Speaker 1: Well, whiskey, come and take my pain, the money.
Speaker 2: My brain, Oh whiskey.
Speaker 3: Don't why think alone when you can drink it all
Speaker 3: in with Ricochet's three Whiskey Happy Hour, join your bartenders
Speaker 3: Steve Hayward, John You, and the international woman of Mystery, Lucretia.
Speaker 2: Where this lap it up?
Speaker 4: It?
Speaker 2: David? Ain't you easy on the show? Tap got a giving?
Speaker 5: Let that whiskey.
Speaker 3: We have an emergency three whiskey Happy Hour podcast this
Speaker 3: afternoon because well, because I know Lucretia was just thrilled
Speaker 3: to the Supreme Court today, marts you and Lucretia thrilled.
Speaker 6: But everyone should know that I was actually in ignorant
Speaker 6: bliss because I was so busy and have so many things.
Speaker 6: I didn't even have a chance to look at uh
Speaker 6: at news, even even in boring meetings because I was
Speaker 6: too busy fighting. So I didn't know till Steve. I
Speaker 6: always take Steve's text no matter what, So I was like,
Speaker 6: what what? I don't know what's going on? You had
Speaker 6: to ruin my day even more than it always already ruined.
Speaker 3: But thanks to well right, But then it's also the
Speaker 3: day after the State of the Union address, and by
Speaker 3: the time we usually record our weekly episode at the
Speaker 3: end of the week, it'll be really old news, so
Speaker 3: you know, a couple of quick reactions to that, and
Speaker 3: then we got the second half of our conversation with
Speaker 3: Richard Epstein to get in the cannon out and it's
Speaker 3: shorter than the first installment, so listeners, of course, you
Speaker 3: know Richard gets in, you know, three books work material
Speaker 3: in about ten minutes, as we know.
Speaker 6: Well, a shout out to the Golora for a second,
Speaker 6: because I didn't get on there before the comments were
Speaker 6: shut down. He says he's leaving me. He's leaving me
Speaker 6: for Richard, because Richard is a true libertarian, and you
Speaker 6: know I'm not. I still love you, David, and I'll
Speaker 6: forgive you when you come back groveling on your knees.
Speaker 2: He'll be back soon, as my prediction.
Speaker 3: So listeners, in case you have not heard the news,
Speaker 3: it was blissfully leading your life on this ash Wednesday.
Speaker 3: Supreme Court today let us down twice.
Speaker 2: It seems to me. First, after having granted.
Speaker 3: The stay last week, that was Chief Justice Roberts blocking
Speaker 3: a district court injunction against Trump withholding payments of two
Speaker 3: billion dollars in USAID grants. Today, the Supreme Court ruled
Speaker 3: five to four, with Roberts and amy Cony Barrett joining
Speaker 3: the three liberals, saying, sorry, the District Court's right, Trump administration,
Speaker 3: you will have to pay out that money. Although there's
Speaker 3: some wrinkles.
Speaker 6: In it, a little not exactly yeah, okay, I know,
Speaker 6: you know, I just don't want to get use listeners
Speaker 6: from the outset. Basically that they sent it back to
Speaker 6: the damned District Court for whatever reason, to sort of
Speaker 6: figure out how and when the money should be spent,
Speaker 6: you know. And it is not necessarily an indictment of
Speaker 6: the entire Doge project of stopping payments. It is payments
Speaker 6: for things that have already happened.
Speaker 3: Right, So, I mean, the thing is is that the
Speaker 3: it's just a very sort of brusque order from the
Speaker 3: five justices and a long unsigned that's right, and a
Speaker 3: long descent from Alito where he professes to being shocked,
Speaker 3: and I agree with him. It's stunned that shocked and stunned,
Speaker 3: as they say in the Great Ruttles spoof of the Beatles.
Speaker 2: Well, it wasn't clear to me. I mean, it seems
Speaker 2: to me that maybe.
Speaker 3: There is lurking, and here an argument of this is
Speaker 3: a contract that needs to be fulfilled if the work's
Speaker 3: already done, in other words, decided on narrow grounds, even
Speaker 3: though it may be rotten, like you know, the Fletcher
Speaker 3: versus Peck decision way back and when it was that
Speaker 3: eighteen oh nine. Right, A contract's a contract even if
Speaker 3: it's corrupt. And I guess I can live with that,
Speaker 3: But it's not clear that that's what it's on. It's
Speaker 3: partly is there. And I think Alito's argument is, does
Speaker 3: a district court, even if the district is.
Speaker 2: In Washington, d C.
Speaker 3: Which would seem to have jurisdiction at least in one sense,
Speaker 3: do they have the power to do this? And I
Speaker 3: don't know that all lands. But it's still a disappointment.
Speaker 6: Yeah, it is a disappointment. But let's I'm gonna be optimistic.
Speaker 6: It is ash Wednesday, and I've been awful all day.
Speaker 6: I have to go back to confession after my day
Speaker 6: to day. But let me be optimistic for just a moment,
Speaker 6: which is that tomorrow it goes back for the district
Speaker 6: court judge, who's a Biden hack. Of course he is,
Speaker 6: you know, I mean appointed by Biden. That's what I
Speaker 6: meant to say. I'm not doing very well on my
Speaker 6: commitment to being the better person, Steve.
Speaker 2: But you're already not.
