example, one of the chapters of 33 Questions considers the
question whether Herbert Hoover really sat back and did nothing
during the Great Depression. The answer, developed in dismaying
detail, is "Alas, no!" Far from letting the American economy
recover from the government-induced disequilibrium that brought
on the Depression, Hoover took several steps to artificially prop
up wages in various sectors, for example, which could only make
the situation worse.

Hoover's
response to the Great Depression was not so destructively interventionist
as that of his successor, Franklin Roosevelt, then, but Hoover should
be "credited" with being bad enough; and, of course, for
reasons exactly opposite those developed in the standard history
textbook, in the popular media, and by Doris Kearns Goodwin on NPR
and PBS.

Another
randomly-selected chapter of this book is in response to the question
"Did Bill Clinton really stop a genocide in Kosovo?" Anyone
who depended for information solely on run-of-the-mill American
newspapers or newsmagazines or on American TV in the 1990s will
instantly respond "Yes, and thank God for Bill Clinton!"

But the
answer is "No, there was FAR more ethnic cleansing after Clinton's
intervention than before. And the people Clinton helped in the Balkans
did not exactly turn out to be friends of the United States."
(I will not spoil the surprises here, but the two chapters on American
intervention in the former Yugoslavia are among the book's finest.)

Woods
considers various other shibboleths of the Left (that Franklin Roosevelt
ended the Depression, for example) and the Right (that Martin Luther
King, Jr., favored non-discrimination, to take one illustration)
in due time. Some of his chapters (such as the one on the debt American
workers supposedly owe to the union movement, say, or the one on
the "wildness" of the "Wild, Wild West") are
non-partisan, as they deal with myths that virtually everyone in
government, the media, and academia — not to mention the general
population — accepts. He explodes them all. And, again, what FUN
it all is!

Tom Bethell
says on the dusk jacket that, "Every chapter taught me something
new and unexpected." The same goes for me.

July
23, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail], Associate Professor of History at Western Connecticut
State University, is the author of The
Politically Incorrect Guide to the Constitution.

Unelected, Unaccountable, Politically Connected Lawyers

Kevin R. C. Gutzman — Tue, 17 Jul 2007 05:00:00 +0000

The Supreme
Court's 5-4 decision in the Louisville and Seattle schools cases
exposed one of the unspoken truths of American "constitutional
law": there is no law in this area. Instead, there are only
the justices' naked political opinions.

Since 1954's
decision in Brown v. Board of Education, the Court has taken
upon itself the task of superintending school assignment policies
touching on race. Yet, as the Court had said before 1954, the Equal
Protection Clause was not intended to ban race discrimination in
school assignment — even racial segregation of schools.

In fact,
the Congress that passed the Fourteenth Amendment established segregated
schools in Washington, D.C. The justices who wrote Brown,
and thus "constitutionalized" the ban on school segregation,
recognized this fact. One of them, Justice Robert Jackson, called
Brown "new law for a new day." The author of the
Court's opinion, Chief Justice Earl Warren, said the Court could
not be bound by the intentions of people who had lived in 1868.

But if
the Court is not going to interpret the Fourteenth Amendment's Equal
Protection Clause according to the intentions of the people who
added it to the Constitution, how is it going to interpret it? This
is one of the great fault lines in modern "constitutional law."

Most conservative
judges favor holding the Equal Protection Clause to be a general
ban on race discrimination, with only limited exceptions. Thus,
Chief Justice Roberts said in this latest opinion that, "The
way to stop discrimination on the basis of race is to stop discriminating
on the basis of race."

Roberts
here is not applying an originalist interpretation of the Equal
Protection Clause, which, again, clearly was not meant to ban all
state government (including local government) race-conscious policies.
Instead, he is applying the understanding of Brown v. Board of
Education that is current in conservative circles. He is behaving,
in other words, as if Brown itself were a constitutional
amendment.

Liberal
justices, led in this case by Clinton appointee Stephen Breyer,
generally hold that Brown and its progeny committed the Court
and the country to racial integration. Ever since 1971's Swann
v. Charlotte-Mecklenburg Board of Education decision, the Court's
liberal wing has supported race discrimination aimed at fostering
integration. (Beans must be counted before they can be sorted, that
is.) The liberal wing considers discrimination of this kind, whether
in the form of busing, of racial exclusion, or of any of numerous
other race-conscious policies, "benign."

