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Kevin R. C. Gutzman: Interviewed about his new book, Who Killed the Constitution?

Frontpage Interview’s guest today is Kevin R. C. Gutzman, J.D., Ph.D., the New York Times bestselling author of The Politically Incorrect Guide to the Constitution and Virginia’s American Revolution. An associate professor of American history at Western Connecticut State University, Dr. Gutzman has written for numerous popular and scholarly publications and appeared as an expert in the documentary film “John Marshall: Citizen, Statesman, Jurist.” He is the co-author (with Thomas Woods) of the new book Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush.

FP: Dr. Gutzman, welcome to Frontpage Interview.

Gutzman: I’m glad to be here.

FP: What inspired you to write this book?

Gutzman: When last I was here, we discussed my previous book, The Politically Incorrect Guide to the Constitution. There, I demonstrated that the Constitution as we now live with it is highly unlike the one that was actually ratified. In fact, its chief principles – federalism, republicanism, and limited government – have been almost entirely abandoned.

In discussing that project with people, I noticed that many conservatives think that conservative politicians and judges, unlike their liberal opponents, respect and try to abide by the original understanding. I hoped to demonstrate that more than a partisan difference, the death of the Constitution has been a cultural development: virtually no one in the federal system adheres to the Constitution as originally understood. This is true of Democrats and Republicans, presidents, congressmen, and judges alike. It has been for a long time. My co-author Tom Woods and I prove it in Who Killed the Constitution?

FP: Why do many conservatives believe that conservative politicians and judges respect and try to abide by the original understanding, of the Constitution? It means there is a silence, a black-out on this issue. Why is that?

Gutzman: People believe that they do because they say they do. I think that many (though certainly not most) conservative judges and politicians sincerely believe that they do adhere to the original understanding. The problem is that judges' education in these matters typically extends to mastery of an enormous body of judicial opinions in law school, and that those opinions do not necessarily have any connection to the original understanding; indeed, as I pointed out in The Politically Incorrect Guide to the Constitution, the body of judicial decisions is in many ways contrary to original understanding. A law student-cum-lawyer-cum-judge has no way of recognizing instances in which case law diverges from original understanding.

FP: Tell us the ways in which the federal Constitution, as a framework of government restraining those in power, has died.

Gutzman: Ah, but that would take an entire book.

What we do is to provide twelve case studies, twelve specific examples, of people in high federal office ignoring the original understanding of the Constitution. So, for example, chapter 5 begins with Presidents Thomas Jefferson and James Madison asking Congress to appropriate money for construction of roads and canals. It shows Madison vetoing a bill to do exactly that, and explaining in his Bonus Bill Veto Message of 1817 that the reason for his veto was that Congress did not have constitutional power to spend money for that purpose. We then show that when the current federal program of road-building was undertaken in the mid-twentieth century, no significant constitutional issues came to anyone’s mind. The explanation is that between the Madison and Eisenhower administrations, the Constitution … died.

FP: Who tried to save the life of the Constitution? Was the problem that only a few people noticed the death?

Gutzman: People did notice. There were loud complaints in the 1930s over the New Deal legislation and the Revolution of 1937. There were howls of protest over the unconstitutional actions of the Warren Court and the anti-constitutional centralization involved in Lyndon Johnson's Great Society. Yet, over time, these and other innovations were incorporated into the American regime. They are the American regime. So, again, if you study "constitutional law" in high school, college, or law school, you aren't told, "This is where the federal government began unconstitutionally to conscript people" or "Let's consider the unconstitutional federal role in primary and secondary education," let alone "Now we turn to the unconstitutional presidential primacy in foreign policy" or "It's time to take up the unconstitutional federal prohibition of medicinal use of marijuana."

In the nineteenth century, Presidents Jefferson and Madison insisted the Constitution had to be amended before the federal government could get into the road-building business. In the 1950s, Eisenhower signed off on Congress's bill establishing the interstate highway system. In between Madison and Eisenhower, the Constitution as frame of government, as more than simply the skeleton of the three branches of the edifice in Washington ... died.

FP: Describe how each of the three branches of the federal government act in contempt of the Constitution.