Speaker 6: Even one day. I mean, I churched like four hours ago. Anyway,
Speaker 6: the I mean, in many ways, Alito is absolutely right,
Speaker 6: and he's speaking to the larger issue. And the larger issue,
Speaker 6: of course, is whether a district a single district court
Speaker 6: judge has any jurisdiction uh to compel the government of
Speaker 6: the United States to pay any thing, you know, whether
Speaker 6: it's two billion taxpayer dollars that are, as Steve said,
Speaker 6: already contracted for services already rendered. However those horrible those
Speaker 6: services are. And if we know anything about USAID, we
Speaker 6: know how horrible those services were. But the court, but
Speaker 6: the court didn't agree to that. Now, I did see
Speaker 6: some commentary, Steve, really quick, I'm going to throw this
Speaker 6: at you about people who said it was it it
Speaker 6: was a Trump administration being a little bit a little
Speaker 6: bit naive or a little bit too hasty in pushing
Speaker 6: this issue, because the Supreme Court does, in fact, very
Speaker 6: rarely step in on these kinds of things, and you know,
Speaker 6: overturn a stay or or give us stay to a
Speaker 6: temporary restraining order. That this is the kind of thing
Speaker 6: that is usually just played out in the courts first
Speaker 6: and yeah, and so there's not a lot of merits
Speaker 6: in this case. I'm not even sure if your contract
Speaker 6: legal rationale is there. It's not in the unsigned opinion.
Speaker 6: Maybe behind the scenes. But nevertheless, we were hoping that
Speaker 6: this would be the beginning of the slapdown of these
Speaker 6: out of control district judges, Steve, I mean, that's why
Speaker 6: you knew I'd be upset.
Speaker 3: Yeah, well, I just thought you'd be upset at the lineup.
Speaker 3: You know that it was Roberts and Barrett letting us
Speaker 3: down right.
Speaker 6: Used to it now and by the way, we do
Speaker 6: not refer to him any longer as Chief Justice Roberts.
Speaker 2: Oh, it's dread what is it?
Speaker 6: It's the dread coward Roberts.
Speaker 2: That's right.
Speaker 3: And we the sequel to the Princess Bride with that character.
Speaker 3: I think, okay, the other case that is what are
Speaker 3: you saying, disappointment sign of talk about dread coward.
Speaker 2: The Supreme Court ruled today, actually ruled.
Speaker 3: What they did was they rejected a petition to hear
Speaker 3: a case called Speech First versus Pamela Whitten.
Speaker 2: I forget who Pamela Whitten is, but it's.
Speaker 3: The case concerning the University of Indiana's Bias Incidents Response Team,
Speaker 3: which is very popular in a lot of woke campuses.
Speaker 2: And you know what.
Speaker 3: Happens is is that, oh, if somebody says something mean,
Speaker 3: you know, hate speech or derogatory or something like that,
Speaker 3: you can report it anonymously to the Bias Incident Response Team.
Speaker 3: That's a bunch of you know, underutilized administrators, I suppose,
Speaker 3: who then can contact the offending party and ask them
Speaker 3: to come in for a voluntary.
Speaker 2: Review of what they've said.
Speaker 3: And there's no formal disciplinary process attached to this, but
Speaker 3: it's certainly intimidating. In any other context, you would call
Speaker 3: this chilling speech. And by rejecting the appeal, they've left
Speaker 3: the circuits in place, because I think, if I've got
Speaker 3: this right, your lower court opinion rejected the challenge to
Speaker 3: these practices by speech. First, I think it's I'm not
Speaker 3: sure it's the seventh Circuit or which circuit is, but
Speaker 3: it's the circuit that includes Indiana.
Speaker 2: While the sixth Circuit next door.
Speaker 3: I think it is, has ruled in fact that bias
Speaker 3: Incident Response teams are on the First Amendment. So you
Speaker 3: now have two circuits with two different states of the
Speaker 3: law regarding First Amendment protections. And ordinarily you'd think the
Speaker 3: Supreme Court would have to step in and the Circuit sweat.
Speaker 6: Yeah, you're right, Steve, it's not I have to. It's
Speaker 6: by their own internal Supreme Court rules. Those are two
Speaker 6: of the things that seem to require that they grant
Speaker 6: cert And that is again what you said, which is
Speaker 6: when a fundamental right is at stake. Now they can
Speaker 6: turn those things down because they can often sort of
Speaker 6: pont on whether or not a fundamental right is really
Speaker 6: involved in it appears to be that might be what
Speaker 6: they're doing here. But also when there are in fact
Speaker 6: two separate Circuit Court rulings and two separate circuits that
Speaker 6: contradict each other, I mean, that's just not that that
Speaker 6: makes no sense from the point of view of, you know,
Speaker 6: having judicial supremacy decide these issues for us, right, because
Speaker 6: if you live in one part of the country that
Speaker 6: the Circuit Court decided that bias incidents response teams, I'll
Speaker 6: have something to say about that in a moment after
Speaker 6: comes back. But are chilling on free speech, then great.
Speaker 6: If you were in the part that says they're not,
Speaker 6: then you know you're stuck knowing as say a professor
Speaker 6: like me who says something that triggers a poor a
Speaker 6: poor delicate students delicate sensibilities, which I've done more than
Speaker 6: once and then turned into the bias Incident spons team
Speaker 6: more than once. Then you you the faculty member, whoever
Speaker 6: it might be. Students in classes get turned in by
Speaker 6: other students, then you have no recourse where and and
Speaker 6: it depends on where you live. And that makes no sense.
Speaker 3: Well, you would think this would be solidly footnote for
Speaker 3: territory of carolling products, right, a fundamental right that they
Speaker 3: have to have heightened or strict scrutiny for it, right,
Speaker 3: And they're dodging it on the technicality that well there's
Speaker 3: no injury yet, direct injury or something like that, which
Speaker 3: seems pretty weak to me, and.
Speaker 6: Maybe I haven't seen the facts of the case, Steve.
Speaker 6: What I will tell you this is the honest truth.
Speaker 6: The first time, the first time that I got a
Speaker 6: notice from the incident the bias Incident response team, the
Speaker 6: answer back was, well, we're not trying to curb your
Speaker 6: free speech or tell you what to teach in your classroom.
