Who Killed The Constitution by Thomas E. Woods, Jr. and Kevin R. C. Gutzman - Excerpt
Who Killed The Constitution by Thomas E. Woods, Jr. and Kevin R. C. Gutzman - Excerpt
Who Killed The Constitution by Thomas E. Woods, Jr. and Kevin R. C. Gutzman - Excerpt
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Three Rivers Press and the Tugboat design are registered trademarks of
Random House, Inc.
Woods, Thomas E.
Who killed the Constitution? : the federal government vs. American liberty from
World War I to Barack Obama / Thomas E. Woods Jr. and Kevin R. C. Gutzman.
p. cm.
Includes bibliographical references and index.
1. Constitutional history—United States. 2. Executive power—
United States—History. 3. Legislative power—United States—History.
4. Political questions and judicial power—United States—History.
1. Gutzman, Kevin Raeder, 1963– II. Title.
KF4541.W66.2008
342.7302'9—dc22 2008007055
ISBN 978-0-307-40576-0
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To purchase a copy of
Who Killed the Constitution?
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Contents
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viii C o n t e n t s
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Introduction
The Constitution Is Dead
M
any Americans worry that the Constitution is dying.
Leading the chorus are those critics, mostly on the Right, in
whom the first initiatives of the Obama administration have
awakened a concern dormant for eight years. Their arguments recall
those made only yesterday by others, mostly from the Left, deplor-
ing the George W. Bush administration’s supposedly unprecedented
attacks on the Constitution.
We have bad news for both sets of critics: the Constitution is al-
ready 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. When they get
the oath wrong, they may even take it again. But what does their fi-
delity 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
emerge overnight. Every branch of the federal government has
trampled on the Constitution, almost without interruption, for close ___–1
to a century. The crisis we face today is the culmination of decades of ___ 0
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are truly to confront a government that has gone off the constitu-
tional rails, we must not shy away from calling attention to abuses,
regardless of whom it offends.
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1
Congress Shall Make No Law
(Unless It Really Wants To):
Woodrow Wilson and Freedom of Speech
T
o all appearances, Maryland’s Edwin Seidewitz led a suc-
cessful and contented life. He served as mayor of Annapolis from
1899 until 1901. He later became a successful florist in Baltimore,
and served as president of the local Rotary Club.
Then he made a mistake.
Not long after the U.S. government entered World War I in
April 1917, Seidewitz met some Germans at a hotel bar. They were
officers of German ships that had been unable to leave Baltimore
harbor since the outbreak of European hostilities in 1914. They
were commiserating about friends and family they longed to see, and
about their concern that they would be interned as enemy aliens in
the United States until war’s end.
Seidewitz felt sorry for the men and sat down for some beer with
them. Then, as a gesture of sympathy, he kissed one of them on the
forehead. And there was his mistake.
As soon as word got around town that Seidewitz had “kissed
a German,” his business dried up. He was thrown out of the Rotary
Club without being given a chance to defend himself. This once
prosperous and respected man found himself completely ruined, ___–1
practically overnight. ___ 0
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World War I was not the first time in American history that the fed-
eral government tried to muzzle its citizens. The year 1798 saw the
passage of the Alien and Sedition Acts, which were said to be neces-
sary in light of the Quasi War with France. Thomas Jefferson and
James Madison didn’t buy it: for them, these were obviously partisan
measures designed to intimidate and suppress the opposition party
(namely, theirs). Peel back all the patriotic rationales and that’s what
the legislation amounted to, as far as Jefferson and Madison were
concerned.
Then there were the constitutional problems: Jefferson argued
that the Sedition Act violated both the First Amendment (in its re-
strictions on speech) and the Tenth Amendment (since the states
never delegated to the federal government any power to criminalize
speech, such power remained with the states). When Jefferson took
office as president in 1801, not only did he release from jail all those
who had been imprisoned under the act, but he also tracked down
those who had paid fines for violating it, and repaid them with inter-
est. (Supreme Court justice Oliver Wendell Holmes would later cite
Jefferson’s action as an admission by the federal government that the
Sedition Act had been wrong.) The Sedition Act of 1798 expired in
–1___ 1801, and for more than a century afterward the federal government
0___ had no anti-sedition law on the books.
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That changed with the Espionage Act of 1917 and the Sedition
Act of 1918.
