I’m sorry, but Kevin Gutzman is totally wrong about the Constitution. In his books and many online articles, Gutzman argues that the Constitution grants the Federal government a handful of limited powers, but leaves the states free to govern as they like. Hence, almost the entire apparatus of the Federal government is unconstitutional. What’s more, says Gutzman, with no little vehemence, nobody who actually reads the Constitution could possibly conclude otherwise.
Wrong. It is Gutzman who hasn’t read the Constitution. Or, to be precise, like the various liberal and conservative scholars he excoriates, Gutzman skips over the parts of the Constitution that he doesn’t like. The Constitution as written contains barely any restrictions on the power of the Federal government to intrude upon the states. Gutzman just prefers not to notice.
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Even if Gutzman were right about the Constitution, his theory of constitutional interpretation would still utterly inadequate. Gutzman makes sport of contemporary scholars who derive their understanding of the Constitution not from the text from but the premise that Brown v. Board of Education was correctly decided. But Gutzman too bases his constitutional theory on his ideological commitments. Suppose Gutzman were right about the original meaning of the Constitution in every detail. That still wouldn’t answer the question: why should we follow the Constitution anyway? Quite a lot of people find Gutzman’s Constitution abhorrent. They may fairly ask, why, if the Constitution (in their eyes) is so flawed, they should bother to restore its authority.
It won’t do to say we should follow the Constitution just because it’s the Constitution. Indeed, the more damning Gutzman’s critique of contemporary constitutional law, the more ridiculous the Constitution appears. Gutzman argues that the Constitution has never been followed. The Framers designed no mechanisms of constitutional defense; they bequeathed to posterity no more than a “parchment” barrier. It is one thing to champion a Constitution that might someday be followed, quite another to champion a Constitution that has no no chance ever in any circumstances of being followed. Gutzman has, if anything, built a strong case that the Constitution is a vain document that should simply be discarded.
To convince anyone otherwise, Gutzman has to offer some normative defense of the Constitution as written. He has to say something such as: “Self-government depends on following the Constitution as actually ratified by the people” or “The Constitution as enacted embodies the paramount value of liberty.” As soon as Gutzman articulates his theory as to why we should follow the Constitution, however, it becomes clear that he too picks his values first and his Constitutional theory second. In that respect, he’s no better than a Brown v. Board-privileging liberal. But his wine, too, is made of grapes.
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In any case, when it’s convenient for him, Gutzman doesn’t even argue that we should follow the Constitution. He interprets the Fourteenth Amendment, for example, not in light of its meaning but in light of the alleged intentions of those who wrote and ratified it. But the intentions behind an enactment are irrelevant to its meaning. Take a recipe for almond torte. The person who wrote it may have intended that the recipe produce macaroons. But that doesn’t change the meaning of the actual recipe. Likewise, the intentions of those who ratified the Fourteenth Amendment—even if they can be discerned, and even if by some miracle they do not conflict—do not determine the meaning of the Fourteenth Amendment. When it comes to the Fourteenth Amendment, Gutzman suddenly loses his interest in what the Constitution actually says.
As for what the Constitution does say—regardless of whether it should be followed or not—Gutzman labors to prove that constitutional law today has drifted quite far from what the Framers envisioned. I couldn’t agree more. The trouble is, the meaning of the Constitution for the Framers is of little more than antiquarian interest. The Constitution has been amended 27 times since the adoption of the Bill of Rights. It doesn’t matter what a particular provision meant in 1789. The Constitution of 1789 is not the Constitution we have today.
Take the Necessary and Proper Clause. Gutzman fulminates against Chief Justice John Marshall for refusing in McCulloch v. Maryland to interpret the Necessary and Proper Clause as limiting the implied powers of Congress. For better or worse, the dispute over the original meaning of that clause is now largely irrelevant. Eight times since McCulloch, the people have seen fit to define the scope of a new Congressional power. Each time, they have used language right out of Marshall’s famous opinion: “The Congress shall have the power to enforce this article by appropriate legislation.” Compare Marshall: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” [emphasis added]. These eight new “enforcement clauses,” beginning with that of the Thirteenth Amendment, were understood to echo Marshall’s words. Gutzman doesn’t like McCulloch’s understanding of Congress’s implied powers, but the actual Constitution incorporates it.
Next take Gutzman’s prized concept of limited and enumerated powers. It’s true that the Constitution used to define Congress’s powers narrowly. That all changed, however, with the Fourteenth Amendment. The Fourteenth Amendment reads, in part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now, what does that all mean? Nobody knows! These words are almost totally opaque. Clearly the states are prohibited from doing… something. From doing things that are … well, things that are fundamentally bad. That’s about as close to the meaning of the Fourteenth Amendment as one can reasonably hope to get.
In its the very opacity, the Fourteenth Amendment sweeps aside the system of limited and enumerated powers created by the Founders. For the Fourteenth Amendment also gives Congress the power to enforce its provisions by “appropriate legislation.” In other words, Congress gets to stop the states from doing anything that’s fundamentally bad. What’s fundamentally bad? Well, that can only be for Congress to decide, since it’s the only branch of government expressly empowered to enforce the Amendment. Thus, Congress might prohibit the States from discriminating on the basis of race. It might also prevent the States from denying access to free health care, or refusing to advance the progress of minority groups by affirmative action. So long as Congress deems a policy to be a fundamental right, it can force the States to uphold it.
In the words of Justice Miller, author of the widely loathed majority opinion in the Slaughter-House Cases (1873), the Fourteenth Amendment, read literally, would
transfer the security and protection of all the civil rights which we have mentioned [i.e., all fundamental rights] from the States to the Federal government. . . . [The literal Fourteenth Amendment] would constitute this court a perpetual censor upon the legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights ...
Recoiling from the revolutionary consequences of the Fourteenth Amendment, Miller strove, heroically but ultimately unsuccessfully, to strangle the Fourteenth Amendment in its cradle. Gutzman reviles the “incorporation doctrine” whereby provisions of the Bill of Rights are enforced against the States. He should count himself lucky. In its original meaning, the Fourteenth Amendment enforces all fundamental rights against the states, whether embodied in the Bill of Rights or not. The Amendment gives Congress and the Federal government virtually unfettered power to rule over the States.
I wish it weren’t so. I wish Gutzman were right that the Constitution vindicated limited government. But it doesn’t. If we want to actually acquire limited government, a good first step is to be honest about this.
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