The Mike Church Show World HQ
The Mike Church Show World HQ

Harvard Lawyers Defense For Cruz Not Factual

great_facadeMandeville, LA – Exclusive Transcript“I wanted to get your take on and talk just a moment about your other favorite radio host who is on in the evening and who invented the Article V Amendment Convention process.  This is after he invented many other things after they were discussed here on this show, then they were discovered, and then he claimed that he invented them.”  Check out today’s transcript for the rest….want to listen to Segment  2 of the show?  Click here to listen.

Begin Mike Church Show Transcript

Mike:  I found the story and I read it.  Katyal, is that how you pronounce it, and Clement?

Kevin Gutzman:  I am not sure how to pronounce that.

Mike:  It’s Katyal and Clement, the two professors in the Harvard Law Review.  The first footnotes are two Supreme Court cases.  Those are easy to find.  I went and found the State of Wisconsin v. Pelican Ins. Co.  The case is not even about citizenship.  It doesn’t have anything to do with citizenship.  It has to do with –

Gutzman:  Actually, Mike, what’s interesting about that little, I wouldn’t call it an article, in the Harvard Law Review because it’s only four or five pages long, but what’s interesting about that little note is, if you follow everything they cite, you’ll notice that a lot of times the things they’re citing aren’t about this question, or when they are about this question, some of them don’t lead to the outcome they want.  Another thing I wanted to point out about this whole argument, before you called me I was on Twitter entering Jim Garrity’s daily newsletter.  Jim Garrity is the guy at National Review Online who has a daily newsletter, which usually is full of all kinds of humor.

I’d say I agree with his political positions more often than I do with most journalists, political positions, but he’s been on the kick that the people at National Review Online in general, Andrew McCarthy, for example, and other Cruz proponents, which is to say the way you’re supposed to understand the natural-born citizen requirement is as meaning citizen at birth.  We know this is true because some court said so in 1904.  Some court said so in 1888.  We have no contraindication from any Congress.  Most of these people would call themselves originalist except, for some reason, when it comes to talking about Ted Cruz’s eligibility.  Then they don’t make any reference to any materials that people who are originalists would actually point to.  Most people who consider themselves originalists mistakenly go around constantly quoting The Federalist Papers.  They’re wrong but they’re trying.

This whole question of Cruz has got “originalists” sounding like liberals, sounding like Justice Breyer.  How do we know what the natural-born citizen requirement means?  A lot of them have said: Well, we know it doesn’t mean what [??] said it meant because John McCain was eligible in 2008.  That has nothing to do with the Constitution’s ratification.

[private FP-Monthly|FP-Yearly|FP-Yearly-WLK|FP-Yearly-So76]

That has nothing to do with the Jeffersonian way of reading the Constitution that I just quoted you Jefferson describing.  It’s embarrassing.  As soon as they get this controversy behind themselves, I’m sure they’re going to be right back to saying we’re originalists.  Or as your favorite terrestrial radio guy is constantly saying, “we’re constitutionalists.”

Mike:  Sure they are.

Gutzman:  They’re not.  They’re just phonies.  That’s all you can say about it.

Mike:  It’s very frustrating to try and pursue the truth and then be told that you shouldn’t be pursuing the truth.  The insurance company in question just happened to have been headquartered in New Orleans.  Pelican Fire Insurance Company, the first footnote of Katyal and Clement is to this case of Wisconsin v. Pelican Ins. Co..  Just so you people know that I don’t take this stuff lightly.  I actually do go and read it.  I plummet to its depths.  I wrote an article last night and quoted it.  They didn’t even attempt to define citizenship.  All they did was refer to the miracle amendment, as you and I call it, to the 14th Amendment.  They just said: We’re given plenary power here – I think what you lawyers would call plenary power.  We’re given plenary power to hear this case because the 14th Amendment says in its first article something about citizenship.  They quote the 14th Amendment and that’s it.  You can word search the rest of the opinion for natural, natural-born, citizen.  Go ahead and try it.  You won’t find anything.  There’s nothing in there.  It’s all about fire insurance, about whether or not a claim has to be honored.  I’m reading this going: Do these guys just assume that everyone that’s a fan of Teddy and the Cruzers is just a rube that doesn’t really care about any of this stuff and is not going to check their footnotes?  I’m flabbergasted by all this.

I go seeking your advice yesterday.  I found the article in Blaxton as you quoted it yesterday.  I read it from start to finish.  It says pretty much what you and I concluded, which you will find out Thursday if you listen to The Constitution Hour with Professor Gutzman, debuting at noon Central here on Veritas Radio Network and Crusade Channel.  In exploring the question, I also found that – I don’t know whether or not you consider – do we consider St. George Tucker a founding father?

