Interview with Dr. Kevin Gutzman on ObamaCare, Federal Courts, and Nullification

Mandeville, LA – Exclusive Transcript – The Constitution was barely ratified in Virginia, New York, New Hampshire, Rhode Island and North Carolina.  It was only ratified on the basis that Congress would have very few powers, “Here they are listed and in case you don’t trust us, we’ll promise to adopt an amendment in the first Congress reiterating this point,” which is, of course, the Tenth Amendment.  That was the main argument that the federalists made in the ratification discussions, that Congress would only have these few powers.  Again, if all you knew about the Constitution were constitutional law, that is if you learned what you know about it just by going to law school or going to college and taking a course in opinions of dead judges, you’d have no idea of any of what I just said.  You’d have no idea that Congress’ powers were supposed to be few and enumerated. Check out more of Dr. Gutzman’s interview right here…

Begin Mike Church Show Transcript

Mike:  I think my description of how you form a state and that you grant it powers because people are sovereign and they reserve the right to take them back was correct.

Kevin Gutzman:  Well, that’s certainly what people were told when they were ratifying the federal Constitution, yes.

Mike:  So now we are possessed and populated with people like Richard who just called.  I guess he was sincere.  I don’t know his motivations.  They have been told and have swallowed this pill whole cloth now, swallowed this entire bottle of pills, that the only recourse that is left now is to elect Mitt Romney.  I keep hearing it over and over.  The guy just said it.  [mocking] “We won’t have any recourse.  The Supreme Courts ruled.”  So what?  Like Andrew Jackson said, “Justice Marshall has made his ruling, now let him enforce it.”

Gutzman:  Well, the problem is, of course, and I’ve been hearing people say things about nullification and so on.  I’m not sure exactly how you could nullify the individual mandate.  It’s going to be enforced by the Internal Revenue Service.  Of course, the Internal Revenue Service’s decrees are enforced by the U.S. attorneys all over the United States.  I don’t know exactly how a state could intercede between the individual taxpayer and the Internal Revenue Service.  I actually think that’s impracticable.  It seems to me then that the only thing you can do is vote out the people who supported the ObamaCare act and vote in people who oppose it, in the short run.

Of course, there’s also the possibility of amending the Constitution to make clear what’s already clear.  The problem we have, and you and I have discussed this many times, is that it’s not unclear that the Constitution was supposed to give the Congress only enumerated powers.  What’s happened is people who are in the system, whether you’re talking about professors at law schools or federal judges or whomever have decided they’re going to behave as if the Constitution had not been intended to give the federal government enumerated powers.  That’s why we had a lot of language from Chief Justice Roberts about Alexander Hamilton’s version of the Necessary and Proper Clause, which, again, as you and I have discussed before, it was completely opposite.

Mike:  It’s the “Good and Plenty” Clause now.

Gutzman:  Yeah.  It’s completely opposite what the people were told they were getting when they were agreeing to live under the Constitution.  It’s painful.  Basically I think we have a longstanding pattern of usurpation.  It leaves us in a situation in which we don’t really have a constitutional government.  We really have something different from what anybody ever agreed to live under.

Mike:  So the question would then be, to right-minded people, why do you live under it?  Why should you continue to live under it?  I just played a clip from my movie Road to Independence.  You were the historical consultant on it.  I was really enjoying John Adams’ speech on July 1st debating John Dickinson.  He didn’t even go to the trouble of laying out the long train of abuses as Jefferson did in the actual declaration.  Adams was just saying, [mocking] “Why do we trust these people anymore?  They’re 1,000 miles away.  They don’t have anybody here that’s near us.  Nobody that works inside that government are friends or family members of ours that we know, love and trust.  We can’t confide in these people.  These royal people have betrayed us.  They’ve sent all sorts of information across the pond and what have you.  We have soldiers now on our shores.”  Adams was saying if you sit here and keep whining about it and just saying you wish it would stop instead of actually acting upon it, then you’re going to continue to get a lot more of what you got.  They weren’t living near what we think they were living with either, are we, professor of history?

