Who Killed the Constitution?

0:00Nice to see you folks again. The last two times you've been here, each of those last two times, I've delivered remarks loosely based on some book that I had out that year. So two years ago, it was this one, Politically Incorrect Guide to American History. Then last year, it was 33 Questions about American History You're Not Supposed to Ask. And then this year, it's Who Killed the Constitution? Now, unfortunately, it's actually not available for sale in the bookstore. I had some copies I was going to bring, but they're in my trunk, and the car is having a dent taken out of it, so I have no access to them. However, I have this uncorrected proof version, which is crummy paperback. The real thing is a nice, handsome, thick hardcover that you'd just love to have on display in your home.

0:48So I'm confident that although I can't sell you a copy, you'll all rush home and say, You know, my life is incomplete until I get a copy of Who Killed the Constitution at my bookstore or through Amazon or whatever. I mean, look at it. It's got the Constitution going through a shredder on the cover here. How could that not be intriguing? Who's doing that? So that's what we're up to in this book. My co-author is a fellow named Kevin Gutzman who wrote a book that is available in the bookstore downstairs called The Politically Incorrect Guide to the Constitution, which is an excellent book. Kevin has a PhD in history and he also has a law degree, so he comes at this from both angles and nobody dares to debate him because they know that the historians are afraid of him because he has the legal knowledge, the lawyers are afraid because he has a PhD in history, so everybody just leaves him alone, so he's kind of my security blanket in this book because by extension they leave me alone now.

1:41Well, I guess given the shortness of time, we started a few minutes earlier than the schedule indicates because I have an internet radio program, such as it is, that runs from 1 to 2 p.m. on Tuesdays and I didn't want to be cutting it too close. I broadcast it from up there and I got to race up there and get on because if I'm not up there in time, the show music starts and there's nobody there. The Constitution Spells Out Certain Limits, and limitations on government. On the one hand, it spells out what the Federal Government can do, but by implication, it spells out what the Federal Government cannot do.

2:45That is to say, if you look at Article 1, Section 8 of the Constitution, it lists the powers of the Congress. And then, if you look at the 10th Amendment to the Constitution, you find sort of the complementary statement to that, which is that the Federal Government has only those powers that are listed in that Article 1, Section 8, and any power that has not been delegated to it by the states remains reserved to the states and the people. So Thomas Jefferson's way of interpreting the Constitution was very simple. If something was proposed, Jefferson's first question before asking whether it's wise or stupid was, is it allowed? Does the Constitution provide for it? So he would look in Article 1, Section 8, and if he doesn't see it listed there, The Constitution was written to be understood by the average person, you don't need to be some demigod in a black robe to understand it and come out and announce to us what our Constitution means.

3:54The average person was understood to be able to determine this for himself, what the document meant. Now that tenth amendment of the Constitution, according to Thomas Jefferson, was the cornerstone of the whole document. Because in effect, if you look at the whole Bill of Rights, the first ten amendments to the Constitution, they consist, the first eight of them consist of things the government can't do. You can't interfere with the freedom of speech, you can't take people's guns away, you can't quarter troops in people's homes, And it just goes down the list. You can't do this, you can't do this, you can't do this, you can't do this. And then as one of my friends puts it, the Tenth Amendment basically says, and if we forgot anything, you can't do that either. So it just makes very, very clear that the federal government is limited to only those very few powers. And this was how it was understood by the people who ratified the Constitution, particularly if you look at the ratification convention in Virginia.

4:46See, when the Constitution was written in 1787, It was then submitted to each state to decide, do you want to go along with this document or not? And when it got to Virginia, which is the home of so many illustrious figures in American history, I mean, although Jefferson was a broad, was not at the original constitutional convention, nevertheless, he's a Virginian, Patrick Henry, James Madison, John Marshall, George Mason, one figure after another of great importance was at Virginia. So the Virginia Ratification Convention is of particular importance, and there, it was told to them by defenders of the Constitution that the Federal Government will have only those powers that are expressly delegated to it. Those words were used, expressly delegated. So unless that power is listed in those very words in the Constitution, the Federal Government does not have it. People were reassured with this argument.

