Gutzman/Church – Libertarians Don’t Care About Constitution, They Care About Outcomes

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Mandeville, LA – Exclusive Transcript –Kevin Gutzman: Again, my exercise over this is not that I really think it’s that important actually.  The bottom line is, what’s important is what this says about our system of government.  I think, and I’ve made this analogy on this show before — people may have thought I was being facetious but I really wasn’t.  I think in our system, the Supreme Court justices’ role that’s very similar to that of the generals in Egypt or the mullahs in Iran, ultimate authority in other dictatorships that have elections from time to time.. Check out today’s transcript for the rest….

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Begin Mike Church Show Transcript

Mike:  Dr. Gutzman, this is an old argument that you and I have had with some of our Libertarian friends, including the wonderful jurist and all-around great guy, Judge Napolitano.  Libertarians don’t care about the Constitution.  They don’t care about process.  They care about outcome.  That’s why Chapman says this, and that’s why others who call themselves Libertarians say this, because they have no need for the Constitution if it limits what they think is an expression of liberty, which I fail to see how this is a liberty.  That’s where we are here today.  There’s no force on earth, it seems, that can stop the juggernaut that is — what an oxymoron, right — a single female federal jurist is a juggernaut.  She is a, what’s the German word?  A blitzkrieg, a legal blitzkrieg, or zeitgeist, that’s what I was looking for.  This is a zeitgeist.  There’s nothing that can stop it.  Congress won’t stop them.

Want to hear more of Mike’s interviews with Dr. Kevin Gutzman? There are over 30 of them in the Transcript/Interview and Clip of The Day archives.

Congress has every authority right now to jump in and say: We’re going to have a committee hearing.  We’re going to write some rules for you federal judges.  We’re going to tell you that you can’t hear these cases.  You’re forbidden to hear these cases.  Problem solved.  You wrote a paper on this.  Your doctoral thesis was on this theme.  This is what, if Madison were alive today, or if the framers were alive today and had any deference or affinity for their work, the federal constitution, this is perhaps what they might counsel should be done.  Of course, no one is going to concoct that today because they haven’t studied enough to even know that they have this power, and if they do, they don’t feel like exercising it because we have to go bomb some country in the Middle East and we have to vote on that.  That’s where we’re at professor.

Kevin Gutzman:  My master’s thesis at the LBJ School, which is across the street from the law school where this judge and I went to law school, was indeed on federal judicial impeachment, which is one of the ways they can rein in the federal courts.  Of course, another one is by depriving them of jurisdiction over particular classes of cases.  If the federal Congress wanted to, they could immediately stop these things from happening by just passing a law, a simple one-sentence law that says: Federal courts will not have jurisdiction over cases involving state definitions of the word marriage.  That would be the end of it.

Mike:  Problem solved.

Gutzman:  Actually, people listening to this may think they can’t do that, but the federal congress has repeatedly passed statutes depriving the federal courts of specific classes of cases.  For example, in the immediate aftermath of 9/11 in 2001, they passed a law that deprived federal courts of jurisdiction over suits for habeas corpus raised by people who were being held at Guantanamo Bay.  All the way down to the present, if you’re being held at Guantanamo Bay, you cannot file a petition for writ of habeas corpus in federal court.  They’re not going to grant you a writ of habeas corpus, not because they wouldn’t want to.  We know from the Supreme Court’s decision in this area that they actually do want to, and they have done it, but since then the federal congress deprived them of jurisdiction.  Today, Congress could pass a law saying: No, Anthony Kennedy, you don’t get to do this.

Again, my exercise over this is not that I really think it’s that important actually.  The bottom line is, what’s important is what this says about our system of government.  I think, and I’ve made this analogy on this show before — people may have thought I was being facetious but I really wasn’t.  I think in our system, the Supreme Court justices’ role that’s very similar to that of the generals in Egypt or the mullahs in Iran, ultimate authority in other dictatorships that have elections from time to time.

End Mike Church Show Transcript