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<v Speaker 1>Well, whiskey, come and take my pain, the moneys, my ry,

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<v Speaker 1>oh whiskey.

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<v Speaker 2>Don't why think alone when you can drink it all

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<v Speaker 2>in with Ricochet's Three Whiskey Happy Hour. Join your bartenders,

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<v Speaker 2>Steve Hayward, John You, and the international Woman of Mystery, Lucretia.

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<v Speaker 1>Where this lap it up? It'll live it ain't you

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<v Speaker 1>easy on the show taps. You gotta give me and

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<v Speaker 1>let that whiskey blow.

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<v Speaker 2>All right. For all of you who didn't get the memo,

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<v Speaker 2>the Three Whiskey Happy Hour is in fact on hiatus

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<v Speaker 2>for the month of July. I did announce it at

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<v Speaker 2>the end of the last July fourth show and put

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<v Speaker 2>it in my notes, the show notes and also on substack,

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<v Speaker 2>but people aren't reading or listening to the end. In

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<v Speaker 2>any case, just to keep everybody happy, I am today

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<v Speaker 2>offering an emergency special edition of The Three Whiskey Happy

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<v Speaker 2>Hour with just me and my special guest. But it

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<v Speaker 2>is a special guest that many of you have been

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<v Speaker 2>requesting that we have on the show for a long time,

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<v Speaker 2>and it's John Eastman. But I do want to set

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<v Speaker 2>up our conversation as follows. If you go only by

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<v Speaker 2>the mainstream media, coverage of the Supreme Court. You might

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<v Speaker 2>think that the six' to three decision Against President trump's

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<v Speaker 2>executive order that curtailed birthright citizenship under apparently the emanations

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<v Speaker 2>and numbers of The Fourteenth. Amendment you might think that

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<v Speaker 2>was a serious setback For President. Trump but careful readers

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<v Speaker 2>recognize that on the core constitutional question of whether birthright

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<v Speaker 2>citizenship is actually anchored in The Fourteenth, amendment the vote

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<v Speaker 2>was actually five to four Because Justice kavanaugh agreed with

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<v Speaker 2>the other three dissenters that The Fourteenth amendment does not

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<v Speaker 2>establish birthright, citizenship but he voted to strike Down trump's

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<v Speaker 2>executive order because he thought it failed on statutory. Grounds,

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<v Speaker 2>statutes of, course can be, changed and five to Four

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<v Speaker 2>Supreme court decisi indicate that the matter is not decisively.

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<v Speaker 2>Settled keep in mind that the rovers Has way decision

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<v Speaker 2>was a seven to decision in nineteen seventy, three but

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<v Speaker 2>the shoddiness of the reasoning In roe became so apparent

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<v Speaker 2>over time that it was indeed. Overturned, likewise this may

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<v Speaker 2>occur on birthrights. Citizenship it is most definitely not Over

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<v Speaker 2>AS i, say consider that even as recently as a decade,

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<v Speaker 2>ago no one thought a constitutional challenge to birthright citizenship

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<v Speaker 2>could make it to The Supreme, court let alone get four.

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<v Speaker 2>Votes many commentators Thought trump might lose this case eight to,

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<v Speaker 2>one or perhaps even. Unanimously and if there's one person

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<v Speaker 2>above all who deserves credit for bringing this moment, about

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<v Speaker 2>it Is John. EASTMAN i think you may have heard of.

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<v Speaker 2>Him he's been in the news bit the last few.

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<v Speaker 2>Years and full, disclosure as the saying, Goes eastman AND

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<v Speaker 2>i were classmates and for time housemates in graduate school

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<v Speaker 2>back in the nineteen. Eighties about thirty years, Ago eastman

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<v Speaker 2>began writing a series of law review and other academic

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<v Speaker 2>articles attacking the supposedly secure foundations of birthright. Citizenship his

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<v Speaker 2>argument seemed exotic at the time and was summarily, dismissed,

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<v Speaker 2>often of, course with some of the usual slurs and

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<v Speaker 2>slanders that have come from the left when they don't

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<v Speaker 2>want to argue the substance with. You and yet in recent,

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<v Speaker 2>years more and more eminent constitutional scholars began to come

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<v Speaker 2>around and endorse his critique of the accepted, view, which

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<v Speaker 2>AS i, say now commands four votes on The Supreme.

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<v Speaker 2>Court so in our conversation here we review the course

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<v Speaker 2>of this unfolding rethinking that has brought us to this,

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<v Speaker 2>moment and we also take up what might be next

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<v Speaker 2>As eastman has his eye on a sweeping revision of

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<v Speaker 2>another important and highly consequential constitutional provision that nearly everyone

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<v Speaker 2>ignores or thinks is. Settled if he can repeat the

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<v Speaker 2>story arc of the birthright citizenship, issue it might lead

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<v Speaker 2>to one of the most significant reforms Of american government in.

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<v Speaker 2>Decades but to find out what the sequel, is, well

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<v Speaker 2>you'll just have to, listen which you can start doing right.

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<v Speaker 2>Now all, Right, eastman let's start. Here it's now almost

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<v Speaker 2>thirty years ago that you And Ed earler woke up one,

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<v Speaker 2>day maybe not, literally but you guys, said, hey wait a,

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<v Speaker 2>minute why do we assume that the Fourteenth amendment means

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<v Speaker 2>unlimited birthright. Citizenship there's this clause in the middle of

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<v Speaker 2>the Fourteenth amendment subject to the jurisdiction thereof which can't be.

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<v Speaker 2>Meaningless and there's other. Things there's you, know the longer

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<v Speaker 2>common law tradition and a lot of. History and everyone,

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<v Speaker 2>THOUGHT i, MEAN i understood the logic of, it BUT

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<v Speaker 2>i THINK i was like a lot of other people, saying,

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<v Speaker 2>YEAH i see the logic of. It but is anyone

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<v Speaker 2>going to buy? This, well fast forward now to recent,

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<v Speaker 2>weeks and four justices of The Supreme court, said, actually,

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<v Speaker 2>yes it does make. Sense so oh and, then by the,

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<v Speaker 2>way you were very much all alone you want to

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<v Speaker 2>add on this thirty years, ago and more recently you've

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<v Speaker 2>seen you, know friends of ours Like Richard epstein and

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<v Speaker 2>some younger scholars come along, saying, hey wait a, minute

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<v Speaker 2>these guys are. Right so it's an example of a

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<v Speaker 2>persistent and relentlessness and. Patience but that's start at the.

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<v Speaker 2>Beginning walk me through how you first spotted and developed

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<v Speaker 2>the argument that, hey wait a, minute this isn't a

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<v Speaker 2>slam don for birthright. Citizenship, well you.

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<v Speaker 3>Know it's a combination of our studies At claremont Under Harry,

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<v Speaker 3>joffa and the importance of the declaration and the Old

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<v Speaker 3>english law of, youth solely the law of the soil said,

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<v Speaker 3>that you, know if you were born on the king,

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<v Speaker 3>soil you were forever and perpetually The king's subject and

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<v Speaker 3>you could never renounce. That and if you look at

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<v Speaker 3>the closing paragraph of The declaration Of, independence it says

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<v Speaker 3>we declare that These united colonies are and of right

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<v Speaker 3>ought to be free and independent, states and we hereby

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<v Speaker 3>absolve all allegiance to The British. Crown that's one of

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<v Speaker 3>the most eloquent repudiations of The english common law doctrine ever.

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<v Speaker 3>Written and and and you, know and the foundation of

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<v Speaker 3>our government is not subject hip to a divine right of.

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<v Speaker 3>Kings it is consent of the governed among equal human.

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<v Speaker 3>Beings and the idea of perpetual allegiance was incompatible with

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<v Speaker 3>the notion of. Consent and so we started taking our

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<v Speaker 3>studies on the declaration and applying it to the Fourteenth.

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<v Speaker 3>Amendment and then we dug in to the actual debates

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<v Speaker 3>on the Fourteenth, amendment and and those debates inexorably lead

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<v Speaker 3>to the conclusion that people who are temporarily visiting are

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<v Speaker 3>not subject to the jurisdiction in the way they. Intended

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<v Speaker 3>now there's a confusion because subject to the jurisdiction oftentimes

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<v Speaker 3>modernly just means are you subject to our laws if you're.

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<v Speaker 4>If you're working in you, know working On.

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<v Speaker 3>Wall street and putting out stock, offers you're subject to

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<v Speaker 3>the jurisdiction of The securities In Exchange. Commission and so

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<v Speaker 3>we've just equated subject to the, jurisdiction was subject to the.

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<v Speaker 3>Laws But Senator, howard who authored that, language was asked point,

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<v Speaker 3>blank what about The, indians because they are most certainly

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<v Speaker 3>subject to our, jurisdiction both civil and, military and he,

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<v Speaker 3>said that's not what we. Mean they're not subject to

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<v Speaker 3>our complete jurisdiction because they owe their primary allegiance to their.

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<v Speaker 3>Tribes translate that discussion into the modern discussion about illegal

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<v Speaker 3>aliens and temporary, visitors and you get the same answer

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<v Speaker 3>That Senator howard offered with respect To, indians.

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<v Speaker 2>Right, right and we should we should play that a

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<v Speaker 2>little bit. FURTHER i think the other part of the

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<v Speaker 2>DECLARATION i think bears on this in a general way

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<v Speaker 2>is how's it one people need to dissolve their bands

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<v Speaker 2>with another people people get to define their political, community,

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<v Speaker 2>Right it's part of social contract.

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<v Speaker 3>Theory by the, way this is Where Justice Brown jackson

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<v Speaker 3>gets it so. Wrong she she she actually has a concurring.

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<v Speaker 4>Opinion she.

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<v Speaker 3>Says the incredible thing about the, declaration she, says it

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<v Speaker 3>sets out a universal principle of human. Rights necessarily flowing

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<v Speaker 3>from that is universal, citizenship which you, know that's the second.

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<v Speaker 3>Paragraph she ignores completely the first paragraph when in the

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<v Speaker 3>course of human, events one people decide they need to

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<v Speaker 3>separate from, another.

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<v Speaker 2>Right, Right, Yeah, well The Justice jackson seems to be

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<v Speaker 2>a bottomless abyss of. Ignorance i'll just put it that.

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<v Speaker 2>WAY i, shouldn't but it fits what was in the oral.

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<v Speaker 2>Argument she, said, well you, know If i'm in. It

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<v Speaker 2>all the logic of it, was If i'm In japan

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<v Speaker 2>and have to obey their, Laws I'm. JAPANESE i, mean

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<v Speaker 2>that was all to.

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<v Speaker 3>Her to her, defense almost every brief on that side

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<v Speaker 3>of the case made the same same, argument that that

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<v Speaker 3>being simply subject to the laws means you are subject

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<v Speaker 3>to the, jurisdiction and so she but it was it

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<v Speaker 3>was ridiculous the way it came out of her, mouth

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<v Speaker 3>because the position is. Ridiculous AND i like to draw

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<v Speaker 3>the example suppose somebody From britain is visiting here tourist.

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<v Speaker 3>Visa when they're, here they have to follow our. Laws

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<v Speaker 3>they drive on the right side of the, road not

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<v Speaker 3>the left side of the. Road, Right but we don't

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<v Speaker 3>draft them into our. Army we don't prosecute them for

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<v Speaker 3>treason if they take up arms against.

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<v Speaker 4>This because they've owed no allegiance to us.

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<v Speaker 2>Right now they do. Have this gets back to your

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<v Speaker 2>example you gave. Of if you're doing business, here you

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<v Speaker 2>have to obey our laws of The Securities Exchange. Act

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<v Speaker 2>but it's also let's do it this. Way if you

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<v Speaker 2>are mugged or you're, robbed you get the protections of

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<v Speaker 2>our criminal law and you get the due. Process or

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<v Speaker 2>if you're arrested for committing a, crime you get the

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<v Speaker 2>protections of due process for. Anybody but you don't get

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<v Speaker 2>as full civil. Rights you're not entitled to.

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<v Speaker 4>Vote, yep this is the.

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<v Speaker 3>Different this is the difference spelled out in the fourteen's.

