Who Killed the Constitution - Thomas E. Woods

Editor's Note: Just in time for Constitution Day, which historian and author Tom Woods defines for us: "Observed on September 17, the day on which federally funded American educational institutions, themselves unconstitutional, are unconstitutionally required to teach about the Constitution."

Here is the hard-hitting introduction to the best seller Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush, by Thomas E. Woods Jr. and Kevin R.C. Gutzman. It is reproduced here with the permission of the authors & publishers.

After finishing this intro, there was no question. I had to buy the book. Finance people will especially appreciate Chapter 6, The Great Gold Robbery of 1933, in which we hear the story of how, at the height of the Great Depression, "Americans were forced to hand over all their gold, assuming it would be returned after the economic crisis had passed. The federal government, however, hid its intentions every step of the way, never returned the gold, and began its career of inflation that has harmed Americans ever since. And the average American high school student has no idea any of this even happened." It was another nail in the coffin of the Constitution.

But I'm getting ahead of myself. So without further ado, let's let the authors speak for themselves:

The Constitution Is Dead - Introduction

Many Americans worry that the Constitution is dying. Leading the chorus are those critics, mostly on the Right, who decry activist judges for rendering the Constitution more and more irrelevant with their twisted decisions, which substitute their political preferences for the nation's highest law. In recent years other voices, mostly from the Left, have joined in, deploring President George W. Bush and his administration's supposedly unprecedented attacks on the Constitution.

We have bad news for both sets of critics: the Constitution is already dead. It died a long time ago.

To be sure, every politician claims to admire the Constitution, and government officials must swear to uphold it. But what does their alleged fidelity to the Constitution really amount to in practice?

Nothing.

Even those who bewail our present constitutional crisis miss the much larger story. The assaults on the Constitution are not the work of one branch of government, or of one party, and they did not and could not emerge overnight. Every branch of the federal government has trampled on the Constitution, and has done so for close to a century. The crisis we face today is the culmination of decades of offenses against the Constitution by Democrats and Republicans, justices, presidents, and congresses alike, all of whom have essentially rejected the idea that the Constitution possesses a fixed meaning limiting the power of the U.S. government.

That idea was not a minor aspect of the Constitution; it was the very purpose of the Constitution.

The Dirty Dozen
Nowadays, the Constitution is no obstacle to any conceivable federal program. Would you like to have the federal government take over the delivery of health care? No constitutional issue comes to mind. Do you think the federal government should triple spending on cancer research? No problem. Would you like federal agencies promiscuously to mine everyone's e-mail and telephone calls? Why not? Two hundred years ago, even ninety years ago, advocates of such novel federal initiatives would have understood that only by amending the Constitution could the federal government undertake them. Not today. To most Americans-including politicians of both parties-all that matters in evaluating a federal initiative is whether it seems like a triumph over injustice, a bold new step toward dealing with a social epidemic, or an important contribution to national security.
But noble intentions can never be the basis for judging whether the federal government is taking proper, constitutional action. In fact, as this book will show, the government has often deformed our Constitution and insidiously subverted the rule of law with precisely those actions that Americans have been taught to celebrate.

The received wisdom on America's recent constitutional history is, unfortunately, almost entirely wrong. That is why a sweeping reassessment, one that lays bare exactly who killed the Constitution that the Founding Fathers bequeathed us, is necessary. In this book we chronicle a dozen of the worst examples of the federal government's defiance of the Constitution-twelve actions from the past century that, taken together, dealt the death blow to the Constitution. This "dirty dozen" does not represent the federal government's only constitutional assaults, but the offenses documented here reveal exactly how presidents, congressmen, and judges have secured the policies (and the power) they wanted by flouting the Constitution.

Some of the cases we chronicle are well known and the subject of heated debate, while others, no less important, are practically unknown, overlooked in conventional histories. Some of our choices will on the surface be familiar to readers, but the constitutional problems they raise will be surprising simply because standard treatments ignore them. Some of these assaults on the Constitution involve the various branches of government working together, contrary to simplistic accounts that pin the blame on individual actors. And some have long gone unchallenged simply because it is considered taboo even to question certain legislative enactments, Supreme Court rulings, or presidential acts.

For example, a couple of the cases we document involve the highly charged subject of race. People who draw conclusions in that area like the ones we have drawn in this book can be assured of smears and character assassination, regardless of how strong their constitutional arguments are. Since the reigning assumption is that the Constitution does not really matter, the intentions of anyone advancing such arguments are simply assumed to be bad, and their reasoning is therefore ignored. Likewise, those critical of President Bush and his administration's constitutional theories will be accused of "aiding the terrorists"-again, regardless of the strength of their constitutional case. Rational discussion of what the Constitution actually says is unusual in such an environment-and that's just the way the establishment likes it. Every significant appeal to the Constitution, supposedly the fundamental law of the land, is a thought crime of one kind or another. But if we are truly to confront a government that has destroyed our allegedly hallowed Constitution, we must not shy away from calling attention to abuses, regardless of whom it offends.

Why the Constitution Matters
Why, some may wonder, should we care about the Constitution? Libertarians, for instance, might legitimately ask: Isn't "liberty" all that matters, Constitution or no? But the Constitution contains the very rules that federal officials swear to abide by, and if we are going to have a central government at all, liberty will be best protected in the long run if the Constitution limits federal officials' power. There can be no enduring freedom where government is not bound by a constitution. "In questions of power, then," Thomas Jefferson warned, "let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

Otherwise, Jefferson feared, government would become arbitrary. He had seen even his good friend and fellow revolutionary John Adams yield to the authoritarian impulse. He would trust no one in power ever again. Jefferson knew that Rome's republic fell when its ruling class began to ignore the Roman constitution, and he worried that the same fate would befall America. He feared an empire bestriding the world, a government contemptuous even of its citizens' just claims, a basically republican system degenerating into tyranny.
His fears were well founded.

The Constitution has proven inadequate to the task of preventing federal officials from behaving arbitrarily. Now that the restraining elements of the Constitution have been abandoned-now that the government has, to borrow Jefferson's metaphor, broken free of its chains-what is left to tether federal officials? Almost nothing. The plain truth is that today we are governed by little more than simple prudence-government officials' sense of what they can get away with. If that sounds startling, it may seem like a statement of the obvious by the end of this book.