Speaker 6: What we're suggesting is that when you use analogies that
Speaker 6: you that you choose something a little bit more inclusive
Speaker 6: and current. Perhaps I think that the actual, the actual
Speaker 6: topic that drew this particular incident response inquiry into me
Speaker 6: was that I was talking about the state of nature
Speaker 6: and trying to explain how you can still be in
Speaker 6: the state of nature in within civil society when there's
Speaker 6: no you know, ruling force to make sure that you're
Speaker 6: you know, one person isn't violating the natural rights of another.
Speaker 6: And I talked about Bernie Getts, Bernard Getz, oh yeah,
Speaker 6: and you know, being on the subway, and I said,
Speaker 6: you know, he was in the state of nature and
Speaker 6: a bunch of stupid, stupid criminal thugs came up and
Speaker 6: and you know, he had a gun. And I explained
Speaker 6: the whole thing, and this was triggering, and maybe I
Speaker 6: shouldn't be using those kinds of examples in my class.
Speaker 2: I tell you a true story, and you.
Speaker 6: Know what I said, I don't need you to tell
Speaker 6: me what examples I use. And it's none of your
Speaker 6: damn business. And please don't bother calling me on this again.
Speaker 3: Yeah, you know, I think you told me once you
Speaker 3: never had the pleasure of experiencing Harold Rude at Tremont,
Speaker 3: You know, the great strategic studies professor who had been
Speaker 3: a tank driver for Patent's Third Army in World War Two.
Speaker 3: So when he talked about war, and he actually brought
Speaker 3: a gun to class once, an old M one rifle,
Speaker 3: to pass it around, saying, this is the fundamental reality
Speaker 3: of war, things like this, And.
Speaker 2: He's talking about, you know, war is violence, et cetera.
Speaker 3: And some young lady in the class was sort of
Speaker 3: all sentimental and gushy and typically naive and saying, oh,
Speaker 3: I just think, you know, we ought to be able
Speaker 3: to the usual slop. And he put his foot up
Speaker 3: on the front of her desk and leaned over and
Speaker 3: he says, well, you can think that if you want it, says,
Speaker 3: after all, they're not going to rape me. Can you
Speaker 3: imagine he used to like to say shocking things like
Speaker 3: that in class.
Speaker 6: You know he too, but even I probably wouldn't try
Speaker 6: to get away with something quite bad.
Speaker 3: Well, his variation, which it might have been the same
Speaker 3: young lady, was sometimes young lady, you just have to say,
Speaker 3: I'm going to shoot your ass off to the you know,
Speaker 3: to aggressors.
Speaker 2: Okay, ye, that was another one he liked to. Okay, yeah.
Speaker 6: The other issue on that Steve that we probably should
Speaker 6: at least give a tiny bit of attention to is
Speaker 6: the idea that the Supreme Court on the same day
Speaker 6: decides not to reconcile the differing opinions about a fundamental
Speaker 6: right in differing jurisdictions, but has absolutely no difficulty whatsoever
Speaker 6: allowing a district court, which, for folks who don't pay
Speaker 6: all that much attention to the federal judicial system, you
Speaker 6: have the Supreme Court at the top, you have the
Speaker 6: appellate or circuit courts, which are appellate courts only, and
Speaker 6: then you have the district courts, which are the trial courts.
Speaker 6: They are the lowest on the whole ladder, right all
Speaker 6: that they don't have appellate powers, et cetera, et cetera.
Speaker 6: And there are ninety four districts, quite a few more
Speaker 6: than that in terms of how many judges there are
Speaker 6: district court judges. They are appointed the same and confirmed
Speaker 6: the same way that Supreme Court justices and appellate court
Speaker 6: judges are, but they're district judges, so they serve a
Speaker 6: district and as Steve pointed out, this one was probably
Speaker 6: over the Washington d C. District. But at the same time,
Speaker 6: he's a district court judge, and the idea that the
Speaker 6: entire policy of the United States government could be decided
Speaker 6: by this one, again, Biden Hack, is just appalling. And
Speaker 6: this was the opportunity for the Court to say in
Speaker 6: this case, as Alito did, we are not going to
Speaker 6: allow differing district court opinions about what the federal government
Speaker 6: should do based upon what you know, whose ox is
Speaker 6: being gored and whether or not they've forum shopped for
Speaker 6: the right judge will give us the right. I mean,
Speaker 6: they just it's as if they can't think at the
Speaker 6: Supreme Court these days.
Speaker 2: Yeah, I don't know.
Speaker 6: I don't know what else to say about it, Steve.
Speaker 3: But well, I mean, I'm sure John if he was
Speaker 3: with us, would give us maybe a B minus at
Speaker 3: best for not getting quite. I mean, I would think
Speaker 3: wouldn't the DC Circuit normally be the right of Pelop's
Speaker 3: court to rule on this?
Speaker 2: But that maybe takes more time.
Speaker 6: I don't know, But remember Roberts did issue the stay
Speaker 6: in the first one. This one, I, you know, kind
Speaker 6: of came out of nowhere as far as I can tell.
Speaker 6: But they refused to grant sucerari, so things will stay
Speaker 6: the way they are. Maybe what you said at the
Speaker 6: very beginning, Steve, I recall you said that they couldn't
Speaker 6: prove harm. Maybe somebody who actually can prove harm because
Speaker 6: of it?
Speaker 3: Oh, you're think of space versus I was thinking of
Speaker 3: the district the USA, do you funding?
Speaker 2: Yeah, we're mixing working our apples and oranges here, but.
Speaker 3: Let us yeah, I know, to escape John's harsh sugrading Panela.
Speaker 6: Wait wait before you go on on, John, he did
Speaker 6: actually have something to say. I just haven't had. I
Speaker 6: looked up the case after you you alerted me to it,
Speaker 6: and what I saw was John on Fox talking about it.
