1 00:00:16,920 --> 00:00:20,679 We're back with another edition of The Federalist Radio Hour. I'm Emili Jashnski, 2 00:00:20,760 --> 00:00:23,480 culture editor here at the Federalist. As always, you could email on the 3 00:00:23,480 --> 00:00:27,760 show at radio at the Federalist dot com, follow us on Twitter at FDRLST, 4 00:00:28,039 --> 00:00:31,800 make sure to subscribe wherever you download your podcasts and over at the premium 5 00:00:31,879 --> 00:00:36,719 version of the Federalist dot Com. Today we're joined by author James Masnoff. 6 00:00:36,799 --> 00:00:41,119 He is the author of the new book Writes Reign Supreme. James, thanks 7 00:00:41,119 --> 00:00:44,320 for joining us. Oh, thank you. Now, since it's your first 8 00:00:44,320 --> 00:00:46,479 time on the show, could you just give us a little bit of background 9 00:00:46,560 --> 00:00:50,039 about how you ended up where you were and why you wanted to write this 10 00:00:50,119 --> 00:00:56,280 particular book. Uh. Sure. I had a long, sort of unofficial 11 00:00:56,320 --> 00:01:02,439 affiliation with history. I am a former independent musician. I toured the US 12 00:01:02,439 --> 00:01:07,599 many times over and found myself sort of wiling the hours away reading history books. 13 00:01:07,760 --> 00:01:11,840 I sort of found a passion for it. So when I decided to 14 00:01:11,879 --> 00:01:18,760 go back to school, I pursued a career in history, and I found 15 00:01:18,920 --> 00:01:23,120 that there's a lot of intellectual history that has sort of fallen by the wayside. 16 00:01:23,079 --> 00:01:27,159 Intellectual history being the history of ideas, which I think is really important 17 00:01:27,200 --> 00:01:33,040 particular to US history, and that led me first to doing work about the 18 00:01:33,480 --> 00:01:40,599 Ninth Amendment and then more recently this intellectual history of the Supreme Court. And 19 00:01:40,640 --> 00:01:42,879 you've written a little bit about the sixteen nineteen project as well, haven't you. 20 00:01:42,920 --> 00:01:47,439 I think I think I saw that on New Discourses, Yes, exactly. 21 00:01:47,719 --> 00:01:53,719 James Lindsay published a few of my articles between twenty twenty and twenty twenty 22 00:01:53,719 --> 00:01:59,920 one, the first of which was a sort of academic critique of the sixteen 23 00:02:00,040 --> 00:02:04,560 nineteen project that has been republished in my first book, which is called History 24 00:02:04,640 --> 00:02:08,280 Killers and Other Essays by an Intellectual Historian. But yeah, I saw that. 25 00:02:08,719 --> 00:02:14,879 I'm politically independent, and I saw that a lot of the criticisms toward 26 00:02:14,919 --> 00:02:20,240 the sixteen nineteen project we're coming from an overtly conservative position, which I think 27 00:02:20,360 --> 00:02:24,000 is absolutely fine. But unfortunately there are people who are tone deaf to certain 28 00:02:24,000 --> 00:02:29,120 criticisms when they're from a certain source. And so I thought it'd be useful 29 00:02:29,159 --> 00:02:32,560 to have an more of an academic critique of the sixteen nineteen project. Well, 30 00:02:32,639 --> 00:02:38,400 let's dive into judicial review, a very kind of important but obviously somewhat 31 00:02:38,479 --> 00:02:46,039 niche topic in American history. You really write about how it's critical and kind 32 00:02:46,039 --> 00:02:49,960 of a unique feature of the American project. So if we just start off 33 00:02:50,000 --> 00:02:53,560 by, you know, pretend I'm five, explain to me what judicial review 34 00:02:53,639 --> 00:02:58,680 is, James, Oh, sure, So, yes, I'm fascinated by 35 00:02:58,759 --> 00:03:04,120 judicial review, which is the power of the American judiciary, but the Supreme 36 00:03:04,159 --> 00:03:10,000 Court in particular to rule laws that it deems unconstitutional to be null and void. 37 00:03:10,599 --> 00:03:15,439 It is an awesome power. It's a power that's been criticized by people 38 00:03:15,520 --> 00:03:20,479 on both the right and the left, by politicians as well as academics, 39 00:03:21,080 --> 00:03:25,360 and kind of depending on what era of American history you're looking at, the 40 00:03:25,520 --> 00:03:30,879 sort of criticisms sort of swing wildly. One hundred years ago, during the 41 00:03:30,919 --> 00:03:38,080 progressive era, it was progressives who were critical of judicial review, as many 42 00:03:38,120 --> 00:03:43,759 progressives are today. About fifty years ago, it was self style of progressives 43 00:03:43,759 --> 00:03:49,919 who were championing judicial review and the critics who were largely conservative, and that 44 00:03:50,039 --> 00:03:55,439 lasted all the way through the eighties and into the nineties, conservative critiques of 45 00:03:55,479 --> 00:04:00,360 this power. So that's partly why I'm fascinated by is that it's sort of 46 00:04:00,360 --> 00:04:05,039 a bipartisan mission to attack this power, and yeah, it's one of the 47 00:04:05,120 --> 00:04:12,319 things I pausitive. It's one of the most important aspects of American constitutionalism. 48 00:04:12,680 --> 00:04:17,519 The United States was the first to really assert judicial review so overtly and so 49 00:04:17,560 --> 00:04:23,879 strongly. It's still the nation that does so the most ardently, and any 50 00:04:24,120 --> 00:04:27,680 nation that does it today doesn't do it to the extent that we do, 51 00:04:28,639 --> 00:04:31,560 and they only do it as a sort of influence by the United States. 