Gutzman:  No.  Actually, it’s very common for students to tell me that King George was a terrible tyrant.  He was a tyrant in the sense of the original meaning of the Greek word, tyrannos, which meant somebody who ruled outside the constitution.  The tyranny outside the Constitution that George was inflicting on North American colonists was far less than what’s imposed on us outside the Constitution now.  For example, in the 1750’s, there was a dispute between Virginia and the mother country over a pistole fee.  In other words, if you were going to get a 50-acre grant of land, whether you should have to pay two gold coins.  The Virginians said we shouldn’t have to pay anything.  Having to pay anything for 50 acres is tyranny.

Nowadays, of course, we anticipate that we’ll see a hefty deduction for the Internal Revenue Service’s purposes from every single check we receive and we don’t ever complain about it.  It’s far weightier than what was inflicted by George and his minions.  That was George II in the 1750’s.  People now are willing  to put up with far, far more than was found intolerable in the 1760’s and ‘70s be North American colonists.  I don’t understand why that is.  Certainly most of our fellow citizens seem perfectly willing to say, [mocking] “Well, we have a Supreme Court and Roberts is telling us this is what it means, so we just have to live with it.”

Mike:  Yeah, and if Roberts says it, then let’s provide all sorts of — Professor Kevin Gutzman is on the line with us, his latest book James Madison and the Making of America.  Of course, the latest refrain, Kevin, is, [mocking] “Wow, what an amazing, genius conservative this guy is.  He has hamstrung future liberal Congresses.  They won’t be able to pass anything like ObamaCare and ram it down our throats now, thanks to Roberts and his judicial activism.”  I just marvel at the intellectual gymnastics that are requisite in making Roberts out to be the great hero of the modern court.  Have you read this and you would say what to those that are saying it?

Gutzman:  Well, I have seen a lot of people saying it.  I, of course, predictably perhaps, am not persuaded.  There was actually one hopeful part of the decision, and that was where the court, by a vote of 7-2, said that the portion of the law that was going to penalize states for not expanding Medicare was unconstitutional, that it couldn’t be done in this way.  You had seven of the justices saying no, that part of ObamaCare is unconstitutional.  I think probably that’s the most significant part of the law.  It was going to make millions and millions of people new recipients of Medicare and now they’re not going to be.  Essentially, in the end, ObamaCare is going to expand medical coverage to very few people, even though we’re going to have this tax provision and the individual mandate and all that.  That’s probably going to end up being a penalty that people are going to have to pay because most people in that category aren’t going to be able to afford health insurance.

On the other hand, as far as what Roberts did in voting with the liberals, the taxing power has been said to be essentially unlimited in the sense that the Congress could impose more or less whatever kind of taxes it wanted to.  In fact, most contemporary scholars would say that the Sixteenth Amendment wasn’t necessary because nowadays they would probably read the Taxing Clause as giving Congress power to impose an income tax, which is pretty interesting.  The thing about it is, of course, this was not a free-floating taxing power to tax for any purpose Congress wanted to tax for.  It was a taxing power to tax in any way it wanted.  For what reason?  To fund constitutional statutes under the enumeration of powers in Article I, Section 8.  You can tax in any way you wanted, but all you could use the money for was to fund things that were enumerated in Article I, Section 8.  That means that Roberts is wrong in saying that this is constitutional because clearly taxing people to force them to buy medical insurance was not one of the powers granted in Article I, Section 8.

Mike:  It’s interesting you mentioned the taxing power and that they didn’t need the Sixteenth Amendment.  Congress can just make it up now or they can just assume it because we’ve had all these years of precedents.  Then the Roberts Court comes along and basically says you can directly tax anything.  I have here in my hand “An argument respecting the constitutionality of the carriage tax; which subject was discussed at Richmond, in Virginia, in May, 1795. By John Taylor.”  Of course, this is totally irrelevant today because Mitt Romney hadn’t been born yet.

Gutzman:  Well, the world did begin when he was born.

Mike:  This is totally irrelevant today because Bill Clinton hadn’t been born yet.  And this is totally irrelevant today because Earl Warren hadn’t been born yet.  I digress.  Taylor said that:

[reading]

No Capitation, or other direct Tax, shall be laid, unless in proportion to the Census or Enumeration.  The spirit of justice and equity breathes through every word of this inhibition.  It is the most important stipulation of the whole compact.  It is the strongest band of the union, he wrote.  Words more comprehensive than other direct tax could not have been formed by our language, tax: the genus including all government impositions, expounded by the accurate Mr. Johnson to mean an impost, a tribute, an excise.  Hence, it is impossible to maintain that a direct duty or a direct excise does not fall within the express words of the inhibition.  As to the intention of the Constitution, it will be shown throughout the argument that such a doctrine would entirely undermine the design of the restriction.  It will appear to be an evasion, which would leave Congress unrestrained upon the subject of taxation, in violation of the plainest words.

