We're back with another edition of The Federalist Radio Hour. I'm Emili Jashnski,
culture editor here at the Federalist. As always, you could email on the
show at radio at the Federalist dot com, follow us on Twitter at FDRLST,
make sure to subscribe wherever you download your podcasts and over at the premium
version of the Federalist dot Com. Today we're joined by author James Masnoff.
He is the author of the new book Writes Reign Supreme. James, thanks
for joining us. Oh, thank you. Now, since it's your first
time on the show, could you just give us a little bit of background
about how you ended up where you were and why you wanted to write this
particular book. Uh. Sure. I had a long, sort of unofficial
affiliation with history. I am a former independent musician. I toured the US
many times over and found myself sort of wiling the hours away reading history books.
I sort of found a passion for it. So when I decided to
go back to school, I pursued a career in history, and I found
that there's a lot of intellectual history that has sort of fallen by the wayside.
Intellectual history being the history of ideas, which I think is really important
particular to US history, and that led me first to doing work about the
Ninth Amendment and then more recently this intellectual history of the Supreme Court. And
you've written a little bit about the sixteen nineteen project as well, haven't you.
I think I think I saw that on New Discourses, Yes, exactly.
James Lindsay published a few of my articles between twenty twenty and twenty twenty
one, the first of which was a sort of academic critique of the sixteen
nineteen project that has been republished in my first book, which is called History
Killers and Other Essays by an Intellectual Historian. But yeah, I saw that.
I'm politically independent, and I saw that a lot of the criticisms toward
the sixteen nineteen project we're coming from an overtly conservative position, which I think
is absolutely fine. But unfortunately there are people who are tone deaf to certain
criticisms when they're from a certain source. And so I thought it'd be useful
to have an more of an academic critique of the sixteen nineteen project. Well,
let's dive into judicial review, a very kind of important but obviously somewhat
niche topic in American history. You really write about how it's critical and kind
of a unique feature of the American project. So if we just start off
by, you know, pretend I'm five, explain to me what judicial review
is, James, Oh, sure, So, yes, I'm fascinated by
judicial review, which is the power of the American judiciary, but the Supreme
Court in particular to rule laws that it deems unconstitutional to be null and void.
It is an awesome power. It's a power that's been criticized by people
on both the right and the left, by politicians as well as academics,
and kind of depending on what era of American history you're looking at, the
sort of criticisms sort of swing wildly. One hundred years ago, during the
progressive era, it was progressives who were critical of judicial review, as many
progressives are today. About fifty years ago, it was self style of progressives
who were championing judicial review and the critics who were largely conservative, and that
lasted all the way through the eighties and into the nineties, conservative critiques of
this power. So that's partly why I'm fascinated by is that it's sort of
a bipartisan mission to attack this power, and yeah, it's one of the
things I pausitive. It's one of the most important aspects of American constitutionalism.
The United States was the first to really assert judicial review so overtly and so
strongly. It's still the nation that does so the most ardently, and any
nation that does it today doesn't do it to the extent that we do,
and they only do it as a sort of influence by the United States.
So can you talk to us a little bit about how other maybe constitutional republics
or liberal democracies as they would be variously described, handle this question of judicial
review. Obviously not that particular label that you know we're using in this context
to describe what's happening in the United States Supreme Court, but like that literal
kind of question of judicial review, how has it handled another maybe similar governments
that spring forth at the same time. Sure, so, either sort of
modern democracies or republics, they will use their judiciary much as we do,
to sort of interpret law, and that's often what they do, but they
don't question the constitutionality of those laws. I'd say that's the big difference,
and I think one of the historical reasons for this. If you look at
the British Empire. Their great intellectual revolution politically speaking, was in the late
sixteen hundreds, the Glorious Revolution, with the rise of their parliament, and
so their real revolution had to do with the rise of representative government over that
of the monarchy. In England, you don't have a court that can strike
down a law that the parliament passes. It just doesn't work that way.
Whereas in the United States, because of a sort of bizarre history coming out
of of colonialism and referring to founding charters, particularly colonial charters, that started
a sort of tradition of looking to founding charters to sort of abide by certain
political norms. Over time, this sort of found its way into the courts
during the colonial and revolutionary era to sort of keep looking back at founding charters
and sort of fundamental principles in order to make sure that the legislative power did
not sort of overtake such constitutional principles. I do think that it's this history
of the United States that makes it informs this aspect of judicial review, that
makes it much stronger in the US than it does anywhere else in the world.
