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Original Sin

Two bestselling authors offer a constitutional whodunit.

By 8.14.08

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Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush
By Thomas E. Woods Jr & Kevin R.C. Gutzman
(Crown Forum, 272 pages, $25.95)

In Who Killed the Constitution?, bestselling authors Thomas Woods and Kevin Gutzman provide their largely conservative readership a valuable service on two counts.

First, the book disabuses Republicans of the self-serving notion that they are always the heroes and Democrats always the villains. Infidelity to Constitutional writ is a bipartisan sin. Second, by stressing the affronts to the Constitution by all three branches of government, instead of obfuscating the abuses of the legislative and executive by a miasmic obsession with the judiciary, the book gives readers the broad picture.

For any liberals who crack these pages, the even-handed book imparts the hard lesson that entrusting unconstitutional powers to ephemerally governing administrations inevitably backfires. Three cheers for undeclared war under Harry Truman becomes outrage when George W. Bush similarly usurps that Congressional power.

The authors point out the difficulty in taking "seriously the arguments of Bush administration critics from the Brennan Center or the Nation magazine[.] They have pulled the very rug out from under themselves. Their sudden interest in obedience to the Constitution rings hollow."

One transgression in which the executive wore the black hat and the judiciary the white hat was President Harry Truman's nationalization of the steel mills in 1952. Like so many of the "dirty dozen" abuses against the Constitution that comprise the book, President Truman justified his tyrannical assault on private property by an ongoing "national emergency" -- i.e., the Korean War.

In response to a threatened strike by steel workers, Woods and Gutzman write, "The owners of the nation's steel mills had refused to negotiate any wage increase until they received assurances from the federal government's Office of Price Stabilization -- yes, there really was such a thing in 1951 -- that they would be permitted to increase steel prices adequately at the same time."

The Wage Stabilization Board ("yes, that also existed," the authors quip) submitted a plan unfavorable to the steel companies. With a strike looming, a heavy-handed Truman grabbed the steel mills. With an arrogance seldom witnessed in American history, representatives of the executive touted the president's absolute power.

The Supreme Court balked, in a decision unfortunately more concerned with the particular than with the principle, and overturned Truman's power grab.

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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About the Author
Daniel J. Flynn, the author of The War on Football: Saving America’s Game, edits Breitbart Sports.