Madison’s Account of the Bill of Rights – by Kevin Gutzman

Editor’s Note: This is taken from the Mike Church Show on The SiriusXM Patriot Channel on Dec 12, 2012

Mandeville, LA – Exclusive Transcript – The Bill of Rights is coming around at a time when Rhode Island and North Carolina are refusing to ratify.  They’re still terrified of the new government.  Do you really think the first ten amendments were put in there so the federal government could order the states about?  It’s just ridiculous.  Of course, I understand many of you have been bludgeoned over the head with a lie your entire lives over what the Constitution is and what the Bill of Rights is, what they originally mean and how they are to be used.  Thankfully, we have historical research now and we can disprove these things. Check out the rest in today’s transcript…

Begin Mike Church Show Transcript

Mike:  I can’t count the number of Kevin Gutzman interviews where you can still listen back to what Professor Gutzman said about this and read the transcripts if you have questions about the incorporation doctrine.  I’m reading the Twitter feed.  Our friend Les Vogel is concerned, [mocking] “Mike, you can’t say the Fourth Amendment doesn’t apply to the states.  They’re gonna come in and kick our doors down.”  As I just explained it, most, if not all state constitutions, have — I know in Louisiana we have it — some manner of a prohibition against people being secure in their properties and you’re not going to be able to search and seize without warrants issued.  That’s boilerplate stuff.  The people in the thirteen colonies were well aware of what had been done to them by the Brits, who had commandeered houses, property, and who had quartered troops.  That’s why that whole quartering of troops amendment is in the first ten amendments to the Constitution.  These are all based on their prior experience.

If any doubt remains as to, and I can’t imagine that it would, whether or not the State of Illinois has the sovereign power, exclusive power to say yea or nay to concealed handguns, and that the federal government has absolutely nothing, zip, zilch, nada to say about it, let’s go to Professor Gutzman’s book James Madison and the Making of America.  There was a lawsuit, the case was settled yesterday.  This is a today story.  It has relevance today.  A federal judge said that Illinois must go back and must pass a law that is to his liking that allows concealed carry.  Is the federal judge now inviolating and making moot the legislature of the great State of Illinois?  I realize that’s a corrupt institution, so forgive me.  I have to say it in the way I just said it.

This is exactly what Lord Dunmore did to the Virginia House of Burgesses in 1775, when he kicked Washington, Jefferson, Henry, Mason, Pendleton, Randolph and all the rest of them out, disbanded the House of Burgesses and said: I’m breaking up your little legislature.  You haven’t done it right and you can’t make any more laws.  The federal judge is not breaking the legislature up but it is telling it what to do.  That’s not his prerogative.  That prerogative rests with the people of Illinois, not with some judge in a robe.  How do we know this?  Let’s go to James Madison and the Making of America, a chapter called “Inaugurating the Constitution,” Gutzman writing about the process to get the Bill of Rights and why they were asked for.

[reading]

In general, Madison’s proposed amendments are familiar to us either as components of the Virginia Declaration of Rights or as provisions of the Bill of Right (the first ten amendments) and the Twenty-seventh Amendment. Thus, he would have changed the Preamble to say, as the Virginia Declaration of Rights began by saying, that all power is originally in the people, that government is instituted for their benefit, and that they are entitled to change or replace it when it no longer serves their purposes. [Mike: Still think Madison wasn’t a secessionist?] He also proposed preliminary versions of the Establishment Clause, the Free Exercise Clause, the Second Amendment, the criminal-law provisions of the Fifth Amendment, and the Ninth Amendment assurance that the omission to name a right in the Constitution would not be read as denying that that right must be respected.

Madison also envisioned a separation of powers amendment, one guaranteeing that no branch would ever exercise the powers vested in another. [Mike: See Bush, Clinton and Obama. Hell, see Roosevelt, both of them, Bush, Clinton and Obama.] Interestingly, Madison’s version of what became the Tenth Amendment read, “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.” As we shall see later in this chapter, Madison distinguished between “state” as referring to state governments and “states” as referring to sovereign people of each state. His formulation, then, was devoid of the ambiguity of the Tenth Amendment’s added-on final clause, “or the people thereof.” Madison pointed out that several states’ ratification conventions had recommended amendments to this effect, and he said that he understood this principle to underlie the Constitution.

All of these restrictions on the power of the federal government. [Mike: Again, all of these are restrictions on the power of the federal government.] The exception is his proposal that Article I, Section 10’s list of things states would no longer be allowed to do be expanded by the addition of this statement: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” Here, the federal government would have been given more power than it had before.

[end reading]

Mike:  Any of you people that think the First Amendment applies to the states, you’re just wrong.  It was an amendment that was proposed that would have granted them the power and it could not get the votes to get out of committee in 1789.  I repeat, it could not gain the votes to get out of the committee.  The committee said: No way, Jose!  The states never would have ratified it.  Back to Gutzman now:

[reading]

Here, the federal government would have been given more power than it had before, as federal officials likely would somehow have been empowered to enforce this language. To expand the powers of the federal government had not been the aim of anyone calling for constitutional amendments in the state ratification conventions, nor certainly were Rhode Island and North Carolina holding off on ratification until federal power was first expanded.

[end reading]

Mike:  In other words, the Bill of Rights is coming around at a time when Rhode Island and North Carolina are refusing to ratify.  They’re still terrified of the new government.  Do you really think the first ten amendments were put in there so the federal government could order the states about?  It’s just ridiculous.  Of course, I understand many of you have been bludgeoned over the head with a lie your entire lives over what the Constitution is and what the Bill of Rights is, what they originally mean and how they are to be used.  Thankfully, we have historical research now and we can disprove these things.

[reading]

Notably, this provision was the one substantive Madison proposal that Congress did not adopt and send to the states for their ratification. After itemizing the amendments he contemplated, Madison hurried to explain himself. “The first of these amendments,” he said, “relates to what may be called a bill of rights.” Perhaps his colleagues knew that Publius had held a bill of rights unnecessary, even dangerous. Madison continued, “I will own that I never considered this provision so essential to the federal constitution,” he admitted, “as to make it improper to ratify it, until such an amendment was added.” With Mason, Jefferson, Randolph, and other friends and acquaintances no doubt in mind, Madison explained, “I always conceived, that in a certain form . . . such a provision was neither improper nor altogether useless.”

[end reading]

End Mike Church Show Transcript

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