Changing The Meaning Of The Institution

Interview with Dr. Kevin Gutzman

Mandeville, LA – Exclusive Transcript – “It sounds so simple, and it is simple in theory.  There are very few instances where it gets complicated to the point where you have to bring judges in to argue these things.  What I think on this is that the people that bring these cases ultimately, they know that they’re bringing their argument in front of a body that does not care very much about what you just said.”  Check out today’s transcript for the rest….

Begin Mike Church Show Transcript

Mike:  Back to the subject at hand here.  I was talking to Professor Gutzman.  I’m going to leave you on hold for just a second, Professor, because I want you to hear two exchanges, one between John Bursch, who is the attorney for the defendant, and Justice Anthony Kennedy, at the Supreme Court of the United States yesterday in the so-called gay marriage trial or hearing of the case or the oral argument phase.

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John Bursch: We’re talking about something that’s going to change the meaning of the institution over generations.  We have things like no-fault divorce where we’ve tweaked what marriage means. It had consequences over the long term that some people didn’t expect. I want you to think about two different belief systems. Ideas matter, Your Honors, and, and, you know, the out-of-wedlock birthrate –

Justice Anthony Kennedy: But that, that assumes that same-sex couples could not have a more noble purpose, and that’s the whole point. Same-sex couples say, “Of course we understand the nobility and the sacredness of marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”

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Mike:  What does dignity have to do with the Constitution?  Kevin, hang on.  You’ve got to hear this one.  This is an exchange between the same lawyer and Justice Antonin Scalia on the 14^th Amendment.

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Joseph Whalen: The 14^th Amendment does not require states with traditional marriage laws to recognize marriages from other states between two persons of the same sex.

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Justice Scalia: What about Article IV? I’m so glad to be able to quote a portion of the Constitution that actually seems to be relevant. “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Now, why doesn’t that apply?

Whalen: Your Honor, this court’s cases have made clear that the Court draws a distinction between judgments between states and the laws of each state. And the reason, in part, that the Court’s decisions have said that is that otherwise, each state would be able to essentially legislate for every other state.

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Mike:  That is a profound point to make.  We’ll bring Dr. Gutzman back in on this.  Kevin, it sounded to me like Scalia was baiting the lawyer into the argument and he already knew the answer.  Is that what you heard?

Kevin Gutzman:  Sure.  [unintelligible] The fact is there’s not a provision of the Constitution that says “Here’s what the policy on marriage has to be in each state,” [unintelligible], then the answer is a legal question because the 10^th Amendment says whatever powers aren’t delegated to the federal government by the Constitution are reserved to the states and the people.  In other words, where you don’t have a delegation of power over a question to the federal government in the Constitution, the 10^th Amendment means that that power is left to the states.  As I was saying before, it’s supposed to be for the states to decide this issue.  If my state of Connecticut wants to have gay marriage, it can do that.  If your state of Louisiana wants not to have gay marriage, it can do that.  It’s called the federal principle.

Mike:  It sounds so simple, and it is simple in theory.  There are very few instances where it gets complicated to the point where you have to bring judges in to argue these things.  What I think on this is that the people that bring these cases ultimately, they know that they’re bringing their argument in front of a body that does not care very much about what you just said.  Maybe Justice Thomas does, maybe Justice Alito does, and maybe sometimes Justice Scalia does, but for the most part the rest of them don’t really care about what the federal constitution says.  They don’t really care about what the intent of any amendment was.  They don’t really care about how any amendment was implemented or how the courts treated it or how the people that lived under it, what they believed the ratified intent to be.  Those concerns are just dismissed.  That was then and this is now.  This is one of your other arguments that you make in The Politically Incorrect Guide to the Constitution: Okay, then you don’t need a written constitution anymore.  That’s the reason why you write it down and enumerate powers, so this won’t happen.  Correct?

Gutzman:  Well, limiting the power of government is the only reason to have a written constitution.  A written constitution is not intended to do anything else.  Whereas, in the case of our federal government, all three branches have come to the conclusion that their powers are not in any way limited by this Constitution, you’re right, it’s not serving its purpose.  What alternative model do these people have in mind?  A few years back, I reviewed a really insipid book by Justice Breyer for The American Conservative magazine.  The title was something like Making Our Democracy Work or some inane thing like that.  Anyway, the point of his book, which you can find me reviewing at The American Conservative website, was: my job as a Supreme Court justice is to hand down decisions that make our democracy work.  What is making our democracy work?  Essentially it’s taking every opportunity to legislate the progressive view of every question.  Essentially these people – of course, this applies to Kagan and Ginsburg, and I would say Sotomayor, but I don’t think she’s bright enough really to understand these issues.

