Speaker 1: Well Whiskey coming game.
Speaker 2: From power Line blog dot com and produced by Ricochet
Speaker 2: dot Com. This is the Three Whiskey Happy Hour with
Speaker 2: your bartenders Steve Hayward, John Yu and power Lines International
Speaker 2: Woman of Mystery Lucretia.
Speaker 3: Have you gotta giving let that whiskey love where you're
Speaker 3: being in love down and low?
Speaker 4: All right?
Speaker 3: After last week's Gonzo episode, this week is even stranger
Speaker 3: because this week it's going to be the three Keyanti
Speaker 3: Happy Hour. The band is back together in person. Lucretia,
Speaker 3: tell them where we are and what we're doing a
Speaker 3: little bit.
Speaker 5: We are in a beautiful castle from the twelfth century,
Speaker 5: continuously occupied by the same family. A family there is
Speaker 5: a very dear friend of all three of us, castle Decaciano,
Speaker 5: overlooking the entire Tuscan Valley, or I guess the southern
Speaker 5: part of the Tuscan Valley.
Speaker 6: John is staying in the big castle.
Speaker 5: Steve and his wife and I have been given the
Speaker 5: I believe as the servants quarters, which anybody would be thrilled.
Speaker 6: To live in.
Speaker 7: I finally agree with them that Aristotle's natural.
Speaker 8: Order of the universe has finally finally been achieved.
Speaker 5: John's room has been of those sort of Louis the
Speaker 5: fourteenth bedrooms with the curtains around the velvet and all
Speaker 5: of that.
Speaker 6: It's really quite a pressive.
Speaker 5: But we've been having the most extraordinarily lovely time our
Speaker 5: dear friend, the Baroness and her husband. We are the
Speaker 5: guests of that, and we were treated to a Downton
Speaker 5: Abbey style formal gala dinner last night, and it was
Speaker 5: most extraordinary. I don't know that any of us ever
Speaker 5: have or ever will experience anything like that.
Speaker 7: Again, so well we are.
Speaker 1: Oh John, you were going to know.
Speaker 9: I was just going to say, it was just like
Speaker 9: weekend at my house.
Speaker 8: It was likely I finally achieved the station to which
Speaker 8: I so ritually deserved.
Speaker 5: Except for the good food, the good wine, and deliveried servants,
Speaker 5: it was just like John's.
Speaker 7: House except for that. Except for that, it was just
Speaker 7: and it was.
Speaker 5: Just literally thousands of dollars in flowers and extraordinary wines,
Speaker 5: all made here at the castle, which is and I have.
Speaker 8: To say, you know, listeners may know that I still
Speaker 8: questioned Lucretia and Steve's strange adoration of the British monarchy.
Speaker 9: But I can get used to aristocracy.
Speaker 1: I can get used to it.
Speaker 8: I kind of see it's merits here while I'm in
Speaker 8: the castle, but we are.
Speaker 3: I mean, this is just the weekend idol between academic appearances,
Speaker 3: first in the lawn and then early in the week
Speaker 3: in Florence. Will turn to maybe a little of that
Speaker 3: towards the end. I think, first, though, John, we do
Speaker 3: have some listeners and readers who sent some questions in
Speaker 3: One of them is wanting to hear some from you
Speaker 3: or from all of us about the question of whether
Speaker 3: how recess appointments work, whether Trump is right that he
Speaker 3: can command the Senate to adjourn, or that the Senate
Speaker 3: should adjourn so we can install who he wants quickly
Speaker 3: to the resource recess appointment process. And I think, well,
Speaker 3: I'll stop there and ask you what you want to hear.
Speaker 1: Guys.
Speaker 8: I did post an article on National Review a week ago,
Speaker 8: roughly just a few days before mister Gates withdrew his nomination,
Speaker 8: and I know the pro Trump listeners may automatically be
Speaker 8: suspicious because I.
Speaker 1: Was critical of Gates.
Speaker 8: I would hope, actually that all conservatives would be dubious
Speaker 8: about his appointment.
Speaker 1: But my main argument was that this doesn't make sense.
Speaker 8: If you really want to reform the Justice Department and
Speaker 8: the FBI, like many of Lucretia and her supporters want to,
Speaker 8: because Gates would have been mired in one to two
Speaker 8: years of litigation fighting over whether his appointment was constitutional.
Speaker 8: It's actually an interesting question of constitutional first impression, This
Speaker 8: provision that Trump's transition team wanted to use has never
Speaker 8: been used before as far as we know. Sorry to digress,
Speaker 8: but there's actually a lot of There has been a
Speaker 8: lot of fighting and litigation about recess appointments, and actually
Speaker 8: the case got to the Supreme Court because President Obama
Speaker 8: actually had tried to really use this recess point prior
Speaker 8: to put as a very questionable people who never would
Speaker 8: have been confirmed by the Senate.
Speaker 9: But in short, the question, and it is discussed in.
Speaker 8: The Federal's papers, is what do you do when you're
Speaker 8: the president and you need to appoint people quickly and.
Speaker 9: The Senate not in session.
Speaker 8: In the eighteenth century, the Senate was expected not to
Speaker 8: be in session all the time because it took forever
Speaker 8: to get all the way from say Georgia, all the
Speaker 8: way up to Washington.
Speaker 1: By horse or by sale.
Speaker 8: So the Constitution has a provision in it and it says,
Speaker 8: it basically acknowledges the power of the president to make
Speaker 8: recess appointments, which are just as good as normal appointments,
Speaker 8: but they only last to the next session of Congress.
Speaker 8: The big constitutional question is what's a recess and when
Speaker 8: is a recess? How do you throw someone into recess?
Speaker 8: Presidents have often tried to say any time the Senate's
Speaker 8: not in session, it's a recess. The president, Well, let
Speaker 8: me say, the Supreme Court held in this case almost
Speaker 8: exactly ten years ago, not usually, the case called Noel
Speaker 8: Canning nine year oh yeah, versus NB, and the courts
Speaker 8: there said, anytime the Senate's out of session for ten
Speaker 8: days or longer, the President can make these recess appointments,
Speaker 8: which without the consent of the Senate. However, I point
Speaker 8: out that our friends, our buddies on the Court, led
Speaker 8: by Justice Scalia and joined by Alito Thomas and Chief
Speaker 8: Justice Roberts, took the and this would have doomed Gates's appointment,
Speaker 8: said no, No, a recess only occurs between one year
Speaker 8: of the Senate the first session and the second year
Speaker 8: of the session.
Speaker 9: For those who are.
Speaker 8: Into accounting, you say every Congress that we number the Congresses.
Speaker 1: By the election of the House.
Speaker 8: So there's like say, I worked in the one hundred
Speaker 8: and fourth Congress, which was the contract with American New
Speaker 8: Ginglich Congress, because that was the one hundred and fourth
Speaker 8: election for the House. And then each Congress has a session,
Speaker 8: a first session which is the first year, and then
Speaker 8: they take a break, and then a second session which
Speaker 8: is the second year of that.
Speaker 9: So the according to Jessics Scalia, he thought that a
Speaker 9: recess was.
Speaker 8: Only between the first year and the second year, and
Speaker 8: that any kind of break during the Senate's meeting and
Speaker 8: they let me tell you guys, as a former Senate stafford,
Speaker 8: they take a lot of breaks every holiday, and then
Speaker 8: there's they take breaks just to go on campaign.
Speaker 9: There's so many breaks.
Speaker 8: So jess Scalia's view was no, that none of those
Speaker 8: breaks are actually a recess within the meeting of the Constitution.
Speaker 8: If Scalia was right, Gates's appointment just wouldn't work.
Speaker 1: Couldn't be made it all? Yeah, it could be made
Speaker 1: it all.
Speaker 8: He'd have to wait until the end of twenty twenty
Speaker 8: five to make a recess appointment. So the Liberals, I'm sorry.
Speaker 6: Good question.
Speaker 5: Why couldn't it have been the recess in between the
Speaker 5: outgoing Congress and the incoming Congress. Why would that not
Speaker 5: be a recess.
Speaker 3: Because I'm not president yet comes in January fourth, Yeah,
Speaker 3: so it's very Yeah, you would think, oh, why couldn't
Speaker 3: you do a recess before at the very Yeah, right,
Speaker 3: that makes perfect sense.
Speaker 9: Yeah, there is no recess because there's no to that.
Speaker 6: We didn't bring the president in until March.