5:39And in Virginia, when it came time to decide that they would in fact approve the Constitution, They did so only after declaring that this constitution provides for a limited federal government, that the 13 states that would be entering into it would be entering into it as a league of states, and that if this government should do something not authorized under the Constitution, then Virginia would be exonerated from it. That is to say, Virginia would no longer be held liable to it. It could, in fact, even withdraw, was the understanding from the Union. And in fact, when in 1861, on the eve of the so-called Civil War, Virginians specifically reminded Americans, by the way, remember when we ratified the Constitution, we told you we could do this?

6:28Well, now we're doing it. So this was, again, the limited nature of the government was understood pretty much by everybody. Okay, well now you look at the federal government we have now, And then you compare it to this, and you may as well be looking at a government from Mars. I mean, it has no connection whatsoever to this. The idea that the federal government would be limited by anything? I mean, right now, look at what we're going through right now. We've got proposals on the table for hundreds and hundreds and hundreds of billions, if not ultimately trillions of dollars in bailouts, when you have the former CEO of Goldman Sachs as the Treasury Secretary, helping to bail out Goldman Sachs, which he will probably later be the CEO of again. No one seems to notice that this is kind of a conflict of interest here.

7:14Does anyone even pause to wonder whether the Constitution authorizes any of this? One of the provisions of the legislation that's being proposed to Congress is that the Treasury Secretary will be authorized at any one time to take and burden the American taxpayer with up to $700 billion of bad debt that various firms have taken on whether it's mortgages or whatever and the taxpayers will have to assume these debts and if they go sour then the taxpayers will foot the bill and he is subject to no one, no court, no administrative review, his decisions are unreviewable. Now, there goes the country, as far as I can see, but where does the Constitution authorize this?

8:04If you were to even ask this question, again, they'd look at you in Washington like you had three heads. That would be considered to them to be the most irrelevant question you could have asked. Well, who cares? Well, I don't know. They would come up with some contrived explanation. But needless to say, there ain't nothing in the Constitution that authorizes that. and when you consider that in the first few decades of American history you had a number of presidents who wanted to build roads with federal government money and they thought even road building wasn't authorized in the Constitution. So I don't think they would say, well we can't build roads but we can authorize the Treasury Secretary to take over hundreds of billions of dollars in rotten debt that we're going to be responsible for. Seems unlikely to me. So something has happened and so in Who Killed the Constitution I won't burden you with those episodes, but just give you a few minor examples of things that have happened in the 20th century that have, each one of which has been a major nail in the coffin, and one of them is a Supreme Court decision from the late 1930s, the Caroleen Products decision.

9:13Nobody's ever heard of this decision. I never heard of it until relatively recently. Nobody's ever taught this. But in this Caroline Products decision, the Supreme Court, in effect, says the exact opposite of what everybody's been taught, which was up to this point, the Federal Government has just a few powers and the burden of proof is on the Federal Government to prove that it has the power to do what it's doing. Well, in the late 30s, the Supreme Court said, well, from now on, let's say that whatever the Federal Government does, we'll just assume, is constitutional from now on. Everything the federal government does is presumed to be constitutional. And yeah, okay, maybe it's possible the federal government might violate the Constitution. But if you're going to prove that, here are the hoops you have to jump through to prove that it's violating the Constitution.

9:59So going from the federal government has to prove itself, has to prove it has these powers, we instead say, well, no, you have to prove it doesn't. Well, good luck with that. Where would you even start the complaint process? We have the fact that in the 1990s, Bill Clinton's Solicitor General was asked, can you name us one thing, one area of American life that in your opinion, the federal government under the Constitution would have no authority to interfere with? And the guy just stood there like, you're not allowed to ask me that. I didn't know that. That wasn't in the prepared questions. He had no idea what to say. There was no area he could think of that under the Constitution the Federal Government would just be off limits.