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<v Speaker 3>Amendments different. Clauses the privileges and immunities apply to. Citizens

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<v Speaker 3>the equal protection of the laws and the guarantee of

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<v Speaker 3>due process apply to all. Persons and by the, way

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<v Speaker 3>textually equal protection applies to everybody within the, jurisdiction which

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<v Speaker 3>is different phrasing than the citizenship. Clause it says subject

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<v Speaker 3>to the. Jurisdiction And Chief Justice roberts in his, opinion

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<v Speaker 3>just seems to ignore. That you, know normally we take

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<v Speaker 3>different texts meaning different.

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<v Speaker 4>Things, well as we.

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<v Speaker 2>Have, seen The Chief justice can be very skillful at

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<v Speaker 2>overlooking things when it's convenient for. Him all, right let's

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<v Speaker 2>come at it in a general level this. WAY i

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<v Speaker 2>think even ten years, ago the idea that The court

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<v Speaker 2>would even take up this issue seemed, remote, RIGHT i,

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<v Speaker 2>mean you would have thought that if somebody Of congress

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<v Speaker 2>had passed a bill or somebody had issued executive order or,

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<v Speaker 2>something they would have simply denied cert and upheld a

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<v Speaker 2>lower court opinion that said, no you can't do. That

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<v Speaker 2>but they did hear this. Case and then the next one,

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<v Speaker 2>was AS i already alluded, to this is four. VOTES

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<v Speaker 2>i mean the headline that's seventy. Three but Really kavanaugh said, no,

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<v Speaker 2>actually this is a statutory. Problem maybe that's, true Or

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<v Speaker 2>i'll leave that, aside but, constitutionally the argument of The

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<v Speaker 2>trump administration is. Sounds so there's four votes for your.

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<v Speaker 2>Position AND i don't think anyone, thought a the case

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<v Speaker 2>will be heard in b that you would get four.

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<v Speaker 3>Votes, WELL i wasn't even sure of getting four votes

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<v Speaker 3>or five. VOTES i, mean there was a distinct possibility

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<v Speaker 3>we could have lost nine to. Zero you, know one

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<v Speaker 3>of two of my primary debate opponents on this issue

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<v Speaker 3>over the last twenty, years it been Other thomas, Clerks

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<v Speaker 3>John yu And Jim, hoe And Jim hoe's now a

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<v Speaker 3>very prominent federal judge down on The Fifth circuit In.

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<v Speaker 3>Texas But, no the ARGUMENT i thought was, compelling And

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<v Speaker 3>Justice thomas ninety one page descending OPINION i think just

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<v Speaker 3>dismantles the argument by The Chief justice for the.

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<v Speaker 4>Majority.

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<v Speaker 3>No but leading up to, that the first case out

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<v Speaker 3>of the. Box Remember trump signed this executive order on

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<v Speaker 3>day one of the second. TERM i was fortunate to

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<v Speaker 3>be watching not from The oval, office But i'd made

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<v Speaker 3>it back to my home and was able to watch

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<v Speaker 3>on television him sign a bill THAT i had a

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<v Speaker 3>hand in craft him and an executive order THAT i

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<v Speaker 3>had a hand in. Crafting but the first suit was

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<v Speaker 3>brought immediately In, Seattle, washington and the judge up there

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<v Speaker 3>basically threatened The department Of justice lawyers with sanctions and

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<v Speaker 3>a referral to bar disciplinary things for making the frivolous

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<v Speaker 3>arguments defending the president's executive. Order that's how bad the

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<v Speaker 3>lower courts thought this issue was that it would squarely

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<v Speaker 3>lose nine zero if The court even bothered to take it.

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<v Speaker 3>Up and the fact that they took it, up and

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<v Speaker 3>then you're right five to four on the key constitutional.

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<v Speaker 3>Issue four justices agreed with us that The constitution means,

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<v Speaker 3>this and the argument in the majority opinion the other

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<v Speaker 3>direction is just historically. FLAWED i, Mean Chief Justice roberts

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<v Speaker 3>begins his analysis In, Westminster england in sixteen oh, eight

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<v Speaker 3>AND i write an article, saying you, know maybe he'd

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<v Speaker 3>been better served beginning In philadelphia in seventeen seventy, six

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<v Speaker 3>because he actually says this demonstrably false claim that The

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<v Speaker 3>english feudal rule of youth solely the law of the,

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<v Speaker 3>soil crossed The, atlantic unchanged in The american system of,

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<v Speaker 3>government and you, know and doesn't bother to point out

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<v Speaker 3>the exact repudiation of it in The declaration Of.

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<v Speaker 2>Independence, yeah, Okay, now so you Mentioned thomas's ninety one page.

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<v Speaker 2>Descent near AS i can, tell it's his second longest descent.

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<v Speaker 2>Ever there may have been one other That i've missed

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<v Speaker 2>or others have. Missed i've been asking, around and apparently

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<v Speaker 2>his longest one Was JOHN u tells me was his

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<v Speaker 2>term limits descent back in the late nineteen. Nineties And

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<v Speaker 2>owner members that now and it seems like a dead.

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<v Speaker 2>Issue so in certain. Ways this IS i think his

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<v Speaker 2>most significant. Descent, now you read way more of these

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<v Speaker 2>opinions THAN i, do BUT i read through, it and

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<v Speaker 2>in addition to the compelling logic of, it what struck

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<v Speaker 2>me was how readable it. Is in other, words you

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<v Speaker 2>don't have to be finally schooled and understanding the way

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<v Speaker 2>These league arguments often set out And Supreme court opinions

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<v Speaker 2>said often hard for lapor to. Follows tell me If

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<v Speaker 2>i'm overreading, this but it seems to me that that's

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<v Speaker 2>an opinion that not only is solid on the, substance

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<v Speaker 2>but is comprehensible to the lace.

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<v Speaker 3>Citizen, well AND i think by, design because in his,

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<v Speaker 3>view this issue is only. Beginning The Supreme court's pronouncement

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<v Speaker 3>did not end. It AND i remind people another ARTICLE i,

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<v Speaker 3>wrote you, know, okay The Supreme court's. Ruled what happens?

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<v Speaker 3>Now and the answer from most people, is, Well Supreme court,

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<v Speaker 3>ruled that's the end of the. Matter and certainly as

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<v Speaker 3>a technical, matter just Because Justice kavanaugh, said, Well congress

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<v Speaker 3>can fix us with a statute that only got one.

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<v Speaker 3>Vote five votes, said The constitution mandates automatic citizenship for

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<v Speaker 3>everybody here except the children of, diplomats all, Right and

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<v Speaker 3>So congress can't by statute change. That But congress can

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<v Speaker 3>push back by statute to force The court to. Reconsider

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<v Speaker 3>and we had an example in our history about, that

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<v Speaker 3>the Dred, scott the egregious wrong Dread scott.

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<v Speaker 4>Decision it said two.

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<v Speaker 3>Things it said blacks can never be, citizens and it

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<v Speaker 3>Said congress has no authority to prohibit the slavery in the. Territories,

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<v Speaker 3>well in eighteen sixty, Two congress passed the law saying

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<v Speaker 3>prohibiting slavery in the, territories And Abraham lincoln signed that

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<v Speaker 3>law direct contrary to The Supreme court's pronouncement in Dred.

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<v Speaker 3>Scott and Remember lincoln says in his first inaugural, address

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<v Speaker 3>the Dread scott decision is final for the parties in the.

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<v Speaker 3>Case but if we're to treat it as final on

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<v Speaker 3>a hotly contested issue on which there remains, disagreement we

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<v Speaker 3>will have, ceased to that extent to be our own.

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<v Speaker 3>Rulers and that's WHAT i Think Justice thomas's ninety one

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<v Speaker 3>page dissent is. Inviting, now are we going to get

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<v Speaker 3>anybody In congress to take up that? Mantle probably. NOT

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<v Speaker 3>i mean they're demonstrating they're so spineless they can't even

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<v Speaker 3>pass A Save act that eighty five percent Of american.

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<v Speaker 3>Support but what it's been most amazing to me in

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<v Speaker 3>the reaction to the decision is how uniformly the people

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<v Speaker 3>on the right side of the aisle think that our

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<v Speaker 3>views were so correct that it's ridiculous that the majority

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<v Speaker 3>did what it, did, when just as you point, out

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<v Speaker 3>five years, ago the exact opposite was. TRUE i, mean

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<v Speaker 3>we have really moved the, discussion And Justice thomas's descent

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<v Speaker 3>just kind of hammers, it And Justice alito in his

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<v Speaker 3>descent and he, said this may be one of the

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<v Speaker 3>most profound and profoundly wrong decisions in our.

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<v Speaker 2>History, yeah, WELL i, mean you, know several people made the,

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<v Speaker 2>observation this is The Roe versus way to the current, moment,

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<v Speaker 2>right that case was seven. Too but then over time

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<v Speaker 2>people would point out that the reasoning of the case

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<v Speaker 2>was so bad that even the Late Justice skinberg, said

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<v Speaker 2>the reasoning of this case is really. Bad, right so

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<v Speaker 2>obviously couldn't hold up for very, long and something similar

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<v Speaker 2>may happen. Here the broader point you just, make you,

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<v Speaker 2>Know lincoln talking about wait a, minute we shouldn't be

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<v Speaker 2>bound by what The Supreme court, says, especially and it's divided,

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<v Speaker 2>closely and it's amazing how few people grasp that. TODAY

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<v Speaker 2>i think maybe more do, now BUT i mean off topics.

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<v Speaker 2>Slightly BUT i thought one of the low moments For

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<v Speaker 2>President GEORGE. W bush is when he signed the McCain

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<v Speaker 2>Fine Gold Campaign Finance act and said at the SIGNING

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<v Speaker 2>i think this act is, unconstitutional but that's really an

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<v Speaker 2>issue for The Supreme. Court AND i, thought did The

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<v Speaker 2>bush ever read his oath of office to, preserve, protect

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<v Speaker 2>and defend The constitution and he has this thing called a?

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<v Speaker 2>Veto AND i thought that, was you, know that's probably

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<v Speaker 2>an impeachable offense in the abstract. Right but that's kind

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<v Speaker 2>of the where we got. TO i think we're drawing

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<v Speaker 2>away from, that and this is up and well.

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<v Speaker 3>Mark and it didn't begin with his signing. Statement it

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<v Speaker 3>began with McCain and Fine gold both on the floor

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<v Speaker 3>of The senate saying they are parts of this that are,

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<v Speaker 3>unconstitutional but that's for The Supreme court. Decide in other,

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<v Speaker 3>words we've moved from judicial, review where each branch of

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<v Speaker 3>government has an independent obligation to uphold The constitution to

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<v Speaker 3>judicial supremacy when the judge there's a wonderful quotation From

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<v Speaker 3>Justice Oliver Wendell holmes Or hughes Probably holmes, Said, yeah

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<v Speaker 3>The constitution is the supreme law of the, land but

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<v Speaker 3>it is whatever we say it.

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<v Speaker 1>Is.

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<v Speaker 2>Right, WELL i thought that Was cooper Versus, aeron and

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<v Speaker 2>maybe it was. Both. Right, okay that's stuck a little.

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<v Speaker 2>Bit BECAUSE i was fuzzy on where this came. OUT

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<v Speaker 2>i didn't have time to chase it down the birth

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<v Speaker 2>tourism aspect of this whole. Thing, NOW i know the

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<v Speaker 2>numbers are comparatively, small but there's still real. Numbers and

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<v Speaker 2>regardless of how you can test subject to the jurisdiction,

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<v Speaker 2>thereof it seems to me you cannot make any plausible

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<v Speaker 2>argument that someone who flies in From china just have

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<v Speaker 2>a baby and get An american birth certificate and leaves

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<v Speaker 2>that person in no sense can be said to be

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<v Speaker 2>subject to the jurisdiction of The United.

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<v Speaker 3>States, well if you falsely equate subject to the jurisdiction

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<v Speaker 3>the Way Senator howard who authored that language meant, it

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<v Speaker 3>and subject to the, Laws, well while they've landed IN

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<v Speaker 3>la and or at THE la hospital on the drive down.