52 00:04:32,480 --> 00:04:38,600 So can you talk to us a little bit about how other maybe constitutional republics 53 00:04:38,720 --> 00:04:44,600 or liberal democracies as they would be variously described, handle this question of judicial 54 00:04:44,639 --> 00:04:48,759 review. Obviously not that particular label that you know we're using in this context 55 00:04:48,800 --> 00:04:54,160 to describe what's happening in the United States Supreme Court, but like that literal 56 00:04:54,319 --> 00:04:58,680 kind of question of judicial review, how has it handled another maybe similar governments 57 00:04:58,680 --> 00:05:02,720 that spring forth at the same time. Sure, so, either sort of 58 00:05:02,920 --> 00:05:10,160 modern democracies or republics, they will use their judiciary much as we do, 59 00:05:10,800 --> 00:05:15,000 to sort of interpret law, and that's often what they do, but they 60 00:05:15,040 --> 00:05:20,480 don't question the constitutionality of those laws. I'd say that's the big difference, 61 00:05:20,959 --> 00:05:26,279 and I think one of the historical reasons for this. If you look at 62 00:05:26,319 --> 00:05:32,680 the British Empire. Their great intellectual revolution politically speaking, was in the late 63 00:05:32,720 --> 00:05:39,160 sixteen hundreds, the Glorious Revolution, with the rise of their parliament, and 64 00:05:39,240 --> 00:05:44,959 so their real revolution had to do with the rise of representative government over that 65 00:05:45,040 --> 00:05:48,120 of the monarchy. In England, you don't have a court that can strike 66 00:05:48,240 --> 00:05:51,639 down a law that the parliament passes. It just doesn't work that way. 67 00:05:53,120 --> 00:05:58,800 Whereas in the United States, because of a sort of bizarre history coming out 68 00:05:58,839 --> 00:06:06,839 of of colonialism and referring to founding charters, particularly colonial charters, that started 69 00:06:06,879 --> 00:06:13,199 a sort of tradition of looking to founding charters to sort of abide by certain 70 00:06:13,279 --> 00:06:17,160 political norms. Over time, this sort of found its way into the courts 71 00:06:17,240 --> 00:06:25,680 during the colonial and revolutionary era to sort of keep looking back at founding charters 72 00:06:25,680 --> 00:06:31,600 and sort of fundamental principles in order to make sure that the legislative power did 73 00:06:31,639 --> 00:06:39,680 not sort of overtake such constitutional principles. I do think that it's this history 74 00:06:39,680 --> 00:06:46,040 of the United States that makes it informs this aspect of judicial review, that 75 00:06:46,120 --> 00:06:48,360 makes it much stronger in the US than it does anywhere else in the world. 76 00:06:48,759 --> 00:06:53,199 And also, if you look at another example such as New Zealand, 77 00:06:53,879 --> 00:06:58,120 they might strike down a law in a certain their court might strike down a 78 00:06:58,160 --> 00:07:01,439 lot in a certain circumstance. I say, in this one case, this 79 00:07:01,519 --> 00:07:05,480 law does not apply, but they will not go to the excipted of saying 80 00:07:05,800 --> 00:07:13,839 this law is in violation of our constitutional norms. M it's very interesting, 81 00:07:14,240 --> 00:07:16,839 James, you just kind of alluded to this, or we just sort of 82 00:07:16,879 --> 00:07:19,399 script the surface of this and the last question, But if you could go 83 00:07:19,439 --> 00:07:25,439 into more depth about how this evolves in early American history, I mean, 84 00:07:25,480 --> 00:07:28,519 your your book. I think you write in the book that it's a fairly 85 00:07:28,560 --> 00:07:31,600 ambitious you know, it's a very wide scope and an ambitious scope at that, 86 00:07:32,519 --> 00:07:38,000 and that's of course to be expected with a national history as long as 87 00:07:38,000 --> 00:07:43,160 ours. At this point, where does the what are the key moments in 88 00:07:43,279 --> 00:07:47,160 the development of judicial review in early American history? Yeah, I think there's 89 00:07:47,199 --> 00:07:55,519 a couple. One is one that I previously mentioned, which is that when 90 00:07:55,560 --> 00:08:01,240 they were still British colonies, separate colonies would often refer to their founding charters 91 00:08:01,279 --> 00:08:07,680 at their colonial charters in order to sort of create a sort of what to 92 00:08:07,839 --> 00:08:13,160 decide what are the sort of parameters of local legislation. You combine that with 93 00:08:13,279 --> 00:08:18,759 the fact that the British monarchy had this thing called the Privy Council. It 94 00:08:18,800 --> 00:08:22,480 was not an independent court the way the US ended up developing. It was 95 00:08:22,560 --> 00:08:26,480 very much part of the sort of executive power of the monarchy. Nevertheless, 96 00:08:26,519 --> 00:08:33,600 the Privy Council during the colonial era was this office in England on behalf of 97 00:08:33,600 --> 00:08:41,559 the monarch who would review colonial legislation and overrule it if they also found that 98 00:08:41,720 --> 00:08:48,279 maybe a law in colonial Massachusetts violated its colonial charter. So in that you 99 00:08:48,399 --> 00:08:54,159 also have this sort of external influence of a sort of outsider's take of taking 100 00:08:54,159 --> 00:09:00,600 a look at legislation and comparing it to the colonial charter. These sort of 101 00:09:00,600 --> 00:09:03,799 traditions ended up being so fundamental that by the time you get to the Revolution. 