Law

Original Sinner

September 28, 2009

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Original Sinner

[Editor’s note: see also rounds 1-4 of Takimag’s increasingly acrimonious debate on originalism, interpretation, and whether the Constitution actually means anything at all. Austin Bramwell, “Original Sins”; Kevin R. C. Gutzman, “The Genuine Article”; Bramwell, “Best of Intentions”; Gutzman, “They Really Meant It”]

There isn’t much to say in response to Kevin Gutzman’s latest.  He’s had two chances already but still hasn’t addressed my core contentions, namely (to repeat myself)

(i) “The Constitution as written contains barely any restrictions on the power of the Federal government to intrude upon the states” and
(ii) Gutzman can’t satisfactorily “answer the question: why should we follow the Constitution anyway?”  At least now he helpfully explains why he won’t rebut me.

First, to my argument that the Fourteenth Amendment gives Congress virtually unlimited powers, Gutzman replies:

I do not waste my time scouting out all of the idiosyncratic justifications for unlimited power, from Caligula to the present. They have contributed nothing to civilization.

In other words, Gutzman refuses even to consider whether the Constitution might not be the libertarian document that he takes it to be. The Constitution simply must limit the powers of the Federal government! Yet somehow, I know not how, Gutzman tirelessly flays his opponents for allegedly subordinating the Constitution to their desired policy outcomes. Ye gad, if there’s anyone in this world who can’t separate his ideology from his interpretation of the Constitution, it’s Kevin Gutzman. Not only, by his own admission, does he reject any reading of the Constitution that doesn’t support his libertarianism, but he writes that I don’t care about “limitations on government authority,” even though I argued only that the Constitution doesn’t impose those limitations, and even though I pledged allegiance to the cause of limited government in both my posts. Gutzman evidently can’t even imagine how anyone could read the Constitution except as support for his ideology. Gutzman is more Brennanist that William Brennan himself.

Anyway, I confess that I don’t find Gutzman’s excuse for not addressing my arguments very credible. Nobody is asking Gutzman to do any “scouting”—all my arguments are sketched out in my posts for him to read. As for wasting Gutzman’s time, he has plenty of it to abuse me at length for having graduated from law school. Could he not have devoted just of bit of the time he has spent attacking me to responding to my actual arguments? Either Gutzman has a rather unscholarly set of priorities or he’s just being disingenuous.

Second, Gutzman continues to insist that his approach to the Constitution follows from the principle of self-government. I noted before that Lysander Spooner has decisively refuted this view. Gutzman now proudly reminds us that knows all about Lysander Spooner already. I’m glad—but will Gutzman do his readers the favor of explaining why he disagrees with Spooner? By no means! Instead, he proclaims, “I have little to say about constitutions to someone [i.e., me] who [doesn’t care] about the consent of the governed.” In other words, Gutzman won’t address any arguments coming from me, even when they’re not even mine, and even when they were devised by a thinker (Spooner) whom Gutzman admires. The name Bramwell has so defiled the sacred purity of Gutzman’s libertarianism as to render him speechless with pious indignation. Perhaps when I’m not around to blaspheme, Gutzman will regain his tongue and explain how he proposes to reconcile his belief in written constitutions with his faith in self-government. I only regret that I won’t be there to witness his performance. I suspect it would be quite entertaining.

Lastly, I have argued that Gutzman’s method of interpreting the Constitution—which favors subjective expectations over the actual text—is flawed. I offered, oh, six or seven objections to intentionalism, each one of which may be taken as fatal. Gutzman’s response is, frankly, puerile: He addresses one objection—namely, that it’s unclear whose intentions we should consult—announces that he’s not going to bother with the others (yet refers his readers to no authority on the subject whatsoever), and then exults at having vindicated intentionalism. I’m sorry, but that just won’t do. 

For one thing, Gutzman doesn’t even successfully answer the “whose intentions?” objection.In his view, the only intentions to be consulted are those of the people’s representatives at the state conventions that ratified the Constitution. This argument is presumably based on the actual text of the Constitution, which specifies in Article VII how the Constitution was to be adopted. If it’s the text that controls whose intentions count, however, then why in all other circumstances must intentions control the text? Gutzman’s appeal to the text to define the role of intention is incoherent. Moreover, as I noted already, the Preamble states that the Constitution was adopted by “We the People.” That bit of text suggests we should consult not just the intentions of the people’s representatives at the state ratification conventions but the intentions of the people themselves—namely, all individuals around at the time of ratification, if not all individuals who have ever been governed by the Constitution. 

Even if Gutzman can successfully define the class of relevant intentions, he still has to run a gauntlet of five or six more objections to intentionalism. Indeed, the “whose intentions?” objection is probably the easiest one to dispose of. Somehow I don’t think Gutzman is up to solving the problem of, say, generality or aggregation. No other intentionalist, to my knowledge, ever has.

The rest of Gutzman’s reply is peppered with the same sort of shameless misrepresentations that, sadly, one comes to expect of his writings. I did not say, for example, that “the Fourteenth Amendment has no meaning”; I actually said that “the meaning of the Fourteenth Amendment is clear.” I did not say that arguments for unlimited power are “worth inventing”; I said, “I am not a devotee of unlimited government.” I did not offer “Brennan-Tribe-Douglas-like excuses for rejecting originalism”; I explained that only by rejecting Gutzman’s intentionalism can one “save originalism” and “fix permanently the proper interpretation of the Constitution.” Gutzman has made no effort to understand my arguments.  Instead, he has flatly denied, again and again, that I ever wrote what I wrote—even though it’s all there in the record for any reader to consult.

Gutzman doesn’t want to argue with me. Very well. I regret having wasted his time, and mine.

Addendum 1: Gutzman disagrees with my reading of McCulloch. His reading (which he supports not with citations to Marshall’s opinion but to secondary authorities) is a common one, though one I believe to be mistaken. I am happy to discuss the subject further sometime, preferably with an interlocutor willing to argue in good faith. In the meantime, the proper reading of McColluch is only incidental to my argument that Congress’s powers under the Fourteenth Amendment are virtually unlimited.

Addendum 2: Gutzman now admits that the Supreme Court has not always been guided by the slogan, “evolving standards of decency.” He is unimpressed that I would point this out, since it is so obvious. If it is so obvious, however, then he should have qualified his earlier claims about Supreme Court decision-making. Even now, he says that Supreme Court justices have in many cases “been guided only by their whims.” Only by their whims? One has to point out the obvious, when arguing with a fanatic. Otherwise, he’ll continue to state positions that are laughably overblown.

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