By Nick Adama
The book that is the subject of this review is The Politically Incorrect Guide to the Constitution, by Kevin Gutzman and published this year in 2007. As with all of the books in the "Politically Incorrect Guide to.." series, the subject matter is the lesser-known side of a popular topic: in this case, the United States Constitution. Gutzman provides an historical and topical examination of the original intent of the Constitution and how the views of the founders have been distorted over time by the three branches of government. However, the judicial branch is clearly held most responsible for the changes, additions, and convolutions to constitutional law.
In fact, if any book suffers from the lack of a subtitle, this is it. A few come to mind off-hand as potential nominees, such as "How the Supreme Court Ruined Everything," or "The Founders' Losing Battle with the Judgeocracy." After reading the book, it is clear that the decisions rendered by the Supreme Court over time have eroded the states' rights that Jefferson held so dear and accomplished the consolidation of power in the hands of the federal government.
Of course, Gutzman is not positing a vast conspiracy of any sort that designed to take away the liberty of state and local governments to decide their own social laws on contracts and place this power in the hands of the national government. The court, though, from its inception realized that it was designed to be the least powerful branch of the government and various chief justices decided to alter that power balance as much as possible.
After some preliminary battles between the Court and the original intent of the Constitution, Gutzman sees the "imperial judiciary" beginning in earnest with the fourth Chief Justice, John Marshall. Gutzman states that Marshall's chief legacy was the writing of "the defeated Federalist Party's constitutional views into American constitutional law." Despite the fact that the people of the United States at the time voted into office politicians who advocated states' rights and limited power of the federal government, Marshall was the main advocate of using the Court to strengthen the central government and apply the same laws throughout the Union, even overriding state laws.
Marshall's position was at odds with the beliefs of Thomas Jefferson, who saw the growing power of the Supreme Court as a threat to the constitution. Jefferson believed that laws were the social agreements that people agreed to be governed by and judges were to apply the meaning of these agreements as clearly as possible. In contrast, Marshall and various other judges believed in a "natural law" underlying all laws and that the role of a judge was to examine laws in relation to these universal statutes. This, of course, replaced the role of the people in deciding their laws with an aristocratic Philosopher Counsel that would determine the rules that all people should live by.
Most of the book focuses on various Supreme Court decisions on a range of social issues that were being debated at the time. From Lincoln's suspension of habeus corpus to slavery and the original intent of the Fourteenth Amendment, to the flip-flopping done on the issue of segregation, Gutzman illustrates that the Court has rarely acted in the interest of the people or the states, and instead consolidated power with the federal government. Although some states threatened secession at various points in time, Lincoln eventually stated that secession was an impossibility and the Civil War was fought to prevent the southern states from dissolving the Union.
The book moves through historical decisions one after another, hitting on the irrationality and vagueness of the antitrust laws, the Court's battle against Franklin Roosevelt's New Deal legislation and FDR's decision to replace the judges with his own partisan appointees who would follow his policies. It is in the discussions of religion's role in the government that is the most interesting, however.
Originally, the Constitution was intended to prevent the federal government from institutionalizing a state religion for the entire Union. State religions, however, could have their own religion, and often did. It was not until the twentieth century that Justice Black put up the wall of "separation between church and state," and denied state or local government's the right to deal with religion as they wished. This took the power of deciding on the role of religion in a community out of the community itself and installed it firmly with the Supreme Court. The First Amendment, originally intended to limit the power of the federal government, was extended to state and local governments, as well, reversing the intent of the Founders. Gutzman remarks that Christianity was the main target of the Court's decisions, stating that "any religion is okay, so long as it is not Christianity."
As well as the victory against religion, the Supreme Court also took on issues of morality, criminal law, and discrimination, as well as the ever-popular-to-discuss Roe v. Wade abortion decision. The decisions rendered by the court served to further transfer the rights of states to govern as they will and place it in the hands of the federal government or the Supreme Court itself. Gutzman sees these decisions as a complete inversion of the original intent of the Founding Fathers and the Constitution itself: "The Court has overturned the right of the people of the states to govern themselves, overturned the Tenth Amendment, and thus overturned the Constitution -- and called it the "rule of law." In fact, this may be Gutzman's main argument and an adequate summary of the entire work (although too long to be a subtitle).
The book hits on another of additional topics, as well, including the teaching of constitutional law in school, which examines various cases but does not discuss the original intent of the writers of the laws the Supreme Court has decided upon. This leaves law students with a firm understanding of the decisions rendered upon various laws and their applications over time, but no idea if these applications were intended for the subject laws in the first place. Thus, one mistake is piled on top of another, until the original mistake is buried under years of precedent.
Gutzman's work is an interesting and useful guide to the US Constitution, its original intent, history and its application (and perversion) over time. While the book could easily be quite a bit longer and the issues discussed in more detail, it is quite ideal as an introduction to the history of arguably the most important document to the history of the United States and possibly the best agreement ever made between a government and its people.
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