102 00:09:03,879 --> 00:09:07,200 I think that this is one of the things that's often lost in discussions 103 00:09:07,240 --> 00:09:15,720 even by historians when you get to the American Revolution, is that when the 104 00:09:15,759 --> 00:09:20,840 British Parliament and king shut down the courts in Massachusetts during the Imperial Crisis in 105 00:09:20,879 --> 00:09:26,240 the years leading up to the Revolution, this was seen as one of the 106 00:09:26,240 --> 00:09:33,879 greatest travesties by colonists in North America, particularly in Massachusetts, but by people 107 00:09:33,960 --> 00:09:39,519 in the neighboring colonies as well, because they had come to really appreciate the 108 00:09:39,559 --> 00:09:43,399 independence of their courts and the fact that their courts would strike down laws that 109 00:09:45,000 --> 00:09:50,399 was found unconstitutional. And this shutting down of the courts is just for whatever 110 00:09:50,480 --> 00:09:56,679 reason and sort of underlooked detail that really stoked the passions of the American Revolution. 111 00:09:58,519 --> 00:10:03,440 And as we start to see, as we start to see the evolution 112 00:10:03,559 --> 00:10:07,919 of American politics itself and maybe even partisan politics, will say, obviously, 113 00:10:07,919 --> 00:10:11,879 the Court as it is today is different than the Court was in the nineteenth 114 00:10:11,879 --> 00:10:18,000 century, that's for sure. As the country kind of matures and lurch is 115 00:10:18,000 --> 00:10:22,799 closer to where we are now, how does judicial review? How does the 116 00:10:22,879 --> 00:10:28,840 court? How do the parties start to perceive judicial review? So one of 117 00:10:28,840 --> 00:10:33,320 the things that my book does is that shows that judicial review is already well 118 00:10:35,120 --> 00:10:41,200 being practiced long before Marbory v. Madison in eighteen oh three, which tends 119 00:10:41,240 --> 00:10:48,720 to be the Supreme Court case where Chief Justice John Marshall asserts explicitly the power, 120 00:10:48,320 --> 00:10:52,639 for the way he puts it, for the Court to decide what the 121 00:10:52,720 --> 00:10:58,600 law is. But as my book recounts, there are state level judicial review 122 00:10:58,639 --> 00:11:05,360 cases is in the seventeen eighties, even during the Revolution, and federal cases 123 00:11:05,600 --> 00:11:11,120 in the seventeen nineties that will precede Marbraviw Madison. It's just that that case 124 00:11:11,200 --> 00:11:15,759 sort of made it plane for those who weren't already paying attention. And then 125 00:11:15,799 --> 00:11:20,679 throughout the nineteenth century there's all sorts of instances of this power being exercised. 126 00:11:22,039 --> 00:11:26,440 The thing is that the power gets super charged with the Fourteenth Amendment after the 127 00:11:26,480 --> 00:11:31,559 Civil War. I think this is another key detail that a lot of Americans 128 00:11:31,639 --> 00:11:35,919 miss, and I'm doing my best to try to change this. In the 129 00:11:37,000 --> 00:11:41,919 sort of historical understanding of the Bill of Rights, the Bill of Rights originally 130 00:11:41,000 --> 00:11:46,240 was only enforceable against the federal government. It was not enforceable against the individual 131 00:11:46,240 --> 00:11:50,799 states whatsoever. There's a case called Baron by Baltimore in eighteen thirty three that 132 00:11:50,840 --> 00:11:56,360 makes this clear. But all legal scholars and constitutionalists already knew this. That 133 00:11:56,639 --> 00:12:01,240 then just sort of made a plane for everybody to understand. This had all 134 00:12:01,240 --> 00:12:07,600 sorts of ramifications. For one, it meant that the federal government was more 135 00:12:07,679 --> 00:12:11,799 disempowered to stem the sport of slavery, among other things. But there were 136 00:12:11,840 --> 00:12:20,200 also first Amendment issues that people were sort of at a loss. So you 137 00:12:20,240 --> 00:12:26,080 didn't have free speech or free press rights, say in South Carolina or in 138 00:12:26,159 --> 00:12:31,480 Virginia prior to the Fourteenth Amendment, and you actually had government agents rifling through 139 00:12:31,519 --> 00:12:37,759 mail and pulling pulling mail if it was pro abolitionist. You had abolitionist newspapers 140 00:12:37,759 --> 00:12:43,600 having their circulation disrupted by state agents because there was no first Amendment that could 141 00:12:43,639 --> 00:12:48,799 be in force against the states. The Fourteenth Amendment does a lot of things, 142 00:12:48,000 --> 00:12:52,799 and the sort of most immediate thing it did was recognized the citizenship of 143 00:12:52,879 --> 00:13:00,320 newly freed slaves and indeed all African Americans. But another thing that did I 144 00:13:00,360 --> 00:13:03,799 think a lot of people don't realize, is that it finally made the Bill 145 00:13:03,840 --> 00:13:09,000 of Rights enforceable against the state governments as well. The Supreme Court was actually 146 00:13:09,039 --> 00:13:13,000 slow to recognize this, and so for the first few decades after ratification of 147 00:13:13,039 --> 00:13:16,960 the Fourteenth Amendment