Gutzman Interview Pt. II: 4th Amendment Abuse by McCain

December 21, 2012 1

Mandeville, LA – Exclusive Transcript – Here’s a quote from Kevin Gutzman on John McCain, the Fourth Amendment, and the Incorporation Doctorine, for the rest check out today’s transcript, “Let me make a point about John McCain. I mentioned earlier that this whole idea of the incorporation doctrine came to us from progressives in the early part of the 20th century. We end up getting court decisions saying that parts of the Bill of Rights are enforceable by federal courts against the state governments beginning in the second decade of the 20th century. John McCain identifies himself as a progressive Republican. John McCain says that his hero in American history is Theodore Roosevelt who was, along with Woodrow Wilson, one of the most important progressives. It’s not surprising that John McCain is opposed to the idea that the Fourth Amendment should be seen as a limitation on the powers of the federal government. Progressives don’t believe there should be any limitations on the powers of the federal government. It’s not surprising to me at all to see that after Senator Paul sided with Feinstein in getting this basically rhetorical recognition of the principle of the Fourth Amendment added to this year’s NDAA, that McCain did what he could to have that removed.”

Begin Mike Church Show Transcript

Mike: Rand Paul famously voted for the NDAA reauthorization, apparently not noticing that even with the Feinstein amendment, there were ample violations and abuses of the Fourth Amendment. Last night, after John McCain and his committee struck down principles parts of the Feinstein and Lee amendment, now the NDAA basically gives the federal government the power to detain American citizens without any due process or without habeas corpus. The irony here is that this actually does, the Fourth Amendment in this case, actually does apply to the Senate and the Congress, doesn’t it?

Kevin Gutzman: Actually, yes it should. Let me make a point about John McCain. I mentioned earlier that this whole idea of the incorporation doctrine came to us from progressives in the early part of the 20th century. We end up getting court decisions saying that parts of the Bill of Rights are enforceable by federal courts against the state governments beginning in the second decade of the 20th century. John McCain identifies himself as a progressive Republican. John McCain says that his hero in American history is Theodore Roosevelt who was, along with Woodrow Wilson, one of the most important progressives. It’s not surprising that John McCain is opposed to the idea that the Fourth Amendment should be seen as a limitation on the powers of the federal government. Progressives don’t believe there should be any limitations on the powers of the federal government. It’s not surprising to me at all to see that after Senator Paul sided with Feinstein in getting this basically rhetorical recognition of the principle of the Fourth Amendment added to this year’s NDAA, that McCain did what he could to have that removed.

The whole incorporation doctrine stands for the idea of federal veto power over state policy. Then within the federal government, people like McCain think the executive branch should have unlimited authority, especially in wartime. This is a reminder why a lot of us conservatives thought that McCain was just a hideous nominee for the Republicans in 2008. I remain committed to my stated position. I think McCain was the worst major party nominee for president at least since McGovern, and that includes Obama. I think McCain is hideous and here’s a good reason why. I hope Senator Paul sticks to his guns. He says that he’s going to oppose the NDAA on the Senator floor. I hope he does. I don’t know exactly how that will work procedurally. This provision that we complained about last year allowing indefinite detention without access to counsel, let alone due process, is un-American as far as I’m concerned. It’s emblematic of the position of people like McCain. This whole incorporation doctrine is part of the general picture of what progressivism is.

Mike: Bill is in Massachusetts. Bill, you’re on with Professor Kevin Gutzman. How are you?

Caller Bill: Good morning, Mike. Good morning, Professor Gutzman.

Gutzman: Good morning.

Caller Bill: I’m reading your book, James Madison and the Making of America. I’m in the last chapter. It’s a wonderful book, by the way.

Gutzman: Thank you.

Caller Bill: There was an appropriation going to Congress during Madison’s last day of administration.

Mike: The Bonus Bill.

Caller Bill: I think Calhoun was already figuring out what to do with the money.

Gutzman: You’re talking about what was called the Bonus Bill. They were talking about what to do with the federal government’s share of profits from the Second Bank of the United States.

Caller Bill: Do you know the reason why he decided to veto it at the last day of his administration?

Mike: Good question. Why did Madison veto the Bonus Bill? It leaves us with a great legacy to turn to in other vetoes that should happen to, doesn’t it, Kevin?

Gutzman: Well, it does. Actually, it’s a very interesting occurrence. It’s the kind of thing we would never expect a president to do now, whichever party he came from. What happened there was that Madison’s friends in Congress, speaker Henry Clay and chairman John C. Calhoun pushed this policy of having the federal government’s share of the profits from the Bank of the United States to be spent on what today we call public works, that is our infrastructure, what in those days they called internal improvements, in other words, construction of roads, canals and bridges through the country. Madison vetoed it. Calhoun, hearing about that, went to visit Madison in the White House and told him he regretted that he had given Madison the unpleasant duty on his last day in office of vetoing a bill that had been sent to him by his friend. When Speaker Clay heard that Madison was going to veto the bill, he said: What? I thought it was his bill.

Madison’s explanation was that although he wanted the federal congress to be in the business of funding roads, canals and bridges throughout the country, he also thought it was unconstitutional. There was nothing in Article I, Section 8 that said Congress can spend money on this purpose, so he had veto it. He explained this in a very careful veto message, what’s called the Bonus Bill Veto Message. If you’re interested, you can find it online, just Google the phrase “bonus bill veto message.” There, Madison laid out his understanding of the Constitution: that the federal government was created by the states, that it was given limited powers which were numerated in the Constitution, chiefly in Article I, Section 8. Since that list did not include anything about building roads, he told Congress that if they wanted to this, they should first amend the Constitution, but they hadn’t done that, so they still didn’t have power to spend money for this purpose and he had to veto the bill.

End Mike Church Show Transcript