Speaker 8: Yeah, which actually makes even more sense under scale is right,
Speaker 8: because I think Congress would have been meeting for months
Speaker 8: and then the president kind of come in like here's
Speaker 8: the here's the here's the other thing that's trigging. This
Speaker 8: is my main point is there's another provision. This is
Speaker 8: the one that's never been used. So people have thought
Speaker 8: about these recess appointments. Teddy Roosevelt. So Congress, for example,
Speaker 8: famously tried to stop Teddy Roosevelt for making any recess appointments.
Speaker 8: So between the first year and the second year, they
Speaker 8: literally adjourned for one second, and Teddy Roosevelt claimed and
Speaker 8: he got away with he said, in that one second,
Speaker 8: you were in recess.
Speaker 1: So I appoint five hundred people.
Speaker 8: So that's called the Teddy Roosevelt's famous metaphysical recess appointments.
Speaker 8: Those so anyway, So the thing that's different is that
Speaker 8: there's another provision in the Constitution never been used before,
Speaker 8: in Article two, Section three, I think, which says, if
Speaker 8: the House and the Senate disagree about adjournment, then the
Speaker 8: President can choose the time.
Speaker 9: Of adjournment and how long it lasts.
Speaker 8: Now this if you agree Justice Briar was the author,
Speaker 8: of course, of the ten day rule, because the first
Speaker 8: thing Scalia goes is, why isn't nine days, Why isn't
Speaker 8: it eleven days? Where's this ten day figure you made up, Briar,
Speaker 8: which Briar actually didn't really respond to. So the interesting
Speaker 8: thing is that if you're with Justice Briar and you
Speaker 8: think you can make these recess appointments like at gates
Speaker 8: in between during the time of a session of Congress,
Speaker 8: then maybe Trump's argument would work because it says the
Speaker 8: House said we want to Congress to go in a
Speaker 8: German now, and the Senate doesn't want to go to
Speaker 8: German at all, which they generally don't want to do
Speaker 8: because they don't want to give away.
Speaker 1: Their confirmation power.
Speaker 8: Then this provision suggests that President Trump could say, okay,
Speaker 8: there's a disagreement between the two houses, and I'm going
Speaker 8: to put Congress into a chairman for ten days and
Speaker 8: then make all the recess appointments.
Speaker 7: Never been done.
Speaker 3: So the political play here is getting Mike Johnson to
Speaker 3: get the House Republicans to adjourned. I said, I won't
Speaker 3: want to do it, and then Trump uses this never
Speaker 3: before use power.
Speaker 5: No, the political play is Trump shouldn't need to have
Speaker 5: Reese's appointments in any way shape or for me as
Speaker 5: a fifty three majority in the Senate.
Speaker 6: And no, no, no, no no.
Speaker 5: They talked for months about how Clinton, with forty three
Speaker 5: percent of the popular worlde.
Speaker 6: Had a mandate.
Speaker 5: What the heck is wrong with these idiotic Republicans?
Speaker 6: Do they really not see what happened? You know, you
Speaker 6: can think that Gates.
Speaker 5: Wasn't perhaps the best choice for attorney general, But at
Speaker 5: the same time, anybody who says that to me, I
Speaker 5: want to smack them until they can explain to me
Speaker 5: how it was that mister establishment perfect resume, former Judge
Speaker 5: Garland was anything but a disastrous appoint a disaster's appointment
Speaker 5: to the attorney general position. I mean for the country,
Speaker 5: the damage is probably never going to be fully undone
Speaker 5: from Garland, So why not bring somebody the exact opposite
Speaker 5: of a scumbag like Garland did?
Speaker 6: That's my point, And I was.
Speaker 10: Fine with with Gates.
Speaker 9: I was, you were fine.
Speaker 10: I wouldn't have chosen him.
Speaker 8: But he doesn't even meet the minimum style, which are
Speaker 8: what might not be a child molester.
Speaker 10: Letting all those illegal aliens.
Speaker 3: Let me get back to the other side of the
Speaker 3: political question, which does not relate to Gates or Garland
Speaker 3: or anybody, which is so what Roosevelt probably appoint five hundred.
Speaker 1: People, no exactly the time is is.
Speaker 3: A new president now has three thousand appointments to fill.
Speaker 3: And ever since the Arab War gate, when we changed
Speaker 3: the you know, stepped up the ethics requirements, that process
Speaker 3: has gotten longer and longer and longer. The FBI background
Speaker 3: checks take forever and so forth. I wonder if this
Speaker 3: isn't I mean, maybe they do want to exercise this power,
Speaker 3: but I wonder if this is a bit of bargaining.
Speaker 7: That's the breakfast bell. I think that's at the front door.
Speaker 8: Oh okay, actually that the son you're hearing listeners is
Speaker 8: Steve stampeding to breakfast when he heard the bell for food,
Speaker 8: priceless antiques destroyed because they were in Steve's.
Speaker 5: Speaking before before he finishes up, good morning, the barrenness
Speaker 5: of the castle.
Speaker 1: Right, but joy so to resume.
Speaker 3: Ever since Watergate, it's become more and more difficult to
Speaker 3: get people confirmed. It takes months and months, sometimes years,
Speaker 3: And I wonder if this is partly typical Trumpian business
Speaker 3: bargaining UH to try and speed up the process. People
Speaker 3: have been talking for years about how this has been
Speaker 3: getting worse and worse for every present of both parties,
Speaker 3: and all the proposals for reform get nowhere, and the
Speaker 3: only way to change is, like so many other things,
Speaker 3: is really shake things up. So I think, you know, a,
Speaker 3: it might work, or too, it might get the Senate
Speaker 3: to move faster. And supposedly we are Trump people want
Speaker 3: to skip a lot of the FBI background checks, which
Speaker 3: some Republican senators are resisting.
Speaker 1: Of course, I.
Speaker 7: Don't think that makes sense.
Speaker 8: For the cabinet officers first coming in, they get confirmed fast.
Speaker 8: I mean, well, they do see this weird phenomenon where
Speaker 8: the Senate is going to actually hold confirmation hearings before
Speaker 8: President Trump even takes office, and they'll all get confirmed quickly.
Speaker 8: I don't think that explains the Gates problem, which is
Speaker 8: I think you have a guy who just was not
Speaker 8: qualified and had serious background issues to get confirmed.
Speaker 9: That's a different question than.
Speaker 8: The all the sub cabinet officers who who you're talking
Speaker 8: about where that you could say is you know, the
Speaker 8: Senate is slowing it down because they just can't process
Speaker 8: that many people at the beginning of an administration. So
Speaker 8: that's partially the Senate's fault because they've made so many
Speaker 8: jobs of vice and consent jobs, right, although Hamilton says,
Speaker 8: you know that's the purpose of the clauses to make
Speaker 8: sure the Senate has to say, because each of these
Speaker 8: junior officers prior wields far more power than a cabinet
Speaker 8: officer did in the eighteenth century.
Speaker 5: But what john about those officers that are not Senate
Speaker 5: confirmation do not like, for instance, the as I recall
Speaker 5: the National Security Advisor, the White House Chief of staff,
Speaker 5: some other really important powers. Will there be a tendency
Speaker 5: or has there been a tendency over time to increase
Speaker 5: those kinds of offices so that you can get around
Speaker 5: entirely the Senate confirmation or to give more power to
Speaker 5: people in those offices that say, the National Security Advisor
Speaker 5: versus the Secretary of Defense who has to be confirmed.
Speaker 8: This is the very interesting dynamic and a partner response
Speaker 8: to this what you're talking about, what Steve's talking about,
Speaker 8: which is that the president considers the people who are
Speaker 8: part of of the White House Office, who all the
Speaker 8: people Lucretia mentioned, they're not even independent officers, they're just
Speaker 8: aids of the president and running the White House. And
Speaker 8: so they've always made the argument and the Senate's respected
Speaker 8: it so far, which is that they're not subject to
Speaker 8: advice and consent because they're essentially part of the presidency
Speaker 8: itself as an as a singular office, whereas you know,
Speaker 8: the cabinet officers are not in part you know, they
Speaker 8: run for They run a congressionally authorized and funded office
Speaker 8: that has statutory duties putting in differently like the National
Speaker 8: Security Advisor doesn't have any duties set by Congress. So
Speaker 8: the interesting thing is the president has this political incentive
Speaker 8: to make more and more of the operation part of
Speaker 8: the White House Office because as you say, the Senate,
Speaker 8: you know, slows things down, but they also Congress is
Speaker 8: using the advice can cent power to enforce its own priorities. So,
Speaker 8: for example, the head of OMB is an advice and
Speaker 8: consent officer. Even though they kind of work, they'll say
Speaker 8: they work in the White House. That's where the struggle is,
Speaker 8: or these offices that are they're called in the I
Speaker 8: hate to be all nerdy about it. They're in what's
Speaker 8: called the Executive Office of the President, which is a much.
