Dr. Kevin Gutzman, author of the recently reviewed Politically Incorrect Guide to the Constitution, was kind enough to answer some questions I had upon completion of his book.
Dr. Gutzman is associate professor of American history at Western Connecticut State University. He received his Master of Public Affairs from the University of Texas, his J.D. from the University of Texas School of Law, and his M.A. and Ph.D. in American history from the University of Virgina. Dr. Gutzman is the author of Virginia's American Revolution: From Dominion to Republic, 1776-1840 and was a featured expert in the documentary film John Marshall: Citizen, Statesman and Jurist. He as written scores of articles and encyclopedia entries, as well as reviews of books, films, and exhibitions for magazines academic and popular.
The following is the text of our interview via e-mail.
MT: Dr. Gutzman, thanks for agreeing to answer some questions in this format.
KG: You are welcome.
MT: I’d first like to ask you if you think the Judiciary is “broken” in the sense that it isn’t working the way it is supposed to; and if so, what do you see as the leading cause of this?
KG: The problem is not the judiciary, but the tradition of judicial review. Over time, what was originally conceived as the federal judiciary’s role in enforcing the Constitution against Congress – that is, in preventing Congress from legislating in areas intended to have been reserved to the states – has come to be a wide-ranging legislative role. The federal courts rarely act as protector of the states against a Congress rapacious for power, but instead usually join Congress in grabbing power intended to be reserved to the states. The result is that instead of a decentralized government in which the overwhelming majority of policies affecting Americans on a daily basis are made by elected, state legislators, we have come to have a highly centralized government in which many important questions are decided by unelected, unaccountable lawyers: federal judges.
MT: How did this begin? What were the origins of judicial review and the courts siding with Congress against the states?
KG: The power of judicial review, of judges’ deciding whether acts of Congress were consistent with the federal Constitution, was said by Federalists during the ratification debates to be inherent in the Constitution. However, they did not say that it would be exercised against state statutes, as it has been since Fletcher v. Peck (1810). Fletcher involved a completely specious construction of the Contracts Clause of Article I, Section 10 of the Constitution, and ever since then, federal courts have felt increasingly at liberty to strike down state laws on the flimsiest of bases.
The Ur-text of federal courts siding with Congress against the states is John Marshall’s opinion for the Supreme Court in McCulloch v. Maryland (1819). In that case, Marshall was at great pains to “correct” the interpretation of the Constitution offered in oral argument by Luther Martin, counsel for Maryland, who happened to be one of the Constitution’s chief authors; according to Marshall, who was not a Philadelphia Convention delegate, Martin was simply mistaken to think that the powers of Congress were limited to those listed in Article I, Section 8, but extended to various implicit grants of power. When James Madison read Marshall’s opinion, he correctly noted that if people had known that this construction would be given to the Constitution, it never would have been ratified. I provide a detailed account of the most important state’s ratification dispute in Virginia’s American Revolution: From Dominion to Republic, 1776-1840 (Lexington, 2007).
MT: I thought on multiple occasions that your book stood as a pretty strong indictment of our educational system, both primary and the university level. What are your thoughts on this, and on the way a person is educated in the legal profession in the 21st century?
KG: Legal education in America is, when it comes to the Constitution, simply inappropriate. Constitutional law is treated as a common law field, one in which what matters are solely the precedent established by federal courts. What should be taught, however, is what the Constitution meant to the people at the time it was being ratified. It is, after all, what the people ratified, and not what the judges made of it, that is “the supreme law of the land.” At least, that is the theory.
People who study the Constitution below the law school level typically study it in the same way as do prospective lawyers: by reading huge volumes of court precedents. One literally would know more about the Constitution by reading it without reading the typical constitutional law casebook than he would be reading the casebook, so this mode of instruction is highly problematic. Once an error is written into the body of judicial opinions “implementing” the Constitution, it is unlikely ever to be corrected, and so future students are taught the error as if it were accurate. In effect, erroneous opinions operate as constitutional amendments.
