Founders Warned Us About Out-Of-Control Federal Judiciary

Interview with Dr. Kevin Gutzman – Judiciary System

Mandeville, LA – Exclusive Transcript – “This idea that lower-level federal court judges have no duty other than to enforce whatever the Supreme Court says, of course, reflects a long-standing argument among judges in the United States about what the relationship of other judges to the Supreme Court justices is.  The most famous case involving this question is the 1816 case of Martin v. Hunter’s Lessee.”  Check out today’s transcript for the rest….

Begin Mike Church Show Transcript

Mike:  Did you get a chance to read Justice Grenade’s preposterous ruling, which I deemed as she didn’t even bother to do her homework?  She just cut and pasted from prior rulings and then cobbled it together.  What did you think of it?

Kevin Gutzman:  Well, I think she’s a very interesting person, first of all.  She is a graduate of my law school.  She was nominated to her current position by the two Republican senators from Alabama.  Her father was a circuit court judge in the Fifth Circuit back in the ‘50s and ‘60s who was involved in forcing the Warren Court’s rulings about race in the South.  Generally in those days what happened was there was a big divide in the South over, of course, segregation.  There was also argument in the country about the rulings that were being handed down by the Warren Court.  Conservatives were saying: Yes, segregation is unconstitutional, but the Warren Court’s behavior is also unconstitutional.  Judge Grenade’s father was one of four permanent judges on the Fifth Circuit Court of Appeals who went ahead and enforced all of them anyway.

One interesting thing you can find online is a picture of Judge Grenade when she was being sworn in.  She was sworn in as a judge in the southern district of Alabama by Judge Brevard Hand.  Hand is famous for having, in the case of Wallace v. Jaffree in 1985, stood up for the Constitution despite the previous rulings of the U.S. Supreme Court in the area of separation of church and state.  He wrote a long opinion in the case of Wallace v. Jaffree saying the Supreme Court had been wrong in its cases saying that school prayer was unconstitutional, that Justice Black’s reliance on Thomas Jefferson’s private musings about separation of church and state was mistaken because Jefferson had essentially nothing to do with framing the First Amendment, nothing to do with establishing the federal constitution’s position on the relationship between church and state and so on.

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Hand did this even though, as a district court judge, some people would say, most lawyers would say his task was not actually to enforce the Constitution but to enforce the precedents of the Supreme Court.  Ultimately when the case got to the Supreme Court, that’s more or less what the court said: Look, dude, we don’t care about your history lesson.  We don’t care about these questions.  We’ve already decided that our position is you can’t have a moment of silence in the morning because kids might get the idea that you’re telling them this is a good time to pray and we’re not going to allow that.  In dissent, Justice Rehnquist basically bought Hand’s argument and spelled it out in even more detail, that essentially the Court had been wrong about this wall of separation metaphor that Justice Black had first instantiated into constitutional law in 1947.  Well, there Judge Hand was swearing in Judge Grenade back when she took the oath of office in her current position.

This idea that lower-level federal court judges have no duty other than to enforce whatever the Supreme Court says, of course, reflects a long-standing argument among judges in the United States about what the relationship of other judges to the Supreme Court justices is.  The most famous case involving this question is the 1816 case of Martin v. Hunter’s Lessee.  In that case, the top court in Virginia said: We think the Constitution means that we are separate court system, we state court judges in Virginia.  Although you’ve told us, Supreme Court, to hand you our records and change our ruling so that you can review our ruling, we’re not going to do it because we don’t think you have any jurisdiction over us.  We think Section 25 of the Judiciary Act of 1789, which purported to give the Supreme Court appellate jurisdiction over state supreme courts is unconstitutional.  In that case, ultimately the Supreme Court said: You have to give us your papers.  You have to let us review your rulings.  The Virginia Court of Appeals, headed at the time by Judge Spencer Roane, went ahead and ignored that anyway.  So this issue here in Alabama really is an old issue.  That’s the point I’m getting at.

Mike:  So Roane told the Supreme Court to go pound sand, he wasn’t going to do it?

Gutzman:  Yeah, he did, and that’s exactly what Chief Justice Moore of Alabama is telling lower court Alabama state judges to do now.  He’s telling them: Look, our duty is to uphold the Constitution, and if what the Supreme Court says is not constitutional, then we’re supposed to uphold the Constitution.  So he said: I’m barring lower-level Alabama courts from enforcing this new Supreme Court policy, having nothing to do with the Constitution, of granting marriage licenses to homosexuals who want to say they’re married.

Of course, in the media in general, we’ve seen a lot of people saying: This guy Moore is a yahoo.  He doesn’t know anything about what he’s talking about.  I’m not personally taking a position in what I’m telling you on this question of whether homosexuals should be granted licenses to marry.  My point is, the position he’s taking is Judge Roane’s position when Roane sent a series of articles he had written about these questions to Thomas Jefferson.  Jefferson wrote back to him and said basically: You go, baby, yeah!  Jefferson’s position was essentially the same as Roane’s, and that was that the federal courts were interfering in Virginia’s legal system to a far greater degree than they should be.  Later on, Roane also wrote a series of opinions about Chief Justice Marshall’s opinion in the case of McCulloch v. Maryland, saying that it basically said Congress had unlimited power and that wasn’t what the Constitution meant.  Jefferson wrote back and said: Yeah, keep it up.