they kind of drank their feet. But that's why by the 148 00:13:16,960 --> 00:13:22,399 beginning of the twentieth century you start seeing the Court enforcing certain Bill of Rights 149 00:13:22,440 --> 00:13:28,919 expectations against the states. And when you understand this, it becomes natural that 150 00:13:28,960 --> 00:13:35,639 the Court would become more central to American life because suddenly the court is saying 151 00:13:35,799 --> 00:13:39,679 these things that the federal government is not allowed to do. The state governments 152 00:13:39,720 --> 00:13:48,919 are also not allowed to do. The Washed Auto Wall Street podcast with Chris 153 00:13:48,039 --> 00:13:52,399 Markowski every day Chris helps unpack the connection between politics and the economy and how 154 00:13:52,399 --> 00:13:56,600 it affects your wallet. How is retail theft affecting inflation? Target says they've 155 00:13:56,639 --> 00:14:01,480 lost almost a billion dollars in inventory. This is just Target. What did 156 00:14:01,480 --> 00:14:05,720 Target lose money or did you? Corporations don't pay taxes because their customers pay 157 00:14:05,759 --> 00:14:09,720 those taxes and what they buy driving the prices way up. Whether it's happening 158 00:14:09,720 --> 00:14:11,799 in DC or down on Wall Street, it's affecting you financially. Be informed. 159 00:14:11,919 --> 00:14:16,039 Check out the Watchdout on Wall Street podcast with Chris Markowski on Apple, 160 00:14:16,120 --> 00:14:22,159 Spotify, or wherever you get your podcast. Now. You mentioned earlier that 161 00:14:22,200 --> 00:14:26,399 this starts to get kind of scrambled. Maybe the differing approaches or the differing 162 00:14:26,840 --> 00:14:31,080 thoughts on that starts to get kind of scrambled, and that goes along with 163 00:14:31,120 --> 00:14:35,879 the Supreme Court in general. You know, obviously changing or attitude swards of 164 00:14:37,039 --> 00:14:39,440 changing. Can you talk to us about that you've alluded to maybe the progressive 165 00:14:39,440 --> 00:14:46,480 era and how that contrasts with what we see or how we look at judicial 166 00:14:46,519 --> 00:14:48,399 review today. Can you talk to us a little bit about how that stuff 167 00:14:48,440 --> 00:14:56,799 starts to scramble. Yeah, there's there's just a strange I think the more 168 00:14:56,919 --> 00:15:01,799 partisan ones thinking is the more life they're going to have a sort of issue 169 00:15:03,039 --> 00:15:09,039 with something like judicial review, which in its sort of best representation is being 170 00:15:09,120 --> 00:15:18,159 political. But yeah, you see criticisms of what was called the judicial power 171 00:15:18,200 --> 00:15:22,559 before the judicial review sort of solidifies in the twentieth century. In the late 172 00:15:22,679 --> 00:15:28,759 nineteenth and early twentieth century, you have people like this scholar named Sayer who 173 00:15:30,039 --> 00:15:33,600 is a huge critic of judicial review. Sayer is a legal scholar who ends 174 00:15:33,639 --> 00:15:39,799 up being very influential upon Oliver Wendell Holmes, who finds himself onto the bench. 175 00:15:39,960 --> 00:15:45,960 And so this anti judicial review sort of position finds itself overtly on the 176 00:15:45,960 --> 00:15:50,360 bench in the early twentieth century, and that's when you have progressives like Holmes 177 00:15:50,600 --> 00:15:56,039 saying basically I'm paraphrasing here, but he would say things like, if the 178 00:15:56,080 --> 00:16:00,799 American people decide to send themselves to Hell in a handback get you know, 179 00:16:00,840 --> 00:16:04,360 who are the courts to say otherwise? And the problem with that is that 180 00:16:04,679 --> 00:16:11,200 the courts and the power of judicial review is intended to be an undemocratic, 181 00:16:11,279 --> 00:16:17,440 indeed, an anti democratic check upon the fleeting passions of the people and the 182 00:16:17,480 --> 00:16:22,639 people's representatives, and I think people often feel uncomfortable with that, even though 183 00:16:22,679 --> 00:16:26,279 it has served as well in the long run. But by the time you 184 00:16:26,279 --> 00:16:32,240 get to the middle and late twentieth century, it's often conservatives who are saying 185 00:16:32,279 --> 00:16:37,200 that the court has been two activists. The term activists comes into being. 186 00:16:38,159 --> 00:16:45,440 By the seventies eighties, you have this pushback by conservatives who are now arguing 187 00:16:45,519 --> 00:16:49,799 for what they call judicial deference, and that difference is toward the legislature. 