Kevin Gutzman On 14th Amendment, Government Shutdown And More

Mandeville, LA – Exclusive Transcript – Let’s go to the Dude Maker Hotline.  Our friend Dr. Professor Kevin Gutzman is on the line.  We’re going to talk a little bit about this silliness that the president can actually act unilaterally because the 14^th Amendment commands him to do so when it comes to paying the debt of the United States.  Check out today’s transcript for the rest…

 

Begin Mike Church Show Transcript

Mike:  Let’s go to the Dude Maker Hotline.  Our friend Dr. Professor Kevin Gutzman is on the line.  We’re going to talk a little bit about this silliness that the president can actually act unilaterally because the 14^th Amendment commands him to do so when it comes to paying the debt of the United States.  Professor Dr. Gutzman, good morning, my friend.  How are you?

Kevin Gutzman:  Good morning, Mike, very well.  How are you?

Mike:  I am peachy.  I am well, thank you very much.  Before we get into the 14^th Amendment conundrum here that we have been exchanging emails about, let me just ask you a quick, off-the-cuff question.  You may have an answer and you may not, so there’s no pressure or anything.  After the 17^th Amendment was passed, do you have any knowledge or have you researched this or did you spend any time — I know when you were writing Who Killed The Constitution? you studied the Wilson administration a little bit.  Was there anything that was written or said that now that we’ve altered the way senators are elected that they no longer have to report to or represent the wishes of their state legislatures?

Gutzman:  Sure.  That was the entire purpose of the 17^th Amendment.  The idea here was that we didn’t want a countervailing pressure from the state legislatures.  We want these people to be able to consider only the national interests.  We’ll get rid of the indirect election process that was established at the Philadelphia Convention and through the ratification conventions, and instead we’ll have democratic election in each state and these people will be beholden only to the people, not the state legislatures.  That’s exactly what was supposed to happen.

Of course, the reason why the progressives wanted this was because they didn’t like the idea of anything other than national interests.  They didn’t like the idea of checks and balances.  They were almost unanimous behind Woodrow Wilson’s idea that the Constitution was outmoded and would be far better if we had the British system.  That’s why he restored the old federalist practice of giving annual state of the union speeches instead of having just a message sent by the president to Congress.  Where Jefferson objected that this was monarchical practice, Wilson thought that was a good thing, and it was a better idea to have one man who was ultimately responsible.  Anything that could be done to remove decentralizing impulses in the government should be done, and that’s what the 17^th Amendment is about.

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Mike:  I have been asking this question and talking about it and just looking at the plain language of it.  This wasn’t our subject for discussion today, I realize that.  Just looking at the plain language of it, there would be nothing in Amendment 17 that would preclude a current seeker of the office to pledge that he would take into consideration the wishes of his state legislature.  The 17^th Amendment doesn’t say that.  It just changes the mode by which they’re elected.  What you’re saying is the progressives announced that this was the intent.  I haven’t studied the period, so this is useful information.  I appreciate it.

Let’s move onto Amendment 14, your favorite subject, the dreaded incorporation doctrine, which today’s subject actually has nothing to do with.  This gentleman that claims to be professor of history, or lists as his claim to New York Times fame as a professor of history at Princeton University, Sean Wilentz, writes in yesterday’s New York Times under the heading of “Obama and the Debt,” about how the president has to seize upon the authority conferred upon him by the 14^th Amendment.  And if the imbeciles in the Congress choose not to service the debt of the United States or make it valid, the president has to basically declare, and I don’t know where he gets the authority to do this, some kind of an emergency, has to step in and appoint himself Mussolini.  Do you read the 14^th Amendment that way?

Gutzman:  Well, no, I do not.  It’s not surprising that Sean Wilentz of Princeton does because he’s a consistently partisan, Democrat Party, essentially rationalizer of whatever impulse comes to the Democrat Party.  He constantly is issuing pronouncements like this  Basically whatever issue is in the papers, you can guarantee that Sean Wilentz will be calling for essentially scofflaw attitude towards the Constitution and rationalizing whatever would be in the interest of, say President Obama or formerly President Clinton or whichever Democrat happens to be the chief Democrat in Washington at the time.  You find this in his book on the Reagan period.  That’s essentially his attitude towards the period that he’s supposed to be an expert in, which is the Jacksonian era.  Here he is saying the same kind of thing during the Obama years.

