The question posed by the title of this book raises a further question, as the authors are well aware. If the Constitution is indeed dead, why does this matter? American conservatives have in past days been accused of "Constitution worship": why should we care whether actions of the government conform to this particular legal document? Woods and Gutzman respond that the Constitution provides a way to limit the government. It is far from the best conceivable arrangement; but while we stand under its legal authority, we should use it as a weapon against the state's continual grasp for power.
They put the point with characteristic force:
To be sure, our federal government has perverted beyond recognition the system that the Founding Fathers created. The chief restraint on government officials is merely their sense of what they can get away with. Nonetheless, the Constitution can still serve a purpose, as it remains a useful bludgeon to employ against government power grabs. By calling attention to what the Constitution really says, we can alert the people to just how consistently and dramatically their fundamental law has been betrayed. (p. 202)
Woods and Gutzman have selected twelve cases to illustrate this disregard of the Constitution. By no means are all of these examples of judicial misconduct; the legislative and executive branches have been as least as guilty as the judicial in seeking to enhance government power.
One instance of what we are up against took place immediately after World War I. In 1917, Congress passed the Espionage Act and in the following year, the Sedition Act. These forbade with heavy criminal penalties attempts to interfere with the American war effort, especially with recruitment of troops. Under this harsh legislation, many people were imprisoned, including the famous socialist Eugene V. Debs, who ran for the presidency in 1920 from his jail cell.
The legislation blatantly violated the text of the Constitution. The First Amendment states that "Congress shall make no law … abridging the freedom of speech"; and as Justice Hugo Black liked to say, "'no law' means 'no law'." Congress had earlier violated the First Amendment with the Sedition Act of 1798; but along with the Alien Act of the same year, it was repudiated by Thomas Jefferson and was generally regarded as a disaster. Nevertheless, the Supreme Court said that the Espionage Act was constitutional.
How did they reach this perverse verdict? The authors rightly concentrate on the opinion of the sainted Oliver Wendell Holmes in the case of Schenck v. United States (1919). Holmes is widely regarded as the foremost American jurist, and Judge Richard Posner has edited, with a fawning introduction, a collection of his legal writings. In fact, as the authors show, he used his considerable literary gifts to subvert the Constitution.
Holmes argued that in order to justify restriction on free speech, there must be a "clear and present danger that they [the offending words] will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree" (pp. 16–17).
Holmes's standard at first glance may appear reasonable, but it rests on a false premise. Holmes assumes that two interests are locked in conflict: the right of free speech and the authority of Congress to prohibit various evils. His task as a judge is to balance these warring interests. Of course the Constitution says nothing of this. To the contrary, it absolutely prohibits Congress from enacting legislation that abridges free speech. There is no question at all of "balancing" this right against other goals. In Robert Nozick's phrase, it imposes a side constraint on the government's pursuit of its goals and is not itself a goal. Further, Holmes interpreted the clear-and-present-danger test in an expansive way. It was "apparently malleable enough to bring about the criminalization of a wide variety of speech and action, for nothing in the trial [of Schenck] showed that the [antidraft] leaflet posed a 'clear and present danger' of producing any kind of 'evils'" (p. 11).
Holmes's opinion illustrates how war emergencies often serve permanently to enhance government power: subsequent Supreme Court opinions have never abandoned Holmes's false contention that free speech must be balanced against other considerations.
Harry Truman, that malignant haberdasher, put forward if anything a more expansive view of federal power during wartime, or other "emergencies," than Holmes had done. Truman in 1952 seized America's steel mills to avert an imminent strike that, he claimed, would impede the war effort in Korea. In giving this order, he relied on no acts of Congress. Instead, he advanced the incredible opinion that he could do whatever he wished to deal with an emergency. (The war emergency, as the authors note, had itself come about as the result of unconstitutional action. Truman involved the United States in a costly war, even though there had been no declaration of war by Congress, as the Constitution manifestly prescribes.)
[W]hen asked on April 17  whether in his view his inherent power to seize private property extended to the possible seizure of American newspapers and radio stations, the president replied: "Under similar circumstances the President of the United States has to act for whatever is for the best of the country." (p. 30)
Truman's Assistant Attorney General Holmes Baldridge clarified Truman's position when he pled the steel seizure case in federal court. In response to Judge David Pine's question "So you contend that the Executive has unlimited power in time of an emergency?" Baldridge said: "He has the power to take such action as is necessary to meet the emergency" (p. 27). He went on to say that it was for the president to determine whether an emergency existed and that his decision could not be challenged in court.
