Dr. Kevin R.C. Gutzman is a lawyer and an associate professor of American history at Western Connecticut State University. Dr. Gutzman is the author of Virginia’s American Revolution: From Dominion to Republic, 1776–1840 and was featured in the documentary film John Marshall: Citizen, Statesman, and Jurist. His latest book is The Politically Incorrect Guide to the Constitution and its release is what occasioned this interview.
BC: Congratulations on your new book, Dr. Gutzman. First off, what is the most glaring subarea in which our Constitutional law has been interpreted in a manner alien to the Founders intent?
Dr. Gutzman: “Constitutional law,” the body of court decisions implementing the Constitution, is today almost totally at odds with the Constitution the People were told they were getting when they narrowly decided to ratify it. Judges have used the fig leaf of the Constitution to cover their own naked power grab, so that instead of a decentralized system in which almost all power remained in the far more representative state legislatures, we have a centralized system in which almost all interesting social and legal disputes end up being decided by a secret body of nine politically well-connected lawyers: the Supreme Court.
BC: In your book we find that much of what we take to be conventional wisdom is erroneous such as the idea that there is a right to “freedom of expression.” Is anything like that guaranteed by the Constitution?
Dr. Gutzman: The Constitution bars Congress from infringing the freedoms of speech and press. It does not, however, establish a right to topless dancing, a right to burn flags, a right to wear armbands to school, or any other non-speech, non-press rights of expression. It also does not establish even speech or press rights enforceable against state governments. To the extent that “constitutional law” — the body of judicial decisions supposedly “interpreting” the Constitution — says that it does establish such rights, it is based on nothing more than the judges’ own predilections.
BC: I was somewhat surprised to discover that defying the Constitution is not a recent phenomenon. In what decade or century did the process begin?
Dr. Gutzman: Four years into the history of our current federal system, the Supreme Court in Chisholm v. Georgia attempted to grab jurisdiction over a class of cases Congress had not been given authority to let federal courts hear by Article III. The people instantly responded with the Eleventh Amendment, which corrected Chisholm. Far the worst period in this regard was that from 1816-24, when Chief Justice John Marshall and his brethren rewrote the Constitution in Martin v. Hunter’s Lessee, McCulloch v. Maryland, and Gibbons v. Ogden to give federal courts a power to review state supreme court decisions and Congress power to legislate in almost any area that came to mind. These decisions unmade the federal system established by listing the powers of Congress in Article I, Section 8 of the Constitution and by listing the types of cases federal courts might be empowered to hear in Article III. The next-worst decade, of course, was that beginning in 1937, when the Court effectively read the Tenth Amendment out of the Constitution.
BC: Politicians love to play politics with the Constitution. Most of us have been subjected to the argument that it’s a “living, breathing Constitution.” What do you say in response to that statement?
Dr. Gutzman: People who say that the Constitution is a “living, breathing” document really mean that it’s dead. The reason the revolutionaries bequeathed us a tradition of written constitutions for the states and for the federal government was that they wanted to bind officials to follow set rules — unlike in the English system, in which the Constitution was unwritten and the King-in-Parliament had unlimited power. When Al Gore tells you that he wants the Constitution to “live” and “breath,” he is saying that he wants officials to be able to ignore constitutional limitations on their discretion when the fancy strikes them. We have actually had a living, breathing (dead) constitution, in many respects, for a long time now.
BC: One of your arguments about Chief Justice Earl Warren’s beliefs was rather disturbing: “if the judges’ conceptions of decency differ from those of all their predecessors, then today’s judges must be superior to their predecessors, because they have ‘evolved’ within their ‘maturing’ society.” Wasn’t Warren’s stance a total refutation of precedent?
Dr. Gutzman: The issue isn’t precedent, it is whether the Constitution will have any fixed meaning at all. Warren, Marshall, and William Brennan are the outstanding examples in our history of justices who felt free to redefine common words and remake fixed legal provisions to further their own personal political ends. When Warren said that he was concerned to bring our law into consonance with “evolving standards of decency” (Sandra Day O’Connor liked to use that line too, by the way), he was really saying that his “standards of decency” were paramount, that the Constitution was just a ruse. He was profoundly anti-constitutional.
BC: How much was the Republican refusal to make an issue out of the Democratic habit of ruling by judiciary a factor in their 2006 electoral defeat? Is the right missing out on a potentially profitable strategy by not publicizing the left’s anti-democratic methodology?
Dr. Gutzman: Yes to the last part of your question. No, alas, to the implication. The Republican Party of George W. Bush is not notably better than its Democratic opponent on the score of fidelity to the Constitution. “No Child Left Behind” is precisely the type of program that the Constitution left to states to undertake (in case they were so foolish), and I cannot see any evidence that President Bush sees any clear line between federal and state legislative authority. The Constitution gave Congress power in a few areas (they’re listed in Article I, Section 8) and left all the rest to the states. (Lest anyone misunderstand, the Tenth Amendment was later added to make this point explicit.) There is a clear distinction between President Bush and Thomas Jefferson or Ronald Reagan on this score.
BC: The left’s Borking tactics are pronounced and we’ve seen them character assassinate men like Charles Pickering in the past. Is it fair to say that Republicans have been too timid in response? When I reflect on Justice Ginsburg’s (a known radical feminist) 96 to 3 Senate confirmation I still cannot believe their pusillanimous nature.
Dr. Gutzman: At the time, it was totally incomprehensible to me that Orrin Hatch did not make any noise about the principles Ginsburg was known to stand for. She is a devout advocate of a “living, breathing” (that is, non-binding) constitution, and the Republican caucus’s silence on this score seemed to indicate that when it came right down to it, they just did not care very much about the Constitution.
BC: There are so many things wrong with the recently killed immigration legislation that I’m not sure what to reference in particular, but is it fair to say that parts of it were unconstitutional?
Dr. Gutzman: I think that the obvious Fourteenth Amendment issue in regard to immigration is the absurd reading of Section 1’s citizenship clause that seems to be accepted ubiquitously these days. The Supreme Court had said in Dred Scott v. Sandford (1857), in an opinion by Chief Justice Roger B. Taney (still, and I’m not kidding, the greatest Democratic chief justice), that blacks could never be citizens of the United States, and the citizenship clause (“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”) was meant to undo that. It obviously assumed that mothers of the people to whom it refers were here legally. That the citizenship clause should be the mechanism for making citizens of people whose mothers are here illegally is something only “constitutional law” could explain!
BC: How would you rate Bush’s performance in terms of judicial appointees? Did he give enough consideration to those with an outlook rooted in judicial restraint? Will the number of his appointments make a difference as far constitutional preservation is concerned?
Dr. Gutzman: Bush’s chief “contributions” to the constitutional system are programmatic and cultural. The Medicare prescription drug fiasco and No Child Left Behind demonstrate complete obliviousness to the concept of federalism, which was the chief component of our original republican, federal, limited-government system. Besides that, he has joined a long line of presidents in claiming policymaking authority in regard to foreign affairs that was clearly intended to be assigned to Congress, not to the Executive Branch. Beside these matters, the appointment of a couple of judges is a picayune concern.
BC: What can we do about this problem? Is there any remedy to the erosion of the Constitution—apart from winning every election?
Dr. Gutzman: The vote on the Ginsburg nomination demonstrates that electing Republicans is not a solution to the problem. People need to be educated regarding the intended nature of American government. Most significant issues were supposed to be decided in the states (which is why the central government was called the “federal government,” not the “national government”). Within the federal government, making policy (legislating) was to be the responsibility of Congress (the Legislative Branch). Even, or perhaps especially, when it comes to war.