Book Review: The Politically Incorrect Guide to the Constitution

The Politically Incorrect Guide to the Constitution, by Kevin R.C. Gutzman, Regnery, 2007

Reviewed by Jacob H. Huebert
The Freeman, May 2008

Conservative commentators often tell us that if only we would get back to the Constitution as it was understood, say, 100 years ago, all would be well with our Republic again.

The reality, however, is not so simple. It’s true that government was smaller before the New Deal, when presidents, Congress, and judges sometimes considered themselves more constrained by the Constitution than they do now.

The problem is that, apart from a few amendments, we had the same Constitution then as now. Our supposedly sacrosanct Constitution created a government that became our government. Whatever nominal restraints the Constitution contains weren’t enough to stop this from happening, as Lysander Spooner noted in “The Constitution of No Authority.”

Kevin Gutzman tries to show where things really went wrong in his new book, The Politically Incorrect Guide to the Constitution—and to his credit, he at least goes back further than the New Deal.

Gutzman shows how the Constitutional Convention had three factions, rather than the usual two that are taught in civics classes: the monarchists (who were extreme nationalists), the nationalists (a.k.a. the Federalists), and the true federalists (a.k.a. the Anti-federalists). In Gutzman’s unorthodox account, the Anti-federalists actually won at the time of ratification. Despite remaining skepticism among many Anti-federalists, the states signed on to the Constitution only because they had been assured that it would respect federalism. Since that interpretation was an implicit condition of their ratification, Gutzman says that is the correct interpretation; the Constitution cannot be read to give the federal government any more power than the states agreed to.

Whatever the states may have understood, and however “correct” their interpretation may have been, the key people in all three branches of the national government soon showed that they did not consider themselves so constrained.

An early offender against federalism was not an FDR appointee, but Chief Justice John Marshall, who among other things defined the Constitution’s “Necessary and Proper” clause as allowing Congress to use any means “convenient” to exercising its power; he began the abuse of the Commerce Clause that today allows Congress to do almost anything it likes.

Whatever the states may have declared or understood in ratifying the Constitution, its language was highly susceptible to a nationalist interpretation like Marshall’s, as the Anti-federalists pointed out. Over the years, federal courts have gone much further in that direction, putting ever more power in the hands of the federal government and the courts in particular, as Gutzman documents well. Of course that’s what the Constitution’s authors—monarchists like Hamilton and nationalists like Madison—wanted in the first place.

How could things have ended otherwise?

Gutzman doesn’t say so, but these problems will be inherent in any constitution. A legal document will always be open to multiple interpretations (some more strained than others), and when the government gets to interpret its own rules, it will of course choose an interpretation that gives itself more power in the long run. Without the people’s eternal vigilance, the nationalists will prevail.

Gutzman thinks strong legislatures, especially at the state level, are preferable to our powerful federal judiciary because voters can at least hold legislators accountable to some extent. But the Congress’s actions, with and without judges’ help, and its high reelection rate show that this option is hardly more appealing than the status quo.

Gutzman admits in his final chapter that federal courts will not soon adopt his judicial philosophy, so the whole issue is rather academic. Nonetheless, he offers much more than the usual conservative clichés and provides a history of the Constitution’s creation and ratification that is worth knowing, if only to see how the Constitution’s creators pulled the wool over so many people’s eyes—and continue to do so today.