Mike:  Roane was writing under the penname Algernon Sidney at the time, right?

Gutzman:  Yeah, there you go.  The point is, although the numbskulls in the American media nowadays are taught that whatever the Supreme Court says is what the Constitution means, in other words the Supreme Court is perfectly entitled to remake law wholesale in a way that no legislature in America can do, and even President Obama wouldn’t claim to have power to do.  The Supreme Court can say up is down, left is right, little kids have to ride the bus for thousands of hours in a lifetime to achieve racial balance, everybody in Missouri has to pay a tax increase under a judicial edict.  Or in this case, homosexuals are married, and being married includes having a homosexual union.

Again, my own position on this question is that this is a matter that the Tenth Amendment leaves up to the states.  Before the federal courts starting putting their noses into it, the states in the Northeast, including my state of Connecticut, had decided in the constitutional way that they’re going to have this policy of letting homosexuals get married.  On the other hand, other states like Alabama had decided not to.  Liberals just can’t stand — and this includes people on the Supreme Court, Anthony Kennedy and the four other liberals — they just can’t stand the idea that different states are going to have different policies, which, of course, is called federalism.  That’s the way the Constitution actually is intended to work.  That’s what Roane and Jefferson were about when they were commiserating over John Marshall’s behavior.  They just can’t stand the idea that Alabama wouldn’t allow gay marriage and Connecticut would.  For them, this is some kind of problem.  They have to invent what everybody knows is a perfectly spurious argument, that the Fourteenth Amendment’s equal protection clause means that not only are monogamous, heterosexual adult unions marriages, but so is a homosexual union.  Again, Connecticut had it.  Connecticut was entitled to say that homosexual unions are going to be recognized as marriages within the State of Connecticut.  On the other hand, Alabama was entitled to say that they weren’t.  This idea that what Moore is doing is some kind of ridiculous thing with no precedent is just completely ignorant of the argument going back all the way to the beginning.

One more point.  When the Constitution was being considered for ratification, a lot of people in Virginia and New York and other places said: This federal court system is going to be too powerful.  We’re going to have these irresponsible people, in the sense they don’t have to answer to voters.  We’re afraid what they’re going to do.  James Madison in Virginia said: Well, okay, that’s a reasonable complaint.  We’ll try having a federal government without any lower-level federal courts at first.  We’ll just have a Supreme Court and state courts.  Of course, as soon as Congress met, they didn’t do that.  They immediately created lower-level federal courts and gave the Supreme Court appellate jurisdiction so that the system looks exactly the opposite of the way Madison promised it would.  Here we have the latest fruit of it — that was an unintentional pun.  We have the latest example here of the fact that our federal courts answer to nobody and they do things that people, given a chance to vote in virtually all of the country, don’t approve of.  I feel like Jefferson here because this just yanks my chain in a way that very few other things that go on in our government do.

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Yesterday, actually, I saw an editorial by the Chicago newspaper columnist Steve Chapman.  He was saying: Well, look, Moore, your argument that Article I, Section 8 doesn’t give control over marriage to Congress or the federal government, that argument is long since out of the barn.  The idea that those are the only powers of the federal government, that ship sailed a long time ago.  It’s a whole armada now.  It’s a whole fleet.  The funny thing about that is, of course, that Chapman is a Libertarian.  He’s taking this position because he favors gay marriage.  Okay, dude, but when you make the argument that way, what you’re saying is you agree that everything the federal government does is constitutional.  If you’re going to base your claim that Moore is mistaken on the idea that there’s a lot of precedent for the federal government acting this way, I could say the same thing for ethanol subsidies in the Export-Import Bank and a space bus and No Child Left Behind —

Mike:  Tummy tucks.

Gutzman:  Right, everything that goes on.  Obamacare, right?  You’ve just given the left wing all they need.  Well, there’s a precedent for it.  Sure, it goes back to Wickard v. Filburn.  So here we are, dude.  You have unlimited government.  Congratulations.  You have gay marriage along with $4 trillion a year in federal spending.

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Mike:  Professor Kevin Gutzman is on the Dude Maker Hotline with us.  I have three points.  Number one, in the opening scene of my movie, which you were a great part of, Spirit of ’76, there’s a conversation going on between four gentlemen, the Richmond Junto.  It’s Thomas Ritchie, John Taylor of Caroline County, William Brockenbrough, another jurist, and Spencer Roane.  I took the text of what they are saying in that scene there — of course, I had to fictionalize or make it conversational.  I took that text from Taylor’s writing on the subject and directly from the Algernon Sidney columns.  If you want to see this dramatized out, what Kevin’s talking about, it’s in the opening scene.  If you have a copy of Spirit of ’76, pop it in the DVD player and watch that opening scene.  That is Spencer Roane’s argument about what Justice Marshall had just done in McCulloch v. Maryland.

Number two, the State of Alabama — we looked this up this morning — has 4.8 million citizens.  Every time they have had this question before them since 2003, they have voted in super majorities — whether at a ballot box or in their legislature — meaning two-thirds plus, that they do not want homosexuals marrying in their state and they’re not going to grant licenses or approve of it.  So 4.8 million people, again, undone by one federal jurist.

End Mike Church Show Transcript