Kevin Gutzman Interview: Madison, Bill of Rights, Nullification And Second Amendment

Mandeville, LA – Exclusive Transcript – Professor Dr. Kevin Gutzman is on the Dude Maker Hotline, celebrating ten years of your buddy being here on Sirius XM satellite radio airwaves.  I don’t know if you knew that.  This week is our anniversary.  Tomorrow is James Madison’s birthday as well.  We have a two-fold purpose.  Plus James Madison and the Making of America is out in paperback.  Check out today’s transcript for the rest…

 

Begin Mike Church Show Transcript

Mike:  Professor Dr. Kevin Gutzman is here with us, author of James Madison and the Making of America.  I am informed that in the Founders Tradin’ post, we have some of the last hardback copies of James Madison and the Making of America, and our copies are all signed by the good doctor.  Kevin, how are you?

Kevin Gutzman:  Very well, Mike, how are you?

Mike:  I’m fantastic, thank you.  Should we be obsessing over lobbyists?

Gutzman:  I actually agree entirely with your analysis of the situation.  What’s really going on here is people are unhappy with their fellow citizens for trying to persuade their elected officials how to behave.  The real issue is that their elected officials have access to all this dinero to hand out.  To solve the problem, we don’t start by saying we’ll let the congressmen and state legislatures go about their business without any input from the citizenry, which is what getting rid of lobbying would do.  Instead, we need to limit their power.  We need to get rid of their ability to hand out money.  These people, like your last caller, are going about it entirely in the wrong way.

Mike:  I kind of made that one up on the fly.  I’m glad to see that I’m on my intellectual P’s and Q’s today.  Tell me, whose birthday is it this weekend?

Gutzman:  It’ll be James Madison’s birthday tomorrow.  He’ll be 262 years old.

Mike:  Kevin, I know that Dolly Madison had a son that would have been James’ stepson, and I don’t know what last name he took.  When you were researching James Madison and the Making of America, did you find there were any surviving Madisons or anyone that was related to the Madison clan?

Gutzman:  There’s a two-part answer to this.  One is James has several siblings.  He was the oldest I think of eleven or nine.  The other point to note is that just as for centuries there were black people in Virginia who claimed to be descended from Thomas Jefferson, though there are people who claim to be descendants of James Madison.  We don’t know of any Caucasian offspring, but there are similar rumors to the rumors there were about Jefferson.

Mike:  So Madison would be over 200 years old tomorrow.  Part of his legacy is to be found in the Constitution and two terms as president, in a stint as vice president, and as secretary of state.  He was a very active guy.  One of the things that I found recently, and I kind of found it by accident, was that when little Jimmy Madison, as Patrick Henry called him, when he went to the first meeting of the Congress in New York in 1789, we assume that the first ten amendments to the Constitution, the Bill of Rights, first that God created them, then he handed them to Moses, then he had to resurrect Moses and Moses went on some mountain in the Catskills, then Moses called Madison and gave them to Madison, then Madison rode with them shining with a halo over his head into Federal Hall.  Then Madison proposed them, every member of the Congress stood and applauded, and they immediately all voted yes.  Then they all voted yes four times on the Second Amendment.  That one was universal.  The Second Amendment even applied to Moses.  Then they sent them to the Senate and the Senate all stood and applauded and voted unanimously.  Then they sent them to the states and, of course, the people had to have their rights.  They wouldn’t have any rights if the congress didn’t give them to them, so the states immediately, unanimously ratified them.  This all happened in the span of six months.  Is that the way it happened?

Gutzman:  I think it’s fair to say that none of that is the way it happened.  Well, maybe the Moses part.  No, of course what really happened was Madison had to be persuaded that there should be a bill of rights because he had first opposed the idea.  He thought it was, at best, useless and potentially dangerous.  People in his home district, notably Baptists who were unhappy with the absence of a guarantee there wouldn’t be a national church, insisted that there had to be amendments amounting to a bill of rights.  Madison went into the first House of Representatives and pushed this idea over the objection of some of his colleagues that this is pointless.  Ultimately he persuaded them to send twelve proposed amendments out to the states.  It essentially was a grudging agreement of the House of Representatives to Madison’s tepidly-advocated idea.  Actually Madison told people, when he first presented the idea in the House of Representatives, two things I noticed about this.  One, it can’t hurt anything; two, I’m not proposing any amendments that would have any effect on the structure of the government or the powers it’s been granted.  He thought they were all rhetorical and wouldn’t have any effect, with the notable exception of Dred Scott v. Sandford, they didn’t have any effect for well over 100 years.

Mike:  I tell this story in “Militias Are Good And They Are Good For You,” a Project ’76 that I’m wrapping up and putting the finishing touches on.  There’s another part of the Bill of Rights story that I found equally interesting.  If you would, please, tell the story of the rights of consciousness amendment that Madison proposed and thought was the most important yet it never saw the light of day.