Thus, Breyer
lamented that, "To invalidate the [school-assignment] plans
under review is to threaten the promise of Brown." Not
"of the Fourteenth Amendment," but "of Brown."
Why? Because Brown had nothing to do with the Fourteenth
Amendment. Brown was an innovation, and the integrationist
current in constitutional law is traceable to that decision, not
to the Fourteenth Amendment — to the judges, not the people.

In this
latest decision, Justice Anthony Kennedy followed former Justice
Lewis Powell in holding to a middle view that would allow racial
discrimination in the name of "diversity." Powell, a product
of segregated Virginia, did not have any problem with government
race discrimination, so long as the purpose was "good."

As Kennedy
put it, "A district may consider it a compelling interest to
achieve a diverse student population. Race may be one component
of that diversity."

What legal
argument did Kennedy offer in support of this pronouncement? None.
In fairness, however, none was all he had.

In fact,
none of these three views — the conservatives' color-blind view,
the liberals' integrationist view, or the Kennedy/Powell diversity
view — makes any mention of the original understanding of the Equal
Protection Clause.

The reason
for that is simple. It is that Brown v. Board of Education
was an instance of judicial legislation, plain and simple, and none
of the three positions staked out by the current justices has any
relationship to the Equal Protection Clause's actual meaning. Brown
really was "new law for a new day," and this revision
of the Constitution was entirely the act of federal judges.

In a governmental
system in which judges did not feel free to overturn the constitutional
intentions of the people, the Equal Protection Clause would be held
to be, as Jackson and Warren conceded it was intended to be, irrelevant
to school assignment. The Fourteenth Amendment, in other words,
does not ban racial segregation, and it does not ban race-based
school assignment in the name of "diversity." It simply
does not speak to this issue.

In case
the Court made this honest proclamation, the political process would
soon yield a new amendment banning segregation of schools. That
new amendment's legislative history, its actual language, would
give the justices something to follow in considering race-conscious
school-assignment policies other than their own naked political
preferences.

Then,
instead of being subject to the moral ruminations and political
preferences of John Roberts, or Anthony Kennedy, or Stephen Breyer,
Americans would be governed by constitutional law of their own creation.
If elected officials resolved this issue, in other words, Americans
would have republican government in this area, and not arbitrary
government by unelected, unaccountable, politically connected lawyers
called Supreme Court justices.

July
17, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail], Associate Professor of History at Western Connecticut
State University, is the author of The
Politically Incorrect Guide to the Constitution.

Myths of the 4th of July

Kevin R. C. Gutzman — Tue, 03 Jul 2007 05:00:00 +0000

America's national
holiday is the 4th of July, the anniversary of public
promulgation of the Declaration of Independence. The 4th
of July, like many other government holidays, is surrounded by numerous
myths. Some of the most notable:

The 4th
of July is a celebration of the U.S. Constitution.

Actually,
the U.S. Constitution's purpose was to remake the American governments
of the Revolution by making the system less democratic. The delegates
from 12 states who met in Philadelphia in summer 1787 had been
sent by the states to recommend amendments to the Articles of
Confederation. Instead, they instantly decided to meet in secret,
and then the nationalists among them tried to win adoption of
a national — rather than a federal — constitution.

The 4th
of July was the day that the 13 states established their independence.

No, it was
not. In fact, Virginia established its independence on May 15,
1776, when its revolutionary Convention adopted resolutions for
a declaration of rights, a permanent republican constitution,
and federal and treaty relationships with other states and foreign
countries. It was because the Old Dominion had already established
its independence — had, in fact, already sworn in the first governor
under its permanent republican constitution of 1776, Patrick Henry,
on June 29 — that Virginia's congressmen, uniquely, had been given
categorical instructions from their state legislature to declare
independence. Virginia was not the only state whose independence
was not established by the Declaration on the 4th,
as New York's congressional delegation did not then join in the
Declaration. In short, the states became independent in their
own good time — some on July 4, some before, some after.

The chief
legacy of the 4th of July is the political philosophy
set out in the Declaration of Independence.