The 14^th Amendment says, in part, the validity of the public debt of the United States authorized by law shall not be questioned.  We keep hearing in the media that this is part of the issue in Congress right now, whether the validity of the public debt of the United States shall be questioned.  As Senator Rand Paul pointed out recently, the monthly income of the federal government is over ten times what it would take to service the debt.  All that the 14^th Amendment arguably requires is that the first expenditure the administration makes each month has to be paying the interest on the debt.  There’s no doubt that there’s enough money coming into the federal treasury to do that.  There’s no reason why they wouldn’t pay interest on the debt.  That means there’s no reason why anybody should think that the 14^th Amendment is being implicated here.  This is just transparently fatuous.

It’s amusing that the New York Times publishes this article from Wilentz.  As you said, he says what President Obama could do is declare an emergency.  This is the same kind of thing as Roosevelt and Lincoln did.  Yeah, it’s true, it’s the same kind of thing that Roosevelt and Lincoln did, essentially invent any rationale for doing what they want despite the law and the Constitution.  Of course, in Roosevelt’s case it meant appointing a whole Supreme Court full of people who would declare that the Constitution meant the opposite of what it had always been understood to mean in regard to the limits of congressional power and so on and so forth.  Yeah, this is what you get from the New York Times and this is what you get from Sean Wilentz.  I think it doesn’t have any validity whatsoever.

Mike:  Just to clarify, folks, because you’re going to hear this and we keep hearing this, let’s just say the current crisis, as it’s being framed, drags on through October the 17^th.  Again, I told the audience today, this is going to be a decision of the president.  If the executive chooses not to — it’s a partial government shutdown, or as I like to call it, it’s a temporary interruption in non-essential wealth transfers.  If the temporary interruption in non-essential wealth transfers is part of or is up to the executive, because he is the executor of the law, and if there’s going to be a default, it’s going to be on him.  It’s going to be because he tells Jack Lew: I’m sending you an executive order and I’m ordering you not to pay the debt.

I said this yesterday, Professor.  I said if Obama does that or if he’s complicit in this, the first thing that ought to happen is Boehner ought to call the House to order, committee of the whole.  They ought to have a resolution on the floor to begin an impeachment proceeding.  As you just pointed out, if Amendment 14 is valid, and it’s not, but let’s just pretend like it is, then he is in violation of the 14^th Amendment.  He is the one questioning the validity of the debt.  It’s him that ought to be made to account for it.  Where am I wrong?

Gutzman:  Well, you’re not wrong.  All that’s really going on here is that the Democrats want to continue to spend beyond the income of the federal government.  So far the House has not joined in authorizing this to continue to happen.  Right now, as I understand it, the federal government takes in something like $242 billion a month.  The interest payments are $23 billion a month.  There is no reason on earth that out of $242 billion a month they can’t find $23 billion a month.  What they want to do is continue to spend well over, something more like $300 billion a month.  Republicans haven’t yet, I expect they ultimately will, but they haven’t yet authorized that.

Were the president to act with fortitude, meaning ignore the Constitution’s allocation and power to appropriate money to the House of representatives and the Senate acting together, were the president to act with fortitude, you said Mussolini-like, and I guess that’s an adequate description, Republicans would continue to lambast him as the sole cause of the crisis and scream he’s a tyrant.  Well, the word tyrant comes from the Greek word turannus, which means somebody who acts beyond the constitution or despite the constitution.  That’s exactly what he would be.  Wilentz says this is the same epithet that was hurled at Andrew Jackson, Lincoln, and Franklin Roosevelt.

