Kevin R. C. Gutzman: The Politically Incorrect Guide to the Constitution (Interview)Historians in the News
FP: Kevin R. C. Gutzman, welcome to Frontpage Interview.
Gutzman: I'm glad to be here.
FP: What inspired you to write this book?
Gutzman: In the summer of 1987, I interned for a congressman in Washington and spent my free time reading a couple of dozen books on public policy and constitutional history. I anticipated that this would stand me in good stead when, in the fall of that year, I entered law school at the University of Texas. What I learned at UT Law, however, was that the "constitutional law" we live under -- the judges' decisions supposedly implementing the Constitution -- is in many ways radically at odds with, and in some important respects entirely contrary to -- the actual Constitution. As I was coming to that realization, the Bork nomination was playing out on C-SPAN, including on monitors posted in the entryway to the school's law library. I was shocked. At that point, then, I conceived of The Politically Incorrect Guide to the Constitution.
FP: What were your thoughts on the Bork nomination?
Gutzman: Bork was reputed to be a principled originalist at the time, and several of his exchanges with senators provided philosophical justification for originalism. As he showed in The Tempting of America, there were no few senators whose knowledge of constitutional history left much to be desired. However, in the end, he bowed to the pressure to provide outcome-directed arguments, most famously when he called Bolling v. Sharpe constitutionally unjustifiable one morning and then "corrected" himself in the afternoon.
FP: Can you talk a little bit about the inconsistency between constitutional law and the rule of law?
Gutzman: Certainly. The chief thing to understand here is that the federal Constitution was explained by its proponents during the ratification process as intended to establish a federal, republican, limited-government model for the United States. Almost from the first, however, nationalists such as Alexander Hamilton and John Marshall worked to undermine, one might say "subvert," those three principles, and to substitute a centralized government with discretionary powers, one in which the courts and the executive had far larger roles than the people had been led to believe they would have, in its stead. At that point, their party -- the Federalist Party -- was so thoroughly rejected that it ceased to exist.
By now, despite their defeat in the Revolution of 1800, we have come to live under the kind of government those people -- some avowed monarchists, others simply anti-republicans -- preferred. The chief mechanism through which this has been accomplished is judicial review. "Constitutional law," the product of judicial review, is not really law at all, but the judges' whims gussied up in a legalistic argot. It is, if we understand the real Constitution as being the one the people actually ratified, in the sense they ratified it, absolutely anti-constitutional.
FP: How did such an anti-constitutional way of government become normalized?
Gutzman: With the elimination of the centrifugal pressures on the federal system provided by the threats of nullification and secession in the nineteenth century and the elimination of state governments' role in selecting senators in the twentieth, the way was open for the federal government to claim authority over virtually all political issues.
In other words, the old check and balance between state and federal authority -- the Constitution's mechanisms for safeguarding the principle of federalism -- had been eliminated, and so the centripetal pressure in the system proved overwhelming. Once that happened, it could not be long before the states' reserved powers were usurped by Congress and the federal courts; that is the chief theme of the history of American "constitutional law."
FP: So how can the Supreme Court be reined in to its proper role?
Gutzman: Ah, Mr. Glazov, but I am a mere historian! 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 "living, breathing" constitution, the federal courts would be empowered to disallow enforcement basically of any state statute they disliked. They also were not told that the federal courts would effectively write the Tenth Amendment federalism principle out of the Constitution, thus allowing Congress to do more or less anything it wanted. Far from it! In fact, they were told the opposite, and, as James Madison noted in response to McCulloch v. Maryland (1819), if the people had known in 1787-88 how the courts were going to remake the Constitution through "interpretation," they would never have ratified it.
So, there needs to be a check on judicial review. Judges, being mere mortals, will exercise all the power they have at hand. We cannot rely on them to restrain themselves from it. We must somehow, as Jefferson put it in another context, bind them down with the chains of the Constitution. This will require either impeachment of judicial imperialists, legislation to strip courts of jurisdiction in areas in which their behavior has been abusive, amendment of the Constitution to overrule imperialistic judges' gravest misdeeds, and/or creation of a mechanism through which state governments can review federal courts' constitutional decisions.
FP: What are some politically incorrect realities about the Constitution?
Gutzman: During the ratification process, the states reserved the right to secede. The principle of separation of church and state, insofar as it is a principle enforceable by federal courts against state governments, is not constitutional. The Fourteenth Amendment provided only a few basic rights, not a general grab-bag of new rights such as the right to abortion, the right to homosexual sodomy, the right to burn a flag, "one man, one vote" in state elections, the right of illegal aliens to have their children educated in public schools, etc. The Commerce Clause gives Congress only the power to regulate commerce. I could go on ....
FP: How has your book been received? How have some ideological enemies reacted?
Gutzman: To this point, the feedback I have received has been almost entirely positive. Imagine my surprise! What criticism of The Politically Incorrect Guide to the Constitution and my argument generally I have seen has tended to be of the "but doesn't the Equal Protection Clause legitimate a federal district court's imposition of a tax increase on the whole state of Missouri?" variety -- pretty much uncomprehending. In short, the people who have taken issue with me seemed not to have read the book. Beyond that, radio interviewers, callers, bloggers, online reviewers, and the public at large have been very positive.
FP: What do you hope the book may help to accomplish?
Gutzman: My chief hope is that it will awaken people to the incontestable fact that "constitutional law" has virtually nothing to do with the Constitution. In other words, I want the public to become aware that much of what federal judges force us to do is grounded in nothing more than their personal whims. It is not constitutional at all. If people understood that, they would call upon their elected officials to resist the often literally anti-constitutional edicts of federal judges.
FP: Kevin R. C. Gutzman, thank you for joining Frontpage Interview.
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Kevin Raeder Gutzman - 1/24/2008
This is the only time I have ever been called a Federalist!
Besch seems to believe that if the people added an amendment (the Ninth) saying that they did not mean by adopting the Bill of Rights to imply that rights not enumerated could be ignored by the federal government, the people must have intended by doing that to give the federal courts additional power!
The Bill of Rights was adopted because people believed that the unamended Constitution granted too much power to the federal government. They did not intend via the Ninth Amendment to grant more power to the federal government -- in the form of an open-ended invitation to federal judges to veto state laws that the federal judges disliked.
The Federalist generalissimo, James Madison, proposed an amendment empowering federal courts to intervene when states infringed on some of individuals' basic rights, but his proposal was defeated in Congress. Madison lamented this outcoming, calling the proposed amendment the most important one he had proposed. He was right: it was the only one that was intended to augment the power of the federal government.
The Ninth Amendment limits the powers of the federal government, it does not heighten them. It is Besch and others who deny this point, and not I, who echo the Federalists.
Randll Reese Besch - 8/1/2007
Again with the ignorance of the 9th Amendment which opens the door to "other rights" not specifically enumerated because the Bill of Rights was the only reason that the Federalist constitution was accepted at all. Gutzman is just another Fedralist hack that accepts domination of a narrow view of the Constitution,sans the Bill of Rights to impliment harsh ridgid measures against the majority that have minority interests such as homosexuals et al.