Speaker 9: Broader office, and those people.
Speaker 8: That's where the battleground is over whether the Senate is
Speaker 8: going to control their appointment or not. That's totally different
Speaker 8: than these junior officers. Like I was a junior officer
Speaker 8: in the Justice Department. I was appointed by President Bush,
Speaker 8: but I didn't go through advice and consent because I
Speaker 8: wasn't high enough.
Speaker 1: Really, Yes, well.
Speaker 5: So I just wanted to say, I hope that our
Speaker 5: listeners understand first and foremost that I asked these questions
Speaker 5: just to give John an opportunity to pontificate, because I already.
Speaker 6: Know the answer.
Speaker 5: But I actually do have a question, and I thought
Speaker 5: that the National Security Advisor was to some extent congressionally
Speaker 5: mandated by the National Security Act of nineteen forty eight.
Speaker 3: Oh there's a question, John is Yeah, the National Security
Speaker 3: Advisors and naw Security Act. But I think, I think
Speaker 3: think it's an executive appointment, but I'm not positive.
Speaker 5: Is there no statutory john Is there no statutory authorization
Speaker 5: for the National Security Advisor in the National Security.
Speaker 6: Act of nineteen forty eight.
Speaker 8: So Congress funds the offices still, right, so they will,
Speaker 8: but they don't it says they don't provide for it.
Speaker 8: Or putting it differently, if the statute didn't exist, the
Speaker 8: president could create them anyway, their creation really isn't so
Speaker 8: the I mean, Congress funds it, but their office isn't
Speaker 8: a creation of the Congress in that way.
Speaker 9: So that's the theory.
Speaker 8: Like the person the position I know best is a
Speaker 8: National Security Advisor and White House Council. Those are just
Speaker 8: like jobs that kind of evolved over time. Is like
Speaker 8: personal aids to the president, and they were never like
Speaker 8: so trying to like you person like who the White
Speaker 8: House chief of Staff? Right, Presidents would go to the
Speaker 8: mat to stop Senate from confirming them or Congress even
Speaker 8: creating the position, because when Congress creates a position, it
Speaker 8: kind of as partial control absolute.
Speaker 7: Well, now, I think a couple observations.
Speaker 3: One is I think as recently as the beginning of
Speaker 3: the New Deal, the White House staff was still something
Speaker 3: like under fifty people, and now it's hundreds and hundreds.
Speaker 3: The National Security Council, I know, has become kind of
Speaker 3: a plaything to stick special purposes. So for example, the
Speaker 3: numbers were something like, I don't have the memorize, but
Speaker 3: the Clinton administration or maybe the Obama administration grew the
Speaker 3: National Security Council to something like three hundred people, and
Speaker 3: they stuck in that a lot of their pet projects,
Speaker 3: like climate change is a national security issue, right, And
Speaker 3: then I think the Bush or Trump may have shrunk
Speaker 3: it back down so they think it was evan flow.
Speaker 3: And then part of you trying to control a bureaucracy
Speaker 3: out of the White House, And that's a long subject
Speaker 3: that's going to get us off into the weeds. All right,
Speaker 3: let's draw a veil over the recess appointment power and
Speaker 3: whicher cabin nominees may or may not be problematic or
Speaker 3: so forth, And moved to the other big story of
Speaker 3: just the last few days. The International Criminal Court has
Speaker 3: issued an arrest war for Prime Minister net In Yahoo
Speaker 3: of Israel, and there are some countries starting with Canada,
Speaker 3: whose Prime Minister Justin Trudeau declared they would arrest net
Speaker 3: in Yahoo if he came to Canada. And I think
Speaker 3: some other countries are piled on too. And it has
Speaker 3: been suggested that Trump ought to respond by threatening to
Speaker 3: arrest the chief judge or judges of the International Criminal Court.
Speaker 3: Of course, we're not a part of this darn thing, John,
Speaker 3: and for a whole bunch of reasons. And I have
Speaker 3: I have no end of things to say that are
Speaker 3: bad about the International Criminal Court, But I mean.
Speaker 7: What should be that are bad about it? Yes, there's
Speaker 7: to say that are bad. No, I thought I was
Speaker 7: trying to say. I can't run out of things that
Speaker 7: are bad to say about it.
Speaker 10: That's what I'm trying to say.
Speaker 7: The thing, so it should be. I mean, what's the
Speaker 7: right response, John, or is there one?
Speaker 11: Well?
Speaker 8: The right response is that the Trump administration should wait
Speaker 8: a campaign to delegitimize, if not destroy, the International Crimic Court.
Speaker 7: One just letter level of broad policy. This is the
Speaker 7: worst of the international organizations. It claims to be able
Speaker 7: to grab anyone anywhere in the world.
Speaker 8: To try them for war crimes, even if they come
Speaker 8: from a country like ours or like Israel's that has
Speaker 8: a well functioning judicial system and legal system and can
Speaker 8: be trusted to make sure that.
Speaker 7: Justice is done. But I think it's worse.
Speaker 8: I think that the ICC is an effort by some
Speaker 8: countries to prevent other countries from fighting necessary wars. If
Speaker 8: you have some kind of weird body without juries, where
Speaker 8: the prosecutors and the judges are part of the same body,
Speaker 8: not democratically accountable. Second guessing American military decisions in the field.
Speaker 7: This is just going to make it harder for us
Speaker 7: to fight the wards we need to.
Speaker 8: Do to defend ourselves and our allies and to stop
Speaker 8: our rivals at a time of great instability and challenge
Speaker 8: from our competitors. So I think the Trump adminstration, which campaign,
Speaker 8: I think on a level of a broader level of
Speaker 8: protecting the sovereignty of the nation, of protecting our borders,
Speaker 8: controlling immigration, you know, red, rebalancing trade, like it or not,
Speaker 8: I think the American people want stronger sovereignty on behalf
Speaker 8: of the United States, and the International Criminal Court is
Speaker 8: one of.
Speaker 7: The great threats to it.
Speaker 3: You know, you're sometimes co author Jeremy Radkin made a
Speaker 3: good observation about the court many years back when it
Speaker 3: was still something of a live controversy in our country
Speaker 3: before George W. Bush took us out of it, and
Speaker 3: he pointed out that every judicial system in the world,
Speaker 3: and I'm not sure about other international bodies like the
Speaker 3: World Court, but certainly all sovereign and judicial systems have
Speaker 3: a pardon power lodge somewhere, so an executive where somebody
Speaker 3: can correct some mistake of judges or juries. There's no
Speaker 3: pardon powered international criminal court, no way to an appeal,
Speaker 3: no body or a way to appeal.
Speaker 7: A judgment of the International Criminal Court.
Speaker 3: And that just goes against every sound principle of as usual.
Speaker 10: Steve, you're our way off mark here.
Speaker 5: Yes, because it's as if you are accepting the basic
Speaker 5: legitimacy of some sort of self appointed international.
Speaker 10: Court to begin with, and of course we don't, and
Speaker 10: we never can.
Speaker 5: It could be the best, most just and fair international
Speaker 5: criminal court that ever existed, made up of basically a philosopher,
Speaker 5: Kings and solos and so forth, and it would still
Speaker 5: be illegitimate.
Speaker 10: You cannot exercise power.
Speaker 5: As a global body, and anybody who concedes even that
Speaker 5: much has already conceded the whole thing.
Speaker 7: You are the.
Speaker 3: Reason I raised that particular point is that's on purpose
Speaker 3: because they want to be a super judicial powers.
Speaker 10: Let him want all they want.
Speaker 5: It's illegitimate, and anybody who says otherwise deserves to do.
Speaker 10: I mean, who was wonderful? Because you know that that
Speaker 10: happened how many days ago today? It was like if
Speaker 10: a story I can find it?
Speaker 7: Yah?
Speaker 10: Who a rabbi was disappeared in?
Speaker 5: I think it was United Arab Emirates disappeared and they
Speaker 5: found it murdered.
Speaker 10: And who sussured in to pay? Yeah, you know, screw
Speaker 10: your people in your international criminal court.
Speaker 5: I am going to continue to exercise the sovereign power
Speaker 5: my people have given to me, and there is no
Speaker 5: other kind of sovereign power.
Speaker 3: Just to be clear, I will not at all suggested,
Speaker 3: Oh there's a bard power.
Speaker 10: Be okay, Why I discuss it?