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<v Speaker 3>There they got to follow our traffic. Laws they're subject

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<v Speaker 3>to our. Laws you if you say subject to the

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<v Speaker 3>laws and subject of the jurisdiction mean the same, thing

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<v Speaker 3>then it makes some. Sense it's it's. INSANE i, mean

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<v Speaker 3>The british themselves have got rid of the youth solely.

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<v Speaker 3>Doctrine a few years. Ago they recognized how particularly modern times.

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<v Speaker 3>Look you, know in the eighteenth century or the early nineteenth,

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<v Speaker 3>century if you came to THE us, shores unless you

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<v Speaker 3>Were Ben, franklin that was. It you didn't go back

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<v Speaker 3>and forth, right and and so by coming here and

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<v Speaker 3>us allowing you to land meant that we had that

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<v Speaker 3>bilateral consent to make you part of our political. Community

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<v Speaker 3>that's no longer. True and during the during the oral,

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<v Speaker 3>Argument John, sower The Solsener, general made that point and

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<v Speaker 3>said times have. Change And Chief Justice, roberts you, know. Drippingly,

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<v Speaker 3>oh but our constitution hasn't. Changed the underlying principle hasn't,

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<v Speaker 3>changed but how it plays out certainly. Has and it's

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<v Speaker 3>not numbers may be, small but they're. DRAMATIC i mean

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<v Speaker 3>there Are i've seen in some reports there are hundreds

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<v Speaker 3>of thousands Of chinese men of military age who are

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<v Speaker 3>in this, country who had become citizens by virtue of

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<v Speaker 3>this erroneous. Interpretation that's an army on our shores with

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<v Speaker 3>full citizen rights to go wherever they, want including to military, installutions,

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<v Speaker 3>installations or what have. You this is insane that our

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<v Speaker 3>leading political enemy on the world stage has an army

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<v Speaker 3>on our shores and we haven't done a dang thing about.

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<v Speaker 1>It.

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<v Speaker 2>Yeah, so by the, way you brought Up robert saying

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<v Speaker 2>in the oral, argument it's still the same. Constitution there

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<v Speaker 2>WAS i thought. It Maybe i'm overreading this. TOO i

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<v Speaker 2>thought there was a curious footnote In kavanaugh's. Concurrence first of,

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<v Speaker 2>All kavanaugh surprised. ME i thought he'd easily flipped With

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<v Speaker 2>roberts on the constitutional. Question but there's a footnote where

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<v Speaker 2>he quotes at, length First Robert. BORK i thought that's,

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<v Speaker 2>interesting and Then Justice scalia and they're both, SAYING i

381
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<v Speaker 2>forget how it, went but he had quotes from them

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<v Speaker 2>that bared on the question of it maybe the same,

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<v Speaker 2>constitution but you know, what like The Fourth, amendment we've

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<v Speaker 2>adapted The Fourth amendment for the age of modern, telecommunications,

385
00:21:02.359 --> 00:21:05.079
<v Speaker 2>right and maybe we draw the line in the wrong place,

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<v Speaker 2>Sometimes but the fact that we can draw new lines

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<v Speaker 2>for new circumstances ought to be something that's not beyond our.

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<v Speaker 2>Grasp AND i, Thought, ah was that meant as a

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<v Speaker 2>subtle rebuke Of. ROBERTS i don't, know BUT i thought

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<v Speaker 2>that was an interesting part Of kavanaugh's.

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<v Speaker 4>OPINION i would say not so.

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<v Speaker 3>Subtle, yeah he was clearly Rebuking robert's ridiculous statement or

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<v Speaker 3>in the oral argument with that footnote where he goes.

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<v Speaker 3>Wrong and by the, way this is the same FIGHT

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<v Speaker 3>i had With Bill barr in the First trump. Administration

396
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<v Speaker 3>trump Asked barr to sit down with, me And barr,

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<v Speaker 3>does and he, says, well the statute that they adopted

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<v Speaker 3>in nineteen thirty eight and then fifty, two they had

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00:21:41.920 --> 00:21:45.240
<v Speaker 3>a different understanding than the original. Meaning so even if

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00:21:45.279 --> 00:21:47.759
<v Speaker 3>you're right about the original meaning of The, constitution the

401
00:21:47.759 --> 00:21:51.640
<v Speaker 3>statute conferred. Citizenship AND i, said, well they used the

402
00:21:51.720 --> 00:21:54.519
<v Speaker 3>same exact, language and so what they meant to do

403
00:21:54.880 --> 00:21:58.039
<v Speaker 3>is confer citizenship as much as and only as much

404
00:21:58.079 --> 00:22:01.599
<v Speaker 3>as The constitution. Requires that they were wrong about what it,

405
00:22:01.680 --> 00:22:04.960
<v Speaker 3>required didn't mean they intended to go any. Further kavanaugh

406
00:22:05.000 --> 00:22:08.039
<v Speaker 3>falls into that. Error it's exactly the same. Language and

407
00:22:08.039 --> 00:22:10.359
<v Speaker 3>he says it means something different in The act than

408
00:22:10.400 --> 00:22:12.920
<v Speaker 3>it means in The, constitution which is a very bizarre

409
00:22:12.960 --> 00:22:14.519
<v Speaker 3>way of interpreting statutory.

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00:22:14.599 --> 00:22:19.319
<v Speaker 2>Text, yeah, okay what do you think the next steps?

411
00:22:19.359 --> 00:22:20.519
<v Speaker 2>Are where should we go from?

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<v Speaker 3>Here, well if we had members with spine In, CONGRESS

413
00:22:23.759 --> 00:22:26.079
<v Speaker 3>i would encourage them to do what the you.

414
00:22:26.039 --> 00:22:26.759
<v Speaker 2>Could just stop right.

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00:22:26.759 --> 00:22:32.920
<v Speaker 3>THERE i would encourage them to do to add some

416
00:22:33.000 --> 00:22:37.119
<v Speaker 3>bills to the appropriation bills explaining that why they think

417
00:22:37.160 --> 00:22:40.839
<v Speaker 3>that court got it wrong and readopting by statute the

418
00:22:40.920 --> 00:22:44.599
<v Speaker 3>more limited original understanding of Fourteenth. Amendment, now The court

419
00:22:44.720 --> 00:22:48.200
<v Speaker 3>will then be confronted with an immediate legal challenge to that,

420
00:22:48.400 --> 00:22:51.640
<v Speaker 3>statute and The court can react in a couple of.

421
00:22:51.680 --> 00:22:56.680
<v Speaker 3>Ways and we've seen. This we've seen this recently in

422
00:22:56.759 --> 00:23:00.000
<v Speaker 3>a very important religious liberty case Called Employment division Verse.

423
00:23:00.240 --> 00:23:04.440
<v Speaker 3>Smith congress pushed back against that with a, statute and

424
00:23:04.480 --> 00:23:07.839
<v Speaker 3>it went up to The court and the majority of

425
00:23:07.839 --> 00:23:11.640
<v Speaker 3>the court, said we've, spoken end of.

426
00:23:11.720 --> 00:23:12.680
<v Speaker 4>Story very.

427
00:23:12.759 --> 00:23:17.680
<v Speaker 3>Arrogant justice O'Connor right separately, say a coequal branch has

428
00:23:18.200 --> 00:23:20.359
<v Speaker 3>suggested that we got this. Wrong we ought to take

429
00:23:20.400 --> 00:23:25.119
<v Speaker 3>that seriously and reconsider upon further, reflection we might come

430
00:23:25.160 --> 00:23:27.839
<v Speaker 3>to the same conclusion, anyway but we ought not to

431
00:23:27.920 --> 00:23:30.680
<v Speaker 3>just dismiss it with the back of our. Hand that's

432
00:23:30.720 --> 00:23:34.119
<v Speaker 3>the way it ought to go with coequal. Branches and

433
00:23:34.160 --> 00:23:36.440
<v Speaker 3>the question is whether This court is so arrogant that

434
00:23:36.480 --> 00:23:38.559
<v Speaker 3>when it makes a, decision everybody's supposed to just bend

435
00:23:38.559 --> 00:23:41.240
<v Speaker 3>the knee and end the. Discussion, remember this is What

436
00:23:41.400 --> 00:23:44.640
<v Speaker 3>Justice tawny did with Dred. Scott, Everybody i've settled. It

437
00:23:44.680 --> 00:23:46.440
<v Speaker 3>we don't have to fight over this. Anymore, well that

438
00:23:46.519 --> 00:23:49.400
<v Speaker 3>didn't work out so well, then and didn't work out

439
00:23:49.440 --> 00:23:51.400
<v Speaker 3>so well With roe Versus, waight or Plus.

440
00:23:51.319 --> 00:23:54.400
<v Speaker 4>He's Versus ferguson or any of the other egregiously wrong. Decisions,

441
00:23:54.519 --> 00:23:55.119
<v Speaker 4>yeah so.

442
00:23:55.119 --> 00:23:58.960
<v Speaker 3>A pushback, now that required spine Of, congress and you

443
00:23:59.039 --> 00:24:02.319
<v Speaker 3>had it in eighteen six sixty, two largely encouraged by

444
00:24:02.359 --> 00:24:04.480
<v Speaker 3>a president that had a lot of Spine. Lincoln we

445
00:24:04.559 --> 00:24:07.119
<v Speaker 3>have a president with a lot of, spine and maybe

446
00:24:07.319 --> 00:24:10.720
<v Speaker 3>he'll force the issue with This. Congress but there are

447
00:24:11.599 --> 00:24:13.920
<v Speaker 3>two other things that we should talk, about and that

448
00:24:14.039 --> 00:24:17.839
<v Speaker 3>Is congress could propose a constitutional amendment now if they

449
00:24:17.839 --> 00:24:20.759
<v Speaker 3>don't have enough spine to pass a statute by simple majority.

450
00:24:20.839 --> 00:24:24.079
<v Speaker 3>Vote they are never going to propose a constitutional amendment

451
00:24:24.119 --> 00:24:26.559
<v Speaker 3>by two thirds vote in each house in The, senate

452
00:24:26.680 --> 00:24:30.279
<v Speaker 3>not going to. Happen so what other option is? There

453
00:24:31.000 --> 00:24:33.680
<v Speaker 3>and that is the other alternative That James madison gave

454
00:24:33.759 --> 00:24:37.720
<v Speaker 3>us An article five to have thirty four state legislatures

455
00:24:38.200 --> 00:24:41.640
<v Speaker 3>call for a limited convention of The states addressing just this.

456
00:24:41.839 --> 00:24:44.880
<v Speaker 3>Issue thirty four, STATES i think we would get and

457
00:24:44.880 --> 00:24:48.200
<v Speaker 3>then they would propose an amendment saying it means What

458
00:24:48.279 --> 00:24:51.440
<v Speaker 3>trump's executive order says it mean it doesn't include temporary

459
00:24:51.559 --> 00:24:54.960
<v Speaker 3>visitors or people who are here, illegally both, cases again

460
00:24:55.039 --> 00:24:58.559
<v Speaker 3>without our consent right and propose an. Amendment and quite,

461
00:24:58.599 --> 00:25:00.759
<v Speaker 3>FRANKLY i think there are thirty eight states that would

462
00:25:00.839 --> 00:25:01.599
<v Speaker 3>ratify such an.

463
00:25:01.640 --> 00:25:03.640
<v Speaker 4>Amendment, Yeah i've.

464
00:25:03.480 --> 00:25:06.359
<v Speaker 2>Always thought The article five convention. Idea it's been around

465
00:25:06.359 --> 00:25:08.559
<v Speaker 2>for years on bounced budget and. Stuff if it ever

466
00:25:08.640 --> 00:25:12.079
<v Speaker 2>came to, be it would terrify the political class In

467
00:25:12.200 --> 00:25:14.599
<v Speaker 2>washington and around the country and so. Forth it'd be

468
00:25:14.640 --> 00:25:16.240
<v Speaker 2>just fun to watch The New York times lose their.

