Speaker 1: Well, whiskey, come and take my pain, the moneys, my ry,
Speaker 1: oh whiskey.
Speaker 2: Don't why think alone when you can drink it all
Speaker 2: in with Ricochet's Three Whiskey Happy Hour. Join your bartenders,
Speaker 2: Steve Hayward, John You, and the international Woman of Mystery, Lucretia.
Speaker 1: Where this lap it up? It'll live it ain't you
Speaker 1: easy on the show taps. You gotta give me and
Speaker 1: let that whiskey blow.
Speaker 2: All right. For all of you who didn't get the memo,
Speaker 2: the Three Whiskey Happy Hour is in fact on hiatus
Speaker 2: for the month of July. I did announce it at
Speaker 2: the end of the last July fourth show and put
Speaker 2: it in my notes, the show notes and also on substack,
Speaker 2: but people aren't reading or listening to the end. In
Speaker 2: any case, just to keep everybody happy, I am today
Speaker 2: offering an emergency special edition of The Three Whiskey Happy
Speaker 2: Hour with just me and my special guest. But it
Speaker 2: is a special guest that many of you have been
Speaker 2: requesting that we have on the show for a long time,
Speaker 2: and it's John Eastman. But I do want to set
Speaker 2: up our conversation as follows. If you go only by
Speaker 2: the mainstream media, coverage of the Supreme Court. You might
Speaker 2: think that the six' to three decision Against President trump's
Speaker 2: executive order that curtailed birthright citizenship under apparently the emanations
Speaker 2: and numbers of The Fourteenth. Amendment you might think that
Speaker 2: was a serious setback For President. Trump but careful readers
Speaker 2: recognize that on the core constitutional question of whether birthright
Speaker 2: citizenship is actually anchored in The Fourteenth, amendment the vote
Speaker 2: was actually five to four Because Justice kavanaugh agreed with
Speaker 2: the other three dissenters that The Fourteenth amendment does not
Speaker 2: establish birthright, citizenship but he voted to strike Down trump's
Speaker 2: executive order because he thought it failed on statutory. Grounds,
Speaker 2: statutes of, course can be, changed and five to Four
Speaker 2: Supreme court decisi indicate that the matter is not decisively.
Speaker 2: Settled keep in mind that the rovers Has way decision
Speaker 2: was a seven to decision in nineteen seventy, three but
Speaker 2: the shoddiness of the reasoning In roe became so apparent
Speaker 2: over time that it was indeed. Overturned, likewise this may
Speaker 2: occur on birthrights. Citizenship it is most definitely not Over
Speaker 2: AS i, say consider that even as recently as a decade,
Speaker 2: ago no one thought a constitutional challenge to birthright citizenship
Speaker 2: could make it to The Supreme, court let alone get four.
Speaker 2: Votes many commentators Thought trump might lose this case eight to,
Speaker 2: one or perhaps even. Unanimously and if there's one person
Speaker 2: above all who deserves credit for bringing this moment, about
Speaker 2: it Is John. EASTMAN i think you may have heard of.
Speaker 2: Him he's been in the news bit the last few.
Speaker 2: Years and full, disclosure as the saying, Goes eastman AND
Speaker 2: i were classmates and for time housemates in graduate school
Speaker 2: back in the nineteen. Eighties about thirty years, Ago eastman
Speaker 2: began writing a series of law review and other academic
