Monday Open Thread

Originally posted by Ahistoricality on 08/20/07

I was reading an interview with Kevin R. C. Gutzman, an early American and constitutional historian of some note and considerable conservative views. He’s written the Politically Incorrect Guide to the Constitution, which, like most of the genre, is likely to be a combination of half-truths, deeply partisan positions, highly selective interpretations and absurdly cherry-picked facts and “facts.”

His principle argument seems to be that Marbury v. Madison, which established the principle of judicial review, was contrary to the spirit and intent of the constitution

“Constitutional law,” the product of judicial review, is not really law at all, but the judges’ whims gussied up in a legalistic argot. It is, if we understand the real Constitution as being the one the people actually ratified, in the sense they ratified it, absolutely anti-constitutional.

FP: How did such an anti-constitutional way of government become normalized?

Gutzman: With the elimination of the centrifugal pressures on the federal system provided by the threats of nullification and secession in the nineteenth century and the elimination of state governments’ role in selecting senators in the twentieth, the way was open for the federal government to claim authority over virtually all political issues.

The chief problem, it seems to me, is that although judicial review was said by the Constitution’s proponents in some states to be among the powers federal courts were intended to have — and thus is legitimate — the people were not told that it would be exercised by federal courts over state statutes. They certainly were not told that under the title of a “living, breathing” constitution, the federal courts would be empowered to disallow enforcement basically of any state statute they disliked. They also were not told that the federal courts would effectively write the Tenth Amendment federalism principle out of the Constitution, thus allowing Congress to do more or less anything it wanted. Far from it! In fact, they were told the opposite, and, as James Madison noted in response to McCulloch v. Maryland (1819), if the people had known in 1787-88 how the courts were going to remake the Constitution through “interpretation,” they would never have ratified it.

He then goes on to suggest that the power of the federal courts be “reined in” which, even if I was buying his bill of goods, would have broken the deal.

He seems to be trying to balance state’s rights against the Federalist position (which is dubious, but let’s go with it), but the fundamental problem with regard to states’ rights isn’t the courts, but Congress, and — to a greater extent now than ever before — the Executive-as-national-daddy. Reducing the role of the courts at a time when Unitary Executive theories are alive in the Administration is a recipe for disaster, but it got me thinking a bit about balance. Thus, the quiz (and explain yourself in comments, please).

What’s on your minds?

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