Gutzman: In the book, we provide several examples of presidential claims to unconstitutional power. The extreme frequency and scope of statutory revision through signing statements that we have seen in the George W. Bush administration is unconstitutional. The system of faits accomplis in foreign policy by which presidents have usurped Congress’s war-declaring power is unconstitutional. Presidential claims to virtually unlimited power in wartime (consider the arguments made by Truman administration officials in the context of the Korean War, subject of chapter 2) are unconstitutional. Etc.

And that is only the Executive Branch. As I said, Who Killed the Constitution? is no respecter of branches (to coin a phrase), but shows the other two behaving in the same way.

FP: If government officials are not no longer restrained by the Constitution, what are they restrained by?

Gutzman: Each branch of the federal government now has its own constitutional culture, its own version of what it can get away with while bowing in the direction of the Constitution. The Constitution serves as a kind of totem that everyone must affect to respect, even as it no longer serves its intended function of providing parameters of official power.

FP: What can Americans do to stop government from running amok and save their liberties?

Gutzman: The first step on the road to reclaiming the Constitution is to come to understand it. The best start down that path is to read Who Killed the Constitution? Having done that, Americans must then insist that their elected officials abide by the Constitution, and that they hold their unelected officials to it.

FP: How about the argument that reclaiming the Constitution may not fit the times we live in – that the Constitution as originally designed was meant for a different time and place?

Gutzman: The point of Who Killed the Constitution? is NOT that congressional spending on highways and cancer research, presidential discretion in foreign policy, or a federal judicial veto over state (including local) government invocations of the deity are undesirable. The point is that they are unconstitutional, and NOBODY CARES. The point is that the Constitution is dead.

For example, in the partial-birth abortion case, the conservatives mustered a 5-4 majority to uphold the law. Justices Thomas and Scalia, concurring, said (I paraphrase), "This court's Commerce Clause jurisprudence, the basis of Congress's claim of power to ban this medical procedure, is unconstitutional, so this law is unconstitutional. However, so long as this court says Congress can legislate this way under the Commerce Clause generally, we're going to vote to uphold this particular law." In other words, Thomas and Scalia agreed with the four dissenters that the law was unconstitutional, and they said so, but they upheld it anyway! That's about as close as you're going to get to a valid originalist argument from the Supreme Court.

What they should have done was joined the dissenters, and they should have filed a concurring opinion explaining why they were among the six justices holding that the law was unconstitutional. They admitted that they thought so, but they upheld it anyway. So what does their oath to uphold the Constitution mean?

The Constitution, alas, is dead.

FP: Crystallize for us the most serious consequences of the death of the Constitution.

Gutzman: Congress legislates in any way it likes, despite the fact that its powers were supposed to be limited and almost all legislative authority was reserved to state legislatures. No one doubts, for example, that it may commandeer the health-care sector of the economy if it likes. The Supreme Court behaves, as in Who Killed the Constitution?'s chapters on the Establishment Clause and Brown v. Board of Education, as a frankly legislative body charged with the task of establishing (as one justice put it) "new law for a new day." The president is in foreign policy greater than any Roman emperor, his discretion essentially untrammeled, with power to give law to satraps from Korea to Mesopotamia to Bosnia, often despite the express will of Congress.

In short, we live with an imperial government more arbitrary, spendthrift, and reckless than George III would ever have been. In many ways, its behavior is contrary to anything the Americans ever approved. It is sowing the wind, fiscally, environmentally, morally, and militarily. And it IS NOT something "We, the People" wanted.

Perhaps it can be stopped. But first, the people need to ask, Who Killed the Constitution?

FP: Must written constitutions go the way of the U.S. Constitution?

Gutzman: I am not hopeful.

Constitutionalism requires an educated, attentive electorate attuned to office-holders’ tendency to grasp at more power than they have been delegated. Even when the policy outcome of unconstitutional behavior seems likely to be desirable, citizens must demand that officials adhere to the Constitution anyway if it is to survive. Over time, Americans have not proven up to the task. I fear that the American experiment has failed, but perhaps it can be reinvigorated.

FP: Dr. Gutzman, thank you for joining Frontpage Interview.

Gutzman: I enjoyed it.
Read entire article at Jamie Glazov at frontpagemag.com