10:46Pretty amazing, right? Again, exactly the opposite of what people were told the Constitution would be when they ratified it. And then finally, Jefferson's cornerstone, the Tenth Amendment, which restricts the Federal Government to just these limited powers. And you can't take one step beyond these. Because the Tenth Amendment makes that clear. That anything beyond those powers is reserved to the states and the people. Well, it so happens that my co-author, who, as I said, has a law degree, he tells me that when you're preparing for your bar exam and you go to one of these cram courses where they cram all the information at the last minute so that you can pass the bar, when they give you test-taking tips for the multiple choice section, They tell you that if you're answering a multiple choice test, a multiple choice question on the bar exam and one of the multiple choices you're given, one of the potential answers is the 10th Amendment, you can just cross that right off.

11:47The 10th Amendment is never the right answer to a question on the bar exam, never. It's always wrong. Now, Jefferson said it's the cornerstone of the whole Constitution. The American legal profession says it's totally irrelevant and the only time we ever use it is to try to trick you on the bar exam. That's how irrelevant it is. So again, exactly the opposite of what Americans were told. And it's not just that we've had crazy Supreme Court justices who come up with crazy theories. It's all three branches. It's the executive branch, the legislative branch, the judicial branch. The executive branch has been responsible for countless atrocities against the Constitution. The major ones we cover in Who Killed the Constitution. Constitution, but a small one I just mentioned. In the early 1940s, President Franklin Roosevelt declared without consulting Congress, he just declared that from now on the top income tax rate in the United States will be 100%. That if you earn more than $25,000 a year, anything

12:47above $25,000, just send it in. Because the tax is 100%. And you think to yourself, well to yourself. Well, wait a minute. Can he do that? Well, it doesn't matter. Can he do that? He did it. That's what matters. He actually did that. And finally, Congress intervened and said, now just hold on a minute. You know, we're trying to wage World War II here. That's not going to help us do that if you're taking everybody's money. So that was pretty much the argument. We won't be encouraged to carry out sufficient war production if people feel like all their money is going to be taken from them. So that was the rationale for repealing that. But that was what we call an executive order whereby the president, acting without having to consult anybody else, not the Congress, not anybody else, can implement policy in this way.

13:32And it's not just this one example by any means. There have been thousands, tens of thousands of examples of this over the years. Congress, well, in the case of Congress, we just simply have a situation in which any subject matter under the sun is considered to be under the purview of Congress. It doesn't even occur to them that there could be a constitutional limitation on what they're doing. It does not even occur to them. I mean, there are very few congressmen, I think there's only one congressman, who would actually stay up at night worrying about, oh my gosh, is there constitutional authorization for what I'm proposing? I mean, again, you would be laughed out of the room if you so much as raised this question. Although, if you really did try to press them to answer where in the Constitution are you authorized to do this, It would be amusing to see, because once in a while a forbidden question like this is asked of some lower-level bureaucrat.

14:25And it is the unaskable question, because the poor guy standing up there has no idea what on God's green earth to say to that question. And so they just flounder around for some phrase in the Constitution that they remember from fifth grade, you know, that maybe could justify what they're doing. But, whoever asked that question, of course, never is allowed within 50 square miles of the White House ever again. No other press conference will ever permit his attendance. But, of course, then there is the judicial branch as well, which has been responsible for a great many atrocities. I sometimes mention Wickard v. Filburn, which is this funny case, not so funny for the poor fellows involved, in the early 1940s involving a farmer who had grown some wheat on his property to consume and he was being harassed by the government because the government was telling him he was growing too much. He's growing too much on his own property and his view is that the

15:26Federal Government under the Constitution has no authority to tell me how much I can produce on my own property. You know, what is this, the Soviet Union? Come on. Well, sure enough, he winds up in court and he argues the Federal Government has no authority to I'm not going to interfere with this, but the answer that he's given is, oh yes, it can. It can tell you how much to grow, because the Federal Constitution authorizes the regulation of interstate commerce. And this farmer said, but wait a minute, I'm not engaged in interstate commerce. Everything that's going on is originating in this one state. In fact, it's all originating in this one plot of land. I grow the wheat, I consume it, that's the end. I mean, what part of this are you people not getting? That's nothing to do with buying and selling between other states. And he was told that, but you see, if you hadn't grown that wheat on your property, there's a chance you might have purchased the wheat from another state.

