Reclaiming Our Constitutional Essence

Posted July 7, 2008 at 4:29pm

Constitutional scholars Kevin Gutzman and Thomas Woods Jr. have a suggestion for anyone looking to better understand the rights and restrictions laid out in the nation’s foundational document. Read it.

But for those who want to learn how recent history has rendered the Constitution meaningless, the two New York Times best-selling authors have penned a collection of what they see as 12 of the most egregious offenses against the Constitution titled “Who Killed the Constitution?”

The book, released today, points to a convergence of factors that the authors say have chipped away at the Constitution’s intended purpose of limiting the authority of the federal government. Strong advocates of states’ rights, the authors believe the Founding Fathers designed the Constitution to ensure just that.

The authors pull from an ideologically diverse pool of offenses — from the passage of the Espionage Act of 1917 to the influx in presidential signing statements under the Bush administration — “to show that all three branches in both parties had been complicit in this scheme” of undermining constitutional limitations on federal authority, said Gutzman, an associate professor of American history at Western Connecticut State University.

“The point of the book is not to appeal to left or right, but to make an impartial, constitutional overview,” said Woods, a contributing editor of the American Conservative. “It’s not just crazed liberal judges who were responsible for what we’ve seen — If only it were that simple.”

Several of the examples used in the book, including 1954’s Brown v. Board of Education, are considered landmark decisions that positively affected American society, but the authors caution against judicial action as a fix for cultural ills.

“Law professors now skip past constitutional questions about Brown and instead, as one prize-winning historian of these decisions put it, decide why the decision was right and weigh its impact on American race relations,” they write.

They argue that segregation did not violate the Constitution’s Equal Protection Clause when considered in the context of an 18th-century Constitution. And they say there were alternate ways to advance racial equality, such as ensuring the right to vote regardless of race protected by the 15th Amendment.

Gutzman and Woods also reject arguments that the Constitution is a “living” document meant to evolve over time as the nation changes. “When in American history did we say, ‘Let’s endow judges to determine mystically how the country has evolved’?” Woods said.

Though Gutzman said he remembers being taught in high school and college that an outstanding feature of the Constitution was that it was something the judges could keep “au courant,” both Gutzman and Woods argue the very fact that the nation’s foundational ideas are captured in a written document renders a “living” Constitution a “phony” Constitution.

“The American experiment of having a written Constitution so that officeholders would have limited authority has failed,” Gutzman said.

Despite actions by the courts and elected officials to curtail limitations on their own power, Gutzman and Woods say one of the greatest contemporary threats to the constitutional rights of Americans is the American people themselves.

“Most Americans, thankfully not all, but unfortunately too many have more or less accepted the narrative of their country’s history that they got in seventh grade,” Woods said, adding that the typical American civics curriculum focuses on “great presidents whose great leaps forward made America the progressive government it was today.”

Even at the university level, Gutzman says a general understanding of the Constitution’s intended role in American democracy is skewed by curricula that focus on the “gloss” — judicial decisions and opinions that he argues were flawed from the start.

“I think that in general American citizens are kept in the dark about the way the system was supposed to be structured,” Gutzman said. “People don’t even recognize that the Constitution is intended to limit the federal government.”

Even attempts to promote understanding of the Constitution are often, despite good intentions, ill-advised, the pair laments.

The prime example? A 2004 provision authored by pocket-Constitution-carrying Sen. Robert Byrd (D-W.Va.) requiring schools to set aside Sept. 17 to teach pupils about the Constitution.

Though the proposal was intended to promote awareness of the Constitution among the country’s youths, Gutzman and Woods point out that Congress instructing schools what to teach resembles the very sort of overreaching of federal authority that the Constitution was intended to restrict.