Neocons vs. the Real Constitution


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?

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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," 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, "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."