Mandeville, LA – Exclusive Transcript – Kevin – “I don’t want to be misunderstood. I don’t favor polygamy and I don’t favor plural cohabitation, let alone flaunting that by having a reality television series about one’s cohabitation, as one of the people who were parties in this lawsuit was doing. On the other hand, again, you’re right. This is exactly the reason why we shouldn’t have the kind of untethered federal judicial intervention in state government. We end up with, as I said, no consistent principle other than: Thou shalt do as thy betters say. As thy betters change their position from being devoutly Protestant, as your typical Harvard or Yale Law School graduate was in 1879, to being devoutly secular or even anti-Christian, as they operatively are now. You just have to do what they tell you.” Check out today’s transcript for the rest….
Begin Mike Church Show Transcript
Mike: Let’s move to the other item on the docket today, which is what the federal court did in interjecting itself into the affairs of the State of Utah and telling Utahans: Nice try, but that guy can have 18 wives if he wants to and there’s nothing you can do about it.
Kevin Gutzman: Well, this is a very ironic kind of development. People may or may not be familiar with the history of Mormonism, but, essentially, beginning in the 1830s, Mormonism developed in the northeastern part of today’s United States. Ultimately, by the time they migrated to Utah, the Mormons were devoted to polygamy, that is males having plural spouses. Once the Mormons got to Utah, the federal government took the position that Utah would not be admitted to the union as a state until the Mormons renounced their polygamy position. Ultimately there was, in 1879, a decision from the Supreme Court that…
[private |FP-Monthly|FP-Yearly|FP-Yearly-WLK|FP-Yearly-So76|FP-Founding Brother|FP-Founding Father|FP-Lifetime]
essentially supported the ban on polygamy in Utah, which was adopted by the government of Utah as a concession to Congress, which was, of course, dominated by Protestants who opposed polygamy and had, in the wake of the Civil War, no real interest in the Tenth Amendment. The Mormons recanted their support, actually their requirement of polygamy, and Utah became a state.
One element of the ban on polygamy, of course, in Utah was the fracturing of the LDS church. You had development of fundamentalist sects in Utah that continued — not only in Utah, of course. We’ve occasionally seen in the news fundamentalist Mormons in Texas and Nevada and other places who practice polygamy on the down-low. The mainline Mormon Church headquartered in Salt Lake City, Utah has continued to oppose polygamy. One aspect of the legal structure they established in Utah in opposition to polygamy was a ban on multiple people of opposite sexes living in the same household.
What this decision from the federal judge said last week was that Utah could not have this anti-polygamy law banning cohabitation of people who apparently were in polygamist relationships because, the judge said, this was a violation of people’s religious freedom.
Of course, you and I can instantly see that that’s true on one hand. The reason Utah has this in the first place is because the federal government made them have it. While we’re at it, Utah also has what it had before in regard to polygamy, a Tenth Amendment right to make its own freaking rules about this kind of question. Essentially what happens over time is that the whims of the power elite in Washington change in regard to polygamy and Utah goes from being forced to ban polygamy to now apparently we’re nearly to the point of an out and out imposition of permission of polygamy by the federal government.
The only thing that’s been consistent in this is that, of course, Utahans have been law-abiding. Of course, if you know any Mormons, that’s kind of the way they are. In my mind this is another illustration of the fact that the federal courts are simply engaged in what one prominent British legal scholar about 40 years ago referred to as a constant constitutional convention. They’re constantly rewriting the Constitution. Here we have, of course, another example of a phenomenon you and I have often lamented, which is the Incorporation Doctrine. The idea that the Establishment Clause of the First Amendment can be enforced by federal courts against the state government is, on its face, nonsensical since the Establishment Clause clearly says “Congress shall make no law respecting an establishment of religion.” The purpose of banning Congress from making a law respecting and establishing religion was precisely to leave it up to people in the states to make their own laws about religion, or to omit to make laws about religion if they wanted to.
Mike: Not anymore.
Gutzman: What should have happened in the first place was that people in Utah, Mormons most of them — I think still today 90 percent of people in Utah are Mormons — should have been permitted to have their own rules about polygamy. Now they should be permitted to have their own rules against polygamy. The federal government’s sole consistent impulse here has been to impose its will, even though, as I’ve just said, its will has changed by 180 degrees. There sits poor, innocent Utah being constantly abused by this lawless federal court system.
