The guests at this meeting included Dr. Kevin Gutzman, Tom Woods, Randy Barnett, and Bruce Fein.
Mike: Just a comment here. What you just heard about the structural changes and what the gentleman proposed about, okay, what if we do amend it, how you going to enforce it? Kevin Gutzman.
Kevin Gutzman: Well, I do think that education is a big part of the solution here. But I think we haven’t identified one major element of the problem that Bruce Fein referred earlier to the culture we live in. One element of that is that people are taught about the Constitution, not by reading the history of the Constitution, but by reading case law, which often is absolutely opposite the Constitution. And so I would correct that tendency. It seems to me that, if you have kids in college, or if you’re interested in the Constitution, tell them to avoid constitutional law classes. Go take a history course.
Mike: This isn’t good for business for you two.
Kevin: Sorry. Don’t read what — well, I teach constitutional history, not constitutional law. So just get out of the tendency of saying to yourself, what does the Establishment Clause mean, let’s ask Justice Black. That is not the way to find out.
Mike: Bruce?
Randy Barnett: Even though I do teach constitutional law, let me just say I agree a hundred percent with Kevin about this. Constitutional law, as given by the Supreme Court, is not the same thing as the Constitution itself and is often contrary to it.
Mike: Okay. Bruce Fein?
Bruce Fein: First, it’s just not the public that’s unschooled in the Constitution. I am regularly before Congress. The ordinary member of Congress does not have a ghost of an idea what’s in the document. I say, “You know, you took an oath to support and defend the Constitution of the United States. Do you know what your limitations on authority are? Do you know what your obligations are?” Nothing. Staring. Well, you raised a constitutional issue today. Well, who cares about that? We’ll leave that to someone else.
Mike: Or you get Ms. Pelosi laughing at you [laughing].
Bruce: So it’s, yeah, it’s something like that. Well, what’s the Constitution amongst friends? And that’s sort of the attitude. So the problem of ignorance is far greater than just a general public problem. Remember also, the Constitution in some sense is intended to trump public opinion, our natural instincts, because it says in a Constitution, you can’t do this even if the majority wants to do it. So to some degree, the Constitution has to rise above the culture. To my mind, what has destroyed the major features of federalism is the income tax amendment. Because once you give the federal government money, they bribe anybody. Bribe states, they bribe localities, hey, you do X, we’ll give you the money. So we need to repeal the income tax amendment. And that would solve a huge amount of problems.
Mike: There’s a home run of the day.
Bruce: The second thing, and this is what Thomas Jefferson, Thomas Jefferson proposed. He never introduced it. But he had an idea prohibiting the federal government from borrowing money. He didn’t want that to be available for the same reason. You give — it’s like the golden rule. He who has the gold makes the rules. That’s just the way things are going to operate. And then you can have specific prohibitions about what the government can do. How about a provision that says the government cannot own Citibank. It can’t buy the stock of General Motors or AIG. That’s very simple. It’s an absolute prohibition like the prohibition on infringing freedom of speech or freedom of religion. It [indiscernible] institutional change, says you just can’t go there as a government. The last thing I’d want to say about — I think that it’s just that leaders can make a difference. It is true that institutions and popular culture produces recurring patterns. But individual decisions can count.
And let me recount one that I know Tony will remember from the Reagan administration, that I view as one of the last great lost opportunities to really put teeth in federalism. And it was the first appointment to the United States Supreme Court that opened under President Reagan, Ronald Reagan. Potter Stewart was the one who resigned. He was a moderate. I was at the Justice Department, and we had a list of candidates to replace the first justice, even before there was a vacancy. And the one who was on the list who was about five universes above everyone else was a gentleman called Robert H. Bork. He had been solicitor general under Richard Nixon. He had written books. Fabulous speaker. Principled man. A marine. He was there, and he did tough — made tough decisions.
What happened before we could even get Bork’s name over to the White House, there’s a gender gap. Find us a woman. Find us a woman. Wait a minute. We’re here about principles. We got elected on original intent. That was the theme. No longer the jurisprudence of idiosyncrasy. And then we got a dictate, it has to be a woman. So we ended up with a search, oh, who can we find? And we ended up with Sandra Day O’Connor who was, you know, a huge, huge disappointment. I tell you, like Lloyd Benson about Dan Quayle: Sandra Day O’Connor, I’ve met her, she is no Robert Bork.
Mike: Tom, you’ve been listening in on all this. You and I have talked, and you and Dr. Gutzman have talked for years about this, about an amendment convention. What do you have to add to what you just heard and what you’ve been writing about for years?
Thomas Woods: Well, first of all, I am a pathetic pygmy next to the people you have on that panel. So I’m very honored that you’d have me in this discussion at all. Well, let me first note, as I think you’ve discovered, Mike, is that, if you even raise this issue, it’s enough to get you dismissed and viciously smeared by a certain wing of what we might call the “liberty movement.” And they immediately — you’re suspect, your intentions are suspect. And I think that’s just got to stop. I mean, for heaven’s sake, you know, we have to listen to each other and what we’re saying here. And my view is that it seems pretty unlikely at this point that Washington’s going to be reformed. I mean, what’s the alternative plan, that we vote for Mitt Romney? I mean, c’mon. I mean, how many times can we be, we’ll just say taken advantage of by these people?