Wilentz’s point seems to be since we’ve had presidents who’ve acted unconstitutionally in the past, a president should feel entitled to do that at any time he wants.  I have made this point repeatedly.  Essentially throughout American history, since President Lincoln at least, it has always been in the quiver of the executive branch to say: Lincoln did it; I can do it, and then do whatever he wants, ignore the Constitution in any way.  That was what John Yoo argued during the W administration.  It may be that Congress banned, we had statutes against particular kinds of executive actions, but hey, Lincoln did it, so that makes it valid.  Here you have an argument for unconstitutional government as far as the eye can see.

You’re right, the only mechanism in the Congress to prevent this from happening is impeachment.  Of course, since we have a two-party system and whatever party a president is of he’s bound to have at least a rump of supporters in one or the other house, this impeachment mechanism is highly inadequate to the purpose.  We end up with presidents of both parties ignoring the Constitution, saying they’re doing so, doing it anyway, and then pointing to Lincoln.  Lincoln said arrest people without warrants and closed down newspapers, jailed opponents, expelled partisan critics, do whatever you want.

I can’t get over the New York Times thinks this is a valid kind of argument.  Here we have a major newspaper publishing this, even though the kinds of actions we’re talking about here include closing down thousands of newspapers, and as in Lincoln’s case or Roosevelt’s case, jailing hundreds of thousands of Americans because of their ancestry and declaring themselves to be the supervisors of whole swathes of the American economy and so on.  There is nothing the president could do that he could not justify by pointing to the examples of Lincoln and Franklin Roosevelt.

Mike:  That is a shame.  Professor Kevin Gutzman is with us, author of James Madison and the Making of America.  Let me move on for one final query here in the limited amount of time that we have left.  That is over another part of the discussion here.  One of the arguments that we’re hearing, as Patrick Henry said, so loudly in some quarters and so irresponsibly in others, is this nonsense that the origination clause doesn’t mean what the origination clause means.  Meaning, if some revenue is going to be generated, it is the House that is most representative of the people and most frequently elected by the people in the Congress or House of Representatives, that that power is solely vested.  The Senate, as the Constitution says, can concur with amendments or they can add amendments.  Just to be clear here, the Affordable Care Act or the Obamacare bill has revenue in it, so it can’t originate, and neither can any continuing resolution on it originate in the Senate.  It has to come from the House.  Again, you and I have been talking about this for three years.  The Congress has every ace in the deck in their hands legally and constitutionally speaking, don’t they?

Gutzman:  Yes.  It’s astounding to hear the talk in media about what’s going on.  They couch all of this in terms of a crisis and so on.  There’s no crisis; there’s bicameralism.  We have two houses of Congress.  They don’t agree with each other.  It takes a while for them to legislate.  This is the way the system was designed.  There’s no crisis.  Of course, it is true that we have these ongoing transfer payment programs.  They haven’t all been completely funded.  Not everything the federal government does has been adequately funded to pay for it to continue full speed at the moment.  Again, the president can say: We have X-amount of money coming in but only Y has been appropriated, so here’s what we’ll pay for and here’s what we’re not.  It would be better if Congress decided to fund the whole thing.  That’s up to them to do.

Again, you’re obviously right that the House has to appropriate any money the executive is going to spend, despite the ridiculous arguments such as Professor Wilentz of Princeton University.  Here we have them not agreeing.  The reason we have bicameralism is so that it will be harder to legislate.  That’s exactly the point.  We’re going to invoke the examples of Franklin Roosevelt and Abraham Lincoln and continue to spend anyway even if Congress doesn’t appropriate the money?  It’s astounding to me that that’s what Sean Wilentz and the New York Times think is a good idea.  Let’s have the president just declare we have a bicameral legislature, but henceforth I’m going to ignore the House of Representatives because that’s controlled by the Republicans.  So I’m going to do whatever I want, or at least whatever the Senate will agree to.  That’s going to be our new system.  Really!?