Truman may have advanced these extreme views, but did not the Supreme Court rap him sharply on the knuckles in Youngstown (1952)? The court did indeed hold unconstitutional Truman's seizure of the mills; but, our authors note, the court did not deny that the president had inherent unstated powers to act in emergencies. Rather, the question that largely concerned it was that Truman had acted against procedures mandated by Congressional legislation.
Truman's claims of executive power unfortunately are by no means a thing of the past. The present occupant of the White House, compared to whom the autodidact Truman is a veritable intellectual giant, has also claimed the right to act as he deems best, the Constitution and laws to the contrary notwithstanding. John Yoo, a Boalt Hall law professor who worked in the attorney general's office, has spun webs of sophistical argument in support of the president's aspirations after tyranny; and for me the highlight of Who Killed the Constitution? is the expert demolition of Yoo's intellectual pretensions.
Yoo makes much of the word "the." Article I of the Constitution assigns to Congress "all legislative powers herein granted," but Article II states that "the executive power shall be vested in a President of the United States of America" (emphasis added). According to Yoo, contained in this simple word are undreamed of powers. "The executive power," he contends, refers to the powers that an eighteenth-century consensus recognized as inhering in that phrase. It is these that the Constitution grants to the president, and the enumerated powers in Article II merely exemplify, rather than fully specify, what he can do.
A more silly argument would be difficult to imagine. Is it likely that the Framers of the Constitution hid a controversial doctrine in a single word? "Far from recognizing such an expansive meaning of executive power, the Founders took the phrase to refer to the mere execution of the laws and nowhere suggested that it meant anything else. Much less did they contend that it conferred a bundle of unspecified powers on the president… There is also the little problem that Article II lists specific powers that the Constitution confers on the president" (p. 176). Why list specific powers if they are already included in "the executive power"?
No more successful is Yoo's endeavor to conjure away the power of Congress to declare war. True enough, the Constitution does grant exactly this power to Congress, but, claims Yoo, the grant does not limit at all the right of the president to start wars. Yoo maintains that Congress has not been given the power to initiate or to make war; all that is given is the power to proclaim that a state of war exists, bringing the laws of war into effect. Our authors counter that though Grotius did employ this usage of "declare war," it was not the meaning the Framers intended. Grotius's usage was by the time the Constitution was drafted obsolete; and the early historical record of the US government is decisive against Yoo's interpretation.
If declarations of war were in fact merely rhetorical, as Yoo argues, we should expect presidents to initiate military force boldly and not to be concerned about the will of Congress. Unfortunately for Yoo, … George Washington specifically disclaimed the power to take the country to war without congressional authorization… (p. 173).
John Adams, Jefferson, and Madison held the same view.
So excellent is this book that it puts me in an uncomfortable position. It is difficult for me to find fault with it, and this will never do for The Mises Review. I am able to come up with only some trivial points. Perhaps I have misunderstood, but it seems to me that Chief Justice Burger was perfectly right when he claimed that the language of the 1964 Civil Rights Act that forbade busing to achieve racial balance merely says that no power to require such transportation can be derived from the act: the act does not alter the Court's power to interpret the equal-protection clause of the Fourteenth Amendment. I am at a loss to see why the authors claim, "Typically, Burger's explanation was false" (p. 64). For once, he got something right. Woods and Gutzman are of course correct that the act does not authorize busing; but Burger in the passage they quote does not claim the contrary. Burger was likewise mistaken to think that the Fourteenth Amendment does authorize busing; but he was not at fault in denying that the act determines the meaning of the amendment. This is not determined by the laws passed by Congress a century after the amendment. Also, it goes too far to say "soon after Franklin Roosevelt became president in 1933, he reneged on his campaign vows of traditional Democratic laissez-faire economic policy" (p. 106). Roosevelt had strongly criticized Hoover for excessive government spending, but his campaign speeches indicate that he planned an activist government policy to combat the Depression. Much to my regret, I can find nothing else to quibble about in this outstanding book. I have given an account of only a few of the excellent discussions contained in it.