Now, one argument that’s made is that, if an amendment is introduced, well, you know, the federal government ignores the Constitution now. Maybe they would ignore the amendment. I want to answer that because I think there are two good answers to that. Number one is, even if an amendment that we introduce, like let’s say making sure that the Commerce Clause is correctly interpreted, even if all we’re doing is just clarifying what should already be obvious, the Tenth Amendment clarified what should already have been obvious, and we don’t think the Tenth Amendment was a waste of time.
But secondly, let’s say we amended the Constitution to clarify the Commerce Clause, and the federal government still continued to regulate every aspect of American life in defiance of the amendment? Then I would favor simultaneously introducing a structural change to the system that would restore some kind of state negative that was taken away by the Seventeenth Amendment. It could take the form of what Kevin has proposed, something like if two thirds of the states say no to a federal law, then that’s it, it’s overturned. We need to reintroduce an ability to say no after the federal government has said yes to itself.
Mike: Okay. So let’s start on the end here with Dr. — with Professor Barnett here because Tom, he’s actually — this is part of your amendment; right? And Kevin, this is one of your amendments, you call it the Federalism Amendment here, an amendment to basically install or institute a Council of Revision, is I think how you called it? Professor Barnett, I’m not sure how you called it.
Randy: Article 6, Amendment 6 of the Bill of Federalism that I’m proposing says, “Upon the identically worded resolutions of the legislatures of three quarters of the states, any law or regulation of the United States identified with specificity is hereby rescinded.”
Mike: Kevin?
Kevin: It’s fantastic; right?
Tom: Well, I would agree, except I would make it easier. I don’t know why three quarters. I’d say two thirds, if not a bare majority. Let’s not get — let’s not run away with the idea of deference to Congress here.
Randy: I will accept that amendment. We will make that change right now. I’ll accept that amendment.
-------------------------------------------------------------------------------------
Links submitted by Professor Randy Barnett:
http://www.forbes.com/2009/05/20/bill-of-federalism-constitution-states-supreme-court-opinions-contributors-randy-barnett_print.html
http://www.amazon.com/gp/product/0691123764?ie=UTF8&tag=mikechurchdot-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0691123764
http://constitutionrestoration.blogspot.com/
-------------------------------------------------------------------------------------
Tom: A friendly amendment.
Randy: It’s a friendly amendment.
Bruce: But even so, there’s...
Mike: They like it, they like it. Bruce?
Bruce: There’s ambiguity in that. What happens if a state ratifies and then rescinds? Does the rescission count if it is done before you get the two-thirds benchmark or the three-quarters benchmark?
Randy: Well, that’s, by the way, true right now in Article V. You’ve got the same ambiguity in Article V. Bruce: Yes. It is — that is true. But we should probably try to clarify it. But the other thing, 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? And it seems to me there are two reasons.
Mike: Okay.
Bruce: 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 may even be more important, is federalism creates competition in good government. If a state does something stupid, people can pick up, they leave, businesses go, and they’ve got to reform. I remember it wasn’t long ago where in West Virginia the surgeons said, unless you put a cap on medical practice damage awards, we’re leaving, and we’re not performing any operations here. And you know what, they changed that law in about five seconds. Because there was options to move.
And this is critical. Because legislators are not going to respond to stupidity and imbecility unless they see harm out there. When the Congress acts, everybody’s saddled with the same burden. You can’t go anyplace. So you don’t get the feedback that’s available that said you’re voting with your feet, you’re voting 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. We’ll give you a tax write-off or a tax holiday. That’s good. It stimulates states to think creatively about creating jobs. Congress, does that ever happen? No
Mike: No.
Bruce: Because it can’t go anyplace.
Mike: Right.
Bruce: So 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.
Mike: He just quoted your former boss, basically, if I heard right. President Reagan said, you don’t like it, vote with your feet; right? Tony?
Tony Blankley: Yeah. You know, absolutely. But, you know, this whole discussion, when it talks about the details of the provision, I think that’s getting the cart before the horse. The key thing is the public to have an impulse and a passion to amend. We should first get there. Yes, there [indiscernible]. I practiced law for eight years before I got full-time into politics. I understand the details are important. But if we debate the details too much upfront, we’ll divide ourselves and dissipate the unity that is emerging out of the Tea Party movement. So I think we have to focus on first get to yes, yeah, we’ve got to do it, and then we’ll have the committees that’ll work out the details.
Mike: I concur. Final comment from Professor Barnett. And Tom, if you’d hang on, because we’ve got to take a break. But go ahead, Randy.
Randy: One thing the Tea Party movement could do is they could demand of their congressmen that they enact procedures for having a convention. So — of the kind that have already been proposed and have already been drafted. They just have to put it into law. And that would be something that it would be nonpart- it could be nonpartisan. It would be neutral. And that would lower the risk of having a convention. It’s one reason why Congress won’t want to do it. But it’s something the Tea Party members can ask of every representative that they decide to support or not support.....
This part -- Tom: Well, I would agree, except I would make it easier. I don’t know why three quarters. I’d say two thirds, if not a bare majority. Let’s not get — let’s not run away with the idea of deference to Congress here.
ReplyDelete-- is me, not Thomas Woods.
Kevin Gutzman