Speaker 6: But I've been so busy all day I couldn't stop
Speaker 6: and listen to a video because I've just been a meeting,
Speaker 6: So I need to go back. John had something to
Speaker 6: say about it, and that's why we miss you. John.
Speaker 6: Where are you?
Speaker 3: Well know, we've been on contact today about all kinds
Speaker 3: of bookkeeping stuff, of course, But all right, well let's
Speaker 3: move on from that territory, uh, and to something happier,
Speaker 3: which is Trump State of the Union speech. I guess
Speaker 3: not technically a state of the Union, but it looks.
Speaker 2: Like it, so that.
Speaker 6: There's an obscure reason for that. You can't give a
Speaker 6: state of the Union when you've only been in office
Speaker 6: for a month.
Speaker 2: Well except you know, we'll wait a minute. Le's stop
Speaker 2: on that.
Speaker 3: Article two simply says the president shall from time to time,
Speaker 3: doesn't say every year give information on the state. It
Speaker 3: does not have to be a speech before that. And
Speaker 3: for you know, one hundred plus years when the president
Speaker 3: sent letters and yeah, they would do it once.
Speaker 2: Again, starting with Jefferson, right, starting with Jeffrey. It sent
Speaker 2: an annual message.
Speaker 3: And so I don't think that technically speaking, it's I mean,
Speaker 3: I think this is fake.
Speaker 2: Same.
Speaker 3: It's not really a forget all that. The point was
Speaker 3: it was I didn't watch it live. I followed things
Speaker 3: on Twitter, noticing highlights, and I'm just a joint the
Speaker 3: heck out of it, because you know, the Democrats just things,
Speaker 3: displayed all their worst behavior and Trump was not relenting
Speaker 3: at all, and it was just glorious.
Speaker 6: Yeah, I mean, he handled it remarkably well. If you've
Speaker 6: ever been and I know you have, Steve. I know
Speaker 6: I have been in a crowd h never on television
Speaker 6: as a matter of fact, never on live TV to
Speaker 6: the whole world practically, but been hackled by somebody or
Speaker 6: some you know, more than one somebody in the crowd.
Speaker 6: It could be a bit unnerving. And he, you know,
Speaker 6: he just you can tell that that guy is completely
Speaker 6: at home in his own skin. Yeah, it may be
Speaker 6: can at times, but he's at home there.
Speaker 2: And you know that.
Speaker 6: The here's the big deal. The the I heard that
Speaker 6: Alyssa Slotkin, who gave the Democrats rejoinder response whatever it is,
Speaker 6: was praised more by conservatives and Republicans than she was
Speaker 6: by people in her own party and the left.
Speaker 2: Oh yeah, because if you know our.
Speaker 6: Comments about the CIA, this and that anyway, neither here
Speaker 6: nor there. So the left has doubled down on their stupidity.
Speaker 6: The left has doubled down on their ideological hackery. I
Speaker 6: don't know whatever other way to put it. I mean,
Speaker 6: if you can't at least smile, you don't have to
Speaker 6: get up and cheer. I know that it's a you know,
Speaker 6: it's a bit of a political stunt to bring a
Speaker 6: fourteen year old boy who's had thirteen brain surgeries up
Speaker 6: and you know, make him an honorary Secret Service agent
Speaker 6: because he was supposed to only live five months, thirteen
Speaker 6: years ago, whatever it was. If you can't at least
Speaker 6: smile at that, if you have to sit there looking
Speaker 6: grim and sour and dower, you're just a horrible person.
Speaker 2: I'm sorry.
Speaker 3: No, they look well all there's stunts, you mean, holding
Speaker 3: up these little power board signs and and you know,
Speaker 3: walking out at periodic moments.
Speaker 6: Yeah, but did you did see I hope that Tim.
Speaker 6: I'm already forgotten his name. It's okay, he's passed on
Speaker 6: to another place. But so so he he wasn't al Green,
Speaker 6: but he was another congressman from the Houston area in
Speaker 6: Texas who had just been elected to fill Sheila Jackson
Speaker 6: Lee's seat because she died in office. So he went
Speaker 6: to the speech, posted something very derogatory about Trump and
Speaker 6: said he's you know, I'm not going to let you
Speaker 6: kill our Medicare, Medicaid whatever and as if, as if,
Speaker 6: but anyway, and then he went to the hospital. The
Speaker 6: hospital sent him home and he died.
Speaker 2: Yeah, yeah, no, it's uh, yeah, there you go.
Speaker 6: I don't know that that Trump effect is pretty pretty incredible.
Speaker 3: Well, the House is closest to this, and people have
Speaker 3: been saying, Sentinel member, it's going to depend on you know,
Speaker 3: who's sick or who dies in office, who controls the
Speaker 3: so you know there and.
Speaker 6: Actually with the three because of that, with the I
Speaker 6: have no idea about that district. I imagine they'll.
Speaker 2: Oh, it's a Democratic district.
Speaker 6: Yeah, yeah, and and and somebody else will come in
Speaker 6: like that. But at the same time, for the time being,
Speaker 6: the Republicans maintain a little bit bigger of a majority.
Speaker 6: And if the three all good, the three Republican districts
Speaker 6: that are up because Trump stole those people for his administration,
Speaker 6: they will they will have an even larger majority.
Speaker 2: I mean, well, what's happening.
Speaker 3: I don't know how many listeners know this, but uh,
Speaker 3: Trump wants at least Stefanic to be you an ambassador.
Speaker 3: Now he has not formally made her nomination because the
Speaker 3: New York government, you know Democrats, they are.
Speaker 2: Delaying or saying they will delay the special election to
Speaker 2: fill her seat on something like September.
Speaker 3: And that's just a naked play to try and steal
Speaker 3: a seat or you know, drop of Republicans down wanted to.
Speaker 2: So Stefanic for now is not resigning.