469
00:25:16.240 --> 00:25:19.279
<v Speaker 3>Mind, well and then you, Know i've had. FIGHTS i

470
00:25:19.319 --> 00:25:23.319
<v Speaker 3>had fights with The Great Phyllis schlaffley over this. Issue

471
00:25:24.079 --> 00:25:26.759
<v Speaker 3>we had a big debate about this at one of

472
00:25:26.759 --> 00:25:29.359
<v Speaker 3>The Sea pack conferences years and years, ago long before

473
00:25:29.400 --> 00:25:31.680
<v Speaker 3>she passed, away and she, said if we get An

474
00:25:31.720 --> 00:25:34.480
<v Speaker 3>article five, convention it could be a runaway. Convention, Yes

475
00:25:34.480 --> 00:25:35.400
<v Speaker 3>AND i, said, well phyll.

476
00:25:35.480 --> 00:25:35.799
<v Speaker 4>Us two.

477
00:25:35.799 --> 00:25:38.960
<v Speaker 3>Things, one nothing that comes out of The convention becomes

478
00:25:39.160 --> 00:25:42.519
<v Speaker 3>constitutional law unless it's ratified by thirty eight. States so

479
00:25:42.559 --> 00:25:44.319
<v Speaker 3>you're concerned that they take away The Second.

480
00:25:44.359 --> 00:25:47.640
<v Speaker 4>Amendment not. Happening there's not thirty eight states that would

481
00:25:47.680 --> 00:25:49.599
<v Speaker 4>agree to. THAT i mean quite the.

482
00:25:49.640 --> 00:25:51.799
<v Speaker 3>Opposite we get thirty eight states to strengthen and a

483
00:25:51.880 --> 00:25:53.079
<v Speaker 3>mandate everybody to carry.

484
00:25:53.160 --> 00:25:55.480
<v Speaker 4>Arms and the.

485
00:25:55.480 --> 00:25:57.640
<v Speaker 3>Second POINT i made to her, is phyllis the way

486
00:25:57.680 --> 00:26:00.000
<v Speaker 3>the courts have been. Operating we've had a runaway convey

487
00:26:00.359 --> 00:26:03.240
<v Speaker 3>every time The court meets since the nineteen. Thirties and

488
00:26:03.279 --> 00:26:05.519
<v Speaker 3>this would be designed to put a stop to run away.

489
00:26:05.519 --> 00:26:07.920
<v Speaker 2>Convention so that's WHAT i used to think it. WAS

490
00:26:08.000 --> 00:26:10.200
<v Speaker 2>i used to be persuaded about. Argument AND i finally

491
00:26:10.200 --> 00:26:12.160
<v Speaker 2>wrote an article ten years ago saying this is a

492
00:26:12.200 --> 00:26:14.880
<v Speaker 2>bad idea whose time has. COME i don't think it's.

493
00:26:14.880 --> 00:26:17.160
<v Speaker 4>Bad, well you, know and look the.

494
00:26:17.200 --> 00:26:20.759
<v Speaker 3>Notion let's talk about, spending you, know we're forty trillion

495
00:26:20.799 --> 00:26:24.799
<v Speaker 3>in debt, now and that most of that is unconstitutional.

496
00:26:24.880 --> 00:26:27.839
<v Speaker 3>Spending the constitution Spending clause actually has limits on.

497
00:26:27.880 --> 00:26:30.319
<v Speaker 2>It, well that's topic number, Two and why don't we

498
00:26:30.359 --> 00:26:32.519
<v Speaker 2>just turn to. THAT i, mean we you, know the

499
00:26:33.680 --> 00:26:35.880
<v Speaker 2>the birthrights of this and ship. Thing it's just getting

500
00:26:35.880 --> 00:26:42.359
<v Speaker 2>started stipulate. That but there's Right article, One section eight

501
00:26:42.400 --> 00:26:46.319
<v Speaker 2>sets out specific. Things but then there's this we regarded

502
00:26:46.359 --> 00:26:49.079
<v Speaker 2>as a throwaway phrase about the you can spend for

503
00:26:49.200 --> 00:26:52.440
<v Speaker 2>the general. Welfare now that HAD i think a pretty

504
00:26:52.519 --> 00:26:55.759
<v Speaker 2>specific and intelligible meaning at the, time and it's become

505
00:26:55.880 --> 00:26:59.519
<v Speaker 2>wholly unintelligible and anything. Goes so you've written about, this

506
00:27:00.200 --> 00:27:03.119
<v Speaker 2>signed a couple of your articles to, students and only

507
00:27:03.160 --> 00:27:05.160
<v Speaker 2>one or two other people have been, saying, hey wait a,

508
00:27:05.200 --> 00:27:11.640
<v Speaker 2>minute we completely departed decades and decades. Ago, Right so

509
00:27:12.440 --> 00:27:15.799
<v Speaker 2>my thought, is, okay you have this long arc long

510
00:27:15.839 --> 00:27:21.319
<v Speaker 2>march on birthright. Citizenship is something similar possible by putting

511
00:27:21.359 --> 00:27:23.119
<v Speaker 2>back some meaning in the general welfare?

512
00:27:23.119 --> 00:27:27.000
<v Speaker 3>Class it, Is And i've been in discussions with the

513
00:27:28.680 --> 00:27:31.240
<v Speaker 3>bean counters in The trump administration to try and get

514
00:27:31.240 --> 00:27:35.200
<v Speaker 3>them before the. Issue so let's lay down the. Cards

515
00:27:35.599 --> 00:27:38.240
<v Speaker 3>but by the, way our founders Were Milton. Friedman economists

516
00:27:38.240 --> 00:27:44.319
<v Speaker 3>Before Milton, friedman, right they understood that there's a problem

517
00:27:44.359 --> 00:27:47.119
<v Speaker 3>with rent, seeking they didn't use that. Phrase and the

518
00:27:47.119 --> 00:27:49.519
<v Speaker 3>way they addressed it in The constitution is on both

519
00:27:49.559 --> 00:27:52.799
<v Speaker 3>sides of the, coin taxes had to be apportioned according to,

520
00:27:52.839 --> 00:27:57.400
<v Speaker 3>population or duties on imports equal among all the ports

521
00:27:57.440 --> 00:28:00.519
<v Speaker 3>of the. Country so on the revenue receiving, end they

522
00:28:00.559 --> 00:28:04.480
<v Speaker 3>had a built in prohibition or constrained against rent, seeking

523
00:28:04.920 --> 00:28:08.319
<v Speaker 3>the ability of one class to tax another. Class it's built.

524
00:28:08.359 --> 00:28:11.000
<v Speaker 3>In and they also had it on the spending side

525
00:28:11.000 --> 00:28:13.519
<v Speaker 3>of the. Coin the spending could only be for the

526
00:28:13.599 --> 00:28:17.759
<v Speaker 3>common defense and the general. Welfare and as you point,

527
00:28:17.759 --> 00:28:21.599
<v Speaker 3>out that had. Meaning Now chief Former Chief Justice ranks

528
00:28:21.720 --> 00:28:24.400
<v Speaker 3>bollocks this in the mid nineteen eighties gets it.

529
00:28:24.440 --> 00:28:25.680
<v Speaker 4>Wrong he, said we don't.

530
00:28:25.480 --> 00:28:27.599
<v Speaker 3>Know what welfare, means and so we have to defer

531
00:28:27.680 --> 00:28:29.720
<v Speaker 3>To congress on whether it's good for us or. Not

532
00:28:30.160 --> 00:28:32.519
<v Speaker 3>but that may be true on the word, welfare but

533
00:28:32.640 --> 00:28:36.079
<v Speaker 3>it's not true on the word. General the distinction between, general,

534
00:28:36.319 --> 00:28:38.680
<v Speaker 3>national and local is easy to.

535
00:28:38.839 --> 00:28:41.039
<v Speaker 2>Enforce, well let's linger on. That from. THAT i, mean

536
00:28:41.319 --> 00:28:43.240
<v Speaker 2>so you, know one of the things that Says congress

537
00:28:43.319 --> 00:28:47.160
<v Speaker 2>can spend money on is postal roads but not roads,

538
00:28:47.440 --> 00:28:49.519
<v Speaker 2>Generally and SO i, mean as you, know but a

539
00:28:49.559 --> 00:28:51.880
<v Speaker 2>lot of listeners probably. Don't one of the big debates

540
00:28:51.880 --> 00:28:55.079
<v Speaker 2>in the early nineteenth century was what the national system

541
00:28:55.079 --> 00:28:56.519
<v Speaker 2>Of Henry clay and all the rest of. That it,

542
00:28:56.599 --> 00:29:00.880
<v Speaker 2>was can we build canals and? Roads and because it's

543
00:29:00.960 --> 00:29:03.319
<v Speaker 2>limited to you, know just The Erie canals For New,

544
00:29:03.400 --> 00:29:06.039
<v Speaker 2>york that's not in the general. Welfare it's In New

545
00:29:06.200 --> 00:29:08.440
<v Speaker 2>york's welfare If New york wants. It that's how that

546
00:29:08.480 --> 00:29:10.680
<v Speaker 2>debate fell. Out, Right New, york you want a, canal

547
00:29:10.799 --> 00:29:12.720
<v Speaker 2>you build it. Yourself and they did and it was a.

548
00:29:12.759 --> 00:29:16.559
<v Speaker 2>Success But washington then had the Discipline washington D. C

549
00:29:16.920 --> 00:29:19.519
<v Speaker 2>they had to just, say, no that is not general.

550
00:29:19.519 --> 00:29:22.279
<v Speaker 2>Welfare but then by degrees they, thought, well, okay what

551
00:29:22.319 --> 00:29:24.400
<v Speaker 2>about a road through three or four. States it's not

552
00:29:24.559 --> 00:29:26.440
<v Speaker 2>all the, states but it knits together a bunch of,

553
00:29:26.440 --> 00:29:28.599
<v Speaker 2>states and that starts to look like something that's in

554
00:29:28.640 --> 00:29:32.079
<v Speaker 2>the national. Interest so maybe that's the beginning of the slippery.

555
00:29:32.079 --> 00:29:34.680
<v Speaker 2>SLOPE i don't, know you, know people could disagree about,

556
00:29:34.680 --> 00:29:37.799
<v Speaker 2>that but the point is it doesn't, mean you, know

557
00:29:38.000 --> 00:29:42.279
<v Speaker 2>The Harry Reid library AT unlv In Las. VEGAS i,

558
00:29:42.279 --> 00:29:44.519
<v Speaker 2>mean that's the stuff that gets pugged into all all

559
00:29:44.559 --> 00:29:47.480
<v Speaker 2>the spending bills, now, right it's particular special interest local

560
00:29:47.559 --> 00:29:50.480
<v Speaker 2>things that all the taxpayers In america have no business

561
00:29:50.480 --> 00:29:53.119
<v Speaker 2>funding and shouldn't be. Funding and that's part of why we're.

562
00:29:53.079 --> 00:29:56.000
<v Speaker 3>So far hawk well and not my favorite, President but

563
00:29:56.039 --> 00:29:58.559
<v Speaker 3>he was right about. This James buchanan actually does a

564
00:29:58.640 --> 00:30:01.200
<v Speaker 3>veto message on one of these and he, says if

565
00:30:01.359 --> 00:30:03.599
<v Speaker 3>if we sign off on, this and it'll become the

566
00:30:03.599 --> 00:30:07.200
<v Speaker 3>greatest accomplishment of our national elected officials to bring money

567
00:30:07.240 --> 00:30:09.559
<v Speaker 3>home to their own constituents at the expense of everybody.

568
00:30:09.599 --> 00:30:11.799
<v Speaker 3>Else and the EXAMPLE i like to GIVE i was

569
00:30:11.839 --> 00:30:15.200
<v Speaker 3>living In Long, Beach, california and they proposed a bond

570
00:30:15.279 --> 00:30:17.960
<v Speaker 3>measure to widen one of our roads to line it

571
00:30:18.000 --> 00:30:20.640
<v Speaker 3>with you, know palm trees leading into the taj mahal

572
00:30:20.759 --> 00:30:23.480
<v Speaker 3>of the city, hall, Right and the voter, said this is.

