Who Killed the Constitution?


Today is the official release date for Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush (Random House/Crown Forum), the book I wrote with Kevin Gutzman, the New York Times bestselling author of The Politically Incorrect Guide to the Constitution.

In a sense, our book states the obvious: the United States government today is restrained not by the Constitution but simply by a sense of what it can get away with.

But ours is not the standard right-wing lament about the emasculation of the Constitution at the hands of liberal judges, though such judges receive in our pages none of the superstitious reverence Americans are taught to have for the judiciary. (Mencken once described a judge as merely a law student who graded his own examination papers.) To the contrary, we suggest that all three branches of the federal government, either separately or in collusion, have been responsible for turning the Constitution into just a museum piece, and that conservatives and liberals alike have much to answer for as well.

To hear the Left tell it, the Bush administration is a strange aberration in our history. But bad as the Bush administration is, it is not an aberration, and most of its deformations of the Constitution enjoy bipartisan support. The Democrats have made and will doubtless continue to make equally bold claims for presidential war powers, and Bill Clinton sought measures similar to the Patriot Act in the 1990s.

As I wrote in last year’s 33 Questions About American History You’re Not Supposed to Ask, "The philosophy of an activist, vigorous executive possessing inherent powers that override congressional prerogative is not a recent development at all, but has been an integral part of the thinking of most of the presidents our historians teach us to admire. Demonizing only one president, as the left is by and large still doing in 2008, is far too timid. So many others merit the same treatment."

We show that Harry Truman’s seizure of the steel mills in 1952, for which the Supreme Court rebuked him (though not as sweepingly as the standard account suggests), was based on the same philosophy of the presidency that nearly all twentieth-century presidents held, and was likewise no aberration at all.

Woodrow Wilson is another good example, for more reasons than we can chronicle in this book. As Bill Kauffman puts it, Wilson makes George W. Bush look like a pro bono lawyer for the ACLU. In tandem with draconian penalties for the most harmless statements about the Great War, voluntary enforcement agencies with names like the Sedition Slammers, the Terrible Threateners, and the Boy Spies of America sprang up across the country. Eugene V. Debs made the best of his situation, collecting a million votes for president in the 1920 election while in prison for giving a speech. (A popular campaign button read, "For President: Convict No. 9653.") All three branches of government heartily approved.

Now people who draw the conclusions that our book does in the cases relating to race can be assured of smears and character assassination. The intentions of anyone advancing them are assumed to be bad, so their reasoning is ignored. That’s how our society works, and media and education establishments populated by cowards and ignoramuses keep it that way. Likewise, writers critical of President Bush and the constitutional theories of those under him will be accused of "aiding the terrorists." Rational discussion of what the Constitution actually says, regardless of whom it offends, almost never occurs in such an environment. Every significant appeal to the Constitution, supposedly the fundamental law of the land, is a thought crime of one kind or another. That seems to be just the way the political and media establishments like it.

We also cover the issue of presidential signing statements, by which President Bush has pledged to interpret various laws in ways that are at odds with congressional intent, or not to enforce them at all. Such statements often go overlooked, buried in collections of official documents. But Bush has used the signing statement to challenge twice as many legislative provisions as all previous presidents combined. (And no, he’s not challenging them because they’re unconstitutional and he’s such a constitutional stickler.)

We show the alleged constitutional power to draft people into the armed forces to be without foundation; one of the arguments the Court used to uphold it was that all the cool countries were doing it — Russian, Austrian, German, Japanese, and Chinese emperors drafted their citizens, after all. Surely the U.S. can’t be "one of them loser countries," to borrow a phrase from Moe Szyslak.

We likewise cover forced busing, medical marijuana (the federal government’s arguments against it have to be read to be believed), the confiscation of Americans’ gold in 1933, and the federal government’s dishonest treatment of church-state relations. We even tread upon the third rail of American jurisprudence: Brown v. Board of Education. And lots more.

It’s interesting and revealing to consider the two figures whose blurbs we feature on the back cover. One is Judge Andrew Napolitano, an avid reader of this site who is also senior judicial analyst for Fox News. The other is Kirkpatrick Sale, who is resolutely a man of the Left but who still favors the kinds of values the Left once believed in, including Jeffersonian decentralism and a distrust of bureaucratic solutions to human problems. Both men are equally aghast at what our one-party system has done to the Constitution, and to American freedom along with it.

Publishers Weekly almost seems to like the book, which briefly made us think there might be something wrong with it, but we finally decided just to accept its respectful review gracefully.

Lysander Spooner once said that he believed "that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize." At the same time, he could not exonerate the Constitution, for it "has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."

Harsh words, yes. But there is a contradiction at the heart of the very idea of constitutional government, that makes a constitution’s perversion all but inevitable. How can an institution be restrained by a document that it has a monopoly on interpreting? The problem becomes all the worse when that institution also (practically speaking) monopolizes the education of children, who are taught that "flexible" interpretation of the Constitution by their betters is perfectly normal and just what the American people signed on for.

That, in a nutshell, is what Who Killed the Constitution? is all about. A better question, in light of all this, might involve who killed the Articles of Confederation.