You will enjoy this exchange. That is, if you enjoy seeing an arrogant establishment professor decisively put in his place — and really, who doesn’t?
A member of Liberty Classroom noted in our forums that his professor for a course called The Supreme Court and the Constitution was recommending a book by Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and the Meaning of the Constitution. Our own Kevin Gutzman, who teaches U.S. history for us and who holds both a Ph.D. in history and a J.D., responded:
That is definitely a book to avoid.
The Supreme Court follows neither original understanding (that is, the people’s will) nor current preferences. Across a range of issues, what they do is instantiate the will of the Harvard Law/Yale Law mandarinate upon us via “constitutional law” rulings.
Take forced busing. The public never supported it, yet it was imposed upon the people of many areas of the country for three decades….
I could go on and on and on. The bottom line is that where formerly they simply called for federal courts to write their opinions into law, liberals in the legal establishments today justify this idea with the assertion that whatever they do, federal judges are pretty close to average Americans’ opinions. It couldn’t be further from the truth. For the whole sordid story, please consider my The Politically Incorrect Guide to the Constitution.
The student showed Professor Gutzman’s full reply (not just the excerpt above). The student’s professor responded:
While I admire your outside reading of obscure history professors, I’m not sure Prof. Gutzman fully understands Prof. Friedman’s argument. The Supreme Court is a representative institution in that it attempts to do what is right for the nation as a whole. No member of Congress has a national constituency, only the President does, but deferring to him all the time would give him tyrannical power. The Court is able to take a long-run, national view of the Constitution in a way that no elected official can since he must pander to the masses who elect him and the contributors who fund his candidacy. The Constitution was designed to establish a republic, not a democracy, and its savior is the fact that the Court can do what is best for the nation as opposed to what is best for its electoral interest. The Federalists disdained rule by the mob and attempted to establish a republic led by wise men who could rise above politics. Sadly, the last vestige of their vision is the Supreme Court.
So Professor Gutzman is an “obscure” professor! Kevin Gutzman, with a Ph.D. from the University of Virginia, and whose recent James Madison biography, published by St. Martin’s — a feat which alone makes him non-obscure — is being hailed as definitive by leading scholars in the field, is the obscure one in this exchange?
Professor Gutzman replied:
The idea that I may not be familiar with this boilerplate law-school “history” truly is absurd. To the contrary, I’ve written a best-selling book arguing against it from beginning to end, largely on the basis of my numerous peer-reviewed articles in the top history journals.
“The professor” tells us that the Supreme Court “is a representative institution in that it attempts to do what is right for the nation as a whole,” and for that we have only the word of the judges and of their aiders and abettors in academia, the legal profession, and the media. I suppose that the Chinese premier or the president of Syria would describe himself in the same way: that he is representative in that he attempts to do what is right for the nation as a whole. As in the case of the Supreme Court’s legislation, the policies conferred upon the people by the Chinese and Syrian leaders are not susceptible to popular revision, let alone rejection. Their sad subjects simply have to take their word for it.
“The professor” tells us that “the Constitution was designed to establish a republic, not a democracy, and its savior is the fact that the Court can do what is best for the nation as opposed to what is best for its electoral interest.” Since he had deigned to instruct me on the “design” of the Constitution, let me note that the role his syllabus and his comments here ascribe to the Court was not envisioned by anyone involved in approving the Constitution’s design; in fact, the only people who hinted that it might have anything akin to its current role were a few antifederalists in New York. If any politician had said in the ratification process, “Federal judges will be better than elected officials because elections cloud people’s judgment,” as “the professor” does here, he would have been hooted down.
Since he is obviously unfamiliar with my best-selling constitutional history, not to mention with the best-selling book in the same field that Tom Woods and I co-authored, I suspect that “the professor” is also blissfully unaware of my account in James Madison and the Making of America (JMMA) of Madison’s response to McCulloch v. Maryland (1824). If the people had known the Constitution was going to be read that way, he said, they would never have ratified it. Both in JMMA and in my contribution to A Companion to James Madison and James Monroe, I demonstrate that this is no doubt true.
Another way of putting it is that the system “the professor” advocates is completely unlike, in many ways contrary to, the one the people were sold in the ratification process. “The professor” likely doesn’t know this, as legal training in this area doesn’t extend far beyond reading a few old judicial opinions and a few excerpts from The Federalist. That’s why I like to say that once I graduated from a top-ten law school, I entered UVA’s PhD program to get an education.
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