Mandeville, LA – Exclusive Transcript – Let me give you the latest example of losing republicanism, this God-awful ruling that comes from the Supreme Court of the United States yesterday. You can read Scalia’s entire dissertation on why Kennedy was in error in leading a 5-4 majority in favor of universal DNA swabbing. Now, if you get arrested for anything, wherever it is that you’re arrested at, if Deputy Fife decides he wants to swab you to grab some DNA, it’s now a one-size-fits-all permissible rule. Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: Let me give you the latest example of losing republicanism, this God-awful ruling that comes from the Supreme Court of the United States yesterday. I’m reading Anthony Kennedy’s ruling and just shaking my head going: What did I expect? Then I go and read the dissent and I’m even more depressed. I go read Antonin Scalia’s dissent, and as I’m reading his dissent I’m screaming at my MacBook screen and demanding to know of Antonin Scalia why he does not make the conclusion, and he never does — you can read the entire thing. It’s posted in today’s Pile of Prep. You can read Scalia’s entire dissertation on why Kennedy was in error in leading a 5-4 majority in favor of universal DNA swabbing. Now, if you get arrested for anything, wherever it is that you’re arrested at, if Deputy Fife decides he wants to swab you to grab some DNA, it’s now a one-size-fits-all permissible rule.
The reason that Scalia’s dissent is so frustrating is that he actually quotes the Virginia Ratifying Convention and talks about how there were demands for a bill of rights, and how the process then made it to the first Congress, then Madison submits his first draft of what the Fourth Amendment ultimately becomes. The Fourth Amendment was made so that the citizenry were protected in their properties and in their papers. You had to have probable cause and a warrant to search. Scalia never one time ever mentions that those ten amendments, as we all know if you listen to this show regularly and have read Tom Woods and have read Kevin Gutzman and Brion McClanahan and Donald Livingston and Albert Taylor Bledsoe (my new book out Is Davis A Traitor?) or have read 18th century texts on how the founding generation and the three generations after them thought about the Constitution, then you know that those first ten amendments were aimed squarely at Washington, DC.
It didn’t have anything to do with Annapolis, Maryland, which this case came out of. It didn’t have anything to do with Baton Rouge, Louisiana. It had everything to do with seeing to it that the new federal government would not search without warrant. It had nothing to do, nothing to do with the State of Maryland. If you read your own state’s constitution, you will find that there probably is a fourth amendment. You probably have one in your state and in your own state constitution. I know there’s one in the Louisiana Constitution. I’m pretty sure that there’s one in Texas. I think there’s one in almost every constitution. It may not be worded the same as the Fourth Amendment to the U.S. Constitution is worded, but it’s probably very similar…
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I bring this up because when the Supreme Court issues these edicts and pretends to rule on behalf of all 309 million people, what they’ve basically done is amend the Constitution. Yesterday’s ruling was basically a DNA amendment. They didn’t have to bother going through the Congress and getting two-thirds of both houses to sign off on it, then three-quarters of the states to ratify it. They didn’t even bother with going through an act of Congress, an unconstitutional act of Congress and shoving this down our throats. This is just the classic, quintessential nine men in black robes raining their personal opinions and preferences down upon 311 million souls who now have no check and no recourse. I say you have no check and no recourse but you do. You’d have to be willing to stand up to the court. You may have to stand up to the power of the federal union, meaning you may have to contemplate doing things most people are not willing to do in this day and age. You might have to whisper certain words that have been banned from our vocabulary like the word secession. Of course, I say this without informing the audience that attorneys general from all 50 states filed amicus briefs in this case. They all wanted the SCOTUS to tell the planet what to do.
Isn’t there something wrong with a non-representative body of nine men and women pretending or acting as though they have carte blanche, irrevocable authority over the political and legal affairs of 311 million people? That’s why we used to have a federal system. AG, would you know where Bruce Fein on federalism is? Could you still locate that cut from our Article V Amendment Convention? Bruce Fein, the esteemed former Reagan administration Justice Department official, and noted libertarian constitutional scholar, he was a panelist on our 2009 Article V Amendment Convention symposium. He gave the best explanation of federalism I have ever heard in the modern era. When we play this clip, this is why you don’t want the SCOTUS — when I say SCOTUS, Supreme Court of the United States — making these one-size-fits-all proclamations from on high. You want the 50 states competing to say: In our constitution, we don’t allow DNA — unless you have a warrant and you’re suspected of a very high crime or misdemeanor, unless you have that, you’re not getting a DNA swab.
