February 14, 2013
Book Review: The Naked Constitution by Adam Freedman
Adam Freedman’s book, The Naked Constitution – What the Founders Said and Why It Still Matters, is a statement that the Constitution is the law; that it should be followed in letter and spirit; and interpretation of passages that are ambiguous should be determined by the meaning the words had to the people who ratified it. It’s an easy enough premise and one that is promoted by any number of scholars, jurists, and even average citizens. The problem, as Freedman demonstrates, is that it didn’t turn out that way. He spends a large portion of the book explaining how we’ve strayed—judicially and socially—from the meaning of the Constitution’s text.
The problem is that over the course of 200 plus years constitutional doctrine has evolved in a backdrop of political and judicial agendas. Take for example administrative agencies. One example in the book concerns the case Humphrey’s Executor v. United States (1935). President Franklin Roosevelt fired Humphrey, a Commissioner of the Federal Trade Commission. He conveniently died some four months after the event and his executor sued for four months of wages he would have earned. As Freedman notes, the case turned on the power of the President to fire Humphrey. The Supreme Court held 9-0 that the Federal Trade Act was constitutional and that the quasi-executive/judicial structure of the FTC was beyond the power of the President. Welcome the unelected bureaucrat to the governance of the nation.
The obvious question is where in the Constitution does power flow to unelected officials to create rules and prosecute violations of those rules independent of the courts and the President? As Freedman explains, the Supreme Court at the time was hostile to Roosevelt and the New Deal, suggesting that as the basis of the decision rather than fealty to the Constitution. I guess this is an example of be careful what you ask for. The federal bureaucracy has grown exponentially long after the members of that Court joined Humphrey in the great beyond. The online version of the Government Manual is a testament to that growth.
The contradictions between the text of the Constitution and the judicial decisions interpreting it are everywhere in the book. Penumbras? Where did those come from? Cruel and unusual punishment has strayed an awful lot from what was common in 1789. Any number of frivolous prisoner lawsuits demonstrates that. Free speech is not free when someone is sued to protest abortion rights and limited to specific locations and times to convey the message while at the same time “politically correct” speech is protected by the courts. These are simply several examples of many in the book.
I don’t necessarily agree with Freedman’s arguments nor am I convinced by all of his examples. He vilifies the concept of “Living Constitution” and uses some of the more egregious attempts to extend the Constitution beyond reasonable meaning. Lawsuits over getting a bad grade or PETA’s failed attempts to sue Sea World under a 13th Amendment argument to free the whales from slavery are examples. The more absurd comments to come out of liberal constitutional scholars are others.
From my perspective there is a whole world in between. Men and women from different political persuasions at different times were appointed or elected to make decisions about the Constitution. Some of these turned out better than others. We are more or less stuck with these decisions based on how our system operates. I doubt seriously that even an overwhelmingly conservative Supreme Court would throw out the federal bureaucracy at this point based on originalist thinking.
Freedman, to his credit, recognizes this and suggests the solution is a constitutional convention. There’s no going back at this point so we might as well start over. He argues for including a “human life amendment” to prevent future Roe v. Wade’s. I’m not sure it would be that easy as there will be just as many people arguing for text that guarantees a right to abortion. How it turns out would be a political decision, if such a convention were held. I don’t think holding such a convention is a bad idea but I’m not holding my breath for one.The book is 353 pages with an index and selected bibliography for each of the chapters. It is published by Broadside Books which is an imprint of HarperCollins. According to FTC regulations, if not by ethics alone, I am obligated to tell you that HarperCollins supplied a copy of the book for review. There you go, Adam. [MG]