188 00:16:49,919 --> 00:16:53,799 So in the second half of the twentieth century, it's conservatives who are saying 189 00:16:55,120 --> 00:17:00,279 the courts should be going along with the people's representatives more and not be sort 190 00:17:00,279 --> 00:17:04,200 of sort of intervening and whatnot. And yet by the time you get to 191 00:17:04,920 --> 00:17:11,880 the early twenty first century, you have conservatives once again praising judicial review and 192 00:17:11,920 --> 00:17:18,319 praising the courts for taking on things that can be sticky issues, including things 193 00:17:18,359 --> 00:17:22,799 like the protection of Second Amendment rights, which I think is a very important 194 00:17:22,880 --> 00:17:29,359 detail. But again, so you see this sort of different factions of people 195 00:17:29,359 --> 00:17:34,039 with political beliefs kind of going round and round and switching their positions toward judicial 196 00:17:34,079 --> 00:17:41,480 review depending on the air, depending on circumstances. Now we have that we're 197 00:17:41,519 --> 00:17:48,839 having this conversation in the midst of a pretty serious evaluation of the Supreme Court 198 00:17:49,039 --> 00:17:52,720 right now playing out in the daily news cycle. And it's not I think 199 00:17:52,759 --> 00:18:00,799 a particularly effective conversation that we're having in the media, as as as is 200 00:18:00,839 --> 00:18:03,680 so often the case, as is actually always the case basically with hot hot 201 00:18:03,680 --> 00:18:07,440 topics, hot button issues, And I wanted to get sort of your take 202 00:18:07,519 --> 00:18:11,599 on this, James, because they're you know, we could go in a 203 00:18:11,599 --> 00:18:18,839 lot of different directions. But the Supreme Court, based on what you mentioned 204 00:18:18,839 --> 00:18:21,720 earlier, this is a good jumping off point that the Supreme Court is intended 205 00:18:21,759 --> 00:18:26,640 to function as precisely an anti democratic sort of mechanism. It seems as though 206 00:18:27,680 --> 00:18:33,839 we have become so I guess, ignorant of our own system that the left 207 00:18:34,720 --> 00:18:40,680 it just doesn't even want to admit or doesn't recognize the Supreme Court as something 208 00:18:40,680 --> 00:18:45,279 that is sort of designed. It is anti democratic by design. I think 209 00:18:45,640 --> 00:18:48,920 half the left. You know, it says, well, we're a democracy, 210 00:18:48,960 --> 00:18:51,160 it shouldn't be like this, and the other half the left is like, 211 00:18:51,440 --> 00:18:53,759 that's right, so we're going to just bulldoze it. And I feel 212 00:18:53,799 --> 00:19:00,240 like those two different points of view are fairly damaging. Do you think this 213 00:19:00,319 --> 00:19:06,039 is kind of damaging the credibility of the Supreme Court right now? I do. 214 00:19:06,680 --> 00:19:10,759 I wonder how long it's going to last, though. It seems like 215 00:19:12,400 --> 00:19:18,000 bashing the Supreme Court is something like I don't know, swing dancing or something. 216 00:19:18,039 --> 00:19:22,279 It like comes back around every handful of years and people are really into 217 00:19:22,279 --> 00:19:25,640 it for a short period of time, and it falls away again until another 218 00:19:25,680 --> 00:19:29,400 controversy comes up. I don't mean to be flip about it, but you 219 00:19:29,440 --> 00:19:33,400 know, criticisms of the Court aren't anything new. I agree with you that 220 00:19:33,400 --> 00:19:41,839 they're particularly pointed right now, and I think that's certainly result of things like 221 00:19:41,880 --> 00:19:45,240 the Docks decision, which, by the way, I held up the publication 222 00:19:45,319 --> 00:19:51,680 of my book because I had already submitted the manuscript to McFarland and then the 223 00:19:51,759 --> 00:19:55,079 draft leak happened last year. I was like, oh, I cannot let 224 00:19:55,079 --> 00:20:00,359 this book come out without having some sort of commentary about this, but what 225 00:20:00,480 --> 00:20:03,279 I have to say about it is rather nuanced. And what I found is 226 00:20:03,279 --> 00:20:06,480 that a lot of people, sort of on whatever side of the debate they're 227 00:20:06,599 --> 00:20:11,559 on, don't want nuance. And I think that's also true of the judicial 228 00:20:11,680 --> 00:20:17,920 review concept in the Supreme Court debate in general. It's hard to get people 229 00:20:17,960 --> 00:20:23,279 to understand the importance of the nuances of judicial review, such as that anti 230 00:20:23,519 --> 00:20:30,200 anti democratic check, even as depending on the case, you have plenty of 231 00:20:30,279 --> 00:20:34,480 progressives who will say, well, we don't care if the majority supports this 232 00:20:34,680 --> 00:20:40,119 or not. We think it's right. So in those instances they're suddenly more 233 00:20:40,119 --> 00:20:45,039 libertarian or what have you. There are more sort of counter majoritarian. They 234 00:20:45,039 --> 00:20:48,319 don't mind taking those views if it serves their interests, but then they will 235 00:20:48,400 --> 00:20:56,559 instantly default back into claiming, you know, to be championship democracy. Otherwise, 236 00:20:56,200 --> 00:21:00,480 not to derail the conversation, but this is this is through what we're 237 00:21:00,480 --> 00:21:06,559 seeing right now with Joe Biden refusing to debate anybody in the Democratic primary. 