Mike:  [laughing]

Gutzman:  What they do essentially – just listen to her when they have oral arguments on the radio.  It’s painful.  Anyway, what they’ve decided to do is just act as if they were a super legislature.  The beauty of being a Supreme Court justice is that nobody can vote you out just because they vehemently disagree with you.  It doesn’t matter what share of the American people disagree with you.  It doesn’t matter how completely divorced from history your statements about the Constitution are.  It doesn’t matter how completely unrelated to Congress’s intention your gloss on a statute is.  It’s just an alternative form of government to the one that the U.S. Constitution was intended to establish, which was a decentralized, chiefly republican, highly-limited federal government, a federal system with very little power in the center.  Essentially the federal government was supposed to be involved in defense, relations with foreign countries, relations with the Indians, and coining money.  Those were the chief things it was intended to do.  Now it’s come to the point where, as I’ve said before – I knew when Lawrence v. Texas came out over a quarter-century ago, that eventually we were going to be where we are today with the Supreme Court proclaiming that you have a right to have a homosexual relationship and call it marriage and have your state be forced to call it a marriage, too.  Here we are and this is what we get.

Mike:  We only have a couple minutes left with Professor Gutzman.  You can get his book, James Madison and the Making of America, signed by Kevin and dated in the Founders Tradin’ Post at MikeChurch.com and other fine booksellers near you.  There’s another point to this that I think – I can tap into something else that you’ve recently written.  You reviewed a book, and I don’t recall the exact or precise title of it, but the book was about how the American presidency is becoming like the royal monarchy or the kingship.

Gutzman:  It’s called The Once and Future King.  It’s by Professor Frank Buckley of George Mason Law School.  That one, too, I reviewed in The American Conservative.

Mike:  The conclusion that Professor Buckley makes is that we basically have a soft version of the English king, although the observation that I would make is that the American president seems a lot more active than Queen Elizabeth is, and I suspect that King Charles will be.  My point was going to be, not only have we pretty much adopted the English model that we were supposed to despise so much back during the war for American independent, if you look at the Supreme Court body in the manner that you just described it – and I don’t disagree with you.  If you look at it in – if we term it properly, or if we use European terms, what we basically have is they are a ministry.  In this instance, they are the Ministry of Marriage.  Next week they’ll be the Ministry of Abortion.  The week after that they’ll be the Ministry of T-Shirts.  The week after that they’ll be the ministry of what kind of pornography you can have in nursery schools.  There’s no limit to what ministry they are.  Unlike the British, who today appoint ministers of all these various, ridiculous things and social issues, we use the Supreme Court – and Congress lets them get away with it for the most part – as a ministry of sorts.  Do you think that’s accurate?

Gutzman:  I like to think of it as the ultimate legislative branch, the ultimate legislative institution in American government.  The thing that’s really appalling about it is that essentially these people were never elected.  How do you become a Supreme Court justice?  You have to have at least, by tradition, a law degree, although, of course, the Constitution doesn’t say you have to have a law degree.  You have to have some kind of connection to a powerful politician.  Those are the qualifications for being on the Supreme Court.  Of course, we’ve also come to have, over time, various of the typical qualifications that people in the political system care about now.  We’re going to have a woman.  We’re going to have a Latina.  She’s got to be a wise Latina, self-described.  I never heard anybody else describe her that way, but that’s how she describes herself.  You’ve got to have somebody who’s a radical feminist litigator like Ruth Bader Ginsburg.

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Essentially it’s going to be somebody you know could ever be elected dog catcher, somebody who would never have a chance of becoming a senator if she had to go before the people of any state and say: Here is my platform.  Then they’re on there for life.  As we’ve been discussing, they have ultimate veto power over any law they decide they dislike.  They can and have in my lifetime and yours decreed that there will be statewide tax increases.  They’ve bused millions of kids because of their race.  They’ve abolished the death penalty.  They’ve said: No, we were wrong.  It’s actually constitutional that you have to go through years and years of ridiculous appeals

before you can have capital punishment.  Essentially it’s a case study in an unchecked legislative body, one that’s never responsible.  I think it’s an appalling system of government.

The worse part of it is the constant lying.  They’re going to give us lies about the Constitution requiring that the states recognize gay marriage.  As I’ve said before, my state adopted gay marriage.  That was constitutional.  Louisiana decided it didn’t want gay marriage and that was constitutional.  Both of these are prerogatives of the states under the 10^th Amendment.  What we’re going to have is this system in which every state is told: No, you must have this because the 14^th Amendment, which was written by a Congress whose members were all from states that made sodomy criminal, requires that homosexual relationship be called marriage.

Mike:  What I just heard you say partially is that Pocahontas is going to replace Darth Vader Ginsburg.

Gutzman:  I would doubt that.

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Mike:  He’s Professor Kevin Gutzman.  Kevin, that’s a really good analysis.  I think people are going to be interested in reading it.  As usual, your clarity and your succinct delivery of opinions on these matters will make great reading and a little bit of great listening.  I appreciate your time.  Thanks for suffering through the Kennedy clip, because I know that was tortuous.  As you were talking, I was going to play a Sotomayor clip, but after what you said, I thought: I think I’ll just hold off on Sotomayor.

Gutzman:  I really thank you for sparing me that.

End Mike Church Show Transcript