MT: What are your thoughts on the provisions for removing judges from office? Are they too high a hurdle? What should constitute “good behavior?”
KG: The problem here is not the Constitution itself, but Senate precedent. Unfortunately, the Senate decided in the impeachment trial of Justice Samuel Chase two centuries ago that “high crimes and misdemeanors,” the grounds for which an impeached federal judge can be removed from office, must be indictable crimes. As the great Raoul Berger demonstrated in his Impeachment, however, the Senate erred: a “high crime” or “high … misdemeanor” was a political offense in the English system from which the phrase was borrowed by the Philadelphia Convention — such as, say, amending the Constitution under the guise of interpreting it. By that standard, federal judges such as Earl Warren or William Brennan heartily deserved impeachment.
MT: What are your thoughts on corrective action for addressing some of the missteps of the Judiciary as you mentioned in your book?
KG: The Constitution provides four mechanisms for correcting the courts’ errant ways: 1) constitutional amendment; 2) restriction of courts’ jurisdiction; 3) the appointment process; and 4) impeachment.
Constitutional amendment is, of course, difficult, but should be used more frequently. It was a grave error for James Madison to counsel Thomas Jefferson after the Revolution of 1800 that there should not be an American tradition of amending the Constitution to correct recent errors, and I think that his advice should be abandoned.
Restriction of courts’ jurisdiction is, by and large, entirely in Congress’s discretion. Since the Constitution does not require that there be any federal courts other than the Supreme Court or that they have original jurisdiction beyond the few types enumerated in Article III, Congress could at will deny federal courts jurisdiction over, say, cases involving the burning of flags or the notification of parents that their children have had abortions. This remedy requires only a majority in each house of Congress.
The Senate has essentially abdicated its responsibility throughout most of American history in relation to the appointment of federal judges. It should play a major role in ensuring that the president appoints not merely able, but also constitutionalist candidates. Few senators seem to believe that this is incumbent upon them.
Finally, I have been on record since 1990 in favor of a campaign of impeachments of lawless federal judges. It would do the country quite a lot of good, go a long way toward restoring the federal Constitution, if Congress undertook to remove the foremost judicial legislators from office. It would also serve, as the French say, pour encourager les autres!
MT: It seems that the other branches of government sometimes act as if upholding the Constitution is the responsibility of the Judiciary alone. What do you think it will take before the other branches of government begin to uphold the Constitution?
KG: We certainly should not leave the impression that the judiciary is the only problem. Presidents feel free to propose unconstitutional laws, to act as if the law did not apply to them, to wage war without involving Congress in the decision-making process, and in various other ways to violate the Constitution. Congress feels free to legislate in any way that comes to mind, regardless of the Tenth Amendment’s reservation of powers to the states. Yet, since they have the power of judicial review, for the courts to be directed into the right path would go a long way toward correcting the other branches’ misbehavior.
MT: The contributors and readers of this blog are firm believers in the principles of balanced government. What are your thoughts on the prospects of balanced government as a political movement?
KG: By “balanced government,” I presume that you have in mind a situation in which each branch of the federal government is in the proper relationship to the others? I agree with the great Virginia senator and political theorist John Taylor of Caroline, who said that far more important than checks and balances — some form of separation of powers — within the federal government was the principle of division of powers — the assignment of responsibility in only a few areas to the center, with most reserved to the states — between the states and the federal government. Alas, this most significant of American governmental principles is now largely abandoned. However, one can hope for its resuscitation, and the first step toward that goal is to educate Americans at large about their real constitutional heritage.
Thanks again to Dr. Gutzman. I take full responsibility for any misspellings or other formatting errors as I'm exhausted and posting late; and accidents do happen. Be sure to get your copy of the Politically Incorrect Guide to the Constitution; it is very well-done and a necessary part of any library.