Saturday, October 23, 2010

Review - Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush by Thomas E. Woods, Jr. and Kevin R.C. Gutzman

Short review: Extreme originalism combined with libertarianism creates a view of Constitutional history that is almost as incoherent as the mainstream version the authors decry.

Sometimes a good idea
Sometimes it isn't

Full review: Viewing history and law through an ideological lens colors your perspective. This coloring can affect your ability to make consistent arguments in support of your favored position. This appears to be a pitfall that Thomas E. Woods, Jr. and Kevin R. C. Gutzman have fallen into in Who Killed the Constitution? While they espouse, for much of the book, a version of strong libertarianism in the spirit of Ron Paul (they advocate a return to the gold standard for the U.S. among other things), and an extreme form of originalist Constitutional interpretation, they stretch their arguments too far in many of the examples they give in an effort to reach their desired conclusion. Consequently, this dilutes the impact of the arguments that they make upon which they are on solid footing, and renders the book less powerful than it could have been. While in some parts much of their fundamental thesis, that all branches of government and all elements of the political spectrum have joined together to systematically trample on the Constitution, is sound, their clear biases result in numerous examples that don't really support their point, making their argument less than convincing.

The format the authors choose to illustrate their argument that U.S. liberty has been consistently eroded through the twentieth century is an analysis of several discrete examples intended to build their case. The twelve instances of governmental overreach that the authors identify and examine in the book, the "dirty dozen" as they call them, are: The sedition laws passed and enforced during World War I under Woodrow Wilson; Harry Truman's seizure of the steel mills in the 1950s; the Brown v. Board of Education decision; the subsequent decisions to require forced busing to remedy past discrimination; the arrogation by the Federal government of the ability to build roads; the seizure of the U.S. gold stocks from the populace by Franklin Delano Roosevelt in 1933; the removal of prayer from public schools to enforce the "Wall of Separation" between Church and State; the draft; the prohibitions against the use of medical marijuana; the increasing power of the executive to set and implement foreign policy; the development of the doctrine of executive war powers; and finally, the ever expansive view of executive power, culminating with the rapid rise in the use of signing statements and the assertion by George W. Bush's administration that Congress could not interfere in its ability to judge what is and is not permissible interrogation techniques or torture.

In each example, the authors try to make the case for these being unjustified expansions of governmental power in violation of the U.S. Constitution, which, of course, supports their central thesis that the Constitution is "dead". In some cases, their points are quite salient. Most notably, in the examples describing the expansion of executive power, drawing a line from the expansion of Presidential power to the level of exclusivity in foreign affairs, to the broad executive "war powers" doctrine that has come to override the Congressional war making power, to the unfettered executive power asserted by the administration of George W. Bush. The authors also make a strong case that the erosion of free speech under Woodrow Wilson was particularly egregious. But what goes unmentioned is that the excesses of (for example) the Woodrow Wilson years have been by and large repudiated, and although there have been abuses that have occurred subsequently, the issue has moved more like a pendulum swinging back and forth rather than an ever increasing infringement upon liberty. This sort of one-way logic is most apparent when the authors recount Harry Truman's seizure of the steel mills, which was probably the most naked grab for power in the Twentieth century. Although they point out that the negative reaction was massive, they gloss over the fact that this sort of naked exertion of executive power has not been repeated since then, giving the impression that seizure of industries has become de rigeur in American life.

One could argue that where the authors most go astray in their analysis is with respect to Brown v. Board of Education, in which their adherence to an extreme version of originalism blinds them to the actual basis for the decision in the case. While they argue that the original intent of the Fourteenth Amendment was not to desegregate schools using the fact that most states at the time of ratification had segregated schools to support this assertion. But Warren's decision relies primarily on an evaluation of what "equal" means, and finds that segregated schools simply don't meet the standard. By asserting that only the inferred meaning that those who originally adopted the Amendment counts, the authors foreclose the possibility that an opinion concerning what is "equal" can change. They also fall into the trap of assessing legislative history and commentary as a primary guide for the interpretation of a piece of law. As any serious practicing lawyer will tell you, one only resorts to the use of legislative history or commentary when one is desperate. This is because legislative history is so unreliable as a guide to the intent of the legislature: it is merely a guide to the intent of those legislators who have spoken on the legislative record, or, at best, a guide to the intent of a committee that has placed its thoughts into the record. But the only way to truly evaluate the will of a legislative body as a whole is to independently evaluate the output of the entire legislative body - the text of the legislation itself. It should probably come as no surprise that using commentary to deduce meaning is even more unreliable. And this is truly unfortunate, because their clearly poorly grounded criticisms of Brown serve to sap the life out of their much better founded criticisms of forced busing. In short, stretching their point beyond tenability in some areas makes them less convincing in the others where they are on more solid footing.

The true illustration of the authors using results based analysis comes with respect to the end of prayer in schools. After applying their extreme version of originalism to the First Amendment establishment clause, and glossing over the incorporation doctrine of the Reconstruction Amendments, the authors proceed to assert that the decision in Evenson v. Board of Education is suspect because Justice Hugo Black was a bad guy because he was a racist. But this sort of data is entirely beside the point when evaluating whether a particular ruling was wise or unwise. The fact that they spend much of the chapter belaboring this point only illustrates the paucity of their arguments on the merits. And while they are more than willing to cite legislative history and commentary when it supports their position, they completely ignore Thomas Jefferson's famous letter to the Danbury Baptist Association, which clearly shows that they are cherry picking their sources to fit their biases. They later show their hand further when discussing Franklin Roosevelt's gold seizure and leap from assessing the legalities of this action to a diatribe about why the government should have never abandoned the gold standard that would have fit perfectly in Ron Paul's mouth. They also advocate a ruinous banking policy that would contract the U.S. economy many-fold, which makes one wonder if they truly understand the economic matters they discuss in the book at all.

Because it lurches back and forth between fairly reasonable criticisms of government infringements and wild-eyed claims that don't hold up to scrutiny, Who Killed the Constitution? undermines its own central thesis. Because the supporting material is so clearly cherry picked on several issues, and is in large part of dubious quality to begin with (being legislative history and commentary) one begins to suspect that the authors have let their ideological biases color all of their assessments. And given that many of the infringements they cite have either been redressed or merely abandoned in subsequent years, their thesis of an ever shrinking ambit of Constitutional protection is unconvincing. In the end, despite strong rhetoric and ardent arguments, the book contains so many inherent contradictions that while the good parts are quite good, the bad parts damage the overall thesis enough that one feels that it is probably too soon to write off the U.S. Constitution. The document's funeral, it seems, is simply not as imminent as the author's would have you believe.

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