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Friday Interview: The Politically Incorrect Constitution

Historian Kevin Gutzman discusses key themes from recent book

Kevin Gutzman, associate professor of American history at Western Connecticut State University, recently addressed a John Locke Foundation Headliner luncheon in Raleigh. He also discussed his book, The Politically Incorrect Guide to the Constitution, with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast. Click here to watch Gutzman’s Headliner speech.)

Kokai: You in this book point out a lot of things that people probably don’t know about the Constitution. What do you think is the top misconception about the Constitution? What it does? What it doesn’t do?

Gutzman: Well, I think the first thing that people need to understand about the federal Constitution is that it’s not the basic law of the United States. The state constitutions came first. The states created the federal government, and ultimately the functioning of the federal government — of the federal Constitution — is entirely dependent on the existence of the states.

Kokai: Some say that, well, it was actually the people in the states, not the states themselves, that put together this Constitution. You don’t buy that argument.

Gutzman: Well, actually the idea that there was one American people that created the Constitution was a partisan position of what was called the Federalist Party in the 1790s, the first decade of the operation of the federal government under this Constitution, and in the 1810s, in particular, this was written into Supreme Court opinion as what we call “constitutional law” by partisan Federalist judges. The interesting thing about that is that by the time the Supreme Court wrote this partisan position into what’s called “constitutional law,” or the body of judicial decisions implementing the Constitution, their party had proven so unpopular that it basically had ceased to exist. So when the people were adopting the Constitution they had been given the explanation of it that I just gave, that states came first, that they were primary, that very few powers were being given to the federal government and the rest were being reserved to the states.

And then through the 1790s they heard this argument [that] one American people comes first. They totally rejected that position, but due to the quirk of the way that federal judges are chosen and the fact that they have life tenure, this totally defeated position could be written into constitutional law by Federalist judges anyway, so what we’ve really been living under is a position concerning the way the federal government was going to be structured that was rejected repeatedly by the people in the first place. They never accepted that idea, and yet federal judges have been foisting it off on us ever since the 1810s.

Kokai: That’s probably one of the more interesting pieces of this book. Many of us know The Federalist Papers as a very valuable document in American history, and your position in this book is that The Federalist Papers: a. didn’t have much of an impact on the debate; and b. were not necessarily the ideas of all of the people who voted to put this Constitution in place.

Gutzman: That’s exactly right. The first of those points I think is the more important one. The Federalist Papers had basically no impact, extremely little impact, on the dispute about whether the Constitution should be ratified — that is, on the argument over whether people wanted to live under it, wanted formally to adopt it. And you can see this by noting that by the time the last of The Federalist Papers were published, the 10 states had already ratified the Constitution, so it could not possibly have affected — the end of that series could not possibly have affected the outcome in those 10 states.

Besides that, however, even the earlier numbers in the series were basically not distributed outside New York, where they were originally published, and even when it came to a dispute within New York, New York ultimately was going to ratify the Constitution by a vote of 30 to 27, … not because the delegates to the New York ratification convention decided they wanted to live under this Constitution, but because by then, since 10 states had already ratified, New York’s choice was between being a foreign country or living under this Constitution they didn’t like, and they very narrowly — again, 30 to 27 — decided they would rather live under this Constitution they didn’t like than become a foreign country. The Federalists had essentially no influence on the outcome, even in New York.

Kokai: Let’s turn to another piece of this book that’s interesting. You’ve already mentioned a couple times now what’s known as “constitutional law,” and you take great pains in this book to say what is known as “constitutional law” doesn’t really have a lot to do with the Constitution.

Gutzman: No. In fact, I’ve told people on numerous occasions that if their choice was between taking a constitutional law class at a college or law school on one hand, and just reading the Constitution and not studying constitutional law on the other hand, they would be more apt to understand the Constitution simply by reading it. The reason for that is that quote-unquote “constitutional law” is simply the body of judicial opinions supposedly implementing the Constitution, and in many ways, in many ways — including the most basic ways — this is entirely contrary to the explanation of the Constitution that people were given when they were agreeing to live under it, when they were ratifying it in the late 18th century. Constitutional law has essentially jettisoned the three basic principles of the Constitution, the first of which, the most important of which, was federalism, this idea that the states come first, [that] most ideas will be decided locally through elections for state legislatures.

The second of these three underlying principles of the federal system was supposed to be republicanism, that is, an idea that basically all significant decisions would be made by elected legislators. And the third of these ideas was limited government. Well, of course nowadays we expect that when you have a really significant social problem, or even if you can’t decide who should get Florida’s electors in the 2000 presidential election, ultimately these decisions will be made by unelected and unaccountable federal judges. This is entirely unlike the system that people were promised if they agreed to live under this Constitution, but as I said, if you just read constitutional law, that is, if you just read these judicial decisions, you would have no idea that this regime, this system we live under, was so entirely antithetical to the one people were sold in the first place, and if you think about the reasons why there was an American Revolution, even people who have only a passing knowledge of the American Revolution know that the first principle of the revolutionaries was no taxation without representation.

Well, what that represented was their insistence that they wanted their lawmaking to be done by elected legislators in the colonies and not by a king and the House of Lords, some distant and unaccountable authority in Britain, and yet what we’ve ended up with over time is a situation very much like the one that people in North Carolina had when they decided to make the revolution, that is, significant decisions ultimately are going to be imposed on them by unelected and unaccountable federal judges in many areas of life, and generally the judges do this not on the basis of their real understanding, which is, well, we’re just smarter than average people voting for state legislators, but through some concocted theory that the outcome they desire is related to the federal Constitution. It almost never is.

Kokai: The book obviously educates people about what the Constitution is and what it was really designed to do. What do you hope happens now that people are learning more if they read the book and think, “We ought to do something about this”? What do you hope happens?

Gutzman: Well, I’m a mere historian. I’m not a political scientist or politician, but I do think that the only way to reclaim the kind of system we were supposed to live under where we make most of our governmental decisions locally by voting — the only way to reclaim that kind of a system is to make people aware that this was supposed to be the system we were going to live under. So my small contribution to American civil life is, I hope, to show some people that that’s true, that these significant questions — gay marriage, flag burning, abortion, who wins the presidential election in 2000 — these things were all supposed to be decided on the local level by elections, not ultimately by federal judges.