Kevin R. C. Gutzman

March 02, 2009

In the February 23 issue of The American Conservative, Daniel McCarthy argues that the Obama administration?s inauguration was another step down a trail blazed by the late, unlamented Bush II administration. ?The greatest threat to the Republic comes from the Oval Office,? McCarthy says.

McCarthy may be unaware that Tom Woods? and my Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush described a far greater problem.  For the present, let me just summarize its argument this way: McCarthy is wrong to insinuate that the presidency is a rogue institution that the other branches of the Federal Government need to rein in in order to set the constitutional order aright. Rather, all three branches behave precisely as they would if there were no U.S. Constitution at all.  Although they have increasingly done so for a century now, and at an accelerating rate, what distinguishes the present moment from, say, the New Deal era or the legislative career of the Warren Court is the complete absence of any pretense that Obamanomics, presidential unilateralism in foreign policy, the impending ascension of a new generation of unabashed judicial legislators to the federal bench, or congressional assumption of control over the banking, insurance, automotive, and medical industries had any constitutional warrant whatsoever.

In saying that the Executive Branch is the chief problem of the moment, McCarthy must mean that the judges? expulsion of mention of God from public life, invention of rights to gay marriage and abortion, and assumption of oversight over virtually all functions of state government (resulting recently in creation of a right of child rapists not to suffer capital punishment) are somehow different in kind from or less objectionable than from presidential imperialism. He must mean that Congress?s ongoing remaking of state constitutions just doesn?t matter that much.

Yes, the Presidency is unmoored from the constitutional heritage we were all taught was our birthright as Americans as recently as when I was in high school in the 1980s.  Yet, the advent of the new messianic age of President Obama, in which houses, medical care, college, and stable employment for all supposedly will be bequeathed by the president, is only one aspect of the greater civilizational problem. If the Constitution weren?t dead, if the very idea of constitutional government had not gone the way of the pet rock and bell-bottom pants, cassette tapes and rabbit ears, the president could not get away with what he is doing, and he could not aspire to what he is going to do.