June 14, 2007
 
BOOK REVIEW: ‘The Politically Incorrect Guide to the Constitution’
Exposes Seizure of Government by Politically Motivated Supreme Courts From the Nation’s Beginning to the Present
 
By David M. Kinchen
Huntington News Network Book Critic
 
Legal scholar Kevin R.C. Gutzman argues in “The Politically Incorrect Guide to the Constitution” (Regnery, 272 pages, $19.95) that the U.S. Supreme Court from the days of the Marshall Court 200 years ago to the present has used the Constitution and its various amendments to justify anything it wants to do.
 
This is a book that nonlawyers will have no trouble comprehending, because Gutzman, a graduate of the University of Texas Law School -- who also has an M.A. and Ph D in American History from the University of Virginia -- presents his case in plain American English, eschewing legalese and academese.
 
Where legal terms are used, he provides info boxes explaining the Latin phrases that obscure legal comprehension. Plus, this is the first book that I’ve come across that has the full text of the Articles of Confederation, which preceded the Constitution, ratified in 1788. The Constitution and the Declaration of Independence are also included, making it a very useful guidebook indeed.
 
John Marshall (1755-1835) is considered by most historians to be the greatest chief justice of the United States. Gutzman agrees, but he blames Marshall for much of what is wrong with subsequent courts to the present day. Marshall, appointed by President John Adams in the waning days of his administration, managed to prolong the life of the Federalist Party to which he belonged long after the party was dead, Gutzman argues.
 
He was also guilty of conflicts of interest by owning land in the territory in question – Alabama and Mississippi -- in Fletcher v. Peck (1810), which dealt with the Yazoo Scandal. Gutzman says Marshall also looked out for his brother’s interests, including a failed attempt to save his brother’s federal judgeship when Jefferson’s Republicans (today’s Democrats) came to power in 1801, the year Marshall was named chief justice.
 
All in all, Marshall comes off as a very broad interpreter of the Constitution in Gutzman’s book. He set the precedent for judicial review in Marbury v. Madison – although Gutzman said earlier judges and courts had already accepted the theory of judicial review. Marshall – a larger than life figure in American history – managed through his decisions to provide a role model for those who believed in a very liberal approach to the Constitution.
 
Gutzman covers most of the Supreme Court decisions that are important, but I wish he had dealt with one affecting the state in which he teaches – Connecticut (at Western Connecticut State University) – and the nation as a whole. I’m referring to Kelo v. City of New London, which greatly expanded the powers of eminent domain to the point where the Constitution is nothing but a piece of paper.
 
After the decision was handed down almost exactly two years ago, I commented extensively on it.
 
Here’s what Wikipedia has to say: “Kelo v. City of New London, 545 U.S. 469 (2005) , was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another to further economic development. The case arose from the condemnation by New London, Connecticut, of privately owned real property so that it could be used as part of a comprehensive redevelopment plan. The Court held in a 5-4 decision that the general benefits a community enjoyed from economic growth qualified such redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment.
 
“The decision was widely criticized by American politicians and the general public. Many members of the general public viewed the outcome as a gross violation of property rights and as a misinterpretation of the Fifth Amendment, the consequence of which would be to benefit large corporations at the expense of individual homeowners and local communities. Most in the legal profession construe the public's outrage as being directed not at the interpretation of legal principles involved in the case, but at the broad moral principles of the general outcome.”
 
Gutzman discusses many groundbreaking Supreme Court decisions that have interpreted the Constitution in ways that the Founding Fathers never dreamed possible, he says. He cites chapter and verse and gives his opinion – from a strict constructionist point of view -- why the decisions violate the constitution.
 
For instance, Lincoln and others argued that the act of secession by South Carolina and other Southern states was against the Constitution. In fact, Gutzman says (Page 132) Maryland, Virginia and Rhode Island “had ratified the Constitution on the explicit understanding that they could withdraw from it.”
 
Also, Gutzman makes the point – which makes a lot of sense to me – that 18th Century parlance equated “states” – as in the “United States of America” – with “nations.” In other words, each of the original 13 states was considered an independent country. This is where the Articles of Confederation comes in, since this point is made clear in this document. Even today, “states” and “nations” are synonymous in many articles and books.
 
So, when the Southern states decided to secede from the union, they were following the Constitution – as they interpreted it. Also, Gutzman says the “Civil War” is an incorrect description of the events of 1861-65: A civil war is one in which one faction attempts to impose its will on the nation as a whole, as in the English Civil War of the 17th Century, the Russian Civil War of 1917-21 or the Spanish Civil War of 1936-39.
 
To liberals, statements like this make Gutzman a “racist” but I see his point and believe he is correct. As George Orwell, among others, has demonstrated, words are very important, and Orwell, who fought in the Spanish Civil War, would be the first to rename the conflict we call the “Civil War,” in my opinion.
 
Thanks to extremely flexible interpretations of the Constitution and its amendments – particularly the 14th Amendment ratified in 1868 – Gutzman argues there is very little relationship between the Constitution as ratified by the thirteen original states more than two centuries ago and the "constitutional law" imposed upon us since then.
 
Gutzman argues that -- instead of the system of state-level decision makers and elected officials the Constitution was intended to create – “judges have given us a highly centralized system in which bureaucrats and appointed--not elected--officials make most of the important policies.”
 
“King George III’s authority in America never rivaled that of a contemporary federal judge,” Gutzman writes on Page 203 of this outstanding (to a strict constructionist like me) book.
 
Gutzman argues that the 14th Amendment has been twisted to use the Bill of Rights as a check on state power instead of on federal power, as originally intended. He also exposes the radical inconsistency between "constitutional law" and the rule of law and contends that the judges who receive the most attention in history books – John Marshall, Earl Warren, et al -- are celebrated for acting against the Constitution rather than for it.
 
A provocative book that will open the eyes of many liberals as well as conservatives and libertarians, “The Politically Incorrect Guide to the Constitution” is worth reading and studying.
 
Publisher’s web site: www.regnery.com