Speaker 3: Because I think it is. It's a one way to
Speaker 3: get across the people. How perverse the structure of it is.
Speaker 10: Again, you are giving up the game when you do that.
Speaker 7: Yeah, well I don't think so, but.
Speaker 5: We'll see commenters see us right on this one.
Speaker 3: Look, I'll race you which one of us can bomb
Speaker 3: the building first?
Speaker 8: Probably have better, but well one other thing is what
Speaker 8: should the Trump administration do other than just criticize? So
Speaker 8: I mean, I know Lucretia hates this guy, but John
Speaker 8: Bolton was the one who waged a long campaign against
Speaker 8: this and he was the one who, on behalf of
Speaker 8: the Bush administration designed the treaty.
Speaker 7: I think he said to him, I think he says something.
Speaker 7: This was his greatest public act as an American.
Speaker 3: Official, someone who had his job at the UN by
Speaker 3: recess appointment. Let us remember, because Republicans mocked him from
Speaker 3: being confirmed.
Speaker 7: A couple of Republicans did.
Speaker 8: But on this point, what else should the Trump administration
Speaker 8: do other than just cheap talk? You know, what can
Speaker 8: it do to help Israel to fight off?
Speaker 5: I think cheap talk probably matters at this point, and
Speaker 5: it should be more than cheap talk. It should be
Speaker 5: serious theoretical, rational arguments about why.
Speaker 10: Something like an international cour is simply a ludicrous idea.
Speaker 5: Again, regardless of its you know, checks and balances or
Speaker 5: anything else, the United.
Speaker 10: States government is a sovereign government. It does not recognize any.
Speaker 5: Rulings by any international body, not by the Geneva Convention,
Speaker 5: not by the United Nations, and certainly not by the
Speaker 5: International Criminal Court. We can jolly be jolly and pretend
Speaker 5: we follow the Geneva Convention, and that makes sense. I mean,
Speaker 5: let's pretend we can have a peaceful world when we're
Speaker 5: at war.
Speaker 10: What a stupid idea.
Speaker 5: But when it comes down to it, if we need
Speaker 5: to violate the Geneva Convention, we must violate the Geneva
Speaker 5: Convention if that's what we need to do. So this
Speaker 5: is all just kind of a it's a smoke screen.
Speaker 10: To make people feel better.
Speaker 7: So here's another thing.
Speaker 8: I looked at the budget of the International Crew Court
Speaker 8: once upon a time, probably back when John Bolden was Matters,
Speaker 8: and it turns out that this thing gets funded by
Speaker 8: all our allies. One of the biggest contributors Japan. So
Speaker 8: I figure one thing the trumdministration could do, which would
Speaker 8: be consistent with the way they think, is for every
Speaker 8: dollar that any ally gives to the National Curler Court,
Speaker 8: we should cut off aid five dollars, right, and then I.
Speaker 7: Think this thing will close up and fold like that.
Speaker 7: But that's a great example.
Speaker 8: The bigger problem is, here are are allies who want
Speaker 8: us to defend them, right, Japan is crying for our
Speaker 8: aid in the Pacific against China. At the same time,
Speaker 8: they're funding this institution which is attacking us and our
Speaker 8: allies and the way we have to fight war. So
Speaker 8: I figure, let's kill the thing by cutting off all
Speaker 8: its money, cut off all our foreign aid to countries
Speaker 8: that fund this thing.
Speaker 7: Yes.
Speaker 5: Absolutely, But we've been Patsy's about this in the past,
Speaker 5: which is, we have all of these foreign policy experts
Speaker 5: in the State Department, et cetera, et cetera, who believe
Speaker 5: somehow everybody knows this about some sort of global government
Speaker 5: will be the way to keep the world at peace,
Speaker 5: and that way we don't have those awful mega Republicans
Speaker 5: with their America First nonsense.
Speaker 10: It's so embarrassing to the elite on the left.
Speaker 5: And yeah, absolutely Trump can do that, and it will
Speaker 5: actually matter that he.
Speaker 10: Does, I think, and I bet he does. I mean,
Speaker 10: you know, there's a lot.
Speaker 5: Of people pushing Trump to stop giving foreign aid simply speaking,
Speaker 5: but certainly our foreign aid is no longer targeted and
Speaker 5: very specific to accomplish specific purposes. It's just I think
Speaker 5: it was Steve himself who said a couple of weeks
Speaker 5: ago that most of the foreign aid, most of the
Speaker 5: kinds of at least stuff that's given to NGOs, money
Speaker 5: that we give to NGOs and so forth, is really
Speaker 5: just kickbacks to the left, and I think foreign aid
Speaker 5: in many ways.
Speaker 10: Is that true?
Speaker 3: Well, one other possible harassment, John, and then we'll move on.
Speaker 1: Is is it.
Speaker 3: Possible to prospect declare someone bersona non guada so they
Speaker 3: can't enter the country. Oh yeah, of course, the whole
Speaker 3: staff of the International Criminal Court and all the judges.
Speaker 8: I believe actually that under the Bush administration. No, under
Speaker 8: the Trump administration, when John Bolton was National Security Advisor,
Speaker 8: they did that. They said the judges and the prosecutors
Speaker 8: that I SEC will not receive visas to enter the units.
Speaker 3: Oh good, oh good, Well, let's lettle do more of that.
Speaker 3: But for now, because we have a lot to do
Speaker 3: and there's a curfew.
Speaker 5: John has to get back to the manor before it
Speaker 5: gets closed for the.
Speaker 8: Because I know, I tell you, I haven't scaled a
Speaker 8: castle wall ten years.
Speaker 10: At all.
Speaker 3: Right, our main event, and actually maybe we're gonna have
Speaker 3: to make this a couple of episodes.
Speaker 7: So one of the reasons we're all.
Speaker 3: Here together in Italy, among my lord appearances, was to
Speaker 3: have a panel discussion I guess you call it that
Speaker 3: with Adrian Mule of Harvard Law School about his book
Speaker 3: that created such a sensation common good Constitutionalism, and I
Speaker 3: have some well it it comes in three parts which
Speaker 3: I can lay out, but I have a particular criticism
Speaker 3: of one part of it.
Speaker 7: I think Lucretia has a criticism of all of it.
Speaker 10: You go on, why it made a sensation? What an
Speaker 10: somebody explained to me, why there was any appeal to it? Well, okay,
Speaker 10: I think others would.
Speaker 2: Like to know that.
Speaker 7: Well. Well, first descriptively, I think it's very safe. It
Speaker 7: has yeah, big swee.
Speaker 10: I'm asking, well, all right, I have.
Speaker 3: A long piece on substack, which I'll link in the
Speaker 3: show notes.
Speaker 7: That describes as to some extent. I think there's three
Speaker 7: parts to it. One is he thinks.
Speaker 3: Originalism is a dead end in bankrupt He says, it's
Speaker 3: just another species of positivism, no different in process than
Speaker 3: the way the war in court operated. And I think
Speaker 3: there's something to that. I think you and I partly
Speaker 3: agree with that for other reasons, or say well, but
Speaker 3: he does say okay. Part two, he wants to revive
Speaker 3: what he calls the classical legal tradition, and he says
Speaker 3: that really means natural law. And by the way, natural
Speaker 3: law is originalism. But he thinks the term originalism is
Speaker 3: so defective that can't be saved. So he says, instance,
Speaker 3: we ought to have common good constitutionalism. Now what he
Speaker 3: says there is it's not really judicial doctriness. It's not
Speaker 3: a theory of judicial review, although he gives a couple
Speaker 3: of examples of things he likes, I think are susceptible
Speaker 3: to criticism. And then second, that means that other branches,
Speaker 3: including the legislature and the executive, need to be reinvigorated
Speaker 3: and need to think about the common good as their
Speaker 3: north star. Then the third part is where I think
Speaker 3: he runs into the most trouble. But the left liked
Speaker 3: about the book.
Speaker 7: He says, Oh, and the administrative state, it's a good thing.
Speaker 7: We need to keep it. He does say it needs
Speaker 7: to be rightly ordered.
Speaker 3: And I'm skeptical that it can be inherently And that's
Speaker 3: where we differed in our panel discussion.
Speaker 7: Before we go to the panel, I'm essentially done, So
Speaker 7: go ahead.
Speaker 5: Can I just for a moment say that he's first
Speaker 5: of all, absolutely wrong about his criticism of originalism, which is.
Speaker 10: You know, I'm no great, but to say that.