And also, if you look at another example such as New Zealand,
they might strike down a law in a certain their court might strike down a
lot in a certain circumstance. I say, in this one case, this
law does not apply, but they will not go to the excipted of saying
this law is in violation of our constitutional norms. M it's very interesting,
James, you just kind of alluded to this, or we just sort of
script the surface of this and the last question, But if you could go
into more depth about how this evolves in early American history, I mean,
your your book. I think you write in the book that it's a fairly
ambitious you know, it's a very wide scope and an ambitious scope at that,
and that's of course to be expected with a national history as long as
ours. At this point, where does the what are the key moments in
the development of judicial review in early American history? Yeah, I think there's
a couple. One is one that I previously mentioned, which is that when
they were still British colonies, separate colonies would often refer to their founding charters
at their colonial charters in order to sort of create a sort of what to
decide what are the sort of parameters of local legislation. You combine that with
the fact that the British monarchy had this thing called the Privy Council. It
was not an independent court the way the US ended up developing. It was
very much part of the sort of executive power of the monarchy. Nevertheless,
the Privy Council during the colonial era was this office in England on behalf of
the monarch who would review colonial legislation and overrule it if they also found that
maybe a law in colonial Massachusetts violated its colonial charter. So in that you
also have this sort of external influence of a sort of outsider's take of taking
a look at legislation and comparing it to the colonial charter. These sort of
traditions ended up being so fundamental that by the time you get to the Revolution.
I think that this is one of the things that's often lost in discussions
even by historians when you get to the American Revolution, is that when the
British Parliament and king shut down the courts in Massachusetts during the Imperial Crisis in
the years leading up to the Revolution, this was seen as one of the
greatest travesties by colonists in North America, particularly in Massachusetts, but by people
in the neighboring colonies as well, because they had come to really appreciate the
independence of their courts and the fact that their courts would strike down laws that
was found unconstitutional. And this shutting down of the courts is just for whatever
reason and sort of underlooked detail that really stoked the passions of the American Revolution.
And as we start to see, as we start to see the evolution
of American politics itself and maybe even partisan politics, will say, obviously,
the Court as it is today is different than the Court was in the nineteenth
century, that's for sure. As the country kind of matures and lurch is
closer to where we are now, how does judicial review? How does the
court? How do the parties start to perceive judicial review? So one of
the things that my book does is that shows that judicial review is already well
being practiced long before Marbory v. Madison in eighteen oh three, which tends
to be the Supreme Court case where Chief Justice John Marshall asserts explicitly the power,
for the way he puts it, for the Court to decide what the
law is. But as my book recounts, there are state level judicial review
cases is in the seventeen eighties, even during the Revolution, and federal cases
in the seventeen nineties that will precede Marbraviw Madison. It's just that that case
sort of made it plane for those who weren't already paying attention. And then
throughout the nineteenth century there's all sorts of instances of this power being exercised.
The thing is that the power gets super charged with the Fourteenth Amendment after the
Civil War. I think this is another key detail that a lot of Americans
miss, and I'm doing my best to try to change this. In the
sort of historical understanding of the Bill of Rights, the Bill of Rights originally
was only enforceable against the federal government. It was not enforceable against the individual
states whatsoever. There's a case called Baron by Baltimore in eighteen thirty three that
makes this clear. But all legal scholars and constitutionalists already knew this. That
then just sort of made a plane for everybody to understand. This had all
sorts of ramifications. For one, it meant that the federal government was more
disempowered to stem the sport of slavery, among other things. But there were
also first Amendment issues that people were sort of at a loss. So you
didn't have free speech or free press rights, say in South Carolina or in
Virginia prior to the Fourteenth Amendment, and you actually had government agents rifling through
mail and pulling pulling mail if it was pro abolitionist. You had abolitionist newspapers
having their circulation disrupted by state agents because there was no first Amendment that could
be in force against the states. The Fourteenth Amendment does a lot of things,
and the sort of most immediate thing it did was recognized the citizenship of
newly freed slaves and indeed all African Americans. But another thing that did I
think a lot of people don't realize, is that it finally made the Bill
of Rights enforceable against the state governments as well. The Supreme Court was actually
slow to recognize this, and so for the first few decades after ratification of
the Fourteenth Amendment they kind of drank their feet. But that's why by the
beginning of the twentieth century you start seeing the Court enforcing certain Bill of Rights
expectations against the states. And when you understand this, it becomes natural that
the Court would become more central to American life because suddenly the court is saying
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this starts to get kind of scrambled. Maybe the differing approaches or the differing
thoughts on that starts to get kind of scrambled, and that goes along with
the Supreme Court in general. You know, obviously changing or attitude swards of
changing. Can you talk to us about that you've alluded to maybe the progressive
era and how that contrasts with what we see or how we look at judicial
review today. Can you talk to us a little bit about how that stuff
starts to scramble. Yeah, there's there's just a strange I think the more
partisan ones thinking is the more life they're going to have a sort of issue
with something like judicial review, which in its sort of best representation is being
political. But yeah, you see criticisms of what was called the judicial power
before the judicial review sort of solidifies in the twentieth century. In the late
nineteenth and early twentieth century, you have people like this scholar named Sayer who
is a huge critic of judicial review. Sayer is a legal scholar who ends
up being very influential upon Oliver Wendell Holmes, who finds himself onto the bench.
