Kevin Gutzman Says Article V Amendment Convention Is Best Done As CFA Not Levin

Mandeville, LA – Exclusive Transcript – When I say dark sides, one of the things that we confront here is that there is a choice being made here, and it is being made in the affirmative, and that is that in all instances, because somebody says so today in 2014, an Article V amendment convention or a liberty amendment is always preferable to upending our precious republican form of government and doing something stupid like trying to nullify or declare unconstitutional an act of Congress.  Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

Mike:  One of the other dark sides of this and the dark side of the history that we encounter is that there are — Kevin mentioned Mark Levin, who is on this channel in the evening here.  When I say dark sides, one of the things that we confront here is that there is a choice being made here, and it is being made in the affirmative, and that is that in all instances, because somebody says so today in 2014, an Article V amendment convention or a liberty amendment is always preferable to upending our precious republican form of government and doing something stupid like trying to nullify or declare unconstitutional an act of Congress.  There are grave inconsistencies there, especially seeing as how no citizen or state-led action has ever resulted in a convention of states to get amendments.  It’s come close and it’s caused amendments to happen.  Prohibition, you’ll probably agree with me, either Congress would have repealed prohibition or the states would have met in convention and done it themselves.  Is that a fair statement?

Kevin Gutzman:  Yeah.  Congress would have proposed amendments.  Obviously, ultimately it was the states ratifying the 21^st Amendment that ended prohibition.

Mike:  Right, and if Congress hadn’t of proposed it, which I understand they were reticent to do because they didn’t want to admit a mistake, but it was the states that ratified the stupid thing.  Really the states are going: All right, we screwed up.  We shouldn’t have listened to the teetotalers.  We’ve had our hands headed to us.  Al Capone is now a national madman and we all have to deal with the mafia for the rest of our lives.  We’re sorry.  We repeal.  That’s the history of that.  But this is not to say, and your argument and my argument are not that Article V can’t be used.  We’ve also been accused of that.  That’s just ridiculous.  You sit on the board of the Compact for America, for crying out loud, which is trying to get an Article V amendment convention to propose a balanced budget amendment, a BBA, correct?

Gutzman:  Well, the difference between the Compact for America effort and the Levin effort, in regard to Article V, what Levin is calling for is having a drafting convention, that is just calling a convention with an open agenda and hoping that it will produce proposals akin to the ones he outlines in his latest book.  Of course, the book is one in which he now is taking the position that he called you a moonbat and so on for having advocated in 2010.  That’s an interesting phenomena.  Of course, in his book he doesn’t mention you or me or anybody else who was for this in 2010 when he was calling us all names.

Having a drafting convention is an alternative idea to the one I and other people at Compact for America stand for, which is using an interstate compact to decide before the convention meets what the convention’s agenda will be, which is, as I’ve discovered, the way that George Nicholas, one of the leading delegates in the Virginia Ratification Convention of 1788 told the Virginia ratification assembly of 1788 Article V would be used.  Nicholas, one of the federalists’ three chief spokesmen in the Virginia convention, told the Virginia ratification convention that if there were an Article V convention, the states would decide ahead of time what proposals were going to be considered in the convention.  That’s exactly what Compact for America stands for.  The people who are interested in this idea, I encourage them to take a look at our website, which is CompactForAmerica.org.

Mike:  Let me do a sidebar here.  There is a reason why Article V amendment convention scholar Nick Dranias and you and others have adopted this methodology.  Whether it’s in deference to Nicholas or not, it is specifically because there is vocal and organized opposition to Article V from the John Birch Society and Phyllis Schlafly’s Eagle Forum.  You are trying to address those concerns of the “runaway convention,” correct?

Gutzman:  That’s exactly right.  If you have an interstate compact before the convention, that is essentially a federal law saying what the convention’s agenda will be, then you don’t have this risk of a “runaway” convention.  The Levin scenario where you have an open convention called to draft amendments, obviously the convention will be able to draft whatever amendments it wanted.  Then people like the John Birch Society and Eagle Forum are worried that you’d have all kinds of bad amendments being proposed by the convention.  What CompactForAmerica.org shows you is that we have a specific balanced budget amendment that we want the interstate compact to say that the convention is limited to considering.  Basically, if the interstate compact we envision is adopted, a convention will take up one issue which is yea or nay on our balanced budget amendment and then it will adjourn sine die.  This is absolutely a dispositive response to the worry that there could be a runaway convention.

Mike:  Sine die, meaning without days, meaning it’s over.

Gutzman:  Right, meaning it will never reconvene.

Mike:  That’s what Washington banged the gavel on September 17^th and said: This convention is adjourned sine die.  That’s the only reason I know that, because of reading Farrand’s records of the Federal Convention.  Professor Kevin Gutzman, author of James Madison and the Making of America and Virginia’s American Revolution is on the Dude Maker Hotline with us.  I think we have pretty well covered the subject of nullification and interposition and what it meant to the men of the latter part of the 18^th century and the early part of the 19^th century.  As Kevin points out, this is not something that was just used so that plantation owners could have their way with black people.  It was also used, as he pointed out, by the State of Wisconsin.  There were Northern states that said: We’re not going to implement your act of Congress that says we have to return these fugitive slaves.  We’re going to nullify.

They declared null and void, or through action of their legislature chose not to enforce, which is the same thing basically, I think, that the State of Colorado, State of Washington, State of Alaska will do later this summer, and I suspect other states are going to follow suit when it comes to the Controlled Substances Act and the other parts of the federal drug laws that are filling up states’ prisons, making criminals out of people who are for the most part not criminal, only made criminal by the prohibition of the substance.

It brings up another point.  I don’t think we’re going to not hear about this for quite some time, so let me get Kevin’s take on this.  You had copied me on something you had written to somebody else, that nullification or nullifying the Affordable Care Act is not going to happen.  Do you mean that it is not going to be declared null and void in its entirety anywhere, or do you mean to say that it is beyond being declared null and void?  Clarify that for us.

Gutzman:  I mean I don’t know any way that a state can do what we’ve been describing in regards to marijuana laws, and that is to say we’re going to proceed as if this Affordable Care Act were unconstitutional and go ahead and do our own thing.  The Affordable Care Act is being enforced by the Internal Revenue Service, by various federal licensing requirements and so on.  There’s just no mechanism I can think of for a state to prevent that from happening.  How is the state going to keep you from being tagged in your income tax refund for not having purchased insurance according to the individual mandate?  I don’t see any way that a state can prevent the IRS from deducting the penalty from your insurance refund.  I just don’t think there’s any way that Obamacare can be thwarted as the Tenth Amendment Center has persuaded states to thwart some other federal policies.

Mike:  So as a practical matter then.

End Mike Church Show Transcript