238 00:21:07,240 --> 00:21:11,079 You know, we have champions of democracy, and yet democracy as soon as 239 00:21:11,119 --> 00:21:15,519 it doesn't serve their interests, they have no use for it, you know, 240 00:21:15,599 --> 00:21:19,519 just like anybody else. So I do think that's common with these critiques 241 00:21:19,640 --> 00:21:26,400 of the court. I personally wouldn't mind seeing certain reforms in terms of like 242 00:21:26,440 --> 00:21:33,319 transparency issues and things like that of corporate gifts or what have you. But 243 00:21:33,599 --> 00:21:37,359 I do think a lot of those things are overblown. I think they're used 244 00:21:37,400 --> 00:21:41,759 as a distraction, but I think they're at least closer than we were even 245 00:21:41,799 --> 00:21:45,079 a couple of years ago, where there was a lot more talk about packing 246 00:21:45,160 --> 00:21:48,519 the court, which I think would be a huge mistake. Well, yeah, 247 00:21:48,559 --> 00:21:52,720 let's actually get into that, because you know, obviously the Federals as 248 00:21:52,759 --> 00:22:00,240 a conservative by our name people can tell generally a conservative website, and we're 249 00:22:00,279 --> 00:22:06,640 obviously interested in conserving the original intentions of the Constitution. And on that note, 250 00:22:06,839 --> 00:22:12,039 you know, it's probably always worth explaining just a little bit about court 251 00:22:12,039 --> 00:22:15,200 packing, but also why court packing sort of flies in the face of the 252 00:22:15,240 --> 00:22:22,359 logic of the court itself. And James, since you similarly believe, you 253 00:22:22,359 --> 00:22:25,079 know, from an independent perspective, of course, that court packing would be 254 00:22:25,119 --> 00:22:26,799 a mistake, can you give us a little bit more flesh out a little 255 00:22:26,799 --> 00:22:32,000 bit of your perspective on the dangers of going in that direction. Sure, 256 00:22:32,519 --> 00:22:34,759 there's just a pragmatic reason for this came up. I did a Q and 257 00:22:34,799 --> 00:22:38,640 A for a book signing I recently did, and I was asked about this, 258 00:22:38,799 --> 00:22:44,519 and the way I put it is that the most sort of like pragmatic 259 00:22:45,200 --> 00:22:48,799 way of looking at this, sort of removed of all sort of partisan politics, 260 00:22:48,880 --> 00:22:53,920 is that it the planet of court packing itself wouldn't even work the way 261 00:22:53,960 --> 00:22:59,160 people who advocate for it think it would, which is the argument as well, 262 00:22:59,240 --> 00:23:03,039 this will make it or representative of the people. First off, the 263 00:23:03,079 --> 00:23:06,240 court is not supposed to be representative the people because of this thing that we're 264 00:23:06,279 --> 00:23:08,720 talking about. They're supposed to be an anti democratic check. So that's already 265 00:23:08,759 --> 00:23:15,599 a misnomer as far as I'm concerned. But if you're gonna go with that, 266 00:23:15,599 --> 00:23:22,839 that's not even true either because coret packing would not make the court more 267 00:23:22,880 --> 00:23:26,880 representative the people. It would make the court more representative of whatever political party 268 00:23:26,920 --> 00:23:32,240 happens to be in power, which is a very different thing. And so 269 00:23:32,400 --> 00:23:37,000 there's a I feel like there's a built in sort of disingenuousness of core packing, 270 00:23:37,079 --> 00:23:41,279 no matter who would advocate for it, right right, That's no, 271 00:23:41,400 --> 00:23:45,119 that's a good point. And on that note, sort of of not taking 272 00:23:45,160 --> 00:23:49,200 things for granted that you know, people generally agree on if they're of a 273 00:23:49,240 --> 00:23:55,519 similar perspective on American institutions, etc. If we go back to basics again, 274 00:23:55,640 --> 00:24:00,319 James on how the Court itself is intended to function in I guess in 275 00:24:00,319 --> 00:24:03,799 antidemocratic sense. Can you give us a little bit like if you were arguing 276 00:24:03,839 --> 00:24:10,799 to somebody on the left about why it is important to have a so called 277 00:24:10,799 --> 00:24:17,240 anti democratic mechanism like the Supreme Court in a constitutional republic like ours, how 278 00:24:17,279 --> 00:24:19,559 would you approach the argument? How would you make that argument if you're trying 279 00:24:19,559 --> 00:24:25,359 to persuade somebody who believes that we should be small D democracy, you know, 280 00:24:25,440 --> 00:24:29,319 basically run by referendums like California, because it's going so well over there, 281 00:24:30,200 --> 00:24:34,079 what would you say to this hypothetical person on the left who maybe wants 282 00:24:34,079 --> 00:24:40,759 to pack the court and wants to make the court a more small D democratic 283 00:24:40,759 --> 00:24:45,759 institution. Well, I would use history as an example. I'm also an 284 00:24:45,799 --> 00:24:52,119 adject professor of history. I'm currently teaching the nineteenth century at a local college 285 00:24:52,160 --> 00:24:57,359 here in Oregon. And you know, we just got through the series of 286 00:24:57,440 --> 00:25:03,279 decades prior to the civil or where the most popular sort of refrained by politicians, 287 00:25:04,240 --> 00:25:08,799 almost regardless of political strife. At the time was this thing called popular 288 00:25:08,880 --> 00:25:12,319 sovereignty, which was the idea that, well, just let every new state 289 00:25:12,400 --> 00:25:15,279 decide for itself whether it's going to be a slave state or not. And 290 00:25:15,319 --> 00:25:23,440 so politicians in the nineteenth century, we're using the concept of democracy to rationalize 291 00:25:23,759 --> 00:25:30,640 slavery. And this is what politicians do. And this is why I have 292 00:25:30,720 --> 00:25:36,559 a lot of common cause with my conservative friends, is because there's this ridiculous 293 00:25:36,640 --> 00:25:41,799 idea that you mostly get from the left, which is this sort of logical 294 00:25:41,839 --> 00:25:47,640 fallacy of the bandwagon argument that just because