Mandeville, LA – Exclusive Transcript – To the Dude Maker Hotline, my friend and yours, Dr. Professor Kevin Gutzman, author of James Madison and the Making of America, author of Politically Incorrect Guide to the Constitution, and co-author of Who Killed the Constitution? on the Dude Maker Hotline on a Monday. Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: To the Dude Maker Hotline, my friend and yours, Dr. Professor Kevin Gutzman, author of James Madison and the Making of America, author of Politically Incorrect Guide to the Constitution, and co-author of Who Killed the Constitution? on the Dude Maker Hotline on a Monday. Hello, Kevin, how are you this morning?
Kevin Gutzman: Hi, Mike, very well, how are you?
Mike: I am very well, thank you very much. Last week while I was out in Scotland, the Supreme Court ruled on Proposition 8 from California and partially ruled or struck down a provision of DOMA, the Defense of Marriage Act. In Justice Kennedy’s latest tyranny, how far off the constitutional mark is the court on this one?
Gutzman: First of all, when it comes to Proposition 8, what happened there was just that the highest officials of the State of California decided not to appeal a negative decision of a court in California. The court said that private individuals didn’t have standing to appeal states that the AG and the government of California decided not to appeal. This is, of course, a technical issue. What it amounts to, if I leave a lawsuit and I decide not to appeal it, you can’t go appeal it on my behalf hoping that you’ll get a good precedent out of it. This really has nothing much to do with the definition of marriage. It has to do with the question of the responsibility of the government in California. Of course, Governor Brown and the most attractive attorney general in America, as President Obama nominated her, they are responsible for making this kind of decision. I don’t think that the court has any choice but to say that private individuals didn’t have standing to appeal there. That, to me, was not surprising at all.
On the other hand, on this question of DOMA, my understanding is that the courts invalidated one part of it, which was the part that defined marriage as between an individual man and woman for federal purposes, thereby invalidating for federal purposes homosexual marriages recognized by various states around the country. What this amounted to was the court saying that from now on, for federal purposes, it will be up to the states to define marriage within their own territory. In my mind, that was the correct decision. It seems to me that marriage is an area that is properly for the states to decide. If you don’t like the way that your State of Connecticut or State of Alabama or State of Idaho is defining marriage, the proper response is not to go to the federal government and say: For purposes of social security benefits, say that these marriages recognized by my state are invalid. The proper response is to go to your state legislature and have a different definition of marriage recognized there. I think, again, that was the correct decision. The court reached it on the basis of the Fifth Amendment equal protection notion, which was admitted by the court in 1954. Of course, that’s bogus. They should have said under the Tenth Amendment it’s for the states to define marriage…
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Mike: The Fifth Amendment 1954 case is inaccurate or was not accurate at the time. The power was reserved to the states. As you bring up, that is the proper course of events. What did this do then?
Gutzman: My understanding is that the effect is, in California, while they’d essentially been nullified by the omission of the attorney general and/or governor to appeal this negative decision, and on the other hand, throughout the country for purposes of various federal benefits, it is now going to be up to individual states to define marriage, just as it has been up to individual states to define marriage for their own internal purposes. My own understanding is that it should be up to state legislatures to define marriage within their own territories. Then the federal government should recognize whatever the states define as marriage, which is effectively what the court did by saying the DOMA national definition of marriage provision is invalid. What the court said essentially was, again, in Connecticut where I live, since gay marriage is recognized, federal statutes having to do with marriage will have to recognize as a marriage whatever marriage Connecticut has held to be valid. Similarly, if you live in another state, again Mississippi, Alabama, Nebraska, that has not recognized homosexual marriage, then you don’t have a homosexual marriage if you live in Nebraska and are “married” there in a homosexual marriage because your state hasn’t recognized that as a marriage. For federal purposes, you’re not married.
I think this is correct, although, again, this equal protection idea in the Fifth Amendment that was invented in Bolling v. Sharpe in 1954 is bogus. They should have relied on the Tenth Amendment, which they, of course, never do. They ended up with the right result. I think it’s an interesting question in California politics. What the attorney general and governor did amounts to omitting to obey their oath of office. Again, I think the court was right in both of these decisions, that private parties don’t have standing to appeal adverse decisions on behalf of the state government. And the DOMA national definition of marriage was invalid and should have been held invalid.
Mike: We had discussed this on a previous program. I don’t recall the exact clause that you and I discussed. My recollection is that we had previously said that the Congress was within its powers to — I’m trying to remember how the conversation went because it’s been a couple years since we discussed it. DOMA was not a congressional overreach. I guess what you’re saying is that the definition clause in DOMA was a congressional overreach and the court was within its Article III authority to say: No, you can’t do that.