Mike: There’s another point to this that you’ve written about in James Madison and the Making of America, and probably in another instance or 35 or so. That is, at the time of the adoption of what we call today the Bill of Rights, at the time of the adoption and when it was first being discussed, men like James Madison said: This is a bad idea. Don’t write this stuff down. If you write it down, then the list is going to be never-ending. You can’t possibly list all the “rights” that you want to enclose. We shouldn’t have a Bill of Rights. We should just say that this constitution doesn’t have anything to say about any of them. Of course, they tried to mitigate this and pacify Henry and Mason and other antifederalists with the inclusion of the Ninth and Tenth Amendments. As you just pointed out, that’s not working out so well, is it?
Gutzman: I don’t want to be misunderstood. I don’t favor polygamy and I don’t favor plural cohabitation, let alone flaunting that by having a reality television series about one’s cohabitation, as one of the people who were parties in this lawsuit was doing. On the other hand, again, you’re right. This is exactly the reason why we shouldn’t have the kind of untethered federal judicial intervention in state government. We end up with, as I said, no consistent principle other than: Thou shalt do as thy betters say. As thy betters change their position from being devoutly Protestant, as your typical Harvard or Yale Law School graduate was in 1879, to being devoutly secular or even anti-Christian, as they operatively are now. You just have to do what they tell you.
There’s not going to be any historical basis for what they’re saying. The idea that the 14th Amendment made a principle of the First Amendment applicable against the states, the only principle of the First Amendment was the states get to control these questions, is an absurdity. Only somebody who had gone to law school could say that with a straight face. I lament what’s gone on here. Utah, as I said before, was within its right to have polygamy in the first place. Again, I’m not endorsing it. I don’t favor it. If that is what they wanted and there really was no ground for the federal government to tell them not to have it in 1879, and now they’re being beaten up on for the opposite, for being devoted to monogamy, which, again, Mormons being overwhelmingly Mormon, overwhelmingly are. This is like a parody of our current legal situation.
Mike: Except it would take quite a coterie of accomplished and skilled screenwriters to write a parody of this magnitude. If you’re trying to write comedy out of this, this is what you would write. This is almost like, if you remember the TV show back in the ‘70s, Benson. Remember Benson worked for that foolhardy, lovable governor who really didn’t know very much and would rely on the butler to help him make policy. That pretty aptly describes too much of today’s federal government. Just think TV show Benson.
Gutzman: I do find frustrating these pronouncements from these federal judges supposedly about the Constitution. They almost invariably are unrelated to the Constitution. Here we’re back to my book Politically Incorrect Guide to the Constitution. Essentially whatever one hears a federal judge say, one can assume: Now we know it’s not true. I didn’t have any idea about this question before, but now at least I know the federal judges are saying this, so I know that’s not right. I can’t think of the last time they got something right in this general area. Again, the purpose of the Establishment Clause was precisely to leave these questions to the state legislatures for local decision. Why would the people who wrote the First Amendment want that? Because in New England at the time in three of the states, they had established Puritan churches. Several of the states had just abolished or only recently had gotten rid of their established Anglican churches. Then there were other states where they had never had establishments because they were founded by Quakers who didn’t believe in having established churches in the first place. [/private]
What religious policy could all these states be supposed to have in common? The only thing the federal Constitution actually imposes in regard to religion is that there will be no test, no religious oaths for office-holding in the federal government. Beyond that, this question was supposed to be left to the people to decide locally. If Alabamians want to have a moment of silence or have their kids say a prayer in the morning, they can do that. If Mormons wanted to practice their religion as Brigham Young was practicing it and told them to practice it in the first place by having polygamy, they could do that. You might think: I don’t like polygamy. Okay, maybe you don’t. Then don’t live in Utah. That was the solution.
Again, what we end up with today is a situation in which we have this one super legislature, called the Supreme Court, determining what these policies will be all over the country. Essentially the only thing you can say about it consistently is that this policy means that people in almost none of the country will get to have the kind of government they want. If you left it to local determination, Alabamians would have a government more like what they want and people in Utah would have a government more like what they want.
End Mike Church Show Transcript