Since the
18th century, political radicals have argued for understanding
the Declaration as a general warrant for government to do anything
it likes to forward the idea that "all men are created equal."
Yet, that was not what the Declaration of Independence
meant. The Declaration of Independence was the work of a congress
of representatives of state governments. Congressmen were not
elected by voters at large, but by state legislatures, and their
role (as John Adams, one of them, put it) was more akin to that
of ambassadors than to legislators. They had not been empowered
to dedicate society to any particular political philosophy, but
to declare — as the Virginia legislature had told its congressmen
to declare — that the colonies were, "and of right ought
to be, free and independent states." In other words, the
Declaration was about states' rights, not individual rights, and
the Congress that adopted it had no power to make it anything
else. All the rest of the Declaration was mere rhetorical predicate.

The 4th
of July is a non-partisan holiday dedicated to recalling the legacy
of the American Revolution.

In the Founders'
day, the 4th of July was a partisan holiday. It was
celebrated in the 1790s and 1800s by Jeffersonian Republicans
desirous of showing their devotion to Jeffersonian, rather than
Hamiltonian, political philosophy. If you were a Federalist in
the 1790s, you likely would celebrate Washington's Birthday instead
of the 4th of July. If you believed in the inherent
power of the Executive in formulating foreign policy, in the power
of Congress to charter a bank despite the absence of express constitutional
authorization to do so, and in the power of the federal government
to punish people who criticized the president or Congress, you
would not celebrate the 4th. The 4th was
the holiday of the Virginia and Kentucky Resolutions of 1798,
those great states'-rights blasts at federal lawlessness. It was
the anti-Hamilton, anti-Washington, anti-nationalist holiday.

The fulfillment
of the 4th of July lay in the establishment of a powerful
national government.

Celebrants
of the 4th of July in the Founders' day rejected the
idea that the Constitution had created a national government,
but insisted that it was federal instead. That is, they said that
Congress had only the powers it had been expressly delegated,
chiefly through Article I, Section 8, that the federal courts
had no more jurisdiction than they had been assigned through Article
III, and that the vast majority of government functions had been
kept by the states. When federal courts grabbed for more power
in 1793, these people added the Eleventh Amendment to the Constitution.
In response to the nationalists' war on France and Alien and Sedition
Acts, they first adopted the Virginia and Kentucky Resolutions
of 1798, then elected Republicans — Jeffersonian states'-rights/laissez-faire
advocates — to run their government.

The Declaration
of Independence stood for the rights of white, male property owners
alone.

As noted
above, the philosophical material in the first section of the
Declaration, although commonplace at the time, had no legal or
moral weight. Congress had no power to commit the states to it.
Yet, given that fact, one might also note that revolutionaries
who accepted the Lockean version of social compact theory did
not necessarily believe that only white, male property holders
had rights. Thomas Jefferson, for example, who was the author
of the draft Lockean section of the Declaration, followed his
belief in the idea that all men equally had a right to self-government,
coupled with his belief that white and black people could never
live together peacefully as equal citizens in America, to the
conclusion that blacks must be colonized abroad to someplace where
they might exercise their right to self-government.

The fulfillment
of the 4th of July will come when the United States
has sponsored democratic revolutions throughout the world.

No.
Both George Washington (in an address he co-wrote with Alexander
Hamilton and John Jay) and Thomas Jefferson counseled that the
U.S. avoid foreign entanglements, and thus foreign wars.

As you observe,
or perhaps participate in, 4th of July festivities
this year, note the pervasiveness of these myths.

July
3, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail], Associate Professor of History at Western Connecticut
State University, is the author of The
Politically Incorrect Guide to the Constitution.

Judicial Review vs. Constitutional Government

Kevin R. C. Gutzman — Fri, 15 Jun 2007 05:00:00 +0000

One
overlooked effect of judicial review — the power of American judges
to declare laws unconstitutional — is that it gives judges power
to adopt amendments the people, through their representatives, have
rejected. "Constitutional law," the body of decisions
of American judges implementing the Constitution, not only does
not reflect the people's wishes in adopting constitutional language,
but often flatly contradicts it.

The first,
and perhaps most significant, instance of the courts' use of judicial
review as an amendment power came in 1819, with the Supreme Court's
decision in the case of McCulloch v. Maryland. That case
concerned the constitutionality of the 1816 bill chartering the
second Bank of the United States.

Counsel
for Maryland in McCulloch, State Attorney General Luther
Martin, was one of the Framers of the Constitution. He argued that
since the list of Congress's powers in Article I, Section 8 of the
Constitution did not include power to charter a bank, the bank chartering
legislation was unconstitutional.

