Mandeville, LA – Exclusive Transcript – Today, for James Madison’s birthday, Professor Kevin Gutzman joinedus for a special interview. He discusses the incorporation of the Firstand Second Amendments, Santorum’s crusade to ban pornography, JamesMadison and how he dealt with religion and government, and much, muchmore! (Audio will be available soon.)
Begin Mike Church Show Transcript
Mike: I promised the audience, while we were talking about James Madison and the Making of America, and I forwarded you one email, which is pretty consistent with some of the comments that I get, that I would have the authority on these matters of incorporation, First Amendment and the Constitution, seeing as how Madison was there, basically authored the amendment, basically got it out of the House of Representatives, then took part in the ratification process. I was explaining to some that this is why you dont want incorporation, the Santorum example.
Even if you think, and many people do, that Rick Santorum is correct, [mocking] We dont want pornography around here in these parts, well, if you dont have the First Amendment incorporated, and if your state constitution permits your state legislature to regulate that sort of thing, then youre free to ban it, right
Kevin Gutzman: Thats exactly right. Before the 1960s, state and local governments commonly did ban such things. We had federal court decisions in the 60s and 70s, all the way I guess to the 90s that said states could not regulate pornography. They could not regulate sex toys, they could not ban this kind of behavior. In other words, what happened was the Madisonian model, in which wed make these decisions locally by having elections, was inverted.
What weve come to have instead is dictation to us, supposedly but not really on the basis of the Constitution, from nine politically well-connected lawyers meeting in secret in Washington, which we dignify with the name the Supreme Court. Really, theyre just nine political lawyers meeting in secret and deciding what policies they prefer. This is yet another illustration of the fact that Madisons system is superior to the one we currently live with.
Mike: Just to be clear, and Im trying to be as crystal clear as I can, I never said that what Santorum says is personally objectionable. What I said was, one, I certainly dont want the President of the United States to have that authority or that power. Number two, no federal agency, and certainly the Congress wouldnt have, and federal judges wouldnt either, wouldnt have this authority either unless it was because the First Amendment had been incorporated. This is just another reason why you should, with every fiber of your being, oppose what we call incorporation.
Kevin, we have a lot of new listeners out there. We have to walk them through this as gently as we can so theyll understand it and wont send me hate mail, or go on your Facebook page and send something to you, too. Incorporation, how did it come about and what does it mean? Then well get back to James Madison.
Gutzman: Well, of course, Im going to start the story with Madison. What happened was, during the ratification contest, people said that the Constitution shouldnt be ratified until it was first amended. The Federalists, starting in Massachusetts and succeeding states, said you can go ahead and ratify the Constitution as it is. We promise that in the first Congress, we will propose amendments to take into consideration the objections youre making.
So Madison took the lead in the first Congress because Baptists in his home county, Orange County, Virginia, which was the center of the Baptist, that is dissenting Evangelical Protestant movement at the time, insisted that they wanted an express provision saying there would not be a church establishment. In Virginia before the revolution, Baptists had been whipped, fined, jailed, otherwise abused by the established church, the Episcopal Church. The Baptists in Virginia were really concerned that there should be a statement in the federal Constitution that there be no federal church. Madison then, although he had argued that this was not necessary, agreed with his constituents that he would do this.
So in the first Congress — I tell this story in James Madison and the Making of America. In the first Congress, Madison proposed an amendment. What the amendment said was there would be no establishment of religion. There were still three states that had state churches. Massachusetts, New Hampshire, and the state Im in right now, Connecticut, still had state churches. When Madisons proposal came from the committee of the House of Representatives, congressmen from Massachusetts, Connecticut and New Hampshire objected. They said if you have a ban on establishment of religion, does that mean we have to disestablish our churches in our states?
Madison said, all right, what Ill do is well change the language. Instead of saying there will be no establishment of religion, well say Congress shall make no law respecting an establishment of religion. That will mean Congress can neither nor disestablish a religion. People understood that the whole suite of amendments that ended up being proposed by Congress was intended only as a limitation on Congress.