Speaker 3: To go through the confirmation process to be UN ambassador.
Speaker 2: And so anyway, and.
Speaker 6: You know what, she's more important in the House because
Speaker 6: nobody gives a damn about the UN. I think instead
Speaker 6: of instead of making a least Stephanic, UN ambassador should
Speaker 6: just stop funding the UN and say we're done.
Speaker 3: Well, that's that's true, although I would like to be
Speaker 3: fun to have our ambassador telling them off again like
Speaker 3: the good old days. So that's fine. But yeah, I
Speaker 3: think I see your point, and I think I agree.
Speaker 2: Yeah.
Speaker 6: Do you ever did you ever notice though a kind
Speaker 6: of as you would call it, field theory I'm going
Speaker 6: to offer here, Steve, for a moment, if I would
Speaker 6: have said something like that five years ago, three years ago,
Speaker 6: let's say that, you know, we just Trump just needs
Speaker 6: whoever needs to stop funding the UN altogether, Yeah, you
Speaker 6: would have called me just a little bit crazy because
Speaker 6: you couldn't even say that sort of thing out loud.
Speaker 6: You could the idea that they could cut the size
Speaker 6: of government and you could talk about it, The idea
Speaker 6: that you can be in a meeting at a university
Speaker 6: and talk about how you have to get rid of
Speaker 6: DEI and put all the you know, I did that
Speaker 6: again today. Look, guys, you might be able to get
Speaker 6: away with some of this sex and sexual identity discrimination
Speaker 6: for a little while longer, but you cannot get away
Speaker 6: with any of your deia that refers to race, because
Speaker 6: the Supreme Court has ruled on that. That's the end
Speaker 6: of the story. If you prefer somebody on the basis
Speaker 6: of the race, you are a bigot. That's what I said.
Speaker 2: Oh fun, you can.
Speaker 6: Imagine I'm so popular. I'm so popular. Not but I
Speaker 6: could say it now where I couldn't a year ago.
Speaker 2: Yeah, all right, Well, with that, I think we will draw.
Speaker 3: Our introductory part of this emergency podcast. I want to
Speaker 3: keep up with the commentary, guys, because we still have
Speaker 3: our undeclared, our declared total war against them for dissignmic rib, which,
Speaker 3: by the way, the McRib was a clue in the
Speaker 3: New York Times crossword puzzle earlier.
Speaker 6: This week, which I think, what was the answer, I don't,
Speaker 6: I don't know.
Speaker 2: I got to check.
Speaker 3: I heard the secondhand from a I don't do the
Speaker 3: New York Times crossword puzzle.
Speaker 6: I don't do the New York Times.
Speaker 3: Well, I you know, I keep up with a little
Speaker 3: of it as opposition research.
Speaker 6: Of course, that's why money.
Speaker 3: Yeah, I know it's quite sensible. I write it off
Speaker 3: of my taxes because I figured it's you know, medical.
Speaker 2: I don't know.
Speaker 6: I thought maybe you were getting USA I D money
Speaker 6: to guide to it. Steve.
Speaker 3: No, they keep trying to sell me all their premium
Speaker 3: stuff that actually makes the money. The real story of
Speaker 3: the New York Times profitability is not the newspaper.
Speaker 2: It's the cooking stuff.
Speaker 3: And all the other the games and word role now
Speaker 3: makes some money and all that stuff.
Speaker 6: So same with Wall Street Journal, and they keep trying
Speaker 6: to sell me all that stuff too. And I have
Speaker 6: the very basic subscription that allows me to keep up
Speaker 6: with the crap you guys are reading.
Speaker 2: And okay, all right, we'll let you go.
Speaker 3: And now we will get onto the second half of
Speaker 3: our conversation with Richard.
Speaker 2: Epstein, and we'll be back with John, all three of
Speaker 2: us full strength over the weekend. So stay tuned so
Speaker 2: much winning.
Speaker 3: Yes, indeed, Richard, you published a few years ago this
Speaker 3: little book called How Progressives Rewrote the Constitution.
Speaker 5: That's a big thing for Lucretian.
Speaker 7: I we have a particular approach to it that comes
Speaker 7: from political.
Speaker 5: Philosophy rather than law.
Speaker 7: They overlap, and I wonder if you could, I don't know,
Speaker 7: maybe why did you just sign and write that book?
Speaker 5: And what are your one or two main themes?
Speaker 4: Why do I end up writing the book? It's like
Speaker 4: everything you look at. It was published by the Cato Institute.
Speaker 4: And what happened is.
Speaker 5: Did Roger talk you into it? Well?
Speaker 2: Roger was a.
Speaker 4: Part of it, okay, and he actually had a fairly
Speaker 4: substantial hint in the editing of the book. His objective was,
Speaker 4: I don't care whether your ride or but I want
Speaker 4: you to be clear and I have this tendency to.
Speaker 5: Go the other way.
Speaker 4: So what happened is I gave one of their Low
Speaker 4: Day talks in whatever September, and I wrote a little
Speaker 4: lessay on it, and the seamen, Roger and the people
Speaker 4: that Cato said, they said that what really goes on
Speaker 4: in this particular case is that you have to write
Speaker 4: this in a longer and most and more consistent fashion
Speaker 4: so it could reach the larger systematic audience. And this,
Speaker 4: by the way, was at a very different time from
Speaker 4: what we have today. I think the debates on the
Speaker 4: aftermath of the nineteen thirty seven revolution and so forth
Speaker 4: were much more salient in twenty six when the book
Speaker 4: came out than they are today. Because modern constitutionalism has
Speaker 4: moved on. The abortion case becomes the new focal point,
Speaker 4: and even that is now changed, and the separation of
Speaker 4: powers issues and the executive order issues are dominant, and
Speaker 4: the e commerce clause issues and the substantive due process
Speaker 4: issues that I wrote then are still covered, but in
Speaker 4: much less stuff. So why did I write it given
Speaker 4: the fact that it was then a live issue, Because
Speaker 4: it was a book which essentially wanted to attack the
Speaker 4: dominant synthesis of that particular time on these issues. And
Speaker 4: so if you go back to nineteen thirty six and
Speaker 4: carry it through to about nineteen forty two or forty three,
Speaker 4: the dominant literature is a celebratory literature. We had all
Speaker 4: these big, bad cases out there that nobody wanted to keep,
Speaker 4: and then we had justice accused who bothering was a
Speaker 4: progressive Republican, He was not a conservative, and he was
Speaker 4: willing to leave the charge. And what we had was
Speaker 4: to use the word of red. Remember the switch in
Speaker 4: time that saved nine. Thomas Reid wrote that, well, I mean,
Speaker 4: whom did it say, Well, you start looking at it,
Speaker 4: start at nineteen thirty.