Martin
knew that in the Philadelphia Convention of 1787, delegates such
as James Madison had endeavored to have their fellow delegates give
Congress a general legislative power, and that they had been defeated.
A careful list of the types of laws Congress could adopt had been
included in the Constitution instead.

Martin's reasoning
was that the states had created the federal government and, in doing
so, given it only certain specified powers. All the other governmental
powers, he said, remained in the states, where they had been before
the federal government was created. This, he might well have added,
was exactly the explanation of the Constitution that had been offered
by Framers Charles Cotesworth Pinckney in South Carolina, Edmund
Randolph in Virginia, William Cushing in Massachusetts, Alexander
Hamilton in New York, and James Wilson in Pennsylvanian when ratification
of the Constitution was being considered by the states in 1787–88.
It also underlay the Tenth Amendment, which was added to the Constitution
to make explicit a principle the Federalists had insisted was already
implicit. ( It says, "The powers not delegates to the United
States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.")

No, Marshall
said for the unanimous Supreme Court, Martin was wrong. According
to Marshall (who was not a Framer of the Constitution), Martin (who
was a Framer of the Constitution) did not understand what the Philadelphia
Convention that drafted the Constitution had done. Far from the
product of thirteen states, Marshall said, the Constitution was
the act of one American people. It gave Congress not only the powers
expressly granted in Article I, Section 8, but also boundless powers
implicitly granted. (Federalist spokesman Governor Edmund Randolph
had assured the Virginia Ratification Convention, of which Marshall
actually had been a member, that Congress would have only the powers
it was "expressly delegated" by the Constitution. But
no matter.) And so matters stand today: the people ratified a Constitution
giving the federal government limited powers in 1787–88, but the
Supreme Court amended the Constitution to give Congress virtually
boundless powers in 1819. The nationalist vision defeated in the
Philadelphia Convention thus became the law of the land.

The next most
egregious example of the Supreme Court's use of its de facto amending
power came in 1976, with the Court's decision in Craig v. Boren.
In 1976, the states were considering — and, as it turned out, rejecting
— Congress's proposed Equal Rights Amendment. The Equal Rights Amendment
would have banned sex discrimination, making it illegal for Congress
to bar women from combat roles in the military, say, or for states
to allow only women to marry men and only men to marry women.

Oklahoma had
a statute establishing the minimum legal drinking age at 18 for
women and 21 for men. In support of this discrimination, the counsel
for Oklahoma noted that while only 0.18% of women aged 18–20 were
arrested for driving while under the influence of alcohol, 2% of
men that age were. In other words, the state's statistics showed
that men 18–20 were 11.11 times (1,111%) as likely to be arrested
for DWI as women the same age. The state's policy was intended,
then, to prevent men in that age group from drinking and driving.

Justice William
Brennan, who once explained that he operated according to the "Rule
of Five" — that with five votes, he could do anything — led
the Court majority in striking down the Oklahoma discrimination.
In doing so, he established that the Court would apply an intermediate
level of scrutiny — between the higher one applied to race discriminations
and the lower one applied to common statutory classifications —
to legislation discriminating on the basis of sex. This decision
had no relationship whatsoever to either the language of the Constitution
or the people's intention in ratifying the relevant provisions.
On the contrary, the people ultimately rejected the ERA. But the
Court had effectively adopted it anyway. Just as in the case of
the Marshall Court's McCulloch decision, a Court majority
foisted off on the people a version of the Constitution that the
people had not ratified — that their representatives had thoughtfully
rejected.

A third
area in which the Court has given us an amendment we rejected is
in that of the relationship between government and religion (or,
to use the popular shorthand, "church and state"). The
First Amendment's religion clauses — the Establishment Clause and
the Free Exercise Clause — were not originally understood as applicable
against the states. How could they be, indeed, when they begin by
saying, "Congress shall make no law"? If they had been
intended to affect state religion policy, in fact, they never would
have been ratified, not least because several of the states (New
Hampshire, Massachusetts, and Connecticut) had state religions at
the time that the Bill of Rights was ratified. In fact, James Madison
proposed an amendment affecting state religion policies when he
put the first draft of the Bill of Rights before the Congress, and
it was defeated in Congress.

In the
mid-19th century, however, a huge wave of Irish immigration
followed the onset of Ireland's devastating Potato Famine. Nativists,
atheists, and Protestants responded to the novel influx of large
numbers of Catholics by developing an ideology of "American
rights," rights appertaining not to state citizens as state
citizens but to Americans in general as … Protestants, men, natives,
or some combination thereof. Catholicism at the time endorsed government
involvement in religion, and these people intended to head that
off with a separation ("Americanism") amendment.