573
00:30:23.599 --> 00:30:25.920
<v Speaker 3>Nuts we're not spending the money to put your you,

574
00:30:25.920 --> 00:30:29.039
<v Speaker 3>know boulevard up to your city. Hall and the next

575
00:30:29.039 --> 00:30:31.359
<v Speaker 3>thing we, know our members Of congress are getting an

576
00:30:31.559 --> 00:30:33.880
<v Speaker 3>earmark to widen the dang road that we didn't think

577
00:30:34.000 --> 00:30:36.319
<v Speaker 3>was worth the money for. Ourselves even though we were

578
00:30:36.359 --> 00:30:38.200
<v Speaker 3>going to get the. Benefit but by, god if people

579
00:30:38.200 --> 00:30:39.960
<v Speaker 3>In Rhode island are going to pick up the, tab

580
00:30:40.000 --> 00:30:42.240
<v Speaker 3>it sounds all of a sudden good. No and and

581
00:30:42.319 --> 00:30:46.720
<v Speaker 3>again the founders had figured this out there there were you,

582
00:30:46.759 --> 00:30:51.480
<v Speaker 3>know when they when they funded a lighthouse system along

583
00:30:51.519 --> 00:30:54.880
<v Speaker 3>the entire, coast that was that was in the general.

584
00:30:54.880 --> 00:31:00.319
<v Speaker 3>Welfare when when the city Of charleston burn to the

585
00:31:00.359 --> 00:31:05.319
<v Speaker 3>ground and they wanted A fema, bailout BEFORE, fema they, said,

586
00:31:05.359 --> 00:31:08.960
<v Speaker 3>no that's that's not. Us when they wanted to improve

587
00:31:09.039 --> 00:31:12.559
<v Speaker 3>the navigation of navigable, waterways that was. Covered when they

588
00:31:12.640 --> 00:31:16.799
<v Speaker 3>wanted to extend the navigation of The Savannah river up

589
00:31:16.839 --> 00:31:19.400
<v Speaker 3>further Into, georgia that was For georgia to pay. For

590
00:31:19.680 --> 00:31:22.720
<v Speaker 3>and we understood this, RIGHT i mean at the. Margin

591
00:31:22.839 --> 00:31:25.880
<v Speaker 3>sometimes those lines can be hard to. Draw but here's

592
00:31:25.880 --> 00:31:28.160
<v Speaker 3>How i've tried to get The trump administration to force

593
00:31:28.200 --> 00:31:31.319
<v Speaker 3>the issue because the courts have completely, abdicated.

594
00:31:32.119 --> 00:31:32.880
<v Speaker 4>And there's a BILL.

595
00:31:33.160 --> 00:31:39.200
<v Speaker 3>Uh there's a provision of the inaptly NAMED Uh Inflation

596
00:31:39.359 --> 00:31:44.359
<v Speaker 3>Reduction act they're in The biden administration that that has

597
00:31:44.400 --> 00:31:47.400
<v Speaker 3>a massive grant program and one of the conditions for

598
00:31:47.519 --> 00:31:51.119
<v Speaker 3>receiving grants is that it be exclusively for local. Projects

599
00:31:51.599 --> 00:31:55.160
<v Speaker 3>so built right into the law is a blatant violation

600
00:31:55.319 --> 00:31:58.640
<v Speaker 3>of The constitution's. Requirement and and you, know ever since

601
00:31:58.880 --> 00:32:03.279
<v Speaker 3>The nixon, Administry congress has got this recision bill where

602
00:32:03.319 --> 00:32:06.240
<v Speaker 3>if the president wants to not spend, money he asked

603
00:32:06.279 --> 00:32:08.759
<v Speaker 3>to beg the Very congress that spent the money for

604
00:32:08.839 --> 00:32:09.880
<v Speaker 3>permission not to spend.

605
00:32:09.920 --> 00:32:10.240
<v Speaker 4>It it's.

606
00:32:10.319 --> 00:32:14.839
<v Speaker 3>Ridiculous and So i've advised this is a prohibition speddle

607
00:32:14.920 --> 00:32:17.599
<v Speaker 3>out in The, constitution more clear than anything we've seen

608
00:32:17.640 --> 00:32:21.200
<v Speaker 3>in fifty. Years so you don't Ask congress for permission

609
00:32:21.279 --> 00:32:23.839
<v Speaker 3>not to spend for those local grant. Programs you just

610
00:32:23.880 --> 00:32:27.400
<v Speaker 3>SAY i can't do it Because i'm obligated to take

611
00:32:27.400 --> 00:32:30.720
<v Speaker 3>care that the, law including The, constitution be faithfully. Executed

612
00:32:30.880 --> 00:32:34.640
<v Speaker 3>and this violates The. Constitution get the lawsuit brought and

613
00:32:34.680 --> 00:32:36.920
<v Speaker 3>then defend, it, right that would.

614
00:32:36.759 --> 00:32:39.400
<v Speaker 2>Be a fun. Day, yeah it just occurred to. Me,

615
00:32:39.440 --> 00:32:43.039
<v Speaker 2>now the last president that understood, this not, surprisingly Was Calvin.

616
00:32:43.079 --> 00:32:46.000
<v Speaker 2>Coolidge you, know there was The Great Floods Mississippi floods

617
00:32:46.039 --> 00:32:49.240
<v Speaker 2>of nineteen twenty. SEVEN i think it turns Out coolidge

618
00:32:49.319 --> 00:32:52.480
<v Speaker 2>was it was paying attention and what he was investigating

619
00:32:52.599 --> 00:32:54.759
<v Speaker 2>was what's the state capacity to deal with this In,

620
00:32:54.759 --> 00:32:57.000
<v Speaker 2>Alabama mississippi and all those, Places and turned out to

621
00:32:57.039 --> 00:33:01.160
<v Speaker 2>be fairly. Robust But congress passed a relief bill And

622
00:33:01.640 --> 00:33:04.200
<v Speaker 2>coolidge vetoed, it and he, said it's not. Necessary they've

623
00:33:04.200 --> 00:33:06.119
<v Speaker 2>got to handle local. Level oh and by the, WAY

624
00:33:06.279 --> 00:33:09.880
<v Speaker 2>i think this bill is. Unconstitutional oh my. GOD i

625
00:33:09.920 --> 00:33:14.319
<v Speaker 2>mean you imagine someone saying that. Today, yeah, yeah so

626
00:33:14.359 --> 00:33:19.039
<v Speaker 2>that's a big. One all, right let's just do some

627
00:33:19.079 --> 00:33:21.319
<v Speaker 2>fun here a little. Bit so you AND i started

628
00:33:21.359 --> 00:33:23.720
<v Speaker 2>graduate school the same. YEAR i think it was like

629
00:33:23.799 --> 00:33:29.480
<v Speaker 2>seventeen ninety two or something like. It we both Had Leonard,

630
00:33:29.519 --> 00:33:33.720
<v Speaker 2>levy the great constitutional. Historian i've talked about him a

631
00:33:33.759 --> 00:33:37.880
<v Speaker 2>few times on various. PODCASTS i describe him as you.

632
00:33:38.000 --> 00:33:41.160
<v Speaker 2>Agree he was an old new deal, liberal which today

633
00:33:41.160 --> 00:33:44.279
<v Speaker 2>you would be a fascist on you, know history and law.

634
00:33:44.279 --> 00:33:48.319
<v Speaker 2>Faculties but even forty some years ago when we encountered,

635
00:33:48.359 --> 00:33:52.720
<v Speaker 2>him he liked us like conservative, students that's the. Point he.

636
00:33:52.920 --> 00:33:56.000
<v Speaker 2>Liked Harry jaffa would send, all say to study With,

637
00:33:56.440 --> 00:33:59.160
<v Speaker 2>levy and he loved having. Us AND i reflected on that.

638
00:33:59.440 --> 00:34:03.119
<v Speaker 2>Later the reason he liked us so much is were

639
00:34:03.279 --> 00:34:06.240
<v Speaker 2>necessarily better students than the history students are, smarter but

640
00:34:06.319 --> 00:34:09.960
<v Speaker 2>we weren't his history. Assists you, KNOW i remember being

641
00:34:09.960 --> 00:34:11.679
<v Speaker 2>in a couple of classes with the history students and

642
00:34:11.719 --> 00:34:13.960
<v Speaker 2>they'd kind of, SAY i guess they want to be.

643
00:34:13.960 --> 00:34:17.440
<v Speaker 2>PROFESSORS i don't, know but they seemed unambitious in certain,

644
00:34:17.480 --> 00:34:19.360
<v Speaker 2>ways and it was like their attitude was, always, well

645
00:34:19.400 --> 00:34:21.920
<v Speaker 2>is this going to be on the? Test our attitude

646
00:34:21.960 --> 00:34:24.320
<v Speaker 2>was wait a, minute why Did madison say? That maybe

647
00:34:24.320 --> 00:34:27.519
<v Speaker 2>it was? Right and if it's not, right why? Right

648
00:34:27.679 --> 00:34:30.960
<v Speaker 2>so so we took the matter more seriously and more.

649
00:34:31.039 --> 00:34:33.880
<v Speaker 2>Deeply but, anyway Sorry i'm rambling on. That, well, no

650
00:34:34.039 --> 00:34:35.719
<v Speaker 2>there would give me a couple of your Favorite levy.

651
00:34:35.800 --> 00:34:38.360
<v Speaker 3>Memories but BEFORE i could do, that it was one

652
00:34:38.400 --> 00:34:41.440
<v Speaker 3>of the other history professors and we asked, him why

653
00:34:41.440 --> 00:34:43.920
<v Speaker 3>do you teach, history because we think you teach history

654
00:34:43.920 --> 00:34:47.199
<v Speaker 3>to learn lessons about, truth and he, said, well know

655
00:34:47.320 --> 00:34:48.480
<v Speaker 3>that there's no such thing as.

656
00:34:48.480 --> 00:34:50.199
<v Speaker 4>True he, said we do the.

657
00:34:50.239 --> 00:34:53.280
<v Speaker 3>History because we like to tell nice, stories, Right and

658
00:34:53.320 --> 00:34:56.400
<v Speaker 3>it's just you, Know levy didn't believe that he was

659
00:34:56.519 --> 00:35:00.920
<v Speaker 3>much closer to us on, this that you study history

660
00:35:01.079 --> 00:35:05.119
<v Speaker 3>like you study great biographies to learn how to address

661
00:35:05.639 --> 00:35:10.639
<v Speaker 3>human condition and human problems that are are consistent throughout,

662
00:35:10.679 --> 00:35:14.360
<v Speaker 3>history and you, know some people of great minds confront

663
00:35:14.400 --> 00:35:18.000
<v Speaker 3>these issues and if they're, right that's that's a lesson to.

664
00:35:18.079 --> 00:35:21.079
<v Speaker 3>Learn if they're, wrong that's a mindfield to avoid in the.

665
00:35:21.119 --> 00:35:24.440
<v Speaker 3>Future but either way you learn something. Right And levy

666
00:35:24.480 --> 00:35:27.280
<v Speaker 3>approached history in that in that fashion that was it was,

667
00:35:27.320 --> 00:35:29.400
<v Speaker 3>good you, know and he you know the.

668
00:35:29.800 --> 00:35:30.280
<v Speaker 4>Stories.

669
00:35:30.559 --> 00:35:34.440
<v Speaker 3>Uh he was a more absolutist On First, Amendment, yes

670
00:35:35.360 --> 00:35:37.800
<v Speaker 3>including things THAT i don't think the founders would have

671
00:35:37.800 --> 00:35:38.920
<v Speaker 3>thought covered The First.

672
00:35:38.960 --> 00:35:40.800
<v Speaker 4>AMENDMENT i was going to bring that.

673
00:35:40.920 --> 00:35:42.920
<v Speaker 2>Up. Yeah he was always sort of a classic old

674
00:35:42.960 --> 00:35:47.639
<v Speaker 2>A c L u civil, libertarian including defending. Pornography AND

675
00:35:47.679 --> 00:35:50.480
<v Speaker 2>i remember in one time a public, event So i'm

676
00:35:50.519 --> 00:35:52.800
<v Speaker 2>not really you, know BUT i remember one time he, says,

677
00:35:52.840 --> 00:35:55.960
<v Speaker 2>no pornography is absolutely protected by The First. Amendment he, says,

678
00:35:56.480 --> 00:36:00.840
<v Speaker 2>SIDES i like. PORNOGRAPHY i use. Pornography he was, shocked

679
00:36:01.440 --> 00:36:05.039
<v Speaker 2>that Was but to his, credit you, know he went

680
00:36:05.079 --> 00:36:08.159
<v Speaker 2>beyond THE aclu parameters you might, say and late in

681
00:36:08.199 --> 00:36:10.840
<v Speaker 2>life he, said, hey wait a, minute property rights are

682
00:36:10.880 --> 00:36:12.920
<v Speaker 2>a human right every bit as much as freedom of

683
00:36:12.920 --> 00:36:15.480
<v Speaker 2>speech and freedom of. Religion and what did he write.

