Kevin Gutzman

Mandeville, LA – Exclusive Transcript – I guess I reacquainted myself with John Marshall’s opinion in Barron v. Baltimore.  Doctor, professor, please explain how it is that all these jurists that rely on what they like to call precedent, how is it that they’ve ignored the precedent that Justice Marshall set out in Barron v. Baltimore where he said: I can’t find anything in the federal Bill of Rights that can make me apply it to the states.  Check out today’s transcript for the rest….

Begin Mike Church Show Transcript

Mike:  My first question for you, and you heard my setup, which we’ve been over about 150 times on this show already, but something I discovered — I know you mentioned this to me once upon a time.  It was probably in Politically Incorrect Guide to the Constitution.  I guess I reacquainted myself with John Marshall’s opinion in Barron v. Baltimore.  Doctor, professor, please explain how it is that all these jurists that rely on what they like to call precedent, how is it that they’ve ignored the precedent that Justice Marshall set out in Barron v. Baltimore where he said: I can’t find anything in the federal Bill of Rights that can make me apply it to the states.

Kevin Gutzman:  Well, actually, what he said in Barron v. Baltimore was that everybody knew the Bill of Rights was intended only as a limitation on the federal government.  In fact, one thing you omitted in your earlier account is that the twelve proposed amendments were actually sent out to the states for their ratification in 1789 preceded by a preamble that said: Because people are worried about the extent of power that’s being granted to this new government, we are sending out these amendments to clarify the limits of its power.  It couldn’t have been more forcefully stated by the Congress that the purpose of the amendments was to clarify limits on the federal government’s power.

The idea that the Bill of Rights would be the justification for having federal judges exercise roving veto over all state laws is completely foreign to the original structure of the federal government, and, as you said, have been used essentially to impose federal judges’ policy views on the rest of us.  When they say something like the First Amendment speech clause grants you a right enforceable against state governments to burn a stolen flag, this has no relationship to the actual speech clause.  Of course, burning something isn’t speech.  Besides that, the Bill of Rights wasn’t intended on a limitation on the federal government.

People may think this is all just technical mumbo jumbo.  It’s not.  Do you recall the chief complaint the American revolutionaries had on the British was not that they were imposing terribly burdensome taxes.  In fact, we would all take in a minute the offer of paying only the taxes the British were making the American colonists pay in 1775.  Their complaint was that those taxes were being imposed by a legislature other than their local colonial legislature.  In other words, they were arguing for a federal system, one in which most of their important political decisions were made by having local elections to the state legislature, then the colonial legislature.  What the Incorporation Doctrine has effectively done is to remove from us the power to make virtually any significant decision by having a legislative election.  What this amounts to, and I don’t think this is any kind of overstatement, a complete betrayal of the American Revolution.

Mike:  Folks, when you hear something that is as silly as — I’m going to give you a very recent example of what Professor Gutzman is talking about.  When I hear something as silly as the provost for Arkansas State University say, after one person complained about a crucifix being displayed on the back of the football team’s helmet with the last names of one member of the team and one member of the coaching staff that had died in the last year: Look, I realize that this is a First Amendment issue and we have to have separation of church and state, so I’ve ordered the football team to remove the crucifix.

No, it’s not an issue of the First Amendment, and it’s certainly not an establishment in any way, shape or form.  If you look up in the Arkansas Constitution, you will find there is a clause in the Arkansas Constitution that would allow for the free expression of religion.  Other people then try to make the argument, [mocking] “The state paid for it.”  The state didn’t necessarily pay directly for it.  All funds are fungible.  Something else I would say, when you say burning a flag isn’t speech, is “blanking” someone speech?  We have been told that “blanking” someone while video cameras are rolling is speech, right?

Gutzman:  Oh, yes.  Actually, there’s one infamous case in which, well, shall we say a gentleman’s club, in Indiana was made to close down because people in that community decided this kind of behavior was obscene and the Supreme Court said: No, this is speech.  In other words, the kind of behavior protected by the speech clause of the First Amendment, they said, extended to taking off your top and shaking your breasts for the titillation of the audience.  It may be surprising to be told that it has nothing to do with the reason why there’s a speech clause in the First Amendment.  More importantly, whether that does or doesn’t reflect the concerns that people had in mind in creating the First Amendment speech clause, still, Indiana laws regulating this kind of behavior are not the kind of laws that were intended to be affected by the speech clause, which, again, was entirely about Congress, was entirely a limitation on the federal government.  The idea here was specifically to leave it up to your state government to regulate these kinds of behaviors.

Actually, there’s a very famous letter written by President Jefferson in 1802 to Mrs. John Adams, Abigail Adams, in which he says: We left regulation of the press where it ought to be, in the state legislatures.  Notice, Jefferson, famously devoted to freedom, didn’t say: We have left regulation of the press where it ought to be, nowhere.  The whole thing is an absurdity.  Actually, people on the federal courts who are engaged in doing this kind of thing know precisely what they’re doing.