These people
pushed repeatedly in the 19th century for an Americanism
amendment putting the idea of separation of church and state in
the Constitution. They conceded that it was not in the Constitution
yet, and that that was why the amendment was needed. Their attempts
at amending the Constitution for this purpose failed.

Among the
groups most significant in developing this ideology was the Ku Klux
Klan. When the Klan was reborn in the 1920s, it pushed especially
hard for a "wall of separation between church and state."
Practically, this meant that government should deny support to Catholic
schools, which were seen as un-American.

Perhaps
the people could not be persuaded to amend the Constitution the
constitutional way, but the Supreme Court still could accomplish
the same goal. How surprising is it, then, that the Supreme Court
justice who wrote the idea of "a wall of separation between
church and state" into American constitutional law — that is,
into the body of Supreme Court precedents implementing the Constitution
— was a devoted Klansman, Justice Hugo Black of Alabama, and that
that Klansman long had expressed support for the anti-Catholic ideology
of the Klan?

Black wrote
the majority's opinions in Everson v. Board of Education
(1947), which first made "a wall of separation" the guiding
metaphor in this area of "constitutional law," and in
Engel v. Vitale (1962), which banned voluntary non-denominational
prayer from public school. Black said that the Fourteenth Amendment's
Due Process Clause, which guarantees that no one will be fined,
imprisoned, or executed by a state without a hearing, bans such
prayer. (Yes, that is what he said.)

As in the case
of the broad congressional powers favored by Marshall and the ERA
favored by Brennan, the wall of separation favored by the Klan was
first rejected through the normal process of constitution-writing,
then effectively added to the Constitution via a court decision,
and has been a part of "constitutional law" ever since.
All of this goes to show that there is virtually no relationship
between "constitutional law" and the Constitution adopted
and formally amended by the people through their representatives.
In other words, it illustrates the woeful difference between republican
self-government and the system under which we now live.

June
15, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail], Associate Professor of History at Western Connecticut
State University, is the author of The
Politically Incorrect Guide to the Constitution, new from
Regnery, which tells the whole story.

Ex-Constitution

Kevin R. C. Gutzman — Mon, 11 Jun 2007 05:00:00 +0000

Psst.
I have news for you: the Constitution you live under has an extremely
attenuated relationship to the one Thomas Jefferson swore to administer
206 years ago. In significant respects, the current American federal
system is in fact the polar opposite of the one he knew and loved.

How is
it that questions such as whether abortion is allowed and when,
whether homosexuals may marry each other and where, what penalties
may be imposed on convicted criminals and when, and who received
Florida's electoral votes in the election of 2000 have been and
continue to be decided by federal judges? The short answer is that
"constitutional law" — the body of judicial decisions
implementing the Constitution — has been off the rails virtually
from the beginning. Nationalists in control of the federal judiciary
have consistently used their offices to further their personal political
ends, all in the name of "interpreting" the Constitution.

The changes
they have wrought since 1801, the year Jefferson was inaugurated,
have gone far toward eliminating three basic features — republicanism,
federalism, and limited government — from the federal system. Sure,
there are elections at federal and state (including local) levels,
and kids and immigrants still are taught, while soldiers and politicians
still must swear, to uphold the Constitution.

But, to
be blunt, the original federal system's three main attributes —
republicanism, federalism, and limited government — have given way
to a system in which virtually all matters of any import are governed
ultimately by federal policymakers. Worse, when someone thinks to
put the matter in the form of a legal question, it is apt to be
decided by an unelected, life-tenured federal judge, purportedly
— but rarely actually — on the basis of the federal Constitution.

All of
which constitutes nothing less than betrayal of the American Revolution.

What do
I mean? Isn't America, as the politicians say, "the freest
country on earth"? Wasn't our system devised, as Ronald Reagan
used to like to say, by "the People"? How could our glorious
system be contrary to the Revolution?

The Revolution
was fought not to vindicate American nationality, but to reestablish
home rule in the colonies-cum-states. Parliament's post-1763 attempts
to tax and otherwise regulate the thirteen colonies yielded growing
insistence that only the colonial legislatures could tax, then in
any sense legislate for, the colonists. When Britain proved irrevocably
committed to its policy of legislating for the colonies, the colonists
declared their independence — first in Virginia (May 15, 1776),
then in the other colonies/states.

