The Blogger and the Libertarian: Constitutional History Death-Match

Originally posted by Ahistoricality on 09/06/07

A few weeks ago I made note of an interview with Prof. Kevin Gutzman in which he argued that the principle of judicial review was fundamentally unconstitutional:

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.

I went on to say

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).

Last week, the distinguished Prof. Gutzman, author of The Politically Incorrect Guide to the Constitution (which I also maligned without even looking to confirm that it was published by Regnery…. yup), struck back:

Prof. Gutzman starts off with a solid shot: I haven’t read the book! True…. but irrelevant. I was commenting on the interview. I mentioned the book to give some context, and if anyone else wanted to follow that dead-end argument, they’d have my blessing. (But use the sidebar link to Amazon, so NP gets a cut!)

Prof. Gutzman then takes what is, unbeknownst to him, his best shot: I got the case wrong! Though he acknowledges that “Judicial review … is usually associated with the Supreme Court’s decision in Marbury v. Madison (1803)” he goes on to point out that the 1803 decision was Federal when he’s concerned with “Fletcher v. Peck (1810), in which the Court claimed authority to review state laws for ‘constitutionality.'” In other words, as I correctly noted, he’s concerned with States Rights. (and apparently opposed to “‘rights’ to abortion, homosexual sodomy, one man-one vote, Miranda warnings, secular schools, etc.”)

I’ll give Prof. Gutzman credit for one thing: Chutzpah. I don’t know much about early American history (more than my students, mostly, but less than most Americanists), but he actually argues that the Federalists — the gentlemen who brought us the Alien and Sedition Acts — were states rights advocates in the Constitutional Convention and were betrayed by the clarification and extension of federal authority in the early 19c. To say that Prof. Gutzman is an originalist might be understating the case. I have a sneaking suspicion that he prefers the original Articles of Confederation anyway, but that ship sailed.

Prof. Gutzman concludes by questioning my priorities, noting that “If he [that’s me!] dislikes lawless executives, well, lawless courts are not the answer; for judges to usurp state legislative authority is not to return to respecting constitutional limits on presidential power.” I’ll grant him that…. no, actually, I won’t. I don’t accept the premise: that every federal review of state law in the last two centuries has been illegitimate (and, by extension, that the Bill of Rights actually has no force within state boundaries). The “constitutional limits” Prof. Gutzman wants to “return” to would be a recipe for chaos in which Balkanization look like a step up.

I’ll grant that the powers of the presidency are out of control, mostly because this presidential administration is out of control. I’ll grant that the powers of Congress are very broad, and overwhelm state legislatures in some objectionable ways. In principle, I’m in favor of the laws which give citizens (not corporations) the most rights taking precedence in any given situation; the Constitution and Congress can set minimum rights, but should not be able to prevent states from giving their citizens more rights, so long as basic Constitutional protections aren’t violated in the process.

Prof. Gutzman has written a few pieces on similar subjects for his libertarian allies. Like most libertarians, he seems to have a good eye for abuses of authority, but the literalism of his legal theories and tendentious political history are off the charts.

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