Speaker 5: Somehow the return by the Supreme Court to an originalist
Speaker 5: doctrine has not been salutary, has not produced the common
Speaker 5: good in very, very real terms, is simply mistaken. I mean,
Speaker 5: I get that his stupid book came out right what
Speaker 5: before Dobbs, so he should have just thrown it away,
Speaker 5: told the publishers stop publishing. It is stupid, But I
Speaker 5: mean originalism produced the decision in Dobbs, which is an
Speaker 5: originalist decision against the living Constitution.
Speaker 10: He says, they're essentially the same thing, right, I.
Speaker 5: Mean, it's just so dumb, But anyway, and a whole
Speaker 5: series of other decisions, the Harvard decision, yes, the exactly
Speaker 5: Lowber that.
Speaker 10: Of course he's probably.
Speaker 5: Against those, but certainly the Brewined decision he's against because
Speaker 5: it turns out, on top of everything else that's wrong
Speaker 5: with him, he's also a Second Amendment denier. Listen to
Speaker 5: this job does because I owe him a few snarky
Speaker 5: asked snarky comments back.
Speaker 7: Excuse me, correct or editing I have to do?
Speaker 5: Okay, anyway, So I mean, am I wrong?
Speaker 10: I remember John when he first.
Speaker 5: Came on the podcast made the comment that originalism is
Speaker 5: now the prevailing constitutional theory of the Supreme Court, and
Speaker 5: it has produced better decisions than anything in the last
Speaker 5: sixty eighty years.
Speaker 7: Well, let me dispute that this way.
Speaker 3: I mean, one form of originalism brought us the boss
Speaker 3: Stock decision.
Speaker 5: No, no, that's wrong. You are wrong about that because
Speaker 5: it was not originalism. I don't care what he called it.
Speaker 5: You don't just get to say I think that when
Speaker 5: in nineteen sixty four when they passed the Civil Rights Act,
Speaker 5: what they meant by sex was everything, including transsexuals, and
Speaker 5: call that originalism.
Speaker 10: It's just stupid. Well, it's not originalism just because you
Speaker 10: call it that. Well, okay, realism is a theory that
Speaker 10: makes sense.
Speaker 5: Whether you agree ultimately with it's the best theory.
Speaker 3: Is a different cho Well, which kind I mean, what's
Speaker 3: his name? Of course, I said he was anchored in
Speaker 3: the text. I think there's a text. We go from
Speaker 3: the text there is.
Speaker 10: Text doesn't mean what he said it means.
Speaker 7: Okay, but that's his claim there never in mind the
Speaker 7: effects of that.
Speaker 3: The other kind is the original public meaning, which is
Speaker 3: part of the adopt's decision. The third kind, I think
Speaker 3: is more of our kind, which is the natural law
Speaker 3: and natural rights.
Speaker 7: Philosophy behind it. See, I think you're wrong, Steve.
Speaker 8: I don't think boss Stok is originalist because originalism doesn't
Speaker 8: apply to the interpretation of statutes. So where boss stock
Speaker 8: was about Title seventh and whether discrimination against sex included orientation,
Speaker 8: included whatever, and then you know, obviously the door.
Speaker 7: Is open to then what do you think You're orientation?
Speaker 8: Is?
Speaker 6: What do you identity?
Speaker 1: Yeah?
Speaker 8: And actually Scalia, who was the prime originalist, he didn't
Speaker 8: want to look at legislative history our statue. So actually
Speaker 8: what Gorsitch was doing, I think is that he was
Speaker 8: the opposite of being an Originals.
Speaker 7: He was a textualist.
Speaker 8: By that, I mean he said what does sex mean
Speaker 8: to me today? He didn't say what did sex mean
Speaker 8: in nineteen sixty four? That would be something like originalism.
Speaker 8: But he could win that one because there's no way
Speaker 8: right that sex in ninety six four would have been
Speaker 8: thought to include Kays.
Speaker 7: I don't think.
Speaker 10: And if I say, I mean, it's just like if I.
Speaker 5: Say it's light outside, that automatically means I have an
Speaker 5: accurate interpretation when it's dark outside.
Speaker 10: I mean, you can't know what his claim is. It
Speaker 10: doesn't matter what his claim is. My point is, it
Speaker 10: doesn't matter at all.
Speaker 5: My point is, is the originalism, whether any kind of originalism, textual,
Speaker 5: original public meaning, all of those things as produced as
Speaker 5: a constitutional theory, better outcomes than the living constitutional.
Speaker 8: Okay, see this is where So this is where Adrian's
Speaker 8: response to you is more, I think, in.
Speaker 7: His writing than what he said in the panel. He
Speaker 7: would say, I agree Dobbs was great. I agree that
Speaker 7: the Court is doing the right thing. But he says they're.
Speaker 8: Not really being originalist, because if you're originalists, you couldn't
Speaker 8: actually receive achieve these results. It's just because they're openly conservative,
Speaker 8: and then the originalism is just like this kind of
Speaker 8: fake thing they write on the opinions.
Speaker 7: And he says, I like.
Speaker 8: Their conservativism, but they're really being common good constitutionalist. He
Speaker 8: wasn't that clear in the panel, but that's what he
Speaker 8: says in his writing. That part of what he's doing
Speaker 8: is he's actually describing what the court has done. So
Speaker 8: he would say boss Stop was wrong because they should say,
Speaker 8: as a matter of the common good, we should not
Speaker 8: allow gays to.
Speaker 1: Have legal protection.
Speaker 8: Although I don't think he says it exactly that strongly
Speaker 8: in his book. But he also on the Second Amendment case,
Speaker 8: he would say, oh no, the common good means that police.
Speaker 10: And military are the only ones you should there to go.
Speaker 7: So we see this recent case Raheem.
Speaker 8: He thinks the court didn't, you know, turned away from originalism,
Speaker 8: which it kind of did, right, Rahimi's the case whether
Speaker 8: someone under domestic violence order is allowed to have a
Speaker 8: gun or not. Justine Thomas, who wrote Bruin and I think,
Speaker 8: is the purest originalist. So if you're going to be
Speaker 8: faithful originalism, you can't use that kind of order to
Speaker 8: take away someone's.
Speaker 7: Right to a gun. So Formuele, who.
Speaker 8: Likes gun control because he thinks it reduces crime, which
Speaker 8: is for the common good, he would say, well, the
Speaker 8: court in Raheemi, they're just being considered. They're doing the
Speaker 8: right thing, and they couldn't do it in an originalist way,
Speaker 8: so they just did it and that's good.
Speaker 7: That's better.
Speaker 8: So he's making a descriptive claim and then he's making
Speaker 8: a normative claim.
Speaker 7: He would actually say, it's interesting.
Speaker 12: I think people would say and Dobbs if the court
Speaker 12: was going to be only originalists and Dobbs, it should
Speaker 12: have stopped after at eighteen sixty eight, at the time
Speaker 12: of the fourteenth Amendment, would they think abortion was covered
Speaker 12: or not by the right use?
Speaker 7: And he would say no, so you would stop.
Speaker 8: But then vermals, but what's all this tradition and history
Speaker 8: and looking at the practice of the country till between.
Speaker 7: The passage of the fourteenth Amendment? And ro Vermia would.
Speaker 13: Say, you wouldn't look at that at all if you
Speaker 13: were really originalist. But if you're just conservative and you
Speaker 13: like tradition and doing things the way you've always done them,
Speaker 13: then that's stuff cast So he's cleaning like it's not
Speaker 13: really originals court, and that's why we.
Speaker 7: Like it as conservatives, because you're reaching all the right outcomes.
Speaker 5: It did that just first of all, he's he is
Speaker 5: putting forward what he says is a theory of constitutional
Speaker 5: interpretation normative theory as you put it, based upon some
Speaker 5: sort of morphous concept of classical legal theory. How classical
Speaker 5: legal theory gets you to pro environmental causes or anything
Speaker 5: like that is way beyond me. But the problem is
Speaker 5: is that he cherry picks things and gets them to
Speaker 5: fit in something he calls a theory that has, as
Speaker 5: we put it John, no animating principle and no limiting principle.
Speaker 10: It's really what does.
Speaker 5: Adrian vermule like, And his theory happens to just fix
Speaker 5: everything to the way he likes it, and it really
Speaker 5: has no logical consistency originalism, I get it, people do.
Speaker 5: I mean you said also that even the liberals on
Speaker 5: the Court talk at least in the language of originalism.
Speaker 5: But whatever else you can say, you may not agree
Speaker 5: with every decision that the Court has come down with
Speaker 5: a conservative liberal whatever. Originalism is way more of a
Speaker 5: limiting principle on the decisions of the Court than the
Speaker 5: living Constitution ever was. And he's wrong to identify those
Speaker 5: two things as essentially the same.