The American
Declaration of Independence's chief author, Thomas Jefferson, was
only a member of Congress because the leaders of Virginia's ruling
May Convention refused to send a replacement so that he could head
home. He would have preferred to help write the first Virginia Constitution,
which he said was the object of the Revolution.

The priority
given to state identity was reflected in the Declaration of Independence,
which said that the thirteen former colonies were (not "one
nation" or "a big country" or "an amalgamated
mass," but) "free and independent states," plural.
Lest the significance of the plural be missed, the first federal
constitution (the Articles of Confederation) said in the second
article that each state retained its sovereignty. In other words,
each was on a par in the international system with Sweden, Spain,
and Great Britain itself.

"But,"
you may ask, "didn't the federal Constitution of 1788 [the
year it was ratified by the ninth state -- the one whose ratification
made it effective] change this situation?" In a word, no.

Republicans,
as opponents of ratification styled themselves in the debate over
ratification of the Constitution, insisted that the proposed constitution
as it stood was a threat to the states' self-government. The powers
of Congress, they said, were not defined clearly enough, and neither
were the limits of the federal courts' jurisdiction; those institutions,
then, likely would grab power intended to be left to the states.
These shortcomings, when added to the omission of explicit provisions
requiring the federal government to respect certain traditional
English rights, struck Republicans as overwhelming.

The Federalists
did not respond by saying "It's a good thing that the new government
will be so efficient and powerful. We don't need the states to have
a great and wonderful nation." Instead, they insisted — in
South Carolina, in Massachusetts, in New York, in Virginia, in Pennsylvania
— that the federal government would have only the powers it was
"expressly delegated."

People bought
that argument. They were narrowly persuaded to try the experiment
— on condition that the Bill of Rights be adopted right away to
answer the major objections about the lines between federal and
state power and about the traditional individual rights of English-speaking
people.

In other words,
people still wanted what they had made the Revolution to vindicate:
republicanism, federalism, and limited government. So when did they
change their minds? Which generation of Americans decided to substitute
today's government characterized by a huge policymaking role for
appointed judges, a highly centralized "federal" system,
and congressional discretion to legislate regarding virtually any
question that came to mind for the original version of the Constitution?

In short, never.
When the first party to control the federal government, the Federalist
Party of Alexander Hamilton, attempted to ignore the principles
of federalism and limited government, it was voted out. Thomas Jefferson,
leader of the party that defeated Hamilton and permanently consigned
the Federalists to oblivion, explained his party's victory by reference
to republicanism, federalism, and limited government. He described
the "Revolution of 1800" as "as real a revolution
in the principles of our government as that of 1776 was in its form."

Yet, from the
beginning, federal judges attempted to undermine the model of government
that the people had ratified. So, for example, in Chisholm v.
Georgia (1793 — only four years into the life of the new government),
Chief Justice John Jay, the first chief justice, attempted to extend
federal courts' jurisdiction to a class of cases not among those
over which the Constitution had been intended to give federal courts
authority. The people quickly slapped this power grab down by adopting
the Eleventh Amendment.

Federal courts,
however, had not learned their lesson, but continued to work against
the three guiding principles of the American Revolution, as reflected
in the new Constitution. Most spectacularly, at the very time that
Jefferson and his Virginia Republican Party were thumping the Federalists
into non-existence, John Marshall handed down a series of Supreme
Court decisions establishing the opposite principles as fundaments
of American "constitutional law."

Which brings
up a very important point: "constitutional law" (the body
of judicial decisions implementing the Constitution) has very little,
if anything, to do with the federal Constitution ratified in 1787–88.
What is more, many pillars of this anti-constitutional constitutional
law were known by their authors to be contrary to the people's
understanding of the constitution at the time they ratified it
— in other words, inconsistent with what the Federalists told the
people they were going to get if they voted "aye."

Take, for example,
the Supreme Court's decision in McCulloch v. Maryland (1819).
This decision, and the Court's explanation of it, are remarkable
for several reasons. First, Marshall had been a member of the five-man
committee that reported the instrument of ratification to the Virginia
Ratification Convention. In presenting the instrument — the actual
language on which the Convention voted when it decided the issue
of ratification — the committee's two spokesmen (George Nicholas,
who often spoke in the convention on behalf of poor public speaker
James Madison, and Governor Edmund Randolph) said that Virginia
would be one of thirteen parties to a compact in case of ratification
and that the Congress would have only the powers that were expressly
delegated. Marshall sat silently as this explanation was offered.