And so this anti judicial review sort of position finds itself overtly on the
bench in the early twentieth century, and that's when you have progressives like Holmes
saying basically I'm paraphrasing here, but he would say things like, if the
American people decide to send themselves to Hell in a handback get you know,
who are the courts to say otherwise? And the problem with that is that
the courts and the power of judicial review is intended to be an undemocratic,
indeed, an anti democratic check upon the fleeting passions of the people and the
people's representatives, and I think people often feel uncomfortable with that, even though
it has served as well in the long run. But by the time you
get to the middle and late twentieth century, it's often conservatives who are saying
that the court has been two activists. The term activists comes into being.
By the seventies eighties, you have this pushback by conservatives who are now arguing
for what they call judicial deference, and that difference is toward the legislature.
So in the second half of the twentieth century, it's conservatives who are saying
the courts should be going along with the people's representatives more and not be sort
of sort of intervening and whatnot. And yet by the time you get to
the early twenty first century, you have conservatives once again praising judicial review and
praising the courts for taking on things that can be sticky issues, including things
like the protection of Second Amendment rights, which I think is a very important
detail. But again, so you see this sort of different factions of people
with political beliefs kind of going round and round and switching their positions toward judicial
review depending on the air, depending on circumstances. Now we have that we're
having this conversation in the midst of a pretty serious evaluation of the Supreme Court
right now playing out in the daily news cycle. And it's not I think
a particularly effective conversation that we're having in the media, as as as is
so often the case, as is actually always the case basically with hot hot
topics, hot button issues, And I wanted to get sort of your take
on this, James, because they're you know, we could go in a
lot of different directions. But the Supreme Court, based on what you mentioned
earlier, this is a good jumping off point that the Supreme Court is intended
to function as precisely an anti democratic sort of mechanism. It seems as though
we have become so I guess, ignorant of our own system that the left
it just doesn't even want to admit or doesn't recognize the Supreme Court as something
that is sort of designed. It is anti democratic by design. I think
half the left. You know, it says, well, we're a democracy,
it shouldn't be like this, and the other half the left is like,
that's right, so we're going to just bulldoze it. And I feel
like those two different points of view are fairly damaging. Do you think this
is kind of damaging the credibility of the Supreme Court right now? I do.
I wonder how long it's going to last, though. It seems like
bashing the Supreme Court is something like I don't know, swing dancing or something.
It like comes back around every handful of years and people are really into
it for a short period of time, and it falls away again until another
controversy comes up. I don't mean to be flip about it, but you
know, criticisms of the Court aren't anything new. I agree with you that
they're particularly pointed right now, and I think that's certainly result of things like
the Docks decision, which, by the way, I held up the publication
of my book because I had already submitted the manuscript to McFarland and then the
draft leak happened last year. I was like, oh, I cannot let
this book come out without having some sort of commentary about this, but what
I have to say about it is rather nuanced. And what I found is
that a lot of people, sort of on whatever side of the debate they're
on, don't want nuance. And I think that's also true of the judicial
review concept in the Supreme Court debate in general. It's hard to get people
to understand the importance of the nuances of judicial review, such as that anti
anti democratic check, even as depending on the case, you have plenty of
progressives who will say, well, we don't care if the majority supports this
or not. We think it's right. So in those instances they're suddenly more
libertarian or what have you. There are more sort of counter majoritarian. They
don't mind taking those views if it serves their interests, but then they will
instantly default back into claiming, you know, to be championship democracy. Otherwise,
not to derail the conversation, but this is this is through what we're
seeing right now with Joe Biden refusing to debate anybody in the Democratic primary.