Speaker 10: Which is what he did, at least.
Speaker 7: In his dec he did which I thought was going
Speaker 7: too far to say they're equally limited or equally limitless.
Speaker 7: He doesn't. He claimed they're neither of them. Is a
Speaker 7: real limitation.
Speaker 13: But here are two interesting points because by the way, listeners,
Speaker 13: I helped organize this, but I just wanted to sit
Speaker 13: on the side.
Speaker 14: Because there was Lucretia and Steve and then Adrian the
Speaker 14: moderator was a fellow in Alesandro Manjo, who's a leading
Speaker 14: legal theorist at the University of Milan, Catholic Katzolica.
Speaker 7: They call it. And then another younger guy.
Speaker 8: Named Philip Arupta Brazolti, presiding teachers in Rome, also up
Speaker 8: becoming Italian legal theorist.
Speaker 7: This was so out of my.
Speaker 13: Depth because I just want to know why we get
Speaker 13: to use the death penalty and search without a work,
Speaker 13: and all these guys are of this high fluid in
Speaker 13: legal theory.
Speaker 7: I didn't want to get in the middle of this.
Speaker 7: I would have fallen asleep on the path.
Speaker 6: So the audience.
Speaker 7: So two thoughts I so, you know, as the neutral observer.
Speaker 15: Two things that occurred to me that I hadn't really
Speaker 15: realized until I listened to.
Speaker 7: The exchange was one he believes in natural law of this.
Speaker 7: So one thing, one way I told him.
Speaker 15: Afterwards that I would pitch his argument to make it clearer,
Speaker 15: is that he doesn't like originalism because he doesn't think
Speaker 15: originalism advances a moral theory of the good.
Speaker 7: It's just a method, and it's a method that doesn't
Speaker 7: come out of any political theory. That's what I thought.
Speaker 7: That's why I think you guys are in agreement.
Speaker 13: No, the thing said, but the second his second point,
Speaker 13: which then I think would be the interesting contest, and
Speaker 13: I think it kind of was, but it wasn't phrase this.
Speaker 7: Way, was that? So what he's really saying then, is
Speaker 7: I want.
Speaker 13: To repretation to have a moral theory to it, that
Speaker 13: you should interpret the Constitution.
Speaker 10: I do.
Speaker 7: Actually, it's not just limited to the Constitution.
Speaker 16: Do everything in illegal, Anything you do legally or politically
Speaker 16: should be with an eye towards advancing a certain moral theory.
Speaker 7: There's no such thing as neutrality.
Speaker 13: And then he would have to admit his moral theory
Speaker 13: is really Aristotle's moral theory, right, or Saint St.
Speaker 17: Thomass But that's what he thinks he's doing, saying, I
Speaker 17: would use the morality of Aristotle and Saint Thomas aquinas to,
Speaker 17: you know, to judge whether decisions are correct or not.
Speaker 13: And this is why Lucretia drove him, Betty, because Lucretius said,
Speaker 13: like everybody, she.
Speaker 7: Said, your yeah, Adews just found the same position to
Speaker 7: me and Steve Nie just didn't know.
Speaker 13: So Lucretia came in and said, no, the moral legal
Speaker 13: theory is the one of the founders that you should
Speaker 13: use right, she said, and you know natural rights. Commic
Speaker 13: good constitution doesn't care about naturalids think about natural law.
Speaker 13: So Lucretia King said, what about natural rights? What about
Speaker 13: the equality of human beings? What about social contract theory?
Speaker 16: Steve in a way asked the same question, like we
Speaker 16: had the same kind of criticism, but listeners will be
Speaker 16: shocked to learn Steve was nicer about it than Lucretia.
Speaker 7: But you know, basically, I think coming from the same place.
Speaker 7: And Adrian went nuts.
Speaker 13: He said something like I didn't come all the way
Speaker 13: to Milan to hear about Jefferson, and he basically, this
Speaker 13: is the second point.
Speaker 7: I didn't realize until I heard the debate.
Speaker 13: I think Adrian's comic good constitutionum rejects the Enlightenment. Yes,
Speaker 13: oh yes, I didn't understand until I read your substack,
Speaker 13: till I heard your questions. He thinks that mocky velly
Speaker 13: on was a wrong term, right, that liberalism is a
Speaker 13: wrong term, it's small, that autonomy is a wrong term.
Speaker 10: Individual this is a wrong term.
Speaker 8: Yeah, I didn't really that was not and that's not
Speaker 8: really clear from his writings as much.
Speaker 7: It's there that I it's not.
Speaker 18: It's not like he doesn't lead off the presentation of
Speaker 18: his thinking. Luf, I'm here to reject the Enlightenment. We
Speaker 18: should go back to write pre Machiavelli understanding.
Speaker 3: Of wells, I mean Lucretia and I can spot that
Speaker 3: that argument from fifty miles.
Speaker 7: Away, and I think it's I think it's clear in
Speaker 7: the book. Now, it's not explicitly stated, it's implicit dated
Speaker 7: in the books to stay clear.
Speaker 3: Well, well, it's not stated the way you just did.
Speaker 3: Yet I think it's clearly there. I'll put it that
Speaker 3: way if you read it carefully and understand what he's saying.
Speaker 7: I mean, you guys pulled out the Straussian decoder ring.
Speaker 7: We did the book Straussian. Well, you're allowed to do that.
Speaker 5: That.
Speaker 7: But here's why this is important.
Speaker 3: If you rejected, if you reject the reject the Enlightenment
Speaker 3: the way he has you also implicit.
Speaker 7: And here he doesn't say it anywhere. And I think
Speaker 7: this is what Lucreas exposed in a certain way. He
Speaker 7: rejects the American founding.
Speaker 10: Yeah, he was very clear about that.
Speaker 7: American founding is something unique and different rather than this.
Speaker 13: He didn't say this by assume he would say Jefferson
Speaker 13: was just a clever rhetortician.
Speaker 10: I don't think he even thinks Jefferson is clever.
Speaker 7: Yeah, he doesn't think of as a political philosopher. Well,
Speaker 7: I don't either. I hate Jefferson.
Speaker 5: I know you hate Jefferson, but but you don't hate
Speaker 5: the regime founded on the principles that Jefferson articulated.
Speaker 7: But here's here's the challenge I think he put to
Speaker 7: both of you two, which we ran out of time
Speaker 7: on the panel, is he.
Speaker 11: Was basically saying, well, prove to me why the American
Speaker 11: Founding really is a political theory that's superior to his
Speaker 11: playing to Aristotelian Saint Thomas Aquinas as the moral universe.
Speaker 10: And my answer to that is very simple.
Speaker 5: It's it's rational, it's grounded andtionality. We had that as
Speaker 5: a constitutional theory for at least the first what sixty
Speaker 5: seventy years solidly we saw we saw not only Chief
Speaker 5: Justice John Marshall articulated, but he brought over Joseph's story,
Speaker 5: who remember, was a Jeffersonian, Madisonian.
Speaker 7: Whoever natural law man?
Speaker 10: Yes.
Speaker 5: But but my point is is that I actually asked
Speaker 5: him afterwards because he basically ignored me after he'd.
Speaker 10: Insulted me a few times in dish.
Speaker 6: He did, yes, he did.
Speaker 8: He was we treated both of you with a respect
Speaker 8: which you don't receive on your own podcast.
Speaker 5: But anyway, I asked him, I said, okay, so I'm
Speaker 5: not even being argumentative.
Speaker 10: Here, give me one example of a time where a.
Speaker 5: Legal system was informed by this classical league theory that
Speaker 5: you are espousing. Give me an actual, concrete example of
Speaker 5: where what you're talking Never mind that it's very amorphous
Speaker 5: and nobody can define it and he can't define it.
Speaker 5: But give me a time when you would say this
Speaker 5: has been a successful manifestation of classical legal theory. And
Speaker 5: he looked at me like he had no idea what
Speaker 5: I was talking about. So I reframed it in the
Speaker 5: modern age.
Speaker 7: No, I meant any day, because in his book he
Speaker 7: has praise for like the.
Speaker 5: Roman you know, but yeah, the idea that whatever, we
Speaker 5: know what the Romans threw Christians to the lions, so whatever.
Speaker 10: But he didn't even offer that up to me. He
Speaker 10: looked like he didn't know what I was talking about.
Speaker 5: So I said it like this, I said, where I
Speaker 5: just told you guys, that the Founding period and the
Speaker 5: decades after it were, in fact, in human history one
Speaker 5: of the.