something is a popular idea, that 295 00:25:48,160 --> 00:25:53,200 makes it somehow inherently good or righteous. And that's just such such an absurd 296 00:25:53,240 --> 00:25:59,680 notion. And we have history that bears this out. And the whole purpose 297 00:25:59,759 --> 00:26:06,640 of having a judiciary, a supreme court that has this awesome power to strike 298 00:26:06,720 --> 00:26:11,920 down unconstitutional laws is exactly because of this human ability to fall into the idea 299 00:26:12,000 --> 00:26:18,240 that just because an idea is popular, that it's the right idea. You 300 00:26:18,640 --> 00:26:23,079 mentioned earlier that judicial review is kind of a fascinating subject to you, and 301 00:26:23,839 --> 00:26:30,680 just I want to maybe peel back the layers of that onion because it's such 302 00:26:30,720 --> 00:26:37,079 a kind of a rare niche interest. What is it about this concept that 303 00:26:37,200 --> 00:26:41,759 you find so fascinating to the point of, you know, dedicating a book 304 00:26:41,839 --> 00:26:45,319 length exploration to it. Yeah, I think it has to do with my 305 00:26:45,400 --> 00:26:51,559 interest in the intellectual history of the United States. I think they're very tied 306 00:26:51,640 --> 00:26:55,839 together, just as I've done work on the Ninth Amendment, which which is 307 00:26:55,880 --> 00:26:59,799 this sort of it's my favorite, the ninth in the fourteenth. I'm a 308 00:27:00,119 --> 00:27:03,720 of a nerd to have favorite amendments, right, and my favorites are the 309 00:27:03,839 --> 00:27:07,920 ninth and the fourteenth. The fourteenth because of how it's supercharged judicial review, 310 00:27:08,079 --> 00:27:11,559 and I think there's something really historic about that. But the Ninth Amendment that 311 00:27:11,680 --> 00:27:17,319 searts the existence of unenumerated rights, unlisted rights, and for that reason, 312 00:27:17,519 --> 00:27:22,319 the ninth Amendment is sort of the most philosophical of them all, because it 313 00:27:22,400 --> 00:27:26,240 is sort of this admission in the Constitution that there's a sort of plethora of 314 00:27:26,319 --> 00:27:33,200 individual rights out there because the government is and no human being is really capable 315 00:27:33,240 --> 00:27:37,039 of listing all of the rights that people should have. I'm fascinated by that. 316 00:27:37,359 --> 00:27:42,119 And the judicial review connection is very similar to that. Basically, the 317 00:27:42,160 --> 00:27:47,960 intellectual history of the United States is informed by these two very different strains of 318 00:27:48,000 --> 00:27:53,359 political thought, classical republicanism on one side and liberal individualism on the other side. 319 00:27:53,480 --> 00:27:56,920 And these two things inform each other, and yet they're very much intention 320 00:27:57,119 --> 00:28:02,039 They've been intention for as long is the republic has been in existence, and 321 00:28:02,559 --> 00:28:08,359 their intention today and classical republicanism is this idea of sacrificing one's self for the 322 00:28:08,400 --> 00:28:11,839 greater good, doing what's best for the community. And because of that, 323 00:28:11,880 --> 00:28:19,119 it has these sort of inherent democratic principles within them within that philosophy. But 324 00:28:19,480 --> 00:28:26,759 the philosophy that's intention with it, that also really informs americanism and American constitutionalism 325 00:28:26,920 --> 00:28:30,599 is this liberal individualism. And I'm using liberal in its historical and academic sense, 326 00:28:30,960 --> 00:28:41,440 meaning the absolute sort of expansion to the most reasonable level of individual rights. 327 00:28:41,839 --> 00:28:47,799 And that's counter to sort of the civic virtue, community oriented democratic group 328 00:28:48,160 --> 00:28:52,920 vision, where you have to consider what are the rights of the individual. 329 00:28:53,160 --> 00:28:57,960 And of course these things are constantly intention with each other, between what is 330 00:28:59,000 --> 00:29:03,240 the right of the individual versus what is the best for the community. These 331 00:29:03,240 --> 00:29:07,759 are the things intellectually that Americans have always struggled with and I think will always 332 00:29:07,759 --> 00:29:11,920 continue to and in fact that this debate about the Supreme Court and the power 333 00:29:11,920 --> 00:29:18,839 of judicial review falls into that debate perfectly. The question of republicanism is one 334 00:29:18,839 --> 00:29:22,480 that I've thought a lot about lately, because obviously we're built from that foundation 335 00:29:23,160 --> 00:29:27,640 fundamentally, and yet it is a concept that is utterly lost to the modern 336 00:29:27,680 --> 00:29:30,559 American, myself included, you know, for the most part, and that 337 00:29:30,759 --> 00:29:37,480 Republican, that tradition of republicanism that Tofo wrote about and recently considered so central 338 00:29:37,680 --> 00:29:42,279 is you know, through no fault of most ordinary Americans. It lives because 339 00:29:42,319 --> 00:29:47,519 it's it's not taught well in schools and James that you mentioned during agric Professor, 340 00:29:47,960 --> 00:29:52,240 you are an avid student of history. Just last week, my friend 341 00:29:52,559 --> 00:29:57,720 Sager and Jetty pointed out that there's a report showing eighth