Gutzman on the Constitution

 Gutzman on the Constitution

Thomas Allen

In The Politically Incorrect Guide™ to the Constitution (2007), Kevin Gutzman provides some interesting information related to the US Constitution. Some of this information follows.

High Crimes and Misdemeanors. The phrase “high crimes and misdemeanors” appears in Article II, Section 4 of the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Most people believe that this phrase means various types of homicides and thefts and other indictable crimes. It does mean these things, but it also means more than these.

When the States ratified the Constitution, this phrase was understood to cover physical disability and mental and psychological impairment. However, the complete meaning of this phrase was forgotten, and it became limited to indictable crimes and petty corruption. Consequently, the impeachment process has become a highly ineffective means to remove judges and other civil officers from office. (The twenty-fifth amendment establishes a procedure for removing the president, but not other civil officers or judges, from office because of physical disability and mental impairment.)

Vetoing State Laws. The Constitutional Convention rejected giving Congress the power to veto State laws, which implied that the judiciary, which is the least responsible institution of the federal government, also lacks such power. However, the US Supreme Court soon usurped this power. 

First, it used the Contract Clause (Article I, Section 10: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts. . . .”). The purpose of the Contract Clause was to prohibit States from adopting laws preventing lenders from collecting debts for a stated period. This clause was not intended to prohibit States from enacting economic regulations. However, federal courts have used it to veto State laws that regulated the economy.

About 130 years later, the Supreme Court replaced the Contract Clause with the Interstate Commerce Clause (Article I, Section 8: “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”) to veto State laws that the Supreme Court did not like.

After World War II, the Supreme Court began using the Incorporation Doctrine (applying the first nine amendments, the Bill of Rights, to the States) to veto State laws that it did not like.

(Federal courts seldom veto State laws because they are unconstitutional; most are constitutional under the original intent of the Constitution. Federal judges veto State laws because they do not like them; they conflict with the personal prejudices, preferences, and biases of the judge.)

Eleventh Amendment. The purpose of the eleventh amendment is to reassert the independence, sovereignty, and supremacy of the States. Specifically, it denies federal courts jurisdiction over lawsuits initiated against a State by a citizen of another State or country.

Its original intent was to limit the jurisdiction of federal courts to those specifically named Article III. The Supreme Court has circumvented the intent of the eleventh amendment by allowing people to sue State officials who carry out the policies of the State in lieu of the State itself.

Two Views of the Nature of the Law. Gutzman describes two views of the nature of the law: Thomas Jefferson’s and John Marshall’s, Chief Justice of the Supreme Court (1801–1835). “For Jefferson, law was the framework of rules by which the people agreed to be governed; a judge's role was simply to apply the clear meaning and original understanding of the Constitution (or other legal document)” (p. 98). Jefferson’s view is republican in nature.

However, Marshall believed “that law required judges who could see beyond the written law to the ‘natural law’ that was superior to it” (p.98). (Abolitionists also claimed that natural law as they interpreted it was superior to the Constitution and all other laws.) Marshall’s view is aristocratic and clerical in nature. The fatal flow of Marshall’s view is that “no two men agreed about the particulars of the ‘natural law’; instead, they tended to use ‘natural law’ as a justification for their own policy preferences” (pp. 98-99).

Two Types of Due Process. The Supreme Court has created two types of due process: “procedural due process” and “substantive due process.” Due process appears twice in the Constitution: once in the fifth amendment and once in the fourteenth amendment. Due process as used in the Constitution is procedural due process (according to pre-established procedures). Substantive due process is used as an excuse for judicial usurpation. (Substantive due process is the doctrine that legislation is needed to carry out fairly due process in the fifth and fourteenth amendments.) When the Supreme Court legislates under the banner of due process, it is using substantive due process.

Gutzman’s The Politically Incorrect Guide™ to the Constitution is an excellent book on the Constitution. He focuses on how the Supreme Court has subverted the original intent of the Constitution, has usurped the legislative authority of Congress and the States, and has prohibited authorities of the States that the Constitution allows.

Copyright © 2021 by Thomas Coley Allen

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