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Is Federal Government Running Roughshod Over Constitution?

This is a rush transcript from "Glenn Beck," November 10, 2009. This copy may not be in its final form and may be updated.

JUDGE ANDREW NAPOLITANO, GUEST HOST: Last Saturday, at 11:00 in the evening, the House of Representatives voted by a five-vote margin to have the federal government manage the health care of everyone in America at a cost of over $1 trillion over the next 10 years.

For the first time in American history, if this bill becomes law, the feds will force you to buy insurance you might not want or may not need or cannot afford. If you don't purchase what the government tells you to buy, if you don't do so when they tell you to do it, if you don't buy just what they say is right for you, the government may fine you, prosecute you and even put you in jail.

Freedom of choice and control over your own body will be lost. The privacy of your communications and medical-making decisions with your physician will be gone. More of your hard-earned dollars will be at the disposal and tender mercies of federal bureaucrats.

It was not intended to be this way.

We elect the government. It works for us. How did it get so removed, so unbridled, so arrogant that it can tell us how to live our personal lives?

Evil rarely comes upon us all at once, and liberty is rarely lost in one stroke. It happens gradually, over the years and decades, and even centuries. A little stretch here, a cave-in there, powers are slowly taken from the states and the people — and before you know it, we have one big monster government that recognizes no restraints on its ability to tell us how to live. It claims the power to regulate any activity, tax any behavior and demand conformity to any standard it chooses.

In the next few weeks, I will be giving a public lecture on constitutional law here on the Fox News Channel, on the Fox Business Network, on FoxNews.com and on Fox Nation.

In anticipation of that, many of you have asked, "What can we do now about the loss of freedom?"

We can vote the bums out of their cushy federal offices. We can persuade the state governments to defy the feds in areas like health care where the Constitution gives the federal government zero authority. We can ask our state legislatures to threaten to amend the Constitution to abolish the income tax, to return the selection of U.S. senators to state legislatures and to nullify — to nullify — all the laws that Congress has written that are not based on the Constitution.

But there is one thing we can't do: Just sit back and take it.

Here's Kevin Gutzman. He's professor of American history at Western Connecticut State University and author of "The Politically Incorrect Guide to the Constitution." And Thomas E. Woods, author of "Meltdown: A Free Market Look at Why the Stock Market Collapsed, the Economy Tanked and Government Bailouts Will Make Things Worse."

They wrote a great book together called "Who Killed the Constitution? The Fate of American Liberty From World War I to George W. Bush."

Gentlemen, welcome to "The Glenn Beck Program."

Kevin, first to you: What is federalism? What is the concept of the states have some power and they gave a little bit of it away to the federal government, but somehow the government keeps taking more from them?

KEVIN GUTZMAN, AMERICAN HISTORY PROF., WESTERN CONNECTICUT STATE UNIV.: Well, the underlying theory of revolution was that people wanted local self-government through legislative elections. That was the procedure that the British government was denying to the American colonists and it led to the Declaration of Independence.

So, when the Federal Constitution was made — and note that it's called a federal, not a national Constitution — when the Federal Constitution was made, there was this idea that sovereign states were delegating some — few of their powers which they carefully spelled out in the Constitution to this new central government. And the great residual was being retained by the states so that people would still have control over most areas of their government's behavior through local legislative elections.

NAPOLITANO: Tom, how did the federal government get so big and so powerful? We wrote a Constitution that states in it pretty specifically the 17 unique discreet powers that the Constitution delegates to the federal government. Is that list even recognizable today if you compare it to the areas of human behavior that the federal government claims it can regulate?

THOMAS E. WOODS, AUTHOR, "MELTDOWN": No, they have made a joke out of it. In fact, in the 1990s, the solicitor general was asked, "Can you name me one area of American life that in your view the U.S. government would have no constitutional authority whatsoever to interfere with?" And he just stood there dumbfounded. He had no answer.

Thomas Jefferson warned us that if the federal government has a monopoly on determining what its powers are, we have no right to be surprised if it expands its powers over time. So, Jefferson told us in 1798 that what we need to do, if the federal government goes beyond those powers that was delegated, is to use the states. The states are not perfect, but they're what we have.

NAPOLITANO: Right.

WOODS: And use the states to nullify and refuse to enforce these laws. And I know that idea would horrify Katie Couric, but I'll take Thomas Jefferson and the other side can have Katie Couric.