Gutzman:  Actually the only significant part of his proposed package of amendments that the House of Representatives didn’t agree was one that would have guaranteed that states could not infringe on the freedom of conscience, the right to trial by jury, or the freedom of the press.  Apparently because people thought of these amendments as limitations on the federal government, they thought of this project as being about clarifying limits on the federal government.  They didn’t agree to this proposal of Madison’s that the Bill of Rights ought to be a mechanism for giving the federal courts the veto over those kinds of state laws, those related to jury, press, or church essentially.  Madison lamented that what he took to be the most significant of his proposals was not agreed to.  It’s similar to what happened in the Philadelphia Convention, actually, where his favorite idea was to give Congress a veto over all state laws.  He brought that up over and over again in convention.  They finally disapproved it by a vote of ten states to none.

Mike:  We can conclude from this then that when the Senate began its hearings a couple weeks ago over whether or not magazine clips with 22 rounds or magazine clips with 30 rounds, or 2,171 weapons that are approved yet 1,814 weapons are not approved, over the regulation of arms, as the 21^st century calls them, that the Second Amendment would be one of those that would have been covered in that debate that we just talked about, and that the Senate has and had no authority to do what they have just done and passed out of committee.  Is that correct?

Gutzman:  The record of the debate in the House of Representatives on that provision is pretty scanty.  We basically have text.  We don’t have any record of what was said in the Senate because for the first five years of its existence, the Senate met in secret and only scattered jottings of a few members tell us anything that was going on there besides the official journal, which had some of the major votes and resolutions.  Of course, it’s clear, at least if you go by the preamble to the Bill of Rights, that the reason for the Second Amendment was to limit the power of the federal government.  The idea that the federal government should be involved in regulating gun rights and gun ownership seems contrary to the statement that the right of the people to keep and bear arms should not be infringed.  It’s the federal government that’s not supposed to be infringing the right of the people to keep and bear arms.  The federal government is not supposed to be in the business of telling you what kind of gun you can own.  On the other hand, if Louisiana wants to tell you, Mike Church, that you can’t have a gun, that would be constitutional.  Federal courts now have “incorporated” the Second Amendment, and that means they’re going to decide what’s reasonable and not the state legislature.  As you and I have discussed before, that’s contrary to the original understanding of the Second Amendment and the Fourteenth Amendment.  Typical of what federal judges do these days.

Mike:  Professor Dr. Kevin Gutzman is on the Dude Maker Hotline, author of James Madison and the Making of America.  Tomorrow would be James Madison’s birthday.  Hoist a pint.  Make a mint julep.  Madison would have been a whiskey drinker, I would imagine.  That would have been the spirits they had around back then, whiskey or mead.

Gutzman:  Actually, we’re told that when Mrs. Madison became the female resident in the White House, she put large bowls in every room from which anybody who visited was free to grab all the cigars he wanted.  If you want to be properly Madisonian, you should light up a stogie.  Apparently that was Madison’s mind-altering substance of choice.

Mike:  We don’t know what kind of liquor, although George Will claims Madison drank a pint of whiskey a day.

Gutzman:  He did drink whiskey.  I don’t know where Will got the idea it was a pint a day.  He did drink whiskey and, of course, port, claret, wine, various other kinds of fruit of the grape was also popular among those Virginians.  Jefferson in particular was quite a wine drinker.  You would have found any one of those things in his hand.  As I say, the main thing we know for certain is that copious amounts of tobacco were consumed in the White House during the period of 1809 to 1817.

Mike:  Try smuggling a cigar in there today.  Unless you have used an intern to get it past security, I doubt you’re going to actually find one in the White House.  Professor Dr. Kevin Gutzman of James Madison and the Making of America fame is on the Dude Maker Hotline.  What do you make of the cases that the Supreme Court has decided to hear this year?  For example, I believe they’re hearing an appeal from someone who was upset at California’s gay marriage ban.  What can you foresee Anthony Kennedy doing with that?

Gutzman:  It was quite a few years ago now that Colorado adopted a statewide referendum saying that no subdivision of the state could not adopt any ordinance that gave special rights to homosexuals.  Kennedy, of course, wrote the opinion in which he said what was central to American republicanism was that you had a right to decide on the meaning of life for yourself.  Kennedy said that it was unconstitutional for the states to adopt this policy of not allowing homosexuals to get special rights at the local or county level if they were able to do that through the republican process.  I think similar legislative behavior can be expected from Anthony Kennedy in regard to this case.  I would be surprised if Kennedy didn’t join the other four liberals on this issue and say essentially that the ban was unconstitutional.  Clearly this is the kind of thing that we were just discussing in relation to gun rights. It’s the kind of thing that was supposed to be left to the state governments or people of the individual states to decide at the state level.  Notice this federalism issue does not cut in one direction or the other.  It doesn’t favor the conservative gun rights ruling we’ve had in recent years and it doesn’t favor the liberal homosexual rights ruling we’ve had in recent years.  It means people should be able to decide these questions by voting, not by asking a judge.

Mike:  Of course, if you live in the State of California, you did vote.

Gutzman:  True.  That’s where it was supposed to be left.  There’s nothing wrong with that.  It’s perfectly constitutional for Oklahoma to say we don’t want this and for Massachusetts to say we do.  That’s the way our system was supposed to work.