Although organized polling did not begin until the late 1930s, anec-
dotal evidence suggests that when the Great War broke out, the
American people did not want their country getting involved in the
senseless carnage across the Atlantic. Even the worst outrage Ger-
many perpetrated against the United States—the 1915 sinking of
the Lusitania, the famous British ocean liner, killing some 128
Americans on board—provoked very few calls for American inter-
vention in the war. By the time President Woodrow Wilson’s reelec-
tion campaign made it to the Midwest in 1916, the slogan “He kept
us out of war!” had become firmly attached to his candidacy. Then,
after the United States declared war, Joseph Tumulty, President
Wilson’s private secretary, expressed concern because “the people’s
‘righteous wrath’ seems not to have been aroused.”2 Senator Robert
La Follette of Wisconsin argued in an antiwar speech before Con-
gress in 1917 that the perceived need to pass restrictive legislation in
the first place proved that the general public did not support U.S.
entry into the war. In fact, in order to carry on the war successfully,
the U.S. government considered it necessary to criminalize opposi-
tion sentiment, conscript millions of men into the army, and launch
a propaganda campaign on behalf of the war that was unique in
American history.
With the United States finally in the war, the Wilson administra-
tion launched various efforts to promote the U.S. government’s view of
the conflict. The key figure in this important undertaking was George
Creel, the Missouri journalist and longtime Wilson partisan. Creel
headed the Committee on Public Information (CPI), which Wilson
established by executive order in 1917, and used every available instru- ___–1
ment of communication to carry out this propaganda mission. ___ 0
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Oh.
The stories that come down to us from that period sound like
fiction. A movie about the American War for Independence called
The Spirit of ’76, which portrayed the British in an unflattering
light, got its makers in trouble with the law: since the United
States was now allied with Britain, such images could promote dis-
content in the American armed forces and interfere with recruit-
ment. They received a prison sentence of ten years.6 A Christian
minister in Vermont was sentenced to fifteen years for writing a
pamphlet, which he distributed to five people, arguing that Christ
had been a pacifist and that Christians should not participate in
war. A mob broke into a school in Marysville, Nebraska, looking
for any material about Germany or written in the German lan-
guage, and burned all of it, including German-language Bibles. A
man was arrested under the Minnesota Espionage Act for saying,
in reference to women who knitted socks intended for soldiers,
“No soldier ever sees these socks.” Michigan’s Clarence Nesbitt,
who purchased $1,500 in Liberty bonds, was tarred and feathered
by a group of men who thought he should have purchased $3,000
worth instead.7
Nesbitt’s fate was not unique. Walter Ferguson, an Oklahoma
farmer, vainly protested that he had purchased all the bonds he
could afford. Local war enthusiasts didn’t believe him and proceeded
to make his life miserable. “It would require a book to tell of the dev-
ilish ways in which he was hounded afterward,” Ferguson’s wife later
recalled. “Merchants refused to sell him groceries, women cut his
wife dead in church, neighbors set fire to his barn.”8
So many more such cases could be cited that the rest of this book
could easily be filled with them.
President Wilson had supposedly seen it all coming, and deeply
regretted this ugly deformation of the old America. He is alleged to
have said, “Once lead this people into war, and they’ll forget there
ever was such a thing as tolerance. To fight you must be brutal and ___–1
ruthless, and the spirit of ruthless brutality will enter into the very ___ 0
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10 W H O K I L L E D T H E C O N S T I T U T I O N ?
fiber of our national life, infecting Congress, the courts, the police-
man on the beat, the man in the street.” Conformity, the president
went on, would become the only virtue, and any man who refused to
conform would pay the penalty.
For a long time scholars thoughtlessly accepted these words as
Wilson’s own. That could be because, as one of them says, Wilson
“bears the onus of moral responsibility for demanding intervention.
How much less onerous this is, however, when Wilson’s suffering
and sagacity receive emphasis. . . . Wilson seems so human, and his
plight so tragic, when his ‘mental agony,’ ‘turmoil,’ ‘horror of war,’
and ‘anguish’ are stressed.”9 But historians now doubt that Wilson
ever made those remarks.10 Wilson never had a particularly stellar
record as a civil libertarian, and the evidence that this aspect of war
especially troubled him is essentially nil.
Even before any restrictive legislation was passed, the govern-
ment was already pressuring people not to express certain opinions,
even certain facts. George Creel called on the press to refrain from
publishing any speculation relating to a possible peace, or regard-
ing any issues that divided the Allies. Newspaper editors generally
heeded his request, contacting Creel’s office to inquire about ques-
tionable cases. Creel was said to have told a State Department offi-
cial that he wanted “nothing whatever published in regard to cable
or mail censorship . . . The less said about any sort of censorship
the better. . . . It is desirable that no one should know just where the
censorship is working.”11
Teachers and professors, many of whom had spoken out against
war before its outbreak in 1914, either adopted the party line upon
their government’s entry into the conflict or allowed themselves to
be intimidated into silence. Those who spoke out were often pun-
ished. And “speaking out” did not necessarily mean denouncing
their government or its war effort. Professors were dismissed from
their jobs for questioning the true extent of German atrocities in
–1___ Belgium or even for suggesting that the various peoples involved
0___ in the war all had good and bad qualities. When Columbia Univer-
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sity dismissed two professors—one for his ties to pacifist groups and
another for his public opposition to a variety of war measures—
some members of the faculty issued protests. Charles Beard re-
signed. “If we have to suppress everything we don’t like to hear,”
Beard charged, “this country is resting on a pretty wobbly basis. . . .
