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THE JUDICIARY NEVER so clearly wears the black hat than when it interprets unambiguous law to mean the very opposite of its stated purpose. The authors note that “the Civil Rights Act of 1964 had specifically forbidden court-ordered busing schemes to achieve racial balance.” The courts exhibited no inhibition to flouting the prohibition.
Putting entire city school systems under judge-administered federal receiverships, the busing schemes intended to integrate schools. Instead, they facilitated white flight and left the schools in worse shape than they had found them.
Perhaps more so than civil rights statutes, the commerce clause has acted as putty in the hands of Constitutional deconstructionists. “In 1942, the Supreme Court outdid itself in its Commerce Clause jurisprudence with Wickard v. Filburn,” Woods and Gutzman write. In that case, the Court found “found that a farmer growing wheat for his own use on his own land was subject to federal regulation…”
Why? “[B]ecause he affected interstate commerce: had he not grown his own wheat, he might have purchased it from another state. Thus his abstention from purchasing wheat from other states affects interstate commerce, and thereby makes his activity subject to federal control.”
Six decades later, the authors see all three branches employing a perverse reading of the commerce clause in cracking down on California growers of medicinal marijuana who violate no state law and do not transport it across state lines.
Though the Constitution only empowers Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” Congress, the president, and the courts have consistently acted as though it empowers them to regulate intrastate commerce as well.
MORE CONTROVERSIAL to Woods’ and Gutzman’s audience may be their attack upon presidential signing statements. They single out the current president, claiming that “instead of vetoing legislation, Bush found he could sign it into law and simply refuse to carry out those provisions that — under his expansive view of executive power — he considered unconstitutional.”
Does not the Constitution outline a specific oath for presidents — and not for legislators or judges — vowing to “preserve, protect, and defend” the Constitution? In other words, the president has a specific duty not to execute unconstitutional laws. One can see the authors’ point regarding the potential for abuse. But signing statements, rather than antithetical to Constitutional government, can, if not used whimsically, be an integral part of it.
In an unhelpful conclusion entitled “Can Anything Be Done?,” the authors essentially answer “no.” “The Constitution is dead,” they state in the chapter’s opening line.
Amidst the gloom, there is reason for hope. Many of the most egregious offenses against the Constitution cited in this book have been eradicated. Where is the Office of Price Stabilization? Are individuals still prohibited from owning gold? Do government run steel mills exist anymore? What federal restrictions on speech occur amidst today’s wars that remotely compare to those during World War I? The answers to these questions suggest that something can be done. Believing the situation hopeless is a self-fulfilling prophecy.
This pessimistic conclusion fortunately precedes an optimistic appendix, a copy of the Constitution, which certainly gives the riled-up readers of the informative Who Killed the Constitution? a start on what must be done.
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