Gutzman:  I’d say no.  He wasn’t in the ratification convention.  He wasn’t in the Philadelphia Convention.  He wasn’t in the First Congress, which, of course, drafted the first ten amendments.  He wasn’t somebody who was in the Virginia Legislature ratifying the Bill of Rights.  No, I would say he was not a founding father.  He was in the Revolution.  He was a soldier in the Revolution.

kevin gutzman 2Mike:  He’s widely quoted, not widely.  He is referred to from time to time.  In any event, he was asked by someone or took it upon himself to explain each clause of the Constitution.  There’s a book, I think the Online Library of Liberty actually publishes it, of each of his explanations of the Constitution clause by clause.  He actually did explore the natural-born citizenship question.  I published it.  It’s in today’s Pile of Prep if you’d like to read it, not that St. George Tucker’s opinion holds sway over what the ratifiers thought natural-born citizen meant, but it’s pretty much the same.  There’s very little difference.

Then I proceeded to – these people that are defriending me and calling me a liberal traitor and all these other names.  I’ve got a guy on Twitter.  He’s sitting there with his arms folded just going, [mocking] “[sigh] You and Gutzman [sigh].”  Yeah, me and Kevin.  Pursuing the truth and actual originalist intent elicits a sigh now because we refuse to go along with the mob that wants to elect Ted Cruz who’s ineligible for the presidency.  Of course, the wisdom and the prudence that would prevent Cruz and Rubio is also the same wisdom and prudence that will prevent a future Obama as well, or someone else that may have dubious credentials and can be prevented from being elected.

The second qualification that the Tom Pinkertons of the world out there are telling me, and the Jim Garritys of the world, and the Andy McCarthys and the Mark Levins out there, that we ought to go and consult English common law.  When we do that – you don’t want to go and consult English common law, not at the time of ratification.  If you do, you’re going to come upon, as you said yesterday, Littleton upon Cook and Blaxton’s commentaries on English law.  If you read Blaxton, there is no question that can possibly remain in anyone’s mind as to the definition of natural-born citizen.

But now, Kevin, Rand Paul has now been eliminated from consideration in the Fox Business News debate, while two men who are not originally understood to be eligible for the presidency will be on the dais.  Does this matter?  Does it have impact?  If you think that Senator Paul and his nonintervention, his mild noninterventionism and the other things that he thinks we should get back to doing constitutionally, if you think he matters, I’d say there’s impact here, wouldn’t you?

Gutzman:  I think my understanding of the recent polling is you have four candidates who are in the double digits, and all the rest of them are within the margin of statistical error of having no support at all.  Rand Paul, the latest poll, people were saying: Rand Paul has risen to fifth in the polls.  Well, he’s got five percent now and he had four percent before.  Having five percent pushes him past the mighty Carly Fiorina juggernaut at 4.2 percent support.  When you have a 4.8 margin of error and you have a five, I think it’s time to hang it up.  It seems that a lot of guys have decided since we’ve already put in all this effort, we might as well just wait through the caucuses, see that we’re not actually getting any votes, and go home.

I did see somebody say, very interestingly, that since the latest polls show Rand Paul in Iowa, or the one recent poll showed Rand Paul in Iowa with two percent support, and he’s got over 1,000 people lined up to be precinct chairman, which would be about one percent of the precincts.  Either the polls are wrong, or half the people who support him have pledged to be precinct chairman.  It’s somewhat unlikely.  In any event, I think it’s pretty clear that Rand Paul is not going to be the nominee.  It’s an academic question whether he ought to be on the stage, I guess.

Mike:  Moving on to the second subject of discussion here – Professor Dr. Kevin Gutzman, who is the host of The Constitution Hour with Kevin Gutzman on Thursdays at noon.  All three of the previous episodes are available for download.  If you’re a Founders Pass member and part of the membership of the Veritas Radio Network, or if you previously were a member at, you would have access to all those downloads as well.

I wanted to get your take on and talk just a moment about your other favorite radio host who is on in the evening and who invented the Article V Amendment Convention process.  This is after he invented many other things after they were discussed here on this show, then they were discovered, and then he claimed that he invented them.  He has apparently influenced the, shall we say erstwhile conservative, Greg Abbott, who is the governor of one of the states you call home, Texas, into calling for an Article V Amendment Convention.  Abbott has proposed nine amendments that ought to be part of the amendment convention.

As I’m reading the nine amendments, I’m going: You don’t need that one because they already have that power.  You don’t need that one because Congress already has that power.  You don’t need that one because the states already have that power.  We have a call for an amendment, which is a wide open call, unlike the Compact for America, the one that you are a part of currently.  Guess what, Kevin?  Last night, guess who I got a 16-page-loing email from?

Gutzman:  Who?

Mike:  Phyllis Schlafly.  Yes, we must stop the madness of this Article V Amendment Convention because Congress will ultimately write the rules.  California and New York will take it over.  It’s the same argument that the Birchers have been making since the 1970s.  Schlafly was all over it.  Let’s just talk for a minute about the – you and I have long been proponents of some form of an Article V Amendment Convention to get a couple amendments that could straighten some of this mess out, going all the way back to 2009, and then a meeting that we had at the XM satellite radio studios in April of 2010.  Now, this is four years before Levin invented the Article V Amendment Convention.  I just want to get the timeline straight.

One of the amendments that Abbott is proposing, I’ll just read them to the audience:


Prohibit Congress from regulating activity that occurs wholly within one State.

Require Congress to balance its budget. [Mike: Of course, you already have this with the Compact for America.]

Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law. [Mike: As you explained this to me one time, there’s a Supreme Court case from around the turn of the last century that permits this, not necessarily the Constitution as ratified as you and I talked about.]

Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law. [Mike: See prior statement.]

Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.

[end reading]

Mike:  This is an interesting one.  At our Article V Amendment Convention meeting that we had in April 2010, I seem to recall this coming up.  I think this is from Professor Randy Barnett.  He may be the first one to have suggested this.  You made the observation: Why does it have to be two-thirds?  Everything else is majority.  Why not just majority?


Harvard_Law_Review_(June_2011_cover)Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law. [Mike: Again, Congress already has this power to enact this one. If they want to, tomorrow morning they could do this.]

Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution. [Mike: Either there are enumerated powers or there’s not. If there are enumerated powers as ratified, again, this doesn’t apply.]

Give state officials the power to sue in federal court when federal officials overstep their bounds. [Mike: I believe this is another one that you have a similar version of or similar advice on.]

Allow a two-thirds majority of the States to override a federal law or regulation.

[end reading]

Mike:  What do you see positive and negative about Abbott’s call for the convention?

Gutzman:  I like the idea that he’s in general in favor of having an amendment convention.  That’s not a bad thing.  I like the fact that these proposals he’s floating are all about righting the bad course that the federal system has been on since the revolution of 1937, which has been one of constant concentration of power in Washington, DC, to the point that now the wealthiest counties in the country are all right around Washington, DC.  Essentially power and wealth always go together.  As the federal government has come to dominate more of the economy and more of people’s private lives, there have come to be more lobbyists and other government-related concerns in the area around DC.  I like that.

However, I wish that he had simply endorsed one of the already extant efforts.  We have convention of the states, which, as you say, Levin has had his road to Damascus moment about and put his own name on after calling you names for years for being in favor of essentially the same thing.  We also have Compact for America, which four states have adopted the legislation to join.  I wish Abbott had just said: I’m going to call on the legislature of Texas to join both of these efforts.  There’s no reason why the Texas legislature couldn’t join the Compact for America tomorrow.  The governor could sign the legislation Thursday.  There’s no reason why they couldn’t take the lead in advocating that this stuff be done.

As you said, though, I would prefer even stronger measures such as giving smaller share of state legislature’s power to check what the federal government is doing.  Two-thirds seems like far too much, far too high a requirement.  On the other hand, this is all about getting this thing started, as far as I’m concerned.  The more people talk about it, the more they’re going to see it’s a good idea.  Virtually everybody in America agrees that the federal government does things it shouldn’t be doing, it’s wasteful and a lot of what goes on in Washington is counterproductive, and so on.  On balance, I think his announcement is positive.


Mike:  As I said, I applaud the endorsement of and the promotion of Article V as a solution or as a path to solutions.  When you’re spending $3.9 trillion per year and you have Air Force and Army bases all over the planet, when you have television commercials for the Navy that’s a global force for good – it’s a Navy commercials, but you have men apparently finding terrorists high atop Mt. Kilimanjaro or wherever they were.  I think we might be spending too much money.  $3.9 trillion would necessitate to me, or would seem to me that there are multiple things that need to be addressed.

The Compact for America and the balanced budget, or just to go after the budgeting part of it, seems to me just to be the most logical place to start.  To me the amazing thing about the Compact for America is, I don’t know why anyone would be against it.  It’s not as though it would absolutely and beyond reproach cordon off federal spending in excess of what is taken in in any particular year.

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imacThe states can always say: We kind of liked you guys borrowing all this money and spending it on our behalf.  We can vote on it, right?

Gutzman:  Sure.  The structure of the system decides what the outcomes of the system will be.  As long as we have this current situation in which essentially people in government realize they can borrow money and give it to their constituents, and the constituents think they’re getting free money because it’s posterity that will have to pay for it, we can expect to continue having ballooning expenditures.  I think that’s what’s going on.  Some way or another, basically every one of those proposals from Governor Abbott like the proposal from Compact for America, like what’s going on in the convention of the states.  All of these address that central problem.  Good, I say, good.

Mike:  All well and fine.  Finally, before you go, is there a letter of Jefferson that he wrote that we can find where he explains his, where he gives the explanation of why we go and look at the ratifier and the ratified intent of the consent of the governed for what any particular clause of the Constitution means?

Gutzman:  The quotation I was reading you earlier is on pg. 130 of Virginia’s American Revolution.  Thomas Jefferson to Elbridge Gerry, January 26, 1799.  You should be able to go to Founders Online, which is at the National Archives website.  Basically just Google “Founders Online National Archives.”  It’ll take you to the homepage of Founders Online service at the National Archives.  Basically what they’ve done is they’ve taken all the writings of Jefferson, Madison, Washington, Hamilton, John Adams, James Monroe, made them readily searchable online.  You can just go there and click on Author: Thomas Jefferson, Recipient: Elbridge Gerry.  Then it’ll give you a list of all the dates of letters from Jefferson to Gerry.  You just click on the one for January 26, 1799 and it’ll give you the full text.

End Mike Church Show Transcript

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