Tuesday, August 4, 2009

Gutzman's GOP criticism is nearly on target

by Smitty

Via Political Class Dismissed, Kevin R. C. Gutzman takes the GOP to task for Phony Originalism at Taki's Magazine.
Since the days of Ronald Reagan and Edmund Meese, the Republican Party’s position has been that judges should be bound by the people’s understanding of a particular constitutional provision at the time they ratified it. This notion goes under the name "originalism." Recent events, including the Republican response to President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court, reveal that the party is a highly unreliable vehicle for this principle.
Examples cited in the article include Kelo v. City of New London, enforcing the Second Amendment at the state level, abortion, and affirmative action.
Here is an interesting point, emphasis mine:
The Bill of Rights as an obstacle to federal infringement on state authority was only one element of the underlying principle of the U.S. Constitution. This is “federalism,” the notion that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. In the Reagan era, with Edmund Meese as attorney general and Charles Cooper as assistant attorney general, this principle received an emphasis it had not since 1937.
Gutzman concludes:
In short, then, Republicans generally do not stand for principled adherence to originalism, which once was called "the Constitution." Across a range of questions, they mirror their Democratic opponents in advocating judicial legislation of their preferred legislative outcomes.
While no lawyer, I have read the Constitution and Amar's book avidly. Oh, and Goldberg. What seems missing in Gutzman's analysis is any acknowledgement of the importance of Progressivism in digging the current political/economic pit. Progressives of both stripes, Democrats by commission and Republicans by omission, have supported excessive centralization in DC since the Wilson administration (I'd be interested in knowing why Gutzman picked 1937 as a turning point for federalism).

In discussions with an older, conservative colleague at work, I hear a common, bogus apology: "Social Security was OK as originally conceived, it only went wrong after the fact."

I try to explain that there is no Constitutional argument in favor of Social Security: anything like a sober reading seems to argue against it. And that's neglecting the moral argument that the Amish make so well. Pssst, Baptists: you're asleep at the switch. Finally, there is the crushing economic argument:

Ponzi schemes are OK as long as you've another generation of victims. Possibly acquisition of another round of victims explains the Democratic non-command of border security.

Social Security was never more than an interesting experiment underscoring the wisdom of the 10th Amendment. That one can find examples of people who were helped by it (as my colleague does) only serves to underscore the fundamental evil of government dependency. Having perverting liberty, people are reduced to a form of slavery:

Exodus 14:10-12
10. And when Pharaoh drew nigh, the children of Israel lifted up their eyes, and, behold, the Egyptians marched after them; and they were sore afraid: and the children of Israel cried out unto the LORD.
11. And they said unto Moses, Because there were no graves in Egypt, hast thou taken us away to die in the wilderness? wherefore hast thou dealt thus with us, to carry us forth out of Egypt?
12. Is not this the word that we did tell thee in Egypt, saying, Let us alone, that we may serve the Egyptians? For it had been better for us to serve the Egyptians, than that we should die in the wilderness.
(Note that I'm not arguing against Progressive policies per se. They should certainly be allowed to succeed/fail at the state level, to whatever degree the residents of the state desire.)

Thus, while Gutzman seems to be arguing against the GOP from a snarky leftist "see, they're just like us, only hitting different notes" standpoint, I'd hit the GOP from a "screw you pack of Progressive squishes, and all the jackasses in tacit alliance with you".

Excessive, concentrated power, and the resulting tyranny is precisely what the Constitution was written to preclude, and exactly what the Progressive legislative re-write has given us these last 80-ish years.

If there is a lesson drawn from Obama the Joker and Chicago-on-the-Potomac, it is that "We the People" had better be about continuing the project begun by Ronald Reagan, placing these entitlements on valid economic and Constitutional footing, and protecting our liberty from the Vision of the Anointed. The eyes of that vision seem to be of the Overworld.


  1. There are some decent arguments in the article, but then he brought up the federal marriage amendment. Not that I would necessarily support a federal amendment, but obviously an amendment is a non-originalist constitutional ideal - that's why it's an amendment. It indicates a real grasping at straws to bring that into the debate.

    If you want to argue that it goes against the idea of federalism, go ahead. But that's a side topic from a debate about originalism.

  2. Without having read Gutzman’s article, I’m guessing that he used the year 1937 because that was the year the SCOTUS backed down and refused to continue finding New Deal programs unconstitutional. Recall that it was in 1936 that FDR proposed his “Court Packing” plan, to add a Justice for each one over age 65, because the “old men” on the SCOTUS were ruling against his programs. FDR’s plan was very unpopular, but the SCOTUS backed down anyway. With the SCOTUS approval of New Deal legislation, the federalist nature of the government was thrown out, and restraint on the power of the central government didn’t really exist.

  3. Smitty, do you know what TakiMag is? It is a paleocon/alternative right website, and RSM has written there frequently. Do you know who Kevin Gutzman is? Why don't you enter his name at Amazon. He wrote the Politically Incorrect Guide to the Constitution among other books. He is not a "snarky leftist."

    Red Phillips

  4. Dump the Incorporation Doctrine? Even arch-reactionary Col. McCormick championed-and paid the legal fees for it-having the
    First Amendment incorporated against the states.
    Of course, being a press baron he had a vested interest in freedom of the press.