Speaker 2: Eight, there was a recession.
Speaker 5: Well, right, The.
Speaker 4: Book basically dealt with the fact that this thing which
Speaker 4: was celebrated was essentially unsound.
Speaker 6: Well, it was essentially unsound, but not just because of
Speaker 6: the New Deal. It was essentially unsound because what rewrote
Speaker 6: the Constitution was a different progressive view about human nature,
Speaker 6: the perfectibility of human nature, the denial of human equality,
Speaker 6: the denial of human rights, natural rights, as we find
Speaker 6: in the Declaration of Independence. You have Woodrow Wilson's you
Speaker 6: making fun of all of that, or saying, we don't
Speaker 6: wish at the very least we shouldn't look at the
Speaker 6: preamble of the Constitution, you know, on and on. But
Speaker 6: what it did was it destroyed the entire basis for
Speaker 6: the constitutional system, and then allowed by nineteen thirty seven,
Speaker 6: after progressive ideas had become I think more dominant, it
Speaker 6: allowed the Supreme Court then, as you point out, to
Speaker 6: destroy the Constitution by destroying separation of powers, by destroying
Speaker 6: the idea that all of the powers that when they
Speaker 6: end up in the same hands it's the very definition
Speaker 6: of tears by destroying the idea that men are not
Speaker 6: angels and that we could trust some ridiculous elite expert
Speaker 6: class to govern us and they would never bring politics
Speaker 6: into the into the fray. I mean, all of that
Speaker 6: destroyed experts.
Speaker 5: Do you have a lot of that here?
Speaker 4: I should have asked that, yes, I mean, if you go,
Speaker 4: if you go in effect, yes, I mean if you
Speaker 4: go and actually check the book. The first fifty two
Speaker 4: pages of it are talking about exactly the issues that
Speaker 4: you mentioned, and then at the page fifty two I
Speaker 4: talk about federalism revisit and individual rights revisit it. So
Speaker 4: the only reason why the book had credibility is that
Speaker 4: what you started to talk about in our conversation is
Speaker 4: what I devoted the first chapters of the book to.
Speaker 4: And it's one of the themes that I think everybody
Speaker 4: has to remember is that when you start dealing with
Speaker 4: political philosophy in the Grands tradition, you do not want
Speaker 4: to start with this, that or the other little statute.
Speaker 4: What you want to do is to start with the
Speaker 4: question the nature of man and how society has come
Speaker 4: to get formed.
Speaker 5: Language Keep going, I mean.
Speaker 4: And there's no disagreement between us. The first thing you
Speaker 4: have to note is that given scarcity, self interest is
Speaker 4: a necessary carl it in all societies, but it's greater
Speaker 4: in abundance in some people than in others. And so
Speaker 4: what happens is you have construct confined generosity the human
Speaker 4: term as a weak offset that can actually take place
Speaker 4: in some cases. So you start looking at these individuals
Speaker 4: and what you realize is that man is a social animal.
Speaker 4: Is through with ninety percent of the population various degrees
Speaker 4: of cooperation. Then there's this other bunch out there, and
Speaker 4: they're not so cooperative. And the great challenge to any
Speaker 4: situation as to how to give those people some respect
Speaker 4: for their rights when their major intention is to destroy
Speaker 4: the conventional arrangements that other people have put together amongst themselves.
Speaker 4: And so what a constitution is about is trying to
Speaker 4: see how you do this. And one of the most
Speaker 4: profound instance that you have in the Federal's ten by
Speaker 4: Madison is enlightened statesmen will not always be at the helm.
Speaker 4: Now why is that statement important? Well, first of all,
Speaker 4: the help means you have only one And if you
Speaker 4: go back to the American debates over the formation, a
Speaker 4: single chief executive was sought to be an essential reform,
Speaker 4: and the Articles of Confederation had nobody with executive power. Well,
Speaker 4: this one person is going to do all the right things,
Speaker 4: except when he does all the wrong things. So you
Speaker 4: do is you have to give him discretion to act
Speaker 4: with dispatch, and then try to surround it with enough
Speaker 4: institutional constraints and so that what happens more generally is
Speaker 4: that he cannot essentially be essentially allowed to work when
Speaker 4: he's going to steer you into rough waters. These institutional
Speaker 4: structures will try to stop that. I'll give you an
Speaker 4: earlier institution, which is not about the federals and stuff.