NAPOLITANO: All right. We'll get to nullification in just a minute. And I'm glad you raised it.

But just in a thumbnail sketch, how did it happen? How did we go from 17 unique discreet powers that only addressed things that were federal like a post office, like have an army and a navy, like provide a common defense, like provide for weights and measures and patents to 4,000 different criminal laws, 40,000 pages of tax regulations? How did we get from a small government with maximum individual liberty that recognized limitations on it, to a big fat government that doesn't regulate — that doesn't recognize any limitation of its powers?

GUTZMAN: Well, the short answer is that we trusted the federal government to determine what the limits of the federal government's powers were. And just as any other group of people could be expected to do, over time, the federal government decided it had all powers; that it was necessary that it be able to regulate everything, to tax everything, to legislate about every question.

And over time, that came to mean that the principle of federalism that we talked about a minute ago just vanished from the federal system. We still call it a federal system but it's really a national system.

NAPOLITANO: Tom, Ronald Reagan used to say the beauty of our system is you can vote with your feet — meaning, if you didn't like the laws in New Jersey, you could go and live in Pennsylvania or Connecticut or Texas. But as the federal government standardizes everything, makes the laws the same, takes away New Jersey and Connecticut and Texas' independence — I'm just using them by way of example — the concept of voting with your feet, of going to a place in the country where the laws are more to your liking goes away, doesn't it?

WOODS: Right. And, you know, in the old days, the left used to support this principle. Kirkpatrick Sale, the old left, they liked decentralized power. They didn't like a gigantic bureaucracy. Whereas now, left and right seem to like a gigantic bureaucracy that overrides the powers of the states.

And, in fact, when you look at the history of Western civilization, how did liberty come to Europe? It came to it because Europe was a bunch of tiny municipalities, where you — if you the prince was oppressive in one place — as you say, Judge — you could just vote with your feet and move someplace else. And that encouraged them all to support liberty because they didn't want to lose their tax base. When you remove this incentive, which is a healthy incentive, you get the system we have now.

NAPOLITANO: All right. Kevin, you and I have talked about this on-air and off many times, there are a couple of ways to amend the Constitution, but they all involve the states, either the states demand — and if enough of them do so — a constitutional convention. The constitutional convention proposed amendments and then they go back to the states, or the Congress circulates an amendment and it goes to the state. In either way, it requires 3/4 of the states to adopt an amendment and then it becomes part of the Constitution.

Question: Can we amend the Constitution? Can we abolish the income tax? Which would starve the federal government back down to its footprint. Can we get the states' governments to elect senators rather than the people, which would ensure that one of the two houses of the Congress fought for state sovereignty — or is this just fanciful thinking?

GUTZMAN: Well, we've never used the provision of Article V of the Constitution that allows for the states to amend the Constitution without having the Congress be involved. So, we shouldn't be surprised that, recently, amendments have all about — all been about furthering empowering the central government.

But fortunately, at the moment, there is a groundswell. I have been hearing from legislators in several different states who've asked me for advice about the question how the constitutional convention process might work. That is, how the states could go about amending the Constitution to reduce and curb the power of the central government. And I think that there is a significant chance that this could happen. But before it can happen, people have to encourage their state legislators to go out and amend the Constitution.

NAPOLITANO: Tom, you mentioned nullification. In 1834, the state of Massachusetts nullified the Fugitive Slave Act, meaning you can't kidnap any runaway slaves in Massachusetts or we'll arrest you for kidnapping — that defied the federal government. How would nullification work today?

WOODS: Well, we've already seen examples of it. Really, there are a couple of dozen states that have effectively nullified the Real I.D. Act, which is the beginnings of a national I.D. card, to the point where the federal government has pretty much stopped trying to enforce that — that law. That's just what Jefferson would want to free people to do.

We've seen about a dozen states, in effect, nullifying federal laws regarding medical marijuana. And now, we're starting to see a few states talking about what they can do to resist this health care measure.

This is what a free society does. We don't have one single one-size- fits-all system for 300 million people. That's not what the United States was about. That's the principle that we fought the Revolution against.

So, if we want to know how this would work, we can just look around us and see some of the creative legislatures around the country.

NAPOLITANO: Tom Woods, Kevin Gutzman — thanks for joining us.

WOODS: Thank you, Judge.

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