[end reading]

Mike:  Was Taylor correct?

Gutzman:  Well, he was correct.  When I was saying earlier that scholars today generally think the Taxing Clause would empower Congress to adopt an income tax even without the Sixteenth Amendment, I wasn’t saying that I agree with that reading.  My point was that Roberts’ holding was consistent with the general understanding of constitutional law you get from people other than Church and Gutzman and a very few others.  The reason is, as I explained in Politically Incorrect Guide to the Constitution, most lawyers are educated about the Constitution not by actually studying the Constitution but by reading a large body of court precedents.  Over time, we’ve had people on federal courts decide that essentially the federal government can do more or less anything it wants, and that includes in the area of taxation.

Taylor was exactly right that the rest of the Constitution’s careful delegation of powers of Congress would have been surplus, I think was the word you had him using, if the point was that the very introduction to Article I, Section 8 gave Congress all the powers in the world.  Madison actually responded to another classic early Supreme Court decision, McCulloch v. Maryland in which John Marshall essentially said Congress could do anything it wanted to under the Necessary and Proper Clause by saying if the people had known the Necessary and Proper Clause would be read this way, they would never have ratified the Constitution.  I show in James Madison and the Making of America that that’s exactly true.

The Constitution was barely ratified in Virginia, New York, New Hampshire, Rhode Island and North Carolina.  It was only ratified on the basis that Congress would have very few powers, [mocking] “Here they are listed and in case you don’t trust us, we’ll promise to adopt an amendment in the first Congress reiterating this point,” which is, of course, the Tenth Amendment.  That was the main argument that the federalists made in the ratification discussions, that Congress would only have these few powers.  Again, if all you knew about the Constitution were constitutional law, that is if you learned what you know about it just by going to law school or going to college and taking a course in opinions of dead judges, you’d have no idea of any of what I just said.  You’d have no idea that Congress’ powers were supposed to be few and enumerated.

Mike:  To the charge, here with Professor Kevin Gutzman, James Madison and the Making of America.  I have precisely one autographed copy of your book left.  Time to reorder.  On this subject, there’s nothing we can do about this and you kind of pooh-poohed the idea of nullification, saying the IRS is going to interpose and collect the taxes.

Gutzman:  I wasn’t pooh-poohing it.  I was asking how it would work.  People keep saying to me, “It’s time for nullification.”  I ask, “How are you going to do that” and they have no answer.

Mike:  I have an answer.  I have a better suggestion.  One, the 26 states that were party to the lawsuit and the 13 that have ballot initiatives that have basically outlawed this in their state, it’s time for them to conjure up a 1773 version of Committees of Correspondence and figure out how they can work together, and you have suggested this in the past yourself, how they can work together to present a unified front on this.

What they ought to do while they’re doing that is resolve that just in case we don’t get our way here, we’re going to get the necessary 34 states together, on paper, and we’re going to call an Article V convention and we’re going to propose an amendment and strike this thing down and make sure, until the end of time, unless you get another amendment, that it can’t be done under the aegis of this document.  Article V, as you and I have advocated for four years now, and you probably advocated it longer than that, Article V of the Constitution provides a way out of this, too.  You don’t need Congress to sign off on it.  As a matter of fact, they have to sign off on it if 34 states demand it.  Correct?

Gutzman:  I agree with that, but that’s not nullification.

Mike:  No, I know that.  What I’m saying is, while they’re working on their nullification, they can also be agreeing that they’re going to call a federal convention.  Didn’t a call for an Article V convention overturn prohibition?

Gutzman:  Yes.  No, actually the amendments originated in Congress, not in a convention, although it’s true, states were calling for a convention.

Mike:  So that’s my point.  There are other ways out other than just electing federal Republicans.

Gutzman:  If that’s your way out, good luck to you.  Electing Republicans has not often been a cure for a constitutional problem.

End Mike Church Show Transcript