[mock conversation] “Who told you you could park in that spot there, bucko?” — “There’s a meter.” — “The meter has expired. You didn’t put enough coins in there. Where were you going while parked at that meter, sir?” — “Going into Meyer the Hatter shop right there on Carondelet Street to go check out some new fedoras.” — “A likely story! Up against the car.” — “What are you doing, dude?” — “I’m taking you in and I’m swabbing you.” — “Swabbing me?” — “The Supreme Court says I can swab you now. It doesn’t matter what the laws of Louisiana say. It matters now that there’s a one-size-fits-all proclamation.”
I’m always troubled when a state legislature like the one in Maryland — AG, your home state — this was their case. They acted to use DNA that they had cobbled from some cat that was arrested for a nonrelated offense and when they took the DNA, they discovered: Wait a minute, this guy’s DNA matches some DNA that we’ve been looking for for this rape case a couple years ago. I don’t have a copy of the Maryland Statute of Freedoms, and I know that they have one, but that’s what the case was all about. Here’s Bruce Fein on federalism and why you don’t want the SCOTUS, and why a constitutional system where the states are parties to it, meaning it is a compact, why most of these matters are left up to states or even to local jurisdictions as to whether or not they’re going to swab the inside of your mouth for DNA with or without a warrant.
[start audio file]
Bruce Fein: It seems to me, Mike, we have to ask: Why do we care about federalism? Why do we want these issues restored to the states? It seems to me there are two reasons. One is Cicero said, “Freedom is participation in power.” The citizen is too remote from Washington. You don’t participate in power here. It’s so far away. The second thing, and maybe even more important, is federalism creates competition in good government. If a state does something stupid, people can pick up and leave, businesses go, and they’ve got to reform. I remember, it wasn’t long ago, where in West Virginia this surgeon said unless you put a cap on medical malpractice damage awards, we’re leaving and we’re not performing any operations here. They changed that law in about five seconds because there were options to move. This is critical.
Mike Church Show Transcript: Intervention Is Arrogant And Unconstitutional Whether Foreign Or Domestic
Legislatures are not going to respond to stupidity and imbecility unless they see harm out there. When Congress acts, everybody is saddled with the same burden, you can’t go anyplace, so you don’t get the feedback of being able to vote with your feet and vote with your taxes. That is why federalism matters. That’s why you see, even in some small way, that the states compete for trying to attract investment into their states. They’ll give a tax write-off or a tax holiday. That’s good. It stimulates states to think creatively about creating jobs. In Congress, does that ever happen? No, because you can’t go anyplace. It’s not just an abstract proposition, it has real, real concrete effects on how we’re governed and why we have continuing feedback and improvement.
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Mike: You want competition for good government. Well, the Supreme Court just killed any competition for good government when it comes to the massive amount of police powers the states have now accrued to themselves. It’s not just the Feds, the states wanted this. You have to keep an eye on every single one of these clowns. It doesn’t matter which state we’re talking about, it seems with certain regularity that the states are just as lustful for the exercise of police and political power as the Feds are. This is why secession doesn’t solve everything; however, it does make these tyrannies more manageable. I’ll give you another recent example.
Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
Mike: Well, not anymore, thanks to Anthony Kennedy and the four other Supremes that rules with him. It doesn’t matter how you obtain the DNA. It doesn’t matter whether or not they were looking for you for a particular high crime. If they just happened to get it and it just happens to match, so be it, we’ve got the bad guy. Screw due process and screw any representations of Fourth Amendment — ours is the Fifth, federal is the Fourth — that may be encountered in the state legislature, which coming from a state that has passed laws that say if I’m driving on Highway 22 in Ponchatoula, Louisiana and minding my own business and I just happen to encounter a sheriff or state police roadblock for DUI and I refuse to undergo their field sobriety test — I’ve done nothing wrong. I’m just on the road. I didn’t hit anyone. I didn’t destroy any private property. I wasn’t speeding. The only thing I am guilty of is being in the wrong place at the wrong time.
If I say, [mocking] ”No, I’m not submitting to your stupid test. What evidence do you have that I need to take your test?” — “I don’t need to have any evidence, not in this state anymore.” If you refuse the field sobriety test, the next step is they may have a judge on hand who will then issue a warrant to have you strapped to a gurney. They’ll then bring a nurse in. When I say strapped, I mean like in a Frankenstein movie. They will strap your carcass to a gurney. They will strap and restrain your arms and they will extricate blood from you. Texas has the same byzantine, unbelievably unscrupulous act on their books as well. Even though we have a Fifth Amendment right to privacy in the State of Louisiana, the legislature has seen fit to ignore it. Yesterday the Supreme Court made it even worse. They made it worse by making the whole damn thing universal now.
End Mike Church Show Transcript