684
00:36:15.480 --> 00:36:18.119
<v Speaker 2>SOME i mean he never. QUITE i don't think he

685
00:36:18.239 --> 00:36:21.119
<v Speaker 2>followed or Studied Richard epstein's, work for, example but he

686
00:36:21.199 --> 00:36:22.199
<v Speaker 2>arrived at the same. Place.

687
00:36:22.320 --> 00:36:26.199
<v Speaker 3>Yeah, no and and AND i, mean, look we have

688
00:36:26.639 --> 00:36:29.599
<v Speaker 3>we have rights in our, property but we have property

689
00:36:29.679 --> 00:36:33.679
<v Speaker 3>in our, rights you, Know. Madison madison's essay on property

690
00:36:33.760 --> 00:36:36.360
<v Speaker 3>is one of the great statements of the fundamental human rights,

691
00:36:36.400 --> 00:36:40.519
<v Speaker 3>property because property is more a fundamental right than anything,

692
00:36:40.559 --> 00:36:43.519
<v Speaker 3>else because it is it is a creation of your

693
00:36:43.519 --> 00:36:47.320
<v Speaker 3>own hand that leads your ability to have. Property and

694
00:36:47.360 --> 00:36:51.119
<v Speaker 3>so an extension of your human right to liberty is

695
00:36:51.199 --> 00:36:53.719
<v Speaker 3>a function of the thing that is produced.

696
00:36:53.280 --> 00:36:54.199
<v Speaker 4>With that, liberty your.

697
00:36:54.199 --> 00:36:57.480
<v Speaker 3>Property And madison goes further and, says because we have different,

698
00:36:57.519 --> 00:37:00.440
<v Speaker 3>capatities it's going to be. Unequal and so to try

699
00:37:00.480 --> 00:37:05.440
<v Speaker 3>and treat our equal rights under law as a guarantee

700
00:37:05.440 --> 00:37:08.800
<v Speaker 3>of equal outcome is to destroy the notion of property.

701
00:37:08.880 --> 00:37:11.280
<v Speaker 3>Rights and that's this is the main fight between the

702
00:37:11.280 --> 00:37:14.400
<v Speaker 3>socialist wing and The Democrat party and the rest of

703
00:37:14.440 --> 00:37:14.800
<v Speaker 3>the sane.

704
00:37:14.920 --> 00:37:15.360
<v Speaker 4>Country.

705
00:37:17.199 --> 00:37:19.280
<v Speaker 2>YEAH i have two more questions for you THAT i

706
00:37:19.280 --> 00:37:21.320
<v Speaker 2>did not prepare you, for so we'll just see how it.

707
00:37:21.360 --> 00:37:24.840
<v Speaker 2>Goes one, is was It napoleon who said make no

708
00:37:24.960 --> 00:37:28.440
<v Speaker 2>small plans somebody like. That so you know you've taken

709
00:37:28.480 --> 00:37:31.400
<v Speaker 2>on birthright citizenship and we've just talked about the General welfare.

710
00:37:31.400 --> 00:37:34.440
<v Speaker 2>Clause those are no small. Things is there another not

711
00:37:34.599 --> 00:37:36.559
<v Speaker 2>small thing out there that's on your radar.

712
00:37:36.360 --> 00:37:39.559
<v Speaker 3>Screen, well it was on our radar. Screen we've just won.

713
00:37:39.599 --> 00:37:42.400
<v Speaker 3>It and that was the pushback against the notion of

714
00:37:42.440 --> 00:37:45.760
<v Speaker 3>independent agencies in the federal, government which you, KNOW i

715
00:37:45.800 --> 00:37:49.840
<v Speaker 3>went back when we founded The Constitutional Jurisprudence center twenty

716
00:37:49.840 --> 00:37:51.920
<v Speaker 3>five years. Ago, NOW i wrote a memo of thing

717
00:37:52.920 --> 00:37:55.239
<v Speaker 3>the dozen or a dozen and a half bad decisions

718
00:37:55.239 --> 00:37:57.119
<v Speaker 3>of The Supreme court that we wanted to, target and

719
00:37:57.159 --> 00:38:01.400
<v Speaker 3>we've won about three quarters of. Those, now the biggie this,

720
00:38:01.480 --> 00:38:03.079
<v Speaker 3>YEAR i think the one that's going to have the

721
00:38:03.119 --> 00:38:06.440
<v Speaker 3>most staying power and be the most consequential is taking

722
00:38:06.480 --> 00:38:10.039
<v Speaker 3>out the cornerstone of the administrative state from The New

723
00:38:10.079 --> 00:38:13.559
<v Speaker 3>deal case Called Humphreys, executor where it said The president

724
00:38:14.199 --> 00:38:17.840
<v Speaker 3>The congress can limit the president's ability to remove executive

725
00:38:17.880 --> 00:38:21.519
<v Speaker 3>officers and this is. Insane Uh and and the argument

726
00:38:21.599 --> 00:38:24.400
<v Speaker 3>made In Humphrey's executor by The New deal era court,

727
00:38:24.679 --> 00:38:27.199
<v Speaker 3>UNANIMOUSLY i, mean not even the good guys Came our

728
00:38:27.239 --> 00:38:29.880
<v Speaker 3>way on this was that because they didn't Like roosevelt

729
00:38:29.960 --> 00:38:33.639
<v Speaker 3>being the one that wielded the executive. Power the argument, was,

730
00:38:33.639 --> 00:38:36.920
<v Speaker 3>well we need these independent agencies to be directly accountable

731
00:38:36.960 --> 00:38:40.079
<v Speaker 3>to the people without being filtered through the elected, Representatives

732
00:38:40.079 --> 00:38:42.559
<v Speaker 3>like how are they directly accountable to the people if

733
00:38:42.599 --> 00:38:44.760
<v Speaker 3>not being filtered through the one guy that we can.

734
00:38:44.760 --> 00:38:50.039
<v Speaker 3>Elect and so the case Called trump Versus slaughter Slaughtered

735
00:38:50.119 --> 00:38:54.920
<v Speaker 3>humphrey's executive and and and it restored the president's ability

736
00:38:54.960 --> 00:38:57.719
<v Speaker 3>to control the executive branch except for THE, fed which you,

737
00:38:57.760 --> 00:39:01.360
<v Speaker 3>know kind of as an incoherent split the baby decision

738
00:39:01.400 --> 00:39:04.920
<v Speaker 3>By Chief Justice. Roberts but this means that the president

739
00:39:04.960 --> 00:39:07.800
<v Speaker 3>gets to remove you. Know and there's wonderful the case

740
00:39:07.840 --> 00:39:10.320
<v Speaker 3>that came Before humphrey's executor that had it. Right it

741
00:39:10.360 --> 00:39:15.719
<v Speaker 3>was case Called myers. Right And President hoover sent a

742
00:39:15.800 --> 00:39:21.199
<v Speaker 3>letter to a postmaster first class, saying you, KNOW i

743
00:39:21.239 --> 00:39:23.559
<v Speaker 3>THINK i need to have a full confidence in the

744
00:39:23.599 --> 00:39:26.000
<v Speaker 3>people that are running the various bureaus under, me AND

745
00:39:26.039 --> 00:39:28.639
<v Speaker 3>i don't have a full confidence in, you so please step.

746
00:39:28.719 --> 00:39:32.079
<v Speaker 3>Down he, refused And hoover fired. Him and then that

747
00:39:32.119 --> 00:39:33.760
<v Speaker 3>case goes all the way up in The court agreed

748
00:39:33.800 --> 00:39:37.000
<v Speaker 3>the president has the authority to remove this. Guy, Well

749
00:39:37.039 --> 00:39:41.719
<v Speaker 3>trump's executive order Removing slaughter at The Federal Trade commission

750
00:39:41.920 --> 00:39:44.760
<v Speaker 3>use similar. LANGUAGE i need to have a full. CONFIDENCE i,

751
00:39:44.800 --> 00:39:45.800
<v Speaker 3>said it was just.

752
00:39:45.880 --> 00:39:50.559
<v Speaker 2>Wonderful my, recollection Wasn't Chief Justice taft wrote that opinion

753
00:39:50.719 --> 00:39:52.599
<v Speaker 2>who'd been? President, right which is a kind of an.

754
00:39:52.599 --> 00:39:55.480
<v Speaker 2>Ira and then AS i recall his, OPINION i THINK

755
00:39:55.519 --> 00:39:58.159
<v Speaker 2>i did a word. Count it was fifty five thousand words.

756
00:39:58.199 --> 00:40:00.440
<v Speaker 2>Long it seemed to me it could have done that

757
00:40:00.440 --> 00:40:01.440
<v Speaker 2>in five hundred and fifty.

758
00:40:01.480 --> 00:40:04.880
<v Speaker 3>Words but, really, well AND i think there Was Leonard

759
00:40:04.960 --> 00:40:06.920
<v Speaker 3>levy that taught us. This once you, know you can

760
00:40:06.960 --> 00:40:11.039
<v Speaker 3>tell the caliber of the reasoning inverse relationship to the

761
00:40:11.119 --> 00:40:11.440
<v Speaker 3>number of.

762
00:40:11.440 --> 00:40:13.639
<v Speaker 5>Words it takes a, lot it takes right there you,

763
00:40:13.679 --> 00:40:17.000
<v Speaker 5>Go although that's not quite true entirely Because Justice thomas's

764
00:40:17.119 --> 00:40:21.559
<v Speaker 5>ninety one page descent is just dismantles the majority.

765
00:40:21.599 --> 00:40:25.760
<v Speaker 2>Opinion, right all, right last question that this is maybe

766
00:40:25.800 --> 00:40:28.920
<v Speaker 2>an odd one or maybe maybe requires a whole, hour

767
00:40:29.360 --> 00:40:32.400
<v Speaker 2>and don't want to do. That so your principally work

768
00:40:32.440 --> 00:40:35.119
<v Speaker 2>in you, know constitutional, law and you're practicing, lawyer but

769
00:40:35.239 --> 00:40:39.320
<v Speaker 2>also have a background in political. Philosophy SO i wonder

770
00:40:40.039 --> 00:40:43.119
<v Speaker 2>if you have some sort of leading thoughts about what

771
00:40:43.199 --> 00:40:46.760
<v Speaker 2>is now going under the banner of post liberalism or

772
00:40:46.920 --> 00:40:50.519
<v Speaker 2>or you, Know catholic, integolism if You're Adrian. Formule and

773
00:40:50.559 --> 00:40:52.800
<v Speaker 2>there's several different strains of, this but there's also a

774
00:40:52.840 --> 00:40:55.159
<v Speaker 2>strain of it like For. MULE i suppose other people

775
00:40:55.199 --> 00:40:58.360
<v Speaker 2>on the right who they don't you hear us from

776
00:40:58.440 --> 00:41:01.519
<v Speaker 2>young conservatives who ARE i think The founding was. Defective

777
00:41:01.920 --> 00:41:04.960
<v Speaker 2>their argument really is it failed to stop the progressive

778
00:41:04.960 --> 00:41:07.480
<v Speaker 2>onslaught of the last one hundred, years therefore it was

779
00:41:07.519 --> 00:41:10.320
<v Speaker 2>insufficient or defective in some. WAY i think that's. Mistaken

780
00:41:10.400 --> 00:41:12.599
<v Speaker 2>but you, KNOW i think we agree on. That but

781
00:41:12.639 --> 00:41:14.559
<v Speaker 2>what do you make of all? That and are you

782
00:41:14.639 --> 00:41:18.239
<v Speaker 2>engaged in it? Much or have you you stick to your.