grade American history scores 342 00:29:57,759 --> 00:30:03,640 have just utterly plumed limitted. Obviously that effects are civic understood, our understanding 343 00:30:03,680 --> 00:30:10,039 of national civics. What's going wrong when it comes to history education right now, 344 00:30:10,160 --> 00:30:15,880 especially as we look at Generative AI, which is about to completely revolutionize 345 00:30:15,960 --> 00:30:22,200 education, basically making the memorization that students have been doing with history completely like 346 00:30:22,720 --> 00:30:27,119 useless. It renders it basically impossible for teachers to assign memorization homework of that 347 00:30:27,200 --> 00:30:33,759 nature. What's going wrong right now? Well, i'd all think you would 348 00:30:34,079 --> 00:30:44,240 have something like the sixteen nineteen project without this lack of historical literacy by Americans 349 00:30:44,279 --> 00:30:49,359 broadly. The crosses generations and has been around for many, many decades. 350 00:30:51,279 --> 00:30:56,319 My criticism of the sixteen nineteen Project and things like that have been informed by 351 00:30:56,359 --> 00:31:03,480 this view. I am complete agreement with you Sager on this is that this 352 00:31:03,480 --> 00:31:11,680 this creates even bigger problems, especially in a republic where the citizenry needs to 353 00:31:11,759 --> 00:31:15,880 be armed with the information of its own history in order to thrive and survive 354 00:31:17,000 --> 00:31:22,440 and to make a good life for ourselves. So I think it is fundamental. 355 00:31:22,680 --> 00:31:26,319 And when it comes to things like I do, like higher education, 356 00:31:29,519 --> 00:31:33,079 this is really tricky, especially at this time because of things like chat GBT 357 00:31:33,440 --> 00:31:37,680 that you mentioned, Because of especially in the post COVID era, how lots 358 00:31:37,680 --> 00:31:42,640 and lots of higher ad has moved to online, either in a hybrid sense 359 00:31:42,759 --> 00:31:48,200 or completely, including class time. I have mixed feelings about that because I 360 00:31:49,039 --> 00:31:56,200 want those who want a higher education be able to access it. I want 361 00:31:56,240 --> 00:32:00,599 those those pathways to be available for people. At the same time, there's 362 00:32:00,599 --> 00:32:06,480 something to be said for historical education that's in the room. That is that 363 00:32:06,960 --> 00:32:09,319 has to with physical engagement. You know, a person in person, in 364 00:32:09,359 --> 00:32:15,960 engagement, in real time and in real space. I personally think because I 365 00:32:15,000 --> 00:32:21,519 emphasize the importance of writing in my history classes, because when you write, 366 00:32:21,839 --> 00:32:25,519 and I think you'll relate to this, you're not just writing in order to 367 00:32:25,559 --> 00:32:30,759 express what you think. You write in order to think. It actually helps 368 00:32:30,839 --> 00:32:35,079 you. It aids you in the organization of your thoughts and your ideas. 369 00:32:35,599 --> 00:32:38,759 And I spend a lot of time on the writing of history with my students 370 00:32:38,839 --> 00:32:45,039 because it does help you to think more critically and more clearly. And so 371 00:32:45,599 --> 00:32:49,960 with things like chat, GBT and whatnot. I personally, I at the 372 00:32:49,960 --> 00:32:52,240 institution that I currently work, I don't have to sort of pull, but 373 00:32:52,519 --> 00:32:57,519 I have thought about doing something like this independently in the future. I would 374 00:32:57,559 --> 00:33:01,000 like to see, just as tests are often proxied, I would like to 375 00:33:01,039 --> 00:33:07,960 see essay writing proxyed, where students come into a room, they get on 376 00:33:07,079 --> 00:33:14,720 desktops or laptops that are not connected to the Internet, that are lacking all 377 00:33:14,799 --> 00:33:22,160 software that's not completely necessary for them to get their work done and getting students 378 00:33:22,319 --> 00:33:29,599 used to crafting essays in real time without these sort of aids. I'm even 379 00:33:29,680 --> 00:33:35,079 critical of Grammarly and things like this. I honestly am, because I feel 380 00:33:35,079 --> 00:33:37,480 like for as many people as that helps, I feel like it helps maybe 381 00:33:37,559 --> 00:33:43,400 mid level writers become better. I think it takes not very good writers and 382 00:33:43,480 --> 00:33:46,359 makes it so that they never improve because they use them too much as a 383 00:33:46,400 --> 00:33:52,240 crutch. And so I would like to see more of a proxied sort of 384 00:33:52,440 --> 00:33:57,160 environment in order to hone people's writing skills, which would then also help them 385 00:33:57,519 --> 00:34:04,000 engage with this content more critically. The book is called Wright's Reign Supreme. 386 00:34:04,240 --> 00:34:07,400 James Mason, the author of that book, thank you so much for joining 387 00:34:07,440 --> 00:34:12,159 us. Thank you you've been listening to another edition of The Federalist Radio Hour. 388 00:34:12,199 --> 00:34:15,039 I'm Emily Jasinski. Culture every to hear at the Federalist. We'll be 389 00:34:15,039 --> 00:34:17,800 back soon with more. Until then, the lovers of freedom and anxious for 390 00:34:17,920 --> 00:34:37,079 the I heard the fame by the reason, and then it faded away.