The thing is, of course, they’ll never use truth in advertising. They’ll always say: Well, the problem here is an obstructionist Congress.  The assumption behind all this rhetoric is that the duty of the Congress is to spend whatever money the president wants.  Actually, in theory, and under the first six presidents of the United States, the legislative process was supposed to be entirely for Congress, not for the president to be dominating.  Of course, you and I have talked about that before.  Really the president is the one who’s interloping in something that’s not supposed to be his business.  Honestly, the more you think about Sean Wilentz’s ridiculous argument in the New York Times, the more completely unfounded it seems to be.

Mike:  I wholeheartedly concur.  This is why I’ve been encouraging and talking about this and telling the audience that for once in their miserable existence, the Boehner Congress is actually correct and they deserve your approbation.  Whether they’re politically correct, that’s a different question.  If they’re legally and constitutionally and traditionally correct, yes, they are the house that is supposed to be most responsive to the people.  The people still, by and large, say no Affordable Care Act.  So they’re actually executing their duty.  They’re doing what the House was designed to do.

One final question.  I want to attempt to drive this point home as firmly and irrevocably as I can.  You said the system was designed to do this.  I have been saying similar things, but I didn’t use those exact words.  Let’s explain the design here.  The design you speak of is that we want these initiatives to originate in the legislative body, not the judicial, not the executive, and not the body that formerly reported to the state legislatures, but in the legislative body in case, as Arthur Stansbury wrote in 1828, a wicked congress exceeds their authority and undermines the liberty of the people, the next congress can come in and undo the damage.  Correct?

Gutzman:  Well, that is correct.  Another thing we’ve been hearing people say, this is kind of the mouth-breathers who support the Democrat Party, is: Obamacare is the law; you guys just have to get used to it.  Fund the law.  Well, that’s one theory.  How about a contrary theory from, oh, I don’t know, James Madison?  In 1795, the president proposed that the Senate ratified a treaty with Great Britain that had been negotiated by Chief Justice John Jay.  This was known as Jay’s Treaty.  Madison, who was then a member of the House of Representatives, said we should not fund this.  Madison, for months, led an effort in the House to deny funding to the Jay Treaty.  Even though the Jay Treaty had already been ratified by the Senate and signed by the president, it was the supreme law of the land.  Madison’s argument was, despite the fact the president and Senate have ratified this treaty, it remains the prerogative of the House of Representatives to decide whether to provide funding for the implementation of this treaty.  Mike, what does that remind you of?

Mike:  Sounds like Obamacare.

Gutzman:  That’s exactly what the House of Representatives is saying today.  People have been saying: These Republicans are ignoring the Constitution.  Really?  Tell it to James Madison.  He insisted that was the House’s prerogative, and that’s exactly what he tried to get the House of Representatives to do, cut off funding for implementation of the Jay Treaty, even though the Jay Treaty had already been ratified and signed and was the supreme law of the land.  There never comes a time when the House has to fund any program at all.  There’s nothing in the federal budget, I don’t like to use the word budget since they don’t actually budget, but in the federal ledger that the House is constitutionally required to fund unless you want to say the 14^th Amendment requires them to pay the interest on the debt.  Okay, if they have to do that, there’s nothing else in the annual federal expenditures that the House is required to actually pay.  They can pay whatever they want.  They can cut off whatever they want.  They can pay more, pay less, it’s up to them.

Mike:  There you go, folks.  That is the argument that I’ve been making.  I knew a little about the Jay Treaty from reading the book.  I had forgotten that part of it.  Folks, there you have the long and short of it.  The Boehner Congress is actually — again, there are two questions here.  One is legal and one is political.  Of course, you’re going to then be [mocking] “It may be constitutional, but so what?  The people don’t want it.”  Well, whatever.  That’s an argument for another day.  Professor, I have to let you go, but thank you very much.  Very illuminating discussion today.  I appreciating it.  Don’t forget to check out Kevin’s book James Madison and the Making of America.  We actually have paperback and hardback copies autographed and dated by the professor on my website in the Founders Tradin’ Post at MikeChurch.com.  Kevin, we’ll talk to you again real soon.  Thanks so much.

Gutzman:  Sounds good, Mike, you’re welcome.

End Mike Church Show Transcript

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