Speaker 4: Within a year or two after I wrote that book,
Speaker 4: I got involved with the whole question of what George
Speaker 4: Bush could do with respect to the various international treaties,
Speaker 4: Geneva treaties and all the rest of it. And I
Speaker 4: wrote a long article not a law about saying, look,
Speaker 4: I mean, the one thing to understand about this is
Speaker 4: you have to understand the structure of the causes governing
Speaker 4: the operation of the military in the United States. I said, well,
Speaker 4: first of all, you have to understand how important they were,
Speaker 4: because they had at least three or four clauses that
Speaker 4: were dealing with wars amongst the several states and the
Speaker 4: conflicts that existed amongst them, and the Republican form of
Speaker 4: government clause under the Guarantee clause was in effect a
Speaker 4: course to the United States trying to figure out can
Speaker 4: you intervene to prevent wars between the states? Lutheran Bordon
Speaker 4: was such a case which they had, and then how
Speaker 4: do they do the power? Well, they had the army
Speaker 4: and the navy, no air force obviously, but when it
Speaker 4: came to the army, there was also the militia, and
Speaker 4: the militia was a very complicated organization. The Constitution has
Speaker 4: a provision which says the militias are in charge of
Speaker 4: the state generals. And what happens is there's a compromise
Speaker 4: standardization point. You have to train your militia in accordance
Speaker 4: with the discipline, that is, the standards of proof that
Speaker 4: are required to everybody. So they could become interoperable. And
Speaker 4: so they put that in there, and essentially then you
Speaker 4: remained under state control with that limitation until you were
Speaker 4: called up into the active service of the United States.
Speaker 4: But the president could not do that. It had to
Speaker 4: be authorized by Congress. There's another check in balance on
Speaker 4: the operation of the system. And then it could be
Speaker 4: only for limited purposes. And at that time there was
Speaker 4: a guy named Purpet who wanted to withhold troops from
Speaker 4: the federal government because they didn't want them to go overseas.
Speaker 4: This is in the nineteen fifty and could you get
Speaker 4: them overseas under the militia clause? And well, you have
Speaker 4: to look hard and say, is this an invasion, is
Speaker 4: this an insurrection anything like that? Or separation case? No,
Speaker 4: it was a foreign case. So how did they handle that?
Speaker 4: They changed the constitution.
Speaker 2: They rewrote it.
Speaker 4: What they did is in nineteen seventeen, a man named
Speaker 4: Pitney was a Supreme Court justice and a selective Act
Speaker 4: selective service cases, and he said, one is military service
Speaker 4: is not involuntary service too. And then the other thing
Speaker 4: that he said is that when you look at the
Speaker 4: way this is organized, it turns out it is permissible
Speaker 4: for the president to draft the militia into federal service
Speaker 4: one and all into the army. Now, if you look
Speaker 4: at the structure of the clause, the militia clause is
Speaker 4: supposed to be a safeguard against the federal government. If
Speaker 4: you could draft them into the army, it's all over.
Speaker 4: But nobody worried about that. They were worried about the
Speaker 4: funding the Russian the European War, and so Pittney took
Speaker 4: it pumped and he said this is a political question,
Speaker 4: when it cluded was not. It was a legal question,
Speaker 4: and he decided it wrong. So it happens is the
Speaker 4: war is over, and you still have to reconstitute the militia.
Speaker 4: And so in nineteen thirty two they passed the statute
Speaker 4: which created dual citizenship in the army and in the militia.
Speaker 5: And what happened is you.
Speaker 4: Went overseas under the army clause, and you got funded
Speaker 4: for local operations under the militia clause. And that carried
Speaker 4: all the way through until the Purpose case when I
Speaker 4: worked on the cases that came afterwards, in which the
Speaker 4: die hards for the militia clause wanted to say that
Speaker 4: you could send people overseas under the militia clause, and
Speaker 4: the court basically struck that thing down, and rightly so.
Speaker 4: So I mean, this is a class negostration of rewriting
Speaker 4: the constitution. But they're rewriting in a way to correct
Speaker 4: from a grievous constitutional mistake which was made under political necessity.
Speaker 5: One gets another one.
Speaker 2: Yes, I went back you up a minute.
Speaker 5: You said somebody a minute ago. You also said in
Speaker 5: class that I want to make.
Speaker 3: A proposition about you said that you know something along
Speaker 3: the lines you said you ninety percent.
Speaker 5: Of people are reasonable and you know, behave in a
Speaker 5: sensible banner.
Speaker 3: And to restate it, really often doing is making law
Speaker 3: and enforcing law for the ten percent, we might say,
Speaker 3: in today's terms, are anti social.
Speaker 5: Yeah.
Speaker 3: My proposition is this is very broad, and you may
Speaker 3: or be not resisted. It seems to me that an
Speaker 3: awful lot of the agenda of the progressive left today
Speaker 3: is to right laws in favor of that ten I mean,
Speaker 3: one example would be these court cases you've had over
Speaker 3: the years saying public libraries can't exclude homeless people.
Speaker 5: Yes, right, Is that too broad a statement?
Speaker 4: No, it turns out you're in a very sensitive topic.
Speaker 4: It's not public libraries. It's that there was a decision
Speaker 4: which said that, so long as they're not atquate shelters,
Speaker 4: public people have the right to sleep on public streets.
Speaker 5: Well, Supreme Court, the state courts that actually said the library.
Speaker 5: I guess you. An example of the law is in
Speaker 5: favor of the answer.
Speaker 4: There is no question, and that's because they're isolated and
Speaker 4: discreet minority. But it's the wrong one. What you want
Speaker 4: to say, in effect, is that public streets are for
Speaker 4: public walking, coming and going. They're not for camping.
Speaker 2: I don't know.
Speaker 4: And so once you do it on the streets, it
Speaker 4: explains a lot of the success of people like a
Speaker 4: mass turning up ten camps on campuses, because there's a
Speaker 4: presumptive First Amendment right to violate the traffic law. And
Speaker 4: here you have to understand what the First Amendment is
Speaker 4: about it in a very very simplistic way. Is what
Speaker 4: the First Amendment does is it protects the kinds of
Speaker 4: freedoms that you had at common law to speak into protest.
Speaker 2: What the First.
