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 at least as guilty as the judicial in seeking to enhance government power.
Read the rest of the review