Kevin Gutzman – James Madison Not The Final Voice On Nullification

Mandeville, LA – Exclusive Transcript – “Let me just interject something really quick here and resay that this is Professor Dr. Kevin Gutzman, who is, in some of our opinions and in the opinion of many of your colleagues, the eminent James Madison scholar of our time.  There is one other that you mention and you’re flattered that he reviewed your book and gave it his approbation.  We’re not talking about someone who has a casual relationship with the works of James Madison.”  Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

Mike:  Let me just interject something really quick here and resay that this is Professor Dr. Kevin Gutzman, who is, in some of our opinions and in the opinion of many of your colleagues, the eminent James Madison scholar of our time.  There is one other that you mention and you’re flattered that he reviewed your book and gave it his approbation.  We’re not talking about someone who has a casual relationship with the works of James Madison.

Number two, because we have a lot of stuff to get into, Kevin, I want to steer the next part of our discussion here in this direction with Professor Gutzman.  As I pointed out, and I was just repeating what Albert Taylor Bledsoe had said, at the end of the day, it doesn’t really matter what James Madison said in a letter.  What matters is: What did the State of Virginia do?  What did the Federal Convention of 1787 do?  Madison went in with a plan and had his hat handed to him.  What did the Virginia Ratification Debate do?  Again, he didn’t get his way.  What did the Virginia Assembly of 1798 do?  It doesn’t matter what he wrote in a letter.  What did Taylor and his colleagues accomplish?  Those are acts of a legislature.  They’re not letters.  They’re actually law.  This is how they actually dealt with it.  To say that just because Madison wrote a letter that that’s the final word on the whole shebang is preposterous.  How many members of the Virginia Assembly were there at that time, Kevin, over 100, right?

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Kevin Gutzman:  Well, when they finally took the vote on the Virginia Resolution, 163 people voted.  I’m not sure how many didn’t vote.  There were at least 163 members of the House of Delegates.  Madison was not a member of the House of Delegates in 1798.  That’s the other thing I wanted to get to.  Actually, I was hinting at the point you’re making now when I said [private FP-Monthly|FP-Yearly|FP-Yearly-WLK|FP-Yearly-So76]

earlier that in 1830 Madison was a retired, former politician.  He was scribbling in private letters an understanding of the events of 1798 that people in his day understood as completely at variance with what had happened in 1798.  In fact, in the 1830s as he was telling people essentially that states have to do what the federal government says even when it’s unconstitutional, Madison also was lamenting that, as he put it, he was being called “heretic and apostate” in Virginia.  Well, why were people calling him a heretic and apostate?  The answer is because everyone knew that in 1798 Virginia had stood for the idea that a single state could stand up to the federal government, and must, in fact as he put it in the Virginia Resolutions, have the right and be duty-bound to interpose to prevent enforcement of an unconstitutional and dangerous federal policy.

You’re certainly right.  James Madison in 1830 was a private guy who had not been a member of the legislature that adopted the Virginia Resolutions.  His explanation of the reason why the phrase “null, void, and of no force or effect” did not appear in the Virginia Resolutions was, as I’ve just explained, inaccurate.  He was saying we’ve decided those words because we didn’t mean that.  Really they decided those words because they decided they were redundant when they had already called the law as constitutional.  So this is just inaccurate.  The point to note about this when it comes to contemporary discussions is, in all the books that have been written about Madison, nobody describes the discussion in the Virginia Legislature in 1798 except for Gutzman.  That has never been done, and I don’t know why because a scholar, you’d think, ought to go look at what the people who were adopting this statement of constitutional principle were saying to each other, what they were intent for it to mean, but they don’t.  Nobody ever has except for me.

Mike:  I have the book on your authority here, The Virginia Report of 1799-1800, Virginia resolutions of December 21, 1798.  I have read, thanks to you, the entire debate.  I’ve read both points of view.  I read John Taylor’s debate, what he addressed the House and said, and then I read the rebuttal.  Then Taylor gets back up and rebuts him.  Then they have a conversation.  Then they vote on the resolution.  They alter it, as you said.  This is all part of the record.  It’s not even hard to find, although this particular version I have is no longer in print.  There are even digital versions of this available now.  I want to ask you, just to clarify here because there are going to be people that are going to be asking me — thanks to the internet, we can answer this query.  Governor Barbour, I assume that there is a hard copy of the letter that you refer to where the conversation about how he and James Madison had this conversation about: You don’t really need to say null and void, because if we say it’s unconstitutional it’s the same thing.  Where do we find that in the record?

Gutzman:  That’s in the record of the discussion in the Virginia House of Delegates.  It wasn’t a discussion between Barbour and Madison.  Madison wasn’t in the Virginia House of Delegates in 1798.

Mike:  It was Barber in the House.  That’s wiped from my memory but I’ll find it.

Gutzman:  Right.  Barbour is there, one of the actual framers of the Virginia Resolution.  He’s one of the people standing there deciding what language they’re going to use and why they’re going to use it.  Again, the reason why they excised those words was not to make the statement more moderate; it was because they decided the words were redundant because they had already used the word unconstitutional.  Again, how are you going to know this?  There are two ways to know this.  One is, you can get one of the half-dozen or so existing copies of the legislative record in the Virginia House of Delegates in 1798.  Or you can read Virginia’s American Revolution or James Madison and the Making of America.  That’s basically the only way you can see this.

The point about Levin is, what he’s done is, he’s gotten one letter from Madison in 1830 in which Madison did accurately explain what happened in 1798, explains it in a way that people in Virginia responded to by calling him a heretic and apostate.  Then Levin says: Here we go.  This is a very common way that people nowadays misuse the historical record.  It reminds me of David Barton, finding some statement where Thomas Jefferson says “I’m a Christian” and then concluding he was a Christian.  You have to look at the whole of what somebody does.  You have to put it in context.  You can’t just find one letter where he seems to make a statement that’s consistent with your opinion. [/private]

Even if James Madison in 1830 did have this opinion, Madison wasn’t some saint whose sanctity we’re supposed to emulate.  The reason we might care about his opinion of something is that he was involved in framing it.  He had the authority of the people because he was their representative at the time.  In this case, we have him not involved in the legislative discussion.  In 1830, he wasn’t a representative of the people at the time.  This simply failed as a mode of argumentation.  Of course, Levin goes from there to say: I know everything and nobody else knows anything and the Tenth Amendment Center is a bunch of kooks.

Mike:  They are bent on undermining or undoing our precious republic.

Gutzman:  The republic for Levin apparently is one in which even when Congress is acting in a way that is contrary to the Constitution, that must be upheld.  This is not the version of constitutionalism certainly that Virginians in 1798 stood for.  It wasn’t the one they had ratified in 1788 either.  Nobody ever said ratify this Constitution and then we have to uphold whatever the Congress does even when it’s unconstitutional.  Nobody would have ratified the Constitution on that understanding.

End Mike Church Show Transcript

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