Gutzman: No, actually they upheld the portion of DOMA that you and I discussed before. Maybe a better way to put it is the other portion of DOMA was not at issue in this case. DOMA also says that an individual state does not have to recognize homosexual marriages contracted in another state, but that each state can define for itself within its own territory what marriage is. For example, if a homosexual couple living in Louisiana decided Louisiana doesn’t recognize that we can marry but we can go to Connecticut and get married and then go back to Louisiana and have all the legal benefits of being married, DOMA says no. Louisiana doesn’t have to recognize that. That was not at issue in this case, but again I think that’s valid. Under the Tenth Amendment, it’s up to Louisiana to decide what marriage is in Louisiana. If that were at issue, the court, I would hope, would say that it’s still Louisiana’s province to define marriage in Louisiana.
Mike Church Show Transcript – Prof. Gutzman: Jeffersonian Decentralization Now Completely Absent from our System of Government
Of course, another thing that runs through all these gay rights cases is that Justice Kennedy is finding ways to further gay rights. You might end up seeing a national definition of marriage coming from the court. That would be even worse than having Congress trying to pass an unconstitutional, Tenth Amendment-violating national definition of marriage, but I wouldn’t put it past them. After all, Kennedy is the one who upheld Roe v. Wade and famously ruminated on the way that the New York Times was going to see his performance and what the people would think of him and how history would remember him and all this stuff that really has nothing to do with the oath of office of a federal judge. He’s kind of got in mind that he’s a legislator, and that’s what we don’t want. To this point, I think, these decisions were correct.
Mike: Professor Dr. Kevin Gutzman, author of James Madison and the Making of America is on the Dude Maker Hotline. I’m going to switch gears. I didn’t prep you for this, so if you haven’t researched it or are not ready to comment on it, I understand. The Senate passed what they call the latest round of immigration reform last week. Now it moves onto the House. Of course, what is contained in the Senate act, as was contained at least partially in the 1986 act, is the premise and idea that it is the sole and resolute responsibility of the federal government to supervise and regulate entry into any of the several states, whether they have an international border or not, and then to empower the border patrol to do this. I know from having read the entire report of 1800 when James Madison and John Taylor were dealing with the alien part of the Alien and Sedition Acts, that Jefferson went to great lengths to lay out in his other writings, and Taylor did in his defense of the nullification of the alien part of the Sedition Act, that there was a difference between alien friends and alien enemies. What has transpired since 1798, 1799 and 1800 that would strip the people of the several states of their ability, if they wanted to, to admit alien friends? Do you know?
Gutzman: Of course, one short answer to that is that the phenomenon Tom Woods and I described in Who Killed the Constitution? has come to pass, and that is we generally, instead of having a constitution, now we just have federal supremacy in all areas and that’s the operative system we live with today. The real problem here for anybody who wants to have any kind of rational immigration system is that people in the Democratic Party have realized that if you have unskilled, unlettered, unemployable in their home country immigrants in droves, those people are going to end up becoming overwhelmingly Democratic Party voters. Whatever enforcement provision there is in this statute or bill that’s pending now won’t be enforced.
I don’t think there’s any reason to think that any future Democratic president is going to enforce any measures that tend to slow the transmigration of a huge portion of the populations of Mexico and Guatemala, El Salvador, Honduras, Bolivia, Uruguay to the United States. That conversation that you and I just had, we saw that Governor Brown and the attorney general of California decided: We don’t like the statute, so we’re not going to support it in court. That, I think, is exactly how a future Democratic president will behave in relation to any enforcement provision that’s included in some immigration law that might be passed by Congress now and signed by President Obama.
It seems to me then the only way to obtain any kind of enforcement, any kind of actual border between the U.S. and the third world at the Rio Grande is to insist that the enforcement come first. Say to the Democrats: We know you want tens of millions of scofflaws and you’re scofflaws yourselves, so we’re going to insist the law be enforced before we give you this big bonus of 11 million more prospective Democratic voters. I don’t think the Republicans in Washington will do that. Probably what we’re going to end up with is another 10 percent of the population of Mexico moving here in the next 20 years.
Mike: So then it dilutes your culture, dilutes your traditions, dilutes what little remaining shreds of federalism there are, and it becomes more and more difficult to identify it seems on a daily basis. The answer to my query then — and I will continue to be the only person in all of North America that will discuss this in the Jeffersonian or Madisonian manner. The states, if they wanted to, like Arizona tried and still continues to try to say: We kind of have a little say so on alien friends coming into our country Arizona. We don’t want them here. We’ve erected all these laws to say you can’t come here, can’t vote, can’t get education, can’t get healthcare, can’t work, can’t do this, that and the other. We’ll continue to have either Congress or the Supreme Court come in and say: You guys can’t do that because you traded all of your rights to us because we’re going to protect your border for you and we’re going to pass these vainglorious 16,000-page-long bills that we’re ultimately not going to enforce, and we’re going to do it with impunity, because that’s what’s really happening.