I was among the first to urge a declaration of war by the United
States, and I believe that we should now press forward with all our
might to a just conclusion. But thousands of my countrymen do not
share this view. Their opinions cannot be changed by curses or
bludgeons. Arguments addressed to their reason and understanding
are our best hope.”12
Such incidents ran from the chilling to the absurd. Professor
Willis Mason West was a member of the Committee on Public In-
formation, and yet even he was not above suspicion. Montana public
schools were ordered to stop using a history textbook West had
written because he was declared to have been insufficiently hostile in
his treatment of the Teutonic tribes prior to a.d. 812.13
It was precisely this climate that the Espionage Act and the Sedi-
tion Act had either created or aggravated. The first of them was
passed in June 1917. Section 3, the relevant part of the legislation,
instructs:
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The Espionage Act also gave the postmaster general the discre-
tionary authority to remove from the mails any material that he be-
lieved would hamper the war effort.
When Congress passed the legislation, its members did not
understand themselves to be approving an open-ended power to
prohibit a wide range of expression. Criticism of the war as such
was not being criminalized. In fact, the version of the bill that Con-
gress approved was more lenient than the original proposal, which
among other things would have authorized censorship of the press.
But this caveat does not exonerate Congress, since it should have
been obvious that a zealous executive could simply interpret the
legislation’s key phrases so as to allow the kind of censorship and
control that President Wilson had been disappointed to see missing
from the final version of the legislation. What, exactly, would con-
stitute an “attempt to cause insubordination”? What kind of activi-
ties would be viewed as tending to “obstruct the recruiting or
enlistment service of the United States”? Would a speech or article
against the war qualify as doing either of these things? It would
surely be difficult in practice to keep such phrases from reaching an
ever-wider range of activities, particularly in the hands of a crusad-
ing president.
The Sedition Act, passed the following year, was an amend-
ment to the Espionage Act that authorized precisely the press cen-
sorship that Congress left out of the first piece of legislation, and
criminalized still more activities. It imposed potentially heavy fines
and lengthy prison terms on anyone who should “willfully utter,
print, write, or publish any disloyal, profane, scurrilous, or abusive
–1___ language about the form of government of the United States, or
0___ the military or naval forces of the United States, or the flag.” It also
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16 W H O K I L L E D T H E C O N S T I T U T I O N ?
right to think and act as a free man.” And it called upon people to
overturn the conscription law through the normal channels of gov-
ernment: “Join the Socialist Party in its campaign for the repeal of
the Conscription Act. Write to your congressman and tell him you
want the law repealed. Do not submit to intimidation. You have a
right to demand the repeal of any law. Exercise your rights of free
speech, peaceful assemblage and petitioning the government for a
redress of grievances.” The leaflet went on to urge, “If you do not as-
sert and support your rights, you are helping to ‘deny or disparage
rights’ which it is the solemn duty of all citizens and residents of
the United States to retain.” (The words “deny or disparage rights”
are based on the Ninth Amendment: “The enumeration in the Con-
stitution, of certain rights, shall not be construed to deny or dispar-
age others retained by the people.”)19
Only a portion of the fifteen thousand leaflets were actually
mailed, and anecdotal evidence suggests that relatively few people
actually received them. The envelopes and the handwriting on them
were distinctive enough that they could be identified with a reason-
able degree of certainty, and the postal inspector impounded 610
of them when he realized what they were. When the prosecution
called to the stand eleven men to whom the leaflets had been sent,
eight testified that they had never received them. Seven of those
eight saw the leaflet for the first time while on the witness stand;
the other had been handed an envelope containing one when he saw
the U.S. attorney several months earlier, though he had not opened
it. The men testified that the leaflet would not have persuaded them
to evade the draft. Of the three who did receive the leaflet, all of
them testified that they simply reported it to the authorities.20
Justice Oliver Wendell Holmes delivered the opinion of the Court,
which found the defendants guilty of violating the Espionage
Act. “The question in every case,” Holmes explained, “is whether
the words used are used in such circumstances and are of such a
–1___ nature as to create a clear and present danger that they will bring
0___ about the substantive evils that Congress has a right to prevent. It is
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Who Killed the Constitution?
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