You know, we have champions of democracy, and yet democracy as soon as
it doesn't serve their interests, they have no use for it, you know,
just like anybody else. So I do think that's common with these critiques
of the court. I personally wouldn't mind seeing certain reforms in terms of like
transparency issues and things like that of corporate gifts or what have you. But
I do think a lot of those things are overblown. I think they're used
as a distraction, but I think they're at least closer than we were even
a couple of years ago, where there was a lot more talk about packing
the court, which I think would be a huge mistake. Well, yeah,
let's actually get into that, because you know, obviously the Federals as
a conservative by our name people can tell generally a conservative website, and we're
obviously interested in conserving the original intentions of the Constitution. And on that note,
you know, it's probably always worth explaining just a little bit about court
packing, but also why court packing sort of flies in the face of the
logic of the court itself. And James, since you similarly believe, you
know, from an independent perspective, of course, that court packing would be
a mistake, can you give us a little bit more flesh out a little
bit of your perspective on the dangers of going in that direction. Sure,
there's just a pragmatic reason for this came up. I did a Q and
A for a book signing I recently did, and I was asked about this,
and the way I put it is that the most sort of like pragmatic
way of looking at this, sort of removed of all sort of partisan politics,
is that it the planet of court packing itself wouldn't even work the way
people who advocate for it think it would, which is the argument as well,
this will make it or representative of the people. First off, the
court is not supposed to be representative the people because of this thing that we're
talking about. They're supposed to be an anti democratic check. So that's already
a misnomer as far as I'm concerned. But if you're gonna go with that,
that's not even true either because coret packing would not make the court more
representative the people. It would make the court more representative of whatever political party
happens to be in power, which is a very different thing. And so
there's a I feel like there's a built in sort of disingenuousness of core packing,
no matter who would advocate for it, right right, That's no,
that's a good point. And on that note, sort of of not taking
things for granted that you know, people generally agree on if they're of a
similar perspective on American institutions, etc. If we go back to basics again,
James on how the Court itself is intended to function in I guess in
antidemocratic sense. Can you give us a little bit like if you were arguing
to somebody on the left about why it is important to have a so called
anti democratic mechanism like the Supreme Court in a constitutional republic like ours, how
would you approach the argument? How would you make that argument if you're trying
to persuade somebody who believes that we should be small D democracy, you know,
basically run by referendums like California, because it's going so well over there,
what would you say to this hypothetical person on the left who maybe wants
to pack the court and wants to make the court a more small D democratic
institution. Well, I would use history as an example. I'm also an
adject professor of history. I'm currently teaching the nineteenth century at a local college
here in Oregon. And you know, we just got through the series of
decades prior to the civil or where the most popular sort of refrained by politicians,
almost regardless of political strife. At the time was this thing called popular
sovereignty, which was the idea that, well, just let every new state
decide for itself whether it's going to be a slave state or not. And
so politicians in the nineteenth century, we're using the concept of democracy to rationalize
slavery. And this is what politicians do. And this is why I have
a lot of common cause with my conservative friends, is because there's this ridiculous
idea that you mostly get from the left, which is this sort of logical
fallacy of the bandwagon argument that just because something is a popular idea, that
makes it somehow inherently good or righteous. And that's just such such an absurd
notion. And we have history that bears this out. And the whole purpose
of having a judiciary, a supreme court that has this awesome power to strike
down unconstitutional laws is exactly because of this human ability to fall into the idea
that just because an idea is popular, that it's the right idea. You
mentioned earlier that judicial review is kind of a fascinating subject to you, and
just I want to maybe peel back the layers of that onion because it's such
a kind of a rare niche interest. What is it about this concept that
you find so fascinating to the point of, you know, dedicating a book
length exploration to it. Yeah, I think it has to do with my
interest in the intellectual history of the United States. I think they're very tied
together, just as I've done work on the Ninth Amendment, which which is
this sort of it's my favorite, the ninth in the fourteenth. I'm a
of a nerd to have favorite amendments, right, and my favorites are the
ninth and the fourteenth. The fourteenth because of how it's supercharged judicial review,
and I think there's something really historic about that. But the Ninth Amendment that
searts the existence of unenumerated rights, unlisted rights, and for that reason,
the ninth Amendment is sort of the most philosophical of them all, because it
is sort of this admission in the Constitution that there's a sort of plethora of
individual rights out there because the government is and no human being is really capable
of listing all of the rights that people should have. I'm fascinated by that.