Speaker 6: One of the the time when human.
Speaker 5: Human self government, human forms of government, that the constitutional
Speaker 5: system we had was at its apex, was as good
Speaker 5: as human beings had ever produced.
Speaker 19: That was my argument to him, and his argument back was,
Speaker 19: I said, can you give me a similar example that
Speaker 19: classical as opposed to the American Founding classical legal theory
Speaker 19: would have produced.
Speaker 5: And he said, well, you know, in the New Deal,
Speaker 5: they they really shut down unions and that was a
Speaker 5: really dumb idea.
Speaker 10: If we still had labor unions then we would have,
Speaker 10: you know something.
Speaker 7: Yeah, that was strange. He was very pro union in
Speaker 7: the He had.
Speaker 5: Nothing to do with it was that he doesn't understand
Speaker 5: basic ideas.
Speaker 7: No, I think that's going too far.
Speaker 1: I don't.
Speaker 10: I mean I tried it three different ways.
Speaker 7: This is the again, this is the question.
Speaker 1: But this is not his question.
Speaker 13: I mean I ask you guys this all the time too,
Speaker 13: being a dirty, filthy utilitarian.
Speaker 7: So you've accused me.
Speaker 13: I'm only interested in increasing the social adp and social
Speaker 13: welfare of our great country, the United States, which is
Speaker 13: now greater than it ever was, how do you prove
Speaker 13: that your moral theory drawn from the founding drama natural
Speaker 13: rights Leo Strauss and Harry Jaffa reading and just identify
Speaker 13: as natural tradition. How do we know that's a superior
Speaker 13: moral theory to classical theory, to my utilitarianism. It's not enough,
Speaker 13: I think, to just point out flaws and utilitarianism.
Speaker 5: You have to show that your theory is How about
Speaker 5: the success of the natural law founding principles for a
Speaker 5: new country that founded itself on those principles explicitly and
Speaker 5: we basically.
Speaker 7: Followed them even though we had slavery until eighteen sixty five.
Speaker 10: Yeah, because those are compromises with the these arguments.
Speaker 13: Before sum utilitarian perspective, it was a terrible machine because
Speaker 13: of slavery, well bender natural rights.
Speaker 10: It was to Would we have ever ended slavery? No, No,
Speaker 10: absolutely does it.
Speaker 5: Would we have ever ended slavery had it not been
Speaker 5: for those founding principles?
Speaker 3: Well, you know what I think we want need to
Speaker 3: have a whole episode on Jefferson versus Bentham, which you
Speaker 3: know I threw it you and.
Speaker 6: Ben is an idiot.
Speaker 5: I have known it without me, But I mean, well,
Speaker 5: look I don't want to discuss Bentham when you can
Speaker 5: discuss something important.
Speaker 3: Okay, utilitarianism that is the Oh but I want to
Speaker 3: say this because we actually that is the way our
Speaker 3: government works.
Speaker 1: But go ahead.
Speaker 3: Look, there's one thing that one thing to be said of,
Speaker 3: not the favor of the book, but this rejection of
Speaker 3: the American family Enlightenment.
Speaker 7: Is a very widespread of months or we younger.
Speaker 3: Some people call me, all right, but you know they're
Speaker 3: I mean, I talked to the month or two ago
Speaker 3: is the Hillsdale faculty and political science. They said they're
Speaker 3: shocked at they're conservative students who have contempt for the
Speaker 3: American founding.
Speaker 10: Yes, which is one of the reasons why his book
Speaker 10: is so dangerous.
Speaker 5: And I don't intend to hold my tongue about how
Speaker 5: bad it is, how destructive and insidious it is.
Speaker 7: Okay, you just care what it's right. They're wrong. What
Speaker 7: do you mean it's.
Speaker 5: Dangerous because it's proving itself to it's proving itself to
Speaker 5: be a crutch a philosophical crutch for those really bad
Speaker 5: ideas on you.
Speaker 7: All right, but he's not the only one. I mean,
Speaker 7: you're on Hassoni right at.
Speaker 10: Let's let's.
Speaker 8: Right.
Speaker 5: You have to attack these people wherever they're wrong, especially
Speaker 5: when their ideas are so destructive.
Speaker 8: You have to do it.
Speaker 10: It's your sacred responsibility. I don't have any reason to
Speaker 10: care what that guy thinks about me.
Speaker 5: I'm going to call him out on his destructive ideas
Speaker 5: every opportunity I get. Just because somebody else has destructive
Speaker 5: ideas doesn't mean I don't call him out on it.
Speaker 10: What that's a dumb argument.
Speaker 7: I think he's going to block you on Twitter. I
Speaker 7: just a hunt out.
Speaker 10: I follow him on Twitter.
Speaker 7: Okay, but I followed John to you know, use these
Speaker 7: adjectives about I want. What I want to see you
Speaker 7: guys do is rationally explain why your.
Speaker 5: Approach is morally almost finished before you interrupted me, which
Speaker 5: is that you can argue about slavery but set it
Speaker 5: aside for a moment. Have we ever seen a country,
Speaker 5: a nation in the history of the world that you
Speaker 5: know of but found as much peace, prosperity, freedom as
Speaker 5: the United States was able to implement based upon the
Speaker 5: founding principles?
Speaker 7: So two points. First, isn't that a consequentialist argument?
Speaker 10: But second, you asked me to give you a reason
Speaker 10: why I can prove it work.
Speaker 13: But I'm the consequentialist here. You're just saying the principles
Speaker 13: are morally superior because the country did really well on
Speaker 13: a number of different measures.
Speaker 7: To me, that's just like utilitarianism.
Speaker 10: Startling the principles.
Speaker 7: I'm well, I'm not finished.
Speaker 13: You could also say all those good things that happen
Speaker 13: in the United States were not.
Speaker 7: The result of those principles.
Speaker 20: You're just assuming they were could be because we had
Speaker 20: a huge continent, no natural enemies, we would have the
Speaker 20: Anglo American political system, which was that of innovation rather
Speaker 20: than individual liberty.
Speaker 13: Because we also had a lot of bad things happen
Speaker 13: in our country during that time which were violations of
Speaker 13: those principles.
Speaker 3: Consequentialist analysis is not incompatible with the classical political philosophy
Speaker 3: of Aristotle or Plato or the American founders.
Speaker 1: I agree.
Speaker 21: Okay, well, let's set that. Let's put let's put a
Speaker 21: pin in that. When you put a pin in a
Speaker 21: balloon and explodes. But I didn't put the put the
Speaker 21: angry down.
Speaker 7: I'm well. The second point is I think I think
Speaker 7: the way John just raised the question would be a
Speaker 7: good way to approach our next substack. Exchange, whether you
Speaker 7: or I do it, or maybe we both. I still
Speaker 7: get step listeners.
Speaker 13: Steve hacked into my laptop and I can't get it
Speaker 13: to start, so I can't write responses, just least substack.
Speaker 10: I haven't written a response to yours yet.
Speaker 8: You have to, okay, because I'm going to type one
Speaker 8: out on the airplane back to the US using my
Speaker 8: thumbs on my stupid iPhone.
Speaker 3: Okay, I think we should now brought to a conclusion
Speaker 3: and continue this argument several more future installments.
Speaker 7: Let's just said, one.
Speaker 13: Good thing about Adrian's book is that it's reinvigorating debate
Speaker 13: about constitutional interpret Yeah. People haven't been making, thinking and
Speaker 13: arguing this way in many years, so I will you and.
Speaker 10: I've been talking about these things as long as I know.
Speaker 13: I'm just talking about like constitutional you know, the world
Speaker 13: constitutionals lost.
Speaker 7: Scholars generally don't think about this anymore. They're all Rassians,
Speaker 7: they don't even know they're halls.
Speaker 5: But at the same time, don't you think that that
Speaker 5: just the rise of originalism itself has has in fact,
Speaker 5: it reinvigorated that debate to some extent.
Speaker 10: I mean, that's been your argument.
Speaker 7: To me for a while yes it has.
Speaker 13: I mean, the liberals spend most of their time now
Speaker 13: just attacking originalism, but not on any kind of deep
Speaker 13: philoscops a basis like this.
Speaker 7: It's more rooted in Oh, it's too hard to do.
Speaker 7: You don't do it consistently. It's not really history, right,
Speaker 7: it's not mad about dots. Yeah, they're all you can think.
Speaker 7: They're all implementation question it's not the question.
Speaker 10: Yeah, I'm not sure.
Speaker 6: There's a theory questions, but we'll leave that.
Speaker 10: So is it time for me to do bad wombe?