In fact, Madison had also proposed an amendment that said the states must respect the principles of freedom of speech, free exercise of religion and trial by jury. That was the one major proposal that Madison made in the first Congress that the Congress rejected. So Congress rejected Madisons attempt to make enforceable by federal courts, against the state governments, the free exercise of religion, freedom of speech and trial by jury. What was sent out to the states was a group of amendments that were going to be solely limitations on the federal government. This was on purpose. It wasnt an accident.
In fact, not only do we have this history of the dispute in the House of Representatives over what the form of these proposed amendments ought to be, but we also have the preamble to the Bill of Rights, which Tom Woods and I reprint in the appendix to our book Who Killed the Constitution?, which says the reason for these proposed amendments is that people are worried the federal government is going to have too much power, so were going further to limit the power of the federal government. Thats where we started.
What ended up happening was in the 20th Century, under the influence of the Progressive Movement, which was a movement in American political science that said the Constitution is old-fashioned, we shouldnt have separation between the executive and the legislature, we shouldnt have division of powers between the federal governments and the states, we ought to have more power in the president and almost all the power in the central government.
Federal judges began saying, in the 19teens, that particular elements of the Bill of Rights were enforceable by federal courts against the state governments. This was not a movement that was adopted in the constitutional way. That is there hadnt been an amendment to the Constitution that would make this true, that would give federal courts power
to enforce these principles against the states, but federal courts began doing it anyway.
So today were in a place in which virtually every significant provision of the Bill of Rights has been said by federal courts, despite the fact that the people never ratified this idea, has been said by federal courts to be enforceable by federal courts against the states. You can understand why the federal courts would do this, because its fun for them. If they say we can take all these principles that we have floating in our minds and say theyre in the federal Bill of Rights and say thats enforceable against the states, its a lot more fun than talking about the federal tax code behind closed doors in Washington. So theyve come to do this.
Nowadays people are taught in school that the Bill of Rights is your general guarantee that no government will take away your freedom of speech or press or religion or so on. Whats really happened here is that our government has been made less republican because now all the control over these important questions has been taken from us through local elections and given to people in Washington who were never elected, who are not accountable, who meet in secret, and whose opinions about most of these questions are contrary to those of the average American.
Your committee of nine Harvard and Yale Law School graduates, which is what we currently have on the Supreme Court, they meet in secret. They disagree with your average American about virtually everything to do about religion and everything to do with criminal law and everything to do with gun rights and all these questions. They dont agree with anybody, but they never had to. They werent elected and they dont have to be reelected. You cant remove them either. If you find their decisions outrageous, tough, citizen, live with it.
So thats how in recent years weve heard from federal courts that you have a right to burn a flag and a right to rape a child without getting the death penalty, kids are going to be allowed to protest in public school even if theyre disrupting school activity. There are general principles that have been established by these federal courts on the basis of what? Well, not on the basis of Madisons understanding of the Bill of Rights, and not on the basis of what the people ratified when they agreed to the Constitution and agreed with the Bill of Rights. The whole theory that this has been somehow assented to by the people is just bogus.
The name for this doctrine, this development Ive been talking about, is the incorporation doctrine. That comes from the idea that this applicability of the Bill of Rights, most of it, against the state governments was somehow incorporated into the due process clause of the 14th Amendment, which is, again, totally bogus. We dont have time to go through all that, but its completely unfounded in history.
Mike: There were a couple key parts to this conversation that I enjoy and should stand out to some of you people out there. Number one, if you want to incorporate the Second Amendment, youre doing what that Progressives want you to do. If you want to incorporate the First Amendment, youre doing what the Progressives want you to do. This is all about ending home rule. I cant remember the politician who used to call it home rule.
Its about ending home rule, the right of you and your local sphere, community, town, county, whatever the case may be, to actually govern yourself. You cant govern yourself if all your decisions are made for you in Washington, D.C., either by the Congress, some bureaucracy, or a bunch of judges in black robes. Thats the point. Thats what the Progressives wanted. They wanted to take that ability away from you and they could make one size fits all, turn us into a little cookie cutter utopia. Of course, were more like a dystopia now. Thats why you oppose incorporation. So when you hear me say incorporation, now you know the rest of the story.
End Mike Church Show Transcript