Speaker 4: Amendment does not do is expand the class of freedoms
Speaker 4: to include antisocial acts that trenched on anybody else. And
Speaker 4: so this first came to me by listening to a
Speaker 4: joke on Archie comics, and I mean it seriously. And
Speaker 4: so Archie comes to Jughead or jug Heads comes to Archie,
Speaker 4: and jug hares a notable nuture and he says to Archie,
Speaker 4: do you believe in freedom of speech? And Archie says sure,
Speaker 4: and then jug Head picks up the phone and says,
Speaker 4: then you won't mind me using your phone for a
Speaker 4: long distance call. Now, why is that funny? Is ther
Speaker 4: question you asked because you were laughing, both of you.
Speaker 4: The reason it's funny is that he assumed that the
Speaker 4: right to speech meant he had the right to come
Speaker 4: into you somebody else's property, and that it was all
Speaker 4: a piece with being able to use his own phone.
Speaker 4: But the whole point of the First Amendment is to
Speaker 4: say that you could use your own form, not that
Speaker 4: you could expropriate somebody else's. So freedom of speech is
Speaker 4: subject to the same limitations of freedom of action. You
Speaker 4: cannot use it in a way which trenches on somebody
Speaker 4: else's liberty. So you can't do a freedom of speech stuff.
Speaker 4: If you say all freeze is free, you have to
Speaker 4: use an analysis of the term freedom, which is going
Speaker 4: to talk about all the limitations on the use of
Speaker 4: force and fraud. So the First Amendment has to now include, well,
Speaker 4: how do you deal with fraud, how do you deal
Speaker 4: with decoration, how do you deal with confidential agreements, how
Speaker 4: do you deal with libel, how to deal with trademarks
Speaker 4: and so forth, trespass of course that need pruniad cake
Speaker 4: all of these. Yes, but you don't have a right
Speaker 4: to be because you want to speak there and getting
Speaker 4: this out is requires an enormous amount of stuff. And
Speaker 4: what you have to say about the progressives is that
Speaker 4: in general they're willing to compromise on all of those
Speaker 4: rights and every other contact. So it's not going to
Speaker 4: be any big deal for them to take the same
Speaker 4: thing amount speech. And this book was written before that
Speaker 4: issue became much more salient. But within a year, you know,
Speaker 4: I had the presidential power stuff that I was writing
Speaker 4: about and so forth.
Speaker 2: So the book was focused.
Speaker 4: On the two things at the fine nineteen thirty seven.
Speaker 4: But the theory is much more general than that, as
Speaker 4: is evidence by the fact that the first half of
Speaker 4: the book deals exactly what Lucrecia was trying to talk about.
Speaker 7: All right, well, let me let me say that for
Speaker 7: a listener that you want to ask, let me say
Speaker 7: this for listeners, for those of you listening who may
Speaker 7: I think correctly Richard, say that your book on taking
Speaker 7: is the classic local constitution is a heavy reach for you,
Speaker 7: an intelligent lay reader. This books one hundred and thirty
Speaker 7: seven pages of texts, so it's short, compact.
Speaker 5: Maybe give Roger Blonzo.
Speaker 2: Credit for editing you some.
Speaker 7: That's a lot Okay, very readable book, and I recommend
Speaker 7: to our listeners how progressive rewrote the Constitution?
Speaker 5: Thank you, Richard.
Speaker 4: But by the way, I want to mention one other things.
Speaker 4: Sure they even changed the title on me.
Speaker 5: Oh, what did you want to do?
Speaker 4: I have some dreadful title, of course, And what they
Speaker 4: did is they said, there's no punch in your title,
Speaker 4: and the rewrote essentially now defines the rebellion that you're attacking.
Speaker 4: And so I sort of wrote the rise of Progressivism
Speaker 4: in the United States, which is much too much weak
Speaker 4: relative to the thing they get. And so one of
Speaker 4: the things that all authors have to understand is that
Speaker 4: in many cases, when it comes to title, an editor
Speaker 4: knows better than you do. And what you have to
Speaker 4: do is to always take their serious assumption. And the
Speaker 4: presumption generally is, if the editor knows the subject, their
Speaker 4: title is better than your title. Why is that because
Speaker 4: they're a reader and they're going to distill the central point.
Speaker 4: You're an author, and you're going to lose sight of it,
Speaker 4: and so you have to go with the guy who
Speaker 4: runs the punch. And so I'm always a believer in
Speaker 4: administrative difference by me the editors of my work.
Speaker 7: Well, the classic example of that was Robert Putnam's famous article.
Speaker 5: That book Bullying Alone, which an editor thought of.
Speaker 3: Right, because I think, you know, being an academic, his
Speaker 3: original title is probably something like, you know, the Klein
Speaker 3: of Civic capital.
Speaker 5: In America, Evidence from bold.
Speaker 7: Yes, that never would have been noticed by George will
Speaker 7: or President Clinton if.
Speaker 5: You have the title.
Speaker 4: Well, this was also true of Charles Murray's book. Well,
Speaker 4: it has some terrible title and some editor to put
Speaker 4: the phrase losing ground on the title, and it became
Speaker 4: a best seller the Takings title.
Speaker 2: But that was mine.
Speaker 4: Yeah, but the second half of the title is a
Speaker 4: mouthful private property in the power of eminent domain. I'm
Speaker 4: not sure I would do it. The first part is
Speaker 4: strong as a title. Taking is one word. The second
Speaker 4: part is to namby Pamby. But I can't tell my publishers. Now,
Speaker 4: of course it's forty since the book has come out, right,
Speaker 4: Richard much my question?
Speaker 3: Okay, Well, the only thing left to do now is
Speaker 3: to remind everybody always drink your whiskey neat and don't
Speaker 3: forget to milk the Margaret Brennan dividend. See you all
Speaker 3: over the weekend, everybody.
Speaker 1: Bye bye, ricoson
Speaker 2: Join the conversation.