783
00:41:18.280 --> 00:41:19.480
<v Speaker 4>KNITTING i stick to my.

784
00:41:19.519 --> 00:41:21.239
<v Speaker 3>Knitting i'm not engaging in that BECAUSE i think a

785
00:41:21.280 --> 00:41:25.079
<v Speaker 3>lot of it is naval gazing and. Wrong but it's

786
00:41:25.119 --> 00:41:30.119
<v Speaker 3>also a reflective of a a progressive movement view of

787
00:41:30.159 --> 00:41:34.800
<v Speaker 3>the common sense and wisdom of people. Generally it flows

788
00:41:34.800 --> 00:41:37.199
<v Speaker 3>out of the progressive notion that we're not capable of

789
00:41:37.199 --> 00:41:39.960
<v Speaker 3>governing ourselves and we need experts to tell us how

790
00:41:40.000 --> 00:41:41.599
<v Speaker 3>to do, things And.

791
00:41:41.480 --> 00:41:44.280
<v Speaker 2>Oh, yeah vermil in particular defends the administrative. State he

792
00:41:44.760 --> 00:41:47.039
<v Speaker 2>And Cass sunstein are united on. That that's.

793
00:41:47.079 --> 00:41:50.920
<v Speaker 3>Amazing and and you, know years AGO i taught of

794
00:41:51.199 --> 00:41:54.360
<v Speaker 3>a seminar on the federalist and anti federalist, debates and

795
00:41:55.199 --> 00:41:58.039
<v Speaker 3>the paper assignment was to have them pick one of

796
00:41:58.079 --> 00:42:01.199
<v Speaker 3>the issues debates between the federal an anti federalists and

797
00:42:01.239 --> 00:42:05.559
<v Speaker 3>write a paper about it looking at modern.

798
00:42:04.280 --> 00:42:05.840
<v Speaker 4>Dispute and look at it in light of.

799
00:42:05.880 --> 00:42:08.440
<v Speaker 3>That and one of the best students in the class

800
00:42:08.480 --> 00:42:11.159
<v Speaker 3>came back with saying that the anti federalists were right

801
00:42:11.199 --> 00:42:15.679
<v Speaker 3>about the explosive expansion of the central. GOVERNMENT i, SAID

802
00:42:15.719 --> 00:42:18.239
<v Speaker 3>i agree that that's, happened BUT i want you to

803
00:42:18.280 --> 00:42:20.599
<v Speaker 3>now address the second, question when did it?

804
00:42:20.719 --> 00:42:23.000
<v Speaker 4>Happen and she came back and.

805
00:42:22.920 --> 00:42:26.000
<v Speaker 3>She, says you, know the federalists were right for the

806
00:42:26.039 --> 00:42:29.719
<v Speaker 3>first century of our nation's. History this change occurred after

807
00:42:29.760 --> 00:42:33.360
<v Speaker 3>we get the sixteenth and Seventeenth. Amendment and so the

808
00:42:33.400 --> 00:42:36.400
<v Speaker 3>federals were, right but the prediction of the anti federalists

809
00:42:36.440 --> 00:42:40.039
<v Speaker 3>became right once we altered the. Structure that the structure

810
00:42:40.119 --> 00:42:43.000
<v Speaker 3>The senate being elected by the state legislatures was a

811
00:42:43.039 --> 00:42:47.199
<v Speaker 3>protection of states and state authority against an overreaching federal.

812
00:42:47.280 --> 00:42:48.880
<v Speaker 3>Government and when you get rid of, that which is

813
00:42:48.880 --> 00:42:51.719
<v Speaker 3>one of the first things the progressive movement, does all

814
00:42:51.760 --> 00:42:53.119
<v Speaker 3>held breaks.

815
00:42:53.199 --> 00:42:54.719
<v Speaker 4>Loose now that's not.

816
00:42:54.800 --> 00:42:58.039
<v Speaker 3>Directly on the common, good you, know and virtue and

817
00:42:58.119 --> 00:43:01.920
<v Speaker 3>all that, stuff but it is on kind of A

818
00:43:01.960 --> 00:43:03.159
<v Speaker 3>catholic subsidiary.

819
00:43:03.440 --> 00:43:03.960
<v Speaker 4>Principle.

820
00:43:04.079 --> 00:43:07.480
<v Speaker 3>Right if you've got the local community taking care of

821
00:43:07.519 --> 00:43:10.159
<v Speaker 3>the local, things they are going to learn to be

822
00:43:10.280 --> 00:43:13.719
<v Speaker 3>virtuous in a way that you don't get when things

823
00:43:13.719 --> 00:43:17.039
<v Speaker 3>are being decided three thousand miles away without. Input and

824
00:43:17.119 --> 00:43:18.880
<v Speaker 3>so the two were, connected it seems to.

825
00:43:18.880 --> 00:43:23.159
<v Speaker 2>Me, Yeah and you also just suggest their attention that

826
00:43:23.320 --> 00:43:27.760
<v Speaker 2>hardly anyone notices you mentioned, subsidiarity Longtime catholic. Doctrine and

827
00:43:27.840 --> 00:43:31.280
<v Speaker 2>yet some of the proponents of common good, constitutionalism Like

828
00:43:31.480 --> 00:43:35.920
<v Speaker 2>mule Or patrick denine that seems very centralized in practice

829
00:43:36.000 --> 00:43:40.679
<v Speaker 2>and not harmonious with. Subsidiarity and that's one OBSERVATION i.

830
00:43:40.719 --> 00:43:42.880
<v Speaker 2>MADE i did Tell Vermule ones actually cornered him at a.

831
00:43:42.880 --> 00:43:44.719
<v Speaker 2>Debate but his little, book you, know it's tiny little.

832
00:43:44.719 --> 00:43:46.840
<v Speaker 2>BOOK i, said this book needs to be at least

833
00:43:46.840 --> 00:43:50.480
<v Speaker 2>AS i was, teasing, well not, REALLY i was propri

834
00:43:50.880 --> 00:43:52.960
<v Speaker 2>this book needs to be five times. Longer it's got

835
00:43:53.039 --> 00:43:54.719
<v Speaker 2>to be on the scale of raws to actually get

836
00:43:54.719 --> 00:43:56.920
<v Speaker 2>into details of what this really means in. Practice so

837
00:43:57.000 --> 00:43:58.960
<v Speaker 2>will you please give us that? Book, well you can't do,

838
00:43:59.039 --> 00:43:59.599
<v Speaker 2>IT i, Think.

839
00:43:59.719 --> 00:44:03.440
<v Speaker 3>BUT i think the fact that they gravitate towards centralized

840
00:44:03.440 --> 00:44:08.440
<v Speaker 3>decision making on key cultural questions is exactly the, problem

841
00:44:09.360 --> 00:44:12.519
<v Speaker 3>because the system we have is set up so that

842
00:44:12.559 --> 00:44:15.599
<v Speaker 3>people can make. Mistakes when you bring experts in that

843
00:44:15.679 --> 00:44:18.199
<v Speaker 3>think they're the ones that settle all, things Like Anthony,

844
00:44:18.239 --> 00:44:21.639
<v Speaker 3>fauci and they make a, mistake it's. Catastrophic and the

845
00:44:21.719 --> 00:44:25.719
<v Speaker 3>whole idea of subsidiarity or, federalism to put it in constitutional,

846
00:44:25.800 --> 00:44:29.239
<v Speaker 3>terms is that we can make a mistake at a

847
00:44:29.239 --> 00:44:32.800
<v Speaker 3>local level and it doesn't destroy the entire. System whereas

848
00:44:32.840 --> 00:44:36.199
<v Speaker 3>you do it, centralized you necessarily gravitate toward kind of

849
00:44:36.199 --> 00:44:43.599
<v Speaker 3>oligarchy authoritarian decision, making and nobody else gets to challenge.

850
00:44:43.599 --> 00:44:47.280
<v Speaker 3>It and those two things seem incompatible on the front,

851
00:44:47.400 --> 00:44:49.199
<v Speaker 3>end but they are central to each.

852
00:44:49.239 --> 00:44:51.960
<v Speaker 2>Other, OH i have one more wild question to ask

853
00:44:52.000 --> 00:44:55.239
<v Speaker 2>you just occur to. Me, now do you think there

854
00:44:55.440 --> 00:44:59.320
<v Speaker 2>is a pathway or a chance That obergafel will be overturned?

855
00:44:59.320 --> 00:45:04.000
<v Speaker 3>Someday, well in The dobbs, Decision Justice thomas certainly invites,

856
00:45:04.039 --> 00:45:05.519
<v Speaker 3>that and.

857
00:45:06.880 --> 00:45:11.599
<v Speaker 4>So you know it's. Possible, WELL i think you can

858
00:45:11.639 --> 00:45:12.039
<v Speaker 4>read it that.

859
00:45:12.079 --> 00:45:14.800
<v Speaker 2>Way BUT i always tell people who the left who

860
00:45:14.800 --> 00:45:16.920
<v Speaker 2>attacks him on that, POINT i, say read the next

861
00:45:16.960 --> 00:45:20.039
<v Speaker 2>page where he, says shouldn't some of THESE i, Mean

862
00:45:20.039 --> 00:45:22.079
<v Speaker 2>i'm not sure which decisions he, means but it just

863
00:45:22.119 --> 00:45:26.239
<v Speaker 2>shouldn't some of these old precedents that were flabby used

864
00:45:26.239 --> 00:45:28.519
<v Speaker 2>to do process. Claws shouldn't they be re anchored in

865
00:45:28.559 --> 00:45:31.320
<v Speaker 2>The privileges And immunities. Clause Now i'm not sure that

866
00:45:31.360 --> 00:45:33.920
<v Speaker 2>would reach to A bergefeller not but STILL i think

867
00:45:34.079 --> 00:45:36.000
<v Speaker 2>you got it both sides of that. Eye that's.

868
00:45:36.039 --> 00:45:38.280
<v Speaker 3>Right but but and he does this in The Second amendment.

869
00:45:38.320 --> 00:45:40.480
<v Speaker 3>CASES i got a Grand by the, way The Reason

870
00:45:40.559 --> 00:45:45.199
<v Speaker 3>Second amendment, Case Justice, alito writing on behalf of the,

871
00:45:45.239 --> 00:45:50.360
<v Speaker 3>majority gives a huge hat tip To Justice thomas from

872
00:45:50.440 --> 00:45:53.760
<v Speaker 3>the McDonald, decision saying this has to be grounded in privileged.

873
00:45:53.760 --> 00:45:57.119
<v Speaker 3>Immunities we had a fight with the Late Justice scalia over.

874
00:45:57.159 --> 00:46:03.440
<v Speaker 3>This oh, yes because because the historical record from the

875
00:46:03.519 --> 00:46:06.039
<v Speaker 3>crafting of the Fourteenth, amendment there were two, things the

876
00:46:06.079 --> 00:46:08.719
<v Speaker 3>freedom of contract and the right to keeping bare arms

877
00:46:08.719 --> 00:46:10.880
<v Speaker 3>for self. Defense this was front and center why we

878
00:46:10.920 --> 00:46:14.119
<v Speaker 3>have the privileged communities, Clause and Even scalia wouldn't go,

879
00:46:14.239 --> 00:46:17.719
<v Speaker 3>there you, know the biggest critic of substantive due. Process

880
00:46:17.840 --> 00:46:20.280
<v Speaker 3>rather stick with subst to do process than open up

881
00:46:20.320 --> 00:46:23.280
<v Speaker 3>a New pandora's box on privileged. Communities and that just

882
00:46:23.320 --> 00:46:26.880
<v Speaker 3>means he doesn't understand the historical pedigree of the natural

883
00:46:26.960 --> 00:46:28.400
<v Speaker 3>law tradition of privileged.

884
00:46:28.400 --> 00:46:31.360
<v Speaker 2>Community, well, right we, know we know his difficulty on.

885
00:46:31.400 --> 00:46:34.400
<v Speaker 2>That so. Strange see IF i remember this, right the McDonald.

