Review of the Politically Incorrect Guide to the Constitution
Kevin R. C. Gutzman, J.D., P.h.D.’s book summarizing and refuting arbitrary readings of the U.S. Constitution, whether from the right or the left, is perhaps the best brief general guide to cover judicial disputes relating to Federal power from the Articles of Confederation era to the twenty-first century, keeping firmly tethered to the letter of the tenth amendment and opposed to Federal overreach from whichever branch of the central government.
The book is composed of basically four parts. The first is a deep dive into constitutional debates of the late eighteenth century. The second is an even deeper exploration of the Marshall and Taney courts in the antebellum era. The third covers Congress and the Supreme Court from Reconstruction to the New Deal. The fourth and last is a relatively brief summary of Supreme Court decisions from the New Deal to the book’s writing. Overall, the quality of the book goes down as one reaches its end.
The first part is by far the most important -the author sidelines the Federalist papers, though he briefly covers them, in favor of underlining the importance of the state ratifying conventions, particularly those of Virginia and Rhode Island. The division between nationalist monarchists, nationalist republicans, and anti-nationalists is clearly defined. Alexander Hamilton belonged to the first group, who preliminarily lost in the drafting of the Constitution’s text, but would win great future victories. Future president James Madison is the most prominent member of the second group, which got most (though far from all) of what it wanted in the debates relating to the Constitution’s draft. The third group was disproportionately composed of Virginians such as John Taylor of Caroline (p. 64) who desired the Federal power be strictly limited so as not to infringe on states’ rights. It is due to this last group’s skepticism of the nationalists’ intent we get the Bill of Rights and an enumerated list of congressional powers rather than the blank check desired by Hamilton. The debates in the 1790s relating to the Federalist (i.e., nationalist)-written anti-freedom of speech Alien Friends Act and Sedition Act are also discussed.
The second part, which is the most thoroughly researched, covers the vehemently anti-Tenth Amendment Marshall Court. Supreme Court cases, from Marbury v. Madison (which, according to the Guide, contrary to the claims of “most legal scholars” did not create the already “uncontroversial” idea of judicial review) to Barron v. Baltimore are covered, with only the last Marshall decision receiving praise (p. 103). Unusually for the book, which generally focuses solely on the Supreme Court, the 1832 Nullification crisis (which predominantly related to disputes between elected officials) and the leadup to the Civil War are discussed. Though Justice Taney is generally praised as restraining Federal tyranny, Dred Scott v. Sandford is described as a clearly unconstitutional and partisan decision (p. 118). Lincoln is described as and demonstrated to be straightforwardly a tyrant. States’ rights to secession is treated with a kind expression (Guzman never fails to mention that Virginia, Maryland, and Rhode Island “had ratified the Constitution on the explicit understanding that they could withdraw from it” -p. 132). For reasons that seem bizarre, Gutzman denies the American Civil War was a civil war at all -news for Nigerians and Ceylonese. The self-contradictory nature of the northern states requiring the southern states to pass the 14th amendment before those southern states being let back into the halls of Congress is thoroughly skewered.
The third section examines arbitrary rulings by rightwing courts infringing on states’ rights in support of the interests of capital from its beginning in the 1870s to its end in the 1930s. Gutzman does applaud the SC striking down the Civil Rights Act of 1875, but lambasts it for in the same decade claiming states could not ban segregation in matters of interstate commerce (or, as the court has so often ruled since Marshall, in transport outside matters of interstate commerce) (p. 142). Gutzman vehemently objects to the Gilded Age court’s treatment of corporations in the same manner as freed slaves (on the basis, of course of the due process clause of the fourteenth amendment) The Sherman Antitrust Act is (unusually, given Gutzman’s deference to the elected portions of government) also vehemently objected to, as the law provided no way to avoid (p. 149) violating it. The Supreme Court’s cases on WWI speech standards are criticized as arbitrary and contrary to the First Amendment.
The fourth section is relatively brief and lacking in analysis, summarizing a dozen or two cases from the court’s striking down of several egregious New Deal laws to Lawrence v. Texas, McConnell v. FEC, and Gratz v. Bollinger -all decided in 2003, and all of which are lambasted by the author -the first having no constitutional basis, the second for violating the heart and core of the First Amendment, and the third for being counter to the ratifiers’ intention. No doubt to prof. Gutzman’s joy, the last two of these cases were overturned thanks to later Republican judicial picks. Gutzman -a true democrat- bites every bullet, criticizing the Supreme Court’s prohibition of enforcement of private racially restrictive housing covenants and pointing to Brown v. Board and Bolling v. Sharpe as blatantly contrary to Congress’ and the states’ original intent. Hugo Black and William Brennan are the archvillains of this part of the book, being shown as having a high tendency to self-contradictory descriptions of their job.
A key defect of the Guide is that it doesn’t focus at all on broader American history (much less the constitutions of foreign countries, which are only mentioned a few times). Elections and their relation to SCOTUS appointments are, with the exception of those in the first two thirds of the nineteenth century, almost never mentioned, nor are Congress’s attempts to obstruct Presidents’ judicial picks. The regular presidential revolutions among lower court judges go unmentioned. Also absent is any theory of the relationship between the court’s, legislatures’, and general public’s opinions. The book does mention that “desegregation in the South was already under way by 1948” and that “white politicians in the South… rushed to spend money on upgrading facilities in black primary and secondary schools in an attempt to render them truly “separate but equal”” (p. 195). Yet, there is no mention (other than from a smattering of previous Supreme Court cases) where and why the school desegregation movement originated, and how it impacted the court prior to its streak of anti-segregation decisions starting in 1938 (p. 193).
In short, good book. I rate it 4 out of 5 stars.