And the judicial review connection is very similar to that. Basically, the
intellectual history of the United States is informed by these two very different strains of
political thought, classical republicanism on one side and liberal individualism on the other side.
And these two things inform each other, and yet they're very much intention
They've been intention for as long is the republic has been in existence, and
their intention today and classical republicanism is this idea of sacrificing one's self for the
greater good, doing what's best for the community. And because of that,
it has these sort of inherent democratic principles within them within that philosophy. But
the philosophy that's intention with it, that also really informs americanism and American constitutionalism
is this liberal individualism. And I'm using liberal in its historical and academic sense,
meaning the absolute sort of expansion to the most reasonable level of individual rights.
And that's counter to sort of the civic virtue, community oriented democratic group
vision, where you have to consider what are the rights of the individual.
And of course these things are constantly intention with each other, between what is
the right of the individual versus what is the best for the community. These
are the things intellectually that Americans have always struggled with and I think will always
continue to and in fact that this debate about the Supreme Court and the power
of judicial review falls into that debate perfectly. The question of republicanism is one
that I've thought a lot about lately, because obviously we're built from that foundation
fundamentally, and yet it is a concept that is utterly lost to the modern
American, myself included, you know, for the most part, and that
Republican, that tradition of republicanism that Tofo wrote about and recently considered so central
is you know, through no fault of most ordinary Americans. It lives because
it's it's not taught well in schools and James that you mentioned during agric Professor,
you are an avid student of history. Just last week, my friend
Sager and Jetty pointed out that there's a report showing eighth grade American history scores
have just utterly plumed limitted. Obviously that effects are civic understood, our understanding
of national civics. What's going wrong when it comes to history education right now,
especially as we look at Generative AI, which is about to completely revolutionize
education, basically making the memorization that students have been doing with history completely like
useless. It renders it basically impossible for teachers to assign memorization homework of that
nature. What's going wrong right now? Well, i'd all think you would
have something like the sixteen nineteen project without this lack of historical literacy by Americans
broadly. The crosses generations and has been around for many, many decades.
My criticism of the sixteen nineteen Project and things like that have been informed by
this view. I am complete agreement with you Sager on this is that this
this creates even bigger problems, especially in a republic where the citizenry needs to
be armed with the information of its own history in order to thrive and survive
and to make a good life for ourselves. So I think it is fundamental.
And when it comes to things like I do, like higher education,
this is really tricky, especially at this time because of things like chat GBT
that you mentioned, Because of especially in the post COVID era, how lots
and lots of higher ad has moved to online, either in a hybrid sense
or completely, including class time. I have mixed feelings about that because I
want those who want a higher education be able to access it. I want
those those pathways to be available for people. At the same time, there's
something to be said for historical education that's in the room. That is that
has to with physical engagement. You know, a person in person, in
engagement, in real time and in real space. I personally think because I
emphasize the importance of writing in my history classes, because when you write,
and I think you'll relate to this, you're not just writing in order to
express what you think. You write in order to think. It actually helps
you. It aids you in the organization of your thoughts and your ideas.
And I spend a lot of time on the writing of history with my students
because it does help you to think more critically and more clearly. And so
with things like chat, GBT and whatnot. I personally, I at the
institution that I currently work, I don't have to sort of pull, but
I have thought about doing something like this independently in the future. I would
like to see, just as tests are often proxied, I would like to
see essay writing proxyed, where students come into a room, they get on
desktops or laptops that are not connected to the Internet, that are lacking all
software that's not completely necessary for them to get their work done and getting students
used to crafting essays in real time without these sort of aids. I'm even
critical of Grammarly and things like this. I honestly am, because I feel
like for as many people as that helps, I feel like it helps maybe
mid level writers become better. I think it takes not very good writers and
makes it so that they never improve because they use them too much as a
crutch. And so I would like to see more of a proxied sort of
environment in order to hone people's writing skills, which would then also help them
engage with this content more critically. The book is called Wright's Reign Supreme.
James Mason, the author of that book, thank you so much for joining
us. Thank you you've been listening to another edition of The Federalist Radio Hour.
I'm Emily Jasinski. Culture every to hear at the Federalist. We'll be
back soon with more. Until then, the lovers of freedom and anxious for
the I heard the fame by the reason, and then it faded away.