Second, Maryland's
lawyer, Luther Martin, had been a delegate to the Philadelphia Convention
of 1787 in which the Constitution was drafted. He had played a very
significant role in defeating the nationalist elements of the Virginia
Plan and bringing the Convention to give the states equal Senate
representation, as well as provide for election of the president
by an electoral college in which small states were overrepresented.

Martin
argued that the Congress had only the powers it was expressly delegated.
He said that the Constitution was the creation of the states, which
retained all other powers. Marshall, in response, lectured Martin
that Martin misunderstood what had happened in the Philadelphia
Convention (of which Marshall had not been a member) and told him
that since the Tenth Amendment did not include the word "expressly,"
Congress's powers were more extensive than Martin said.

To recapitulate:
in 1788, Marshall's committee said the Congress would only have
the powers it was expressly delegated. Then the Tenth Amendment,
which said that Congress had only the delegated powers, was added
to insure that a principle said to be implicit was explicit. Finally,
Marshall said that the Tenth Amendment proved that the principle
Federalists had called implicit was not included at all!

Third,
Marshall "corrected" Martin's uncontroversial statement
that the Constitution was the creature of the states — each of which
had ratified it for itself and only itself — by saying that the
Constitution was the creation of one American people. Of course,
there is no mechanism in the Constitution for one American people
to speak; elections, whether of representatives, of senators, or
of presidents and vice presidents, are held federally, not nationally
(as the presidential election of 2000 demonstrated).

Martin argued
that the Necessary and Proper Clause of Article I, Section 8 did
not empower Congress to charter a bank corporation, because doing
so was not necessary to exercise of the enumerated powers earlier
in that section. Marshall, for the Court, lectured Martin that “necessary”
did not mean “absolutely” necessary, but empowered Congress to adopt
legislation “conducive” to a power’s end.

One could
add more, but the point is clear: Marshall's McCulloch decision,
a landmark of centralization, is a tissue of unfounded assertions
(to be no more candid).

Numerous
other opinions of the Marshall Court — notably Fletcher v. Peck,
Dartmouth College v. Woodward, Martin v. Hunter's Lessee,
and Gibbons v. Ogden — handled the Constitution in the same
way: despite the version of the Constitution presented by Federalists
at the time of the ratification debates, federal judges' "constitutional
law" consistently centralized the government. They often did
so by offering novel definitions of common words and making patently
counter-factual assertions, as in McCulloch.

As Justice
William Brennan, the closest thing to a 20th-century
Marshall, would say, with five votes, a justice can do anything.
This "Rule of Five" was not enunciated in those terms
before Brennan, but it might as well have been. Republicanism —
rule via elected officials; federalism — the division of powers
between the state and federal governments; and limited government
have been the perennial victims of judicial misconstruction of the
Constitution. The case names and subjects under dispute have changed,
but the tendency has been the same: a persistent power grab by the
federal government, in the persons of federal judges. Over time,
the arrogation has been increasingly bald-faced.

Suppose that
a federal judge opposed this tendency of "constitutional law"
to distort the constitutional system; might he not counteract it?
The form of legal education in American law schools today makes
that exceedingly unlikely.

Since the beginning
of the 20th century, legal education has been dominated
by the "case method" of instruction, which substitutes
reading of judicial opinions for historical study. Thus, "Constitutional
Law" classes feature a heaping helping of the opinions of John
Marshall, William Brennan, and their ilk, and no consideration at
all of the debates in the ratification conventions in which Federalists
authoritatively told the American people how the Constitution would
work. Only the mischaracterizations, in other words, and not the
truth.

Lawyers-in-training
are never told that Marshall's opinions came out exactly, precisely,
completely, perfectly opposite where he and his fellow Virginia
Ratification Convention Federalists explicitly and vociferously
said they would, or that William Brennan's account of the Fourteenth
Amendment's Equal Protection Clause has no relationship to that
provision's intended meaning. Even "originalist" judges,
then, are unlikely to be very originalist.

It is an infuriating
tale. I have written a
book about it.

June
11, 2007

Correcting George Will

Kevin R. C. Gutzman — Thu, 22 Feb 2007 06:00:00 +0000