16:16But because you grew it yourself, you abstained from interstate commerce and thereby indirectly affected it, so therefore we can regulate you. I mean, I can't follow that. If you see a logic to that, you know, more power to you. But that is pretty typical of what we've seen. so that whatever the phrase is in the Constitution that they remotely think might allow them to cover this particular activity, it will be stretched to accommodate that. Now sometimes we're told that the key objection and I'll close with this, the key objection to the sort of argument that I'm making is that, you know, the Constitution is supposed to be a living, breathing document. It changes with the times. This is an old document, man. You know, get with the times. This is 2008. You know, I don't care what James Madison said in 1787, you know, he was just some bozo from 1787.

17:07We need something, you know, blah, blah, blah. We hear this all the time. You get this in school all the time. In fact, sometimes you're even told that this is one of the virtues of the Constitution, that it changes with the times, that, you know, sure, we weren't allowed to do this before, but now the judges are allowing our government to do this today. And isn't this wonderful? How flexible it is, how it conforms to changes in society. Well, it's true that in a certain sense the Constitution is flexible. If you want to change it, then you can amend the Constitution. But that's not what these, we have a living Constitution people have in mind. What they mean is, let's let judges decide today what they think it means, even if that's the opposite of what we were told it meant yesterday. Well, that happens to be the exact system the American colonists rose up in rebellion against.

17:52The British government had exactly that type of Constitution, that it was an unwritten constitution, and from one day to the next nobody knew what it meant. They had to be told by the British government, it means this today. And when Americans would say, but wait a minute, you're violating our rights, that's unconstitutional. Well, no it isn't, because the British government has declared that today this is constitutional. So it's an extremely Orwellian system. And so to have a so-called living breathing constitution that simply changes to suit whatever the government wants it to say means, in effect, you have a dead constitution, because a constitution like that is just what any government would love to have, because any time you are pretty sure it's violated the constitution, it can just come out and tell you, oh, no, no, no, folks, you've misunderstood. The constitution has been breathing lately, been breathing a lot.

18:41It's been sucking in a lot of this sort of bailout air, you know, and that permits us today to make these, to carry out these initiatives. And Lew Rockwell was telling me just not long ago that he was watching something on television and almost mid-broadcast, the word bailout stopped being used because bailout, people aren't really responding very well to that. A recent Rasmussen poll finds 7% of Americans in support of this bailout. So now they're using the word rescue. Because how can you be against a rescue? You imagine somebody drowning, we're just throwing him a raft. I mean, who's against that? What is our living, breathing constitution at work? Well, my friends, I don't necessarily want to leave you with the idea that, you know, if only we could just get back to the Constitution, then everything would be fixed, because I'm not so sure it's that easy.

19:34I mean, for one thing, this living and breathing constitution idea is just not going anywhere. It's being taught in all the law schools and everything. And my usual response is, well, how would you like to have living, breathing rules for basketball So that in the middle of the game, all of a sudden, you're pretty sure that was goaltending. But you get told by the referee, no, I'm sorry, the rules have breathed today. Or you're playing poker and all of a sudden you're told that a pair of deuces beats a full house. Well, sorry, the rules of poker have been living and breathing today. I mean, no one would accept this in any other aspect of life, right? Never accept something as insane as this. But this is what the kiddies get taught in law school and they have no grounds for objecting to it. for objecting to it all they all they know is what they're being told by their law professors but ultimately here we have this document that was ratified by

20:23the people under the most auspicious circumstances with some of the great statesmen and political philosophers of the day behind it and yet it has morphed into this. Lysander Spooner was a 19th century thinker who said that it could well be that the huge government we see around us is in fact the result of for people not obeying the Constitution. But we have only two choices here. Either the system we have now is in fact authorized by the Constitution, or the Constitution we have has been helpless to prevent it. Either way, we're going to need something other than just the Constitution to protect our liberty. So, thank you all.