Thomas Paine began his famous essay “Common Sense” by observing the tendency of many to confuse government and society. Sadly, this error applies not only to the 18th century, but also to all that has gone wrong in America, most particularly–though surely not exclusively–in the past century. This truth becomes inescapable in the face of the recent book by Thomas Woods and Kevin Gutzman on the death of the Constitution–and by extension, the modest differentiation between government and society which America once enjoyed.
Early on in Who Killed the Constitution?, Woods and Gutzman make the all-important distinction between the Rule of Law–the general “rules of the game” laid down at the beginning, which for us is the Constitution–and positive law, the particular proactive bills enacted by the government in pursuit of–and, unfortunately, often in violation of–the Rule of Law, the Constitution. This difference is important to note in this American republic which has become drunk with democracy and populism.
Having established what it means to have a Rule of Law, the authors intrepidly examine a number of unconstitutional decisions taken by the various branches of the Federal government. Most probably because of space limitations, not every unconstitutional decision is examined; to do this would likely require many volumes. Nevertheless, the authors make efficient use of the space they have, showing a healthy disregard for party interests and political correctness: The Espionage Act, Truman’s seizure of the steel mills, congressional earmarks, US monetary policy, military conscription, even Brown vs. Board of Education and more are revealed to be in disharmony with the Rule of Law.
Such strict constructionism is surely shocking, and perhaps troubling, to many who justly worry about equality for all men. Here it is helpful for the reader to recall Paine’s distinction between government and society: The question that Woods and Gutzman implicitly raise is not whether it’s fine for injustice to exist, but rather how we are to go about solving our problems. The answer to this is by following the Rule of Law and respecting the rights of every citizen, not by ramming through a decision enacted by State fiat or popular frenzy. This answer is not good enough for many, who often feel that the coercive exercise of power is the only way to bring about profitable change. While such exercise is satisfying when it occurs, the long term effects are more often than not deleterious. Unconstitutional interventions are often hailed as heroic measures, but how many of them have satisfied those looking for change? None. That’s because none of them have worked. We have failed to make the world “safe for democracy,” and war is still with us. So are poverty and racism. The only fruit our widespread disrespect for the Constitution has gotten us is unlimited government power, often buttressed by a Supreme Court which has arrogated to itself the right to determine the constitutionality of laws.  It would seem that this should teach us not to confuse virtue with regulation.
On this last question of interpretation, it may be helpful to explore whether the current Constitutional crisis is not a symptom of a more general disease involving language. Woods and Gutzman document case after case in which the plain meaning of the Constitution is washed away or completely ignored. All this is accomplished with barely a word of protest, if any at all. If our Constitution is ever to have meaning again, the phenomenon of Newspeak must first be addressed. Indeed, as far back as 1948, Richard Weaver wrote of the pressing need to recover the “power of the word,” as he called it.
In the final chapter of _Who Killed the Constitution_, the authors raise the troubling question of whether or not written Constitutions work at all. After all, the institution whose power the Constitution is intended to limit also has a monopoly on its interpretation. Don’t look for any president to mention originalism anytime soon. I might also add the aforementioned language problem. Ultimately, the authors admit, it is up to the American people to become aware of the situation we face and to begin to demand change. This would appear to be our last best hope. I suppose the success of this idea will depend at least in part on how many Americans choose to embrace liberty (not libertinism but the responsible freedom which is the bedrock of a virtuous society–a commodity no government can produce), private property (which has been all but obliterated), and tradition (the original intent of the Founders, among other things) and eschew the frenzied looting of one sector of society by another through misuse of the law. As long as Americans desire to use positive law for their own purposes, we will not even have the ability to begin a restoration of the Constitution.
But let us not end on a down note. The recent emergence of men such as Thomas Woods and Kevin Gutzman gives lovers of liberty throughout America cause for hope. Surely this signals that a significant portion of Americans is waking up, and those who have awakened will find this book to be an indispensable addition to their shelf. As for those who have not yet joined today’s cause for liberty, this book may be just what they needed to get them on board.
1. Woods and Gutzman neglected to mention Article III, Section 2 of the U.S. Constitution, which gives Congress the prerogative to remove certain issues from the jurisdiction of the High Court–the one check we have against “judicial legislation.” This would have been a worthy addition to this book, but when the subject at hand is unconstitutional decisions in America, one is admittedly swamped with material.
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