Texas tries to do it, Arizona tries to do it, Louisiana has kind of done it, Alabama has done it, and a few other states have tried to assert their authority over what I would term as alien friends, because they’re not alien enemies yet. In each instance, if the Congress doesn’t act, then the courts act on behalf of Congress, then make everything legal and fair so that the state doesn’t have any choice. They have to educate, they have to feed, they have to medicate anyone that is in their midst. To me, that’s the crux of the issue. If you people really want to regain any kind of robust federalism, then importation of alien friends and what to do with them in your state seems to me to be one of, if not the most important thing. You can’t have any kind of a recognizable and longstanding culture or tradition if you keep diluting the numbers of people that live by it, can you? Of course, that’s a separate issue, isn’t it?
Mike Church Show Transcript – Supreme Court Continues To Disregard Constitution And Strengthen Federal Leviathan
Gutzman: Well, Thomas Jefferson, in private correspondence, said he didn’t want any substantial number of immigrants coming from Spain and Portugal because, he said, Spain and Portugal have political and religious systems that are top-down and they’re antithetical to our republican systems in America. If we have small numbers of people from Spain and Portugal, he said, we could assimilate them. If we allow too large a number of people to come to America from Spain and Portugal, their presence over time would change us. So, he said, we need to have control of this. We don’t want to have too many people from that background coming at the same time.
On the other hand, what we have now is a situation in which people like President Obama and Chuck Schumer have decided having a large influx of people from Mexico and other points south of Texas will change American society and that’s a good thing, because we’d like more voters whose chief aim in voting is to obtain benefits from the federal government. We’d like more people whose political tradition is that the government is mainly a big cookie jar that gives you money that came from somebody else. We want people whose religion is top-down. We just want different people.
Actually within the last couple years there came out records of a meeting among the Labor Party leadership in Britain about 15 years ago. They had a meeting at which they decided Margaret Thatcher’s majority here in England in particular is going to be permanent, but one thing we could do about that is to allow a lot of third-world immigration. If we had enough third-world immigration into Britain, we could make a Labor Party majority. In other words, the Labor Party decided: We don’t like the British people; let’s import a different one. To a large degree, it’s had the effect they’d hoped for, that is it’s moved the British society well to the left.
We don’t have a record that shows that the American Democratic Party leadership made such a decision, although we do know we were told during the Clinton administration that Clinton and Blair were amazingly sympathetic across a whole range of political issues. It seems to me that he people in the Democratic Party have decided it used to be that Orange County, California was the center of the Nixon and Reagan electoral college majorities. Let’s import 5 or 6 million Mexicans into California and see whether that doesn’t change things. Sure enough, nowadays we don’t think there’s ever going to be any prospect of any kind of conservative republican winning California in a presidential election again. This is not an accident.
There’s a principle and philosophy called Occam’s razor that says where you have a phenomenon, you go to the simplest explanation. You don’t choose some explanation that involves eight steps when there’s one obvious step. The obvious explanatory factor here is cui bono, who’s going to benefit? The answer is the Democratic Party. If you have an open border and you’re allowing every illiterate, unemployed Mexican to enter the United States and they instantly, magically join the Democratic Party, you might think the Democratic Party is the one insisting — Chuck Schumer said in the paper yesterday: We’re not going to have any kind of immigration reform that doesn’t involve pathway to citizenship. What he means is we’re not going to change that situation unless those people all get to become Democratic Party voters. Illegal immigrant equals Democratic Party voter. It seems to me obvious that that’s why this has happened. These people made the calculation and that’s what they’re counting on. The really depressing part is, of course, that it’s going to happen.
Founders TV – Interview with Kevin Gutzman: Scalia Not The Pillar of Conservatism He Is Thought To Be
Somebody needs to write a history of the Democratic Party starting with slavery and segregation and poll taxes and lynchings and affirmative action, abortion, and now illegal immigration. What do all these things have in common? What they have in common is that the Democratic Party stands for whatever will win an election. It can be something that people thought was completely immoral before, but if you can mobilize a majority in favor of it, then that’s what the Democratic Party stands for. Today, among other things, it stands for illegal immigration and more of it.
Mike: He’s Professor Dr. Kevin Gutzman. I thank you very much, my friend, for that. You can get his book James Madison and the Making of America in the Founders Tradin’ Post at my site autographed by Kevin. Of course, if you’re shopping at Amazon you can find it there, but it won’t be signed, or at great booksellers everywhere near you. Kevin, thank you very much for your time today, old friend. I appreciate it.
Gutzman: You’re welcome, Mike.
End Mike Church Show Transcript