When it comes, for example, to the Establishment Clause of the First Amendment, there’s a very forceful, lucid opinion written by then-Associate Justice William Rehnquist in 1985 in a case called Wallace v. Jaffree.  There the issue was that Alabama had established a requirement that every morning children in public school be given one minute to engage in silent reflection.  Now, the state senator who had sponsored that law said: I want to give them a chance to pray.  We’re not allowed to have prescribed prayer in public school under a 1962 Supreme Court decision, so let’s just give them a minute to do whatever they want silently.  I hope they’re going to pray in this minute.  The court said: Oh, no, you can’t do that.  We can’t give people a chance to pray.  Giving people a chance to pray might be taken as endorsing the idea that they should pray, and everybody knows that the First Amendment was contrary to the idea that people should be given a chance to pray.  Again, this is totally facetious, or maybe ignorant, maybe just a lie.

There was nobody among the founding fathers, and there was certainly nobody in the populous that was actively seeking to avoid giving people a chance to pray in 1789 when the First Amendment was sent to the states for them to ratify or up to 1791 when they ratified it.  Besides that, again, the preamble to the Bill of Rights said this is entirely about limiting the power of the federal government, leaving these things to local.  If in Virginia you wanted to have a secular government, you could.  If in Massachusetts you wanted to continue to tax people to support the Congregationalist establishment, you could.  In fact, both of those states did those things and nobody thought Connecticut taxing people to support the Congregationalist Church till 1819 was unconstitutional under the Establishment Clause.  You know why they didn’t?  Because it wasn’t.  It wasn’t unconstitutional.

The whole thing is really appalling.  I’m not sure I’d go as far as our friend Mr. Stovall and say this is the most important constitutional problem we have today.  I tend to think that is the complete lack of limits on what the president does in war making, and the complete lack of limits on what Congress does when it comes to spending money, but those are different issues.  Certainly this incorporation question is very important.  Yes, I agree with that.

Mike:  I think his thought on that, and I tend to agree — perhaps we shouldn’t say it’s the most important constitutional issue.  It is probably the one that affects directly the people in any of their capacity to try to practice self-government.  That’s the one that gets in the way of it.  The president may get in the way of it as well, but certainly the incorporation doctrine prevents, for example, Dwayne’s little town, which you have been to, my friend, of Cleveland, Texas in Liberty County — if Cleveland, Texas wanted to have a law on the books that said: No smut, no porn shops, no selling of the videos, none of the devices, nothing.  As long as it doesn’t contravene the Texas Constitution, and it doesn’t, then they should be able to have that rule.  No, you can’t, because as soon as you put it into effect, what’s going to happen is Justice Darth Vader Ginsburg is going to say: I want to hear this case.  That’s going to give Justice Scalia and the other ones another chance to write another vainglorious opinion of why we can’t have people running around practicing the art of self-government.

Before we run out of time with you, I want to read you a headline.  You just mentioned it, so I’m going to give you a chance to go off on this.  Headline, to you, Kevin Gutzman, author of James Madison and the Making of America.  By the way, Kevin is happy to sign “To John Doe, Happy Constitution Day, 9/17/2014” today and today only.  Get your copy of James Madison and the Making of America in the Founders Tradin’ Post today.  Take advantage of Professor Gutzman standing by with pen in hand all day today.  Here’s the headline, Kevin, “US to Assad: Beware of interfering with US air power in Syria.”  What’s wrong with that?

Gutzman:  Well, one interesting thing about it is, well, there are two things.  Number one, we are a signatory to the United Nations Charter, which forbids interference in foreign countries, in sovereign, independent countries.  Of course, the way the United States government specifically treats this is, when it comes to the United States, that’s kind of a suggestion.  It’s an obligation that our government essentially ignores whenever it feels like it.

Of course, the other thing is, intervening in a foreign country over the objection of that country’s government is an act of war.  What’s the preparation for this kind of move by the executive is the federal government required to take by the Constitution?  Article I, Section 8 delegates to Congress the power to declare war.  Here we have a non-defensive war, that is we haven’t been attacked by ISIS.  We haven’t been attacked, certainly, by Syria.  It’s not a defensive war.  It’s a kind of preemptive attack by the United States in fear that ISIS may ultimately be out after the United States.

What needs to happen before the president is constitutionally authorized to make this kind of move is that he needs to go to Congress and say to them: Our form of government, the chief executive is the executive.  He’s to execute what?  Policies made by Congress.  Congress has the power to declare war.  He’s supposed to see to it that his move is preceded by at least a congressional authorization if not a declaration of war.  He’s announced that he’s not going to do that.  This is entirely unconstitutional.  I’ve said for years the solution to our constitutional problem does not lie solely in giving power to the Republican Party.  Notice the Republican Party is not doing anything about this.

In fact, I saw the other day on PBS, a joint interview of the Republican ranking member on the Senate Foreign Relations Committee and a Democrat on the Senate Foreign Relations Committee.  The Democrat said: I’m from Virginia, James Madison’s state, and I think that the president needs to ask Congress to authorize him to go to war in Syria.  The Republican, on his part, said: I think the president already has the authority to go to war in Syria.  Notice that it was the Democrat that was taking the right position of actually respecting the Constitution, by actual reference to James Madison in doing so.  The Republican is saying the president can bomb whom he wants, sounding for all the world like one of George W. Bush’s staff attorneys.  It’s quite perplexing to decide exactly how one might go about trying to restore some respect for the Constitution in Washington, DC.

End Mike Church Show Transcript