886
00:46:34.480 --> 00:46:37.960
<v Speaker 2>Case that was The chicago gun. Case and AS i,

887
00:46:38.000 --> 00:46:43.480
<v Speaker 2>recall the court asked and the cert grant to have

888
00:46:43.599 --> 00:46:46.960
<v Speaker 2>the case briefed on the privileges and immunity's aspect of.

889
00:46:47.000 --> 00:46:49.519
<v Speaker 2>It and the lawyer Was Alan gura gets up and

890
00:46:49.519 --> 00:46:51.679
<v Speaker 2>brings it up And scalia cuts him off his, no

891
00:46:51.920 --> 00:46:55.280
<v Speaker 2>we're not doing, that go, on move, on? Right oh

892
00:46:55.360 --> 00:46:58.480
<v Speaker 2>and then did did he write the opinions or Was

893
00:46:58.480 --> 00:47:01.599
<v Speaker 2>alito who said we were invited to review this and

894
00:47:01.639 --> 00:47:03.920
<v Speaker 2>we declined that. INVITATION i think that opened up. That,

895
00:47:03.960 --> 00:47:04.760
<v Speaker 2>okay SO i missed.

896
00:47:04.760 --> 00:47:08.719
<v Speaker 3>Opportunity, well but But Justice thomas is separate concurring. Him

897
00:47:08.719 --> 00:47:11.440
<v Speaker 3>he did not concur in the opinion on subs and

898
00:47:11.480 --> 00:47:14.880
<v Speaker 3>who do? Process he wrote separately and concurred only in the.

899
00:47:15.000 --> 00:47:18.159
<v Speaker 3>Judgment and that means that without his analysis and privileged,

900
00:47:18.159 --> 00:47:19.440
<v Speaker 3>communities that case goes the other.

901
00:47:19.480 --> 00:47:21.559
<v Speaker 4>Direction his is the this hiding.

902
00:47:21.639 --> 00:47:26.000
<v Speaker 3>Vote but uh, no, uh you, know we we had

903
00:47:26.159 --> 00:47:29.199
<v Speaker 3>we had years. AGO i Invited Justice scalia to talk

904
00:47:29.239 --> 00:47:32.320
<v Speaker 3>To Chapman Law school WHEN i was still with. Him and,

905
00:47:33.079 --> 00:47:35.480
<v Speaker 3>uh he, Said i'll be happy to come. Out, heuman

906
00:47:35.519 --> 00:47:37.559
<v Speaker 3>BUT i can't come a. Graduation it's too busy up.

907
00:47:37.559 --> 00:47:40.400
<v Speaker 4>Here, Well Justice, clee you can come whenever you.

908
00:47:40.400 --> 00:47:42.239
<v Speaker 3>Want it's. Great what do you want me to talk?

909
00:47:42.280 --> 00:47:44.000
<v Speaker 3>About you can talk about whatever you, want he. Said the,

910
00:47:44.119 --> 00:47:46.800
<v Speaker 3>men we're going to talk About lockner because you're wrong About. Lockner,

911
00:47:47.320 --> 00:47:49.760
<v Speaker 3>oh and so we came, in but you have The.

912
00:47:49.800 --> 00:47:51.800
<v Speaker 2>David bernstein view of oh, yeah, yeah.

913
00:47:51.639 --> 00:47:52.239
<v Speaker 4>Of COURSE i. Did that's.

914
00:47:52.320 --> 00:47:56.079
<v Speaker 3>Right and and, UH i, Said Justice, Scalia, uh it's

915
00:47:56.119 --> 00:47:59.039
<v Speaker 3>one hundredth anniversary Of lockner and we're going to re enact.

916
00:47:59.079 --> 00:48:01.000
<v Speaker 3>It you can play the role With Chief, justice which may,

917
00:48:01.000 --> 00:48:03.199
<v Speaker 3>be which may be as close as you ever get to.

918
00:48:03.239 --> 00:48:06.199
<v Speaker 3>That and we we.

919
00:48:06.159 --> 00:48:06.880
<v Speaker 4>Had we had.

920
00:48:08.320 --> 00:48:11.800
<v Speaker 3>Five law students and three undergraduate students on the bench with,

921
00:48:11.920 --> 00:48:15.519
<v Speaker 3>him and we start off and he, said SO i started,

922
00:48:15.599 --> 00:48:19.159
<v Speaker 3>arguing we've Got Attorney general Of, California Bill. Locker oh,

923
00:48:19.280 --> 00:48:24.079
<v Speaker 3>god it was an, idiot but it was Representing New

924
00:48:24.159 --> 00:48:27.400
<v Speaker 3>york in The New York Versus lockner. Case AND i start,

925
00:48:27.480 --> 00:48:30.400
<v Speaker 3>OFF i, said you, know this violates the privilege we

926
00:48:30.440 --> 00:48:33.960
<v Speaker 3>got rid of privileged, immunities you got anything? ELSE i, said,

927
00:48:33.960 --> 00:48:36.000
<v Speaker 3>well violates the due process of law.

928
00:48:36.079 --> 00:48:37.000
<v Speaker 4>Clause and he said.

929
00:48:36.840 --> 00:48:40.159
<v Speaker 3>What part of what part of due process of law

930
00:48:40.280 --> 00:48:42.320
<v Speaker 3>has substance to? IT i, said it's in the word,

931
00:48:42.400 --> 00:48:46.280
<v Speaker 3>law your, Honor and he, said who said? THAT i, said,

932
00:48:46.320 --> 00:48:48.360
<v Speaker 3>WELL i know one day your court's not going to

933
00:48:48.480 --> 00:48:51.079
<v Speaker 3>like to have foreign sources of a Thirty but that Was.

934
00:48:51.119 --> 00:48:52.360
<v Speaker 4>Cicero he's a pretty good.

935
00:48:52.360 --> 00:48:53.880
<v Speaker 2>One what states he?

936
00:48:54.079 --> 00:48:55.679
<v Speaker 4>From AND i Said?

937
00:48:55.679 --> 00:48:57.840
<v Speaker 2>ILLINOIS i, THINK i, said.

938
00:48:57.599 --> 00:49:00.239
<v Speaker 4>The state Of. Sicily you're honored just like your, Family, like,

939
00:49:00.360 --> 00:49:01.400
<v Speaker 4>oh that was.

940
00:49:01.480 --> 00:49:03.679
<v Speaker 3>Good, Yeah so we had agree And Bill locker is

941
00:49:03.679 --> 00:49:06.360
<v Speaker 3>sitting there cut clueless of what they what they're going

942
00:49:06.400 --> 00:49:08.119
<v Speaker 3>back and forth, was but that was that was great.

943
00:49:08.119 --> 00:49:12.199
<v Speaker 3>Fun but you, know it, Demonstrated, look you look At

944
00:49:12.239 --> 00:49:16.079
<v Speaker 3>lockner and the right of people to earn a, living you,

945
00:49:16.119 --> 00:49:19.079
<v Speaker 3>know without undue restrictions on their, ability.

946
00:49:19.199 --> 00:49:20.800
<v Speaker 4>And that's a core property.

947
00:49:20.880 --> 00:49:22.960
<v Speaker 3>Right to get back to what we talked about, earlier

948
00:49:23.639 --> 00:49:26.440
<v Speaker 3>that the court got. Right and you, know unfortunately The,

949
00:49:26.519 --> 00:49:29.519
<v Speaker 3>descent The descent that said they, were you, know Forcing

950
00:49:29.920 --> 00:49:34.079
<v Speaker 3>spencer's social. Status that's just not what what The descent

951
00:49:34.199 --> 00:49:37.159
<v Speaker 3>was trying to do is do. That and and so

952
00:49:37.199 --> 00:49:42.239
<v Speaker 3>it's one of the great mischievous recharacterizations we've ever.

953
00:49:42.280 --> 00:49:46.079
<v Speaker 2>SEEN i, think by the, WAY i Think jaffa uh

954
00:49:46.760 --> 00:49:48.639
<v Speaker 2>never thought about the case, deeply BUT i think to

955
00:49:48.639 --> 00:49:50.840
<v Speaker 2>the extent he, ever there's one or two References i've

956
00:49:50.880 --> 00:49:53.039
<v Speaker 2>seen to him where he seems to take the conventional

957
00:49:53.119 --> 00:49:55.519
<v Speaker 2>view Of, lockner AND i think he would have changed

958
00:49:55.559 --> 00:49:57.159
<v Speaker 2>his mind if he lived long enough to, see, Say

959
00:49:57.239 --> 00:50:01.679
<v Speaker 2>David bernstein's work and so. Forth but, yeah, right all,

960
00:50:01.800 --> 00:50:03.199
<v Speaker 2>right let's get out with a little bit of. FUN

961
00:50:04.599 --> 00:50:08.960
<v Speaker 2>i won't tell listeners about when we were. Housemates you,

962
00:50:08.960 --> 00:50:10.679
<v Speaker 2>know you're trying to burn down the house with letting

963
00:50:10.679 --> 00:50:12.719
<v Speaker 2>your car go on. Fire AND i won't tell listeners

964
00:50:12.760 --> 00:50:15.760
<v Speaker 2>about swinging from the chandelier on the going away.

965
00:50:15.840 --> 00:50:18.760
<v Speaker 4>Party that wasn't, me that was that was one of

966
00:50:18.760 --> 00:50:19.320
<v Speaker 4>our other.

967
00:50:20.599 --> 00:50:23.599
<v Speaker 2>Mickey he set your car on, fire, RIGHT i know.

968
00:50:23.639 --> 00:50:26.840
<v Speaker 3>That the non PhD student in the room decided he

969
00:50:26.920 --> 00:50:29.239
<v Speaker 3>was angry at us because we had a barbecue On sunday,

970
00:50:29.320 --> 00:50:33.960
<v Speaker 3>night and, then without realizing barbecue charcoal stays a, lot

971
00:50:34.079 --> 00:50:36.000
<v Speaker 3>he dumped it onto a pile of dead leaves over

972
00:50:36.039 --> 00:50:36.840
<v Speaker 3>which my car was.

973
00:50:36.880 --> 00:50:37.960
<v Speaker 4>Partying oh was that?

974
00:50:38.039 --> 00:50:40.719
<v Speaker 2>IT i couldn't remember how that a'll. WENT i just

975
00:50:40.760 --> 00:50:43.360
<v Speaker 2>remember all of our high jinks and mischief and figured

976
00:50:43.400 --> 00:50:45.920
<v Speaker 2>you probably had some blackmail material on me somewhere in

977
00:50:45.920 --> 00:50:47.280
<v Speaker 2>the recesses of your. MIND i don't.

978
00:50:47.280 --> 00:50:49.360
<v Speaker 3>KNOW i brought him to the front of my, mind

979
00:50:49.400 --> 00:50:50.800
<v Speaker 3>ready to be armed IF i needed.

980
00:50:50.800 --> 00:50:56.440
<v Speaker 2>Them, well Thanks, john this has been really, fun and

981
00:50:56.760 --> 00:50:57.960
<v Speaker 2>we will pay attention to what's.

982
00:50:58.039 --> 00:51:02.480
<v Speaker 3>Next let's see if the just this apartment And russvoyte

983
00:51:03.320 --> 00:51:07.920
<v Speaker 3>takes up my invitation to quit spending on local projects

984
00:51:07.960 --> 00:51:09.760
<v Speaker 3>and we force that, issue BECAUSE i think getting the

985
00:51:09.800 --> 00:51:10.320
<v Speaker 3>court back in.

986
00:51:10.320 --> 00:51:12.360
<v Speaker 4>The game is the only thing that saves us from.

987
00:51:12.440 --> 00:51:17.639
<v Speaker 3>What's the old, line nations gradually get toward bankruptcy and

988
00:51:17.639 --> 00:51:18.159
<v Speaker 3>then all of.

989
00:51:18.079 --> 00:51:21.079
<v Speaker 4>A, Sudden oh that's. Right, yeah well we're getting close

990
00:51:21.159 --> 00:51:24.039
<v Speaker 4>to the all of a sudden. Cliff, yeah so very. Good,

991
00:51:24.039 --> 00:52:01.800
<v Speaker 4>well Thanks steve for having me On ricochet join the,

992
00:52:01.840 --> 00:52:02.440
<v Speaker 4>conversation