Speaker 6: It is all right, much to do it?
Speaker 7: In Italian.
Speaker 5: Listeners will be happy to know that I went to
Speaker 5: Mass this evening in Italian and I in one of.
Speaker 7: The great cathedrals, the Cathedral of Sienna.
Speaker 10: Yeah, this is not my favorite cathedral, but.
Speaker 2: It was.
Speaker 8: Okay, No means what Lucretius even dressed like the Cathedral
Speaker 8: of Sienna because she's.
Speaker 7: Wearing black and white stripes like a zebra.
Speaker 10: Okay.
Speaker 19: Uh.
Speaker 5: Tom Homan introduces family size immigrant chick.
Speaker 10: How do you say that word?
Speaker 5: Trabuchrabha to speed up deportation process is a catapultary y?
Speaker 10: Yeah, actually funny?
Speaker 5: Did you say that because you know, I look very
Speaker 5: close to the border, and my my best friend actually
Speaker 5: has a house on either side of the Mexican border.
Speaker 5: She's an American citizen and a Mexican citizen, and near
Speaker 5: her house is a baseball field field, and you know,
Speaker 5: baseball is very big.
Speaker 10: And they found out that.
Speaker 5: One of their big hitters on one of the Mexican
Speaker 5: teams was actually filling softball you mean baseballs with drugs
Speaker 5: and hitting them over the fence.
Speaker 10: Yeah, this is a few years back, but anyway, so
Speaker 10: that's the first one.
Speaker 5: Local man passes bar exam after just one week of
Speaker 5: watching the View.
Speaker 10: You get that because they they so they have been
Speaker 10: so over.
Speaker 5: The top in the the harpies of the View have
Speaker 5: been so over the top in their denunciation of Trump's appointments.
Speaker 10: They're just making up stuff, or they're they're taking whatever.
Speaker 5: Has just been sort of mildly suggested that they're they're getting.
Speaker 10: The MSNBC into legal trouble.
Speaker 3: So on air one day they had to read aloud
Speaker 3: ABC but go ahead, Yeah, the View was on ABC.
Speaker 7: That's what did I say?
Speaker 10: That they had read legal notes saying.
Speaker 1: What I noticed this?
Speaker 4: Yes on while they were broadcasting Lawyers lawyers. Yeah, so
Speaker 4: they wouldn't get sued.
Speaker 5: They don't want to get sued, probably because it would
Speaker 5: actually definitely put them under You.
Speaker 13: Know, from time to time I appear on the Fox equivalent,
Speaker 13: which is called out Numbered.
Speaker 22: Well, I was just going to say, you know, I
Speaker 22: assume everything I say there is just totally not to
Speaker 22: be believed, that it is not relying on and is
Speaker 22: meant to to fame and insult many many people.
Speaker 7: But they can't sue me anyway, can So this one?
Speaker 10: This one I really like and I think that actually
Speaker 10: John might go for this one too.
Speaker 5: Musk says federal regulations must fit within two hundred and
Speaker 5: eighty characters.
Speaker 7: I thought you'd like that must It's a great idea.
Speaker 10: It is Musk.
Speaker 5: Announces plan to buy MSNBC and turn it into a
Speaker 5: news network, is.
Speaker 10: Actually buying it.
Speaker 7: There, he's having fun. I don't think he would, but but.
Speaker 10: But he was having fun too for a little while
Speaker 10: before he bought Twitters.
Speaker 5: Yeah, let's let's give a shout out to ms in
Speaker 5: this situation because bought Twitter and actually and actually blew
Speaker 5: up the monopoly and provided an outlet for alternative details.
Speaker 8: Right, what we can do is thank the misguided management
Speaker 8: of Twitter, because remember he tried to get out of
Speaker 8: the deal because he wildly overpaid, and they sued him
Speaker 8: to force him bright on Twitter.
Speaker 1: Yeah, that was fine, not wonderful.
Speaker 7: Now John's gonna turn into Pumpkinson.
Speaker 10: So we give one more done. Okay, this one doesn't
Speaker 10: really make sense to me, but it might to you.
Speaker 3: Guys.
Speaker 5: We have been asked by our lawyers to read this
Speaker 5: legal notice statement informing you that duel Austin did not
Speaker 5: actually sail his shot through flooded Houston passing out copies
Speaker 5: of your best life.
Speaker 7: Now that seems old to me. That goes back to
Speaker 7: the hurricane from a few years ago, I think. But
Speaker 7: I reading the legal noticing, is that? Okay? Maybe that's it?
Speaker 1: All right?
Speaker 10: It's been a week.
Speaker 7: Can McDonald's has to issue legal notice? The Trump's appearance
Speaker 7: was still okay.
Speaker 10: Very loud to want. Because I sent this to you
Speaker 10: guys last week. I was very frustrated and it wasn't
Speaker 10: on the podcast.
Speaker 7: I missed it missed you right.
Speaker 10: Thank you for the kind comments.
Speaker 7: I do appreciate what that actually depends. On last week's episode,
Speaker 7: remember the fet sox, because.
Speaker 1: It was that noise.
Speaker 10: People actually missed me. John reads Yeah, listeners. So so
Speaker 10: I'm for some reason, I won't go into all the details.
Speaker 5: American Airlines could not figure out and I called I
Speaker 5: stood in line. I did all these things, could not
Speaker 5: figure out how to get my TSA pre check onto
Speaker 5: my boarding paths. So I have to go through the
Speaker 5: cattle line, right, And I'm standing there, and you know,
Speaker 5: you kind of plan a little differently when you think
Speaker 5: you're not gonna have to.
Speaker 10: And I'm, oh God, I'm I have to do. And
Speaker 10: I'm looking and I'm standing in this line.
Speaker 5: And I'm about to be mauled and groped by a
Speaker 5: TSA agent after I take out most of my clothes.
Speaker 5: Actually they did, yes, And and I look over and
Speaker 5: in the special line is an entire group of legal
Speaker 5: immigrants holding their uh the notice to Appear paperwork, who
Speaker 5: are being escorted to the front of the line and
Speaker 5: pushed through with out any.
Speaker 10: Going through the machine without turning.
Speaker 7: You have to go through the mountain detector.
Speaker 5: Nope, they just discored it and they said move over,
Speaker 5: let immigration through, and they just pulled all of those immigrants.
Speaker 10: Yeah. I was so pissed, and I said, I hope
Speaker 10: that Trump ends this.
Speaker 13: Now, were they like handcuffed or being escorted by armed police.
Speaker 10: No, they were just and they didn't look I'll be honest,
Speaker 10: they didn't look like they were from that Venezuelan gang.
Speaker 7: But they don't understand how.
Speaker 3: That's well, I mean, I think probably it's I mean,
Speaker 3: you know, the one time I flew on a private jet,
Speaker 3: it's a charter. You don't actually will get your identification,
Speaker 3: you don't have to go to security stuff.
Speaker 7: Because they're fun.
Speaker 3: But the optics of this are terrible and the contempt
Speaker 3: to chose for law abiding citizens.
Speaker 7: What well, I think charter flights might be exempt from
Speaker 7: having to.
Speaker 10: Go through charter flights.
Speaker 7: They go on them, and they go on they put.
Speaker 10: They put him to the back of the Oh. Absolutely,
Speaker 10: but you don't fly to two song.
Speaker 7: Thank god, I hope never to fly all.
Speaker 8: Right, I.
Speaker 10: Had to fly to Song.
Speaker 5: So here's here's the bad lumbee, so that you'll know
Speaker 5: it's not just me who understands this. John after illegal
Speaker 5: illegal immigrant found guilty of murder, DEM's sentenced him to
Speaker 5: flying coach.
Speaker 7: That is what that meant.
Speaker 3: I didn't understand, Well, they didn't fly that guy from
Speaker 3: New York down to Georgia.
Speaker 7: The government did where that murdered the.
Speaker 1: Yeah, yeah, all right.
Speaker 3: Josh Parson didn't get it that you want to send
Speaker 3: this out because you're gonna turn to the police if
Speaker 3: we don't know.
Speaker 7: Okay, always drink your whiskey.
Speaker 8: Meat.
Speaker 7: Let's go, Brandon and Steve. What do we have now
Speaker 7: that we're not making fun of Joe Biden or Knawlla Harrison.
Speaker 7: Other losers the problem because they're lost.
Speaker 10: They're the losers.
Speaker 7: Betful, I'm gonna, I'm gonna. It's gonna be hard to
Speaker 7: give up. I can't think of a single thing. I'll
Speaker 7: think of something better. Ricochet Join the conversation.