Mike:  Speaking of Oklahoma, two days ago they voted 72-20 to nullify Obamacare.  They also voted — I read their bill — the bill they passed is now on its way to the senate.  That bill actually says that if it is passed, the legislature must then adopt rules to see to it that the act is enforced.  I’m just mulling this over in my mind and wondering how you’re going to do that.  There’s a clause in there for the financial penalties.  There’s a clause in there that no citizen can be made to appear before a medical board.  No citizen can be made to have their wages garnished, or cannot be affected by the fines threatened.  That’s quite a tall order.  I believe they are heroic in Oklahoma.  You and I know what is probably going to happen the day Governor Mary Fallin signs that act, don’t we?

Gutzman:  I’ve had people ask me what I think of these various bills like this that are pending around the country.  I thought it Oklahoma it passed in one house.

Mike:  It is.  It’s in the senate now.  It’s yet to leave the senate.

Gutzman:  The bottom line is, people have asked me what I think of nullifying Obamacare.  My question is: What form would that take?  As I understand the individual mandate, it’s going to be enforced by the Internal Revenue Service.  What is the State of Oklahoma going to do?  Is it going to intervene anytime the Internal Revenue Service tries to fine someone for not obtaining government-approved health insurance?  How is the State of Oklahoma going to keep the IRS from penalizing people?  The answer is, of course, it can’t.  If any attempt were made to interfere with IRS enforcement of whatever fines the IRS determines upon them, the nearest federal judge would immediately enjoin the state authorities from pursuing the nullification route.  If any of them continued, ultimately those people would find themselves in the nearest federal hoosegow.

We actually have examples of this from the 1960s.  In 1962, there was integration of the University of Mississippi.  The Governor of Mississippi, Ross Barnett was, shall we say unsympathetic, with the integration of the University of Mississippi.  Finally the federal authorities made clear to him he was going to go to jail if he did not stop interfering with the process of enrolling James Meredith there.  More famously, when it came to the University of Alabama, Governor George Wallace went and stood in the door, held a little kabuki theater where he supposedly interposed his authority against the federal authorities.  At that point, I think the deputy attorney general came in and told him if you don’t do this, we’re going to put you in jail, and he stepped aside.  That’s as far as you can go.  The governors of Mississippi and Alabama were going to go to jail if they did not comply so they did.  That’s all you can expect.  I don’t see what the reason is for even engaging in this charade when we know in the end the state governments cannot prevent the enforcement of the individual mandate.  There’s just no way to do it.

Mike:  Not while they’re connected to the federal authority.

Gutzman:  That’s right.

Mike:  That would leave them with but one option if they persist, which is to say even though we’re landlocked, we don’t acknowledge any of your authority anymore and we’re going to go 1776 on you.

Gutzman:  They could do that.  That is an interesting question.  What would happen today if a state tried to do that?  I think there would be a very interesting conversation about it.  I think it’s highly likely that federal authorities would disapprove that idea, too.

Mike:  Professor Dr. Kevin Gutzman is on the Dude Maker Hotline, celebrating ten years of your buddy being here on Sirius XM satellite radio airwaves.  I don’t know if you knew that.  This week is our anniversary.  Tomorrow is James Madison’s birthday as well.  We have a two-fold purpose.  Plus James Madison and the Making of America is out in paperback.  I would pose the same question to you.  My State of Louisiana has about 150 of these things.  I think they’re going to whittle it down to one.  These State of Louisiana Manufactured Firearms Act, the State of Montana Manufactured Firearms Act, the State of Tennessee Manufactured Firearms Act.  Everyone is all animated and giving wild approbation: [mocking] “If we make it in this state, we make the bullet, they can’t do it because it’s not interstate commerce.”  First of all, Interstate Commerce Clause wouldn’t give them authority to do much with your bullets and guns anyway.  Second of all, the Second Amendment ought to apply to your state, ought to be what protects your state.  If your state is saying that they’re not going to come and confiscate the militia’s weapons, then they can’t come in.  But aren’t the states going to be right back where we just talked about with the Obamacare, with the guns?

Gutzman:  That’s exactly where they’re going to be.  The first time any official in Montana tries to prevent federal officials from enforcing any gun regulation, their federal judge — in fact, it may not even get that far.  It may be that as soon as the governor signs it, there will immediately be a lawsuit filed and the nearest federal judge will issue an injunction even before there’s any attempt to enforce a nullification ordinance in Montana or wherever.  I just think that although the constitutional argument that Montanans are making is correct, the reality on the ground is that federal judges, as in the cases of Governors Barnett or Wallace or any other such policy, are going to prevent an official from interfering with the federal executive’s enforcement of federal law.  They have their own idea of what’s constitutional, and that’s basically that the federal government can do anything.  They’re not going to allow the states to keep that from happening.

Mike:  Sad state of affairs.  Kevin, that’s all the time we have, my friend.  Good luck with the paperback version of James Madison and the Making of America and the next book you’re working on, the little feud between Jefferson and Hamilton.  We’ll talk real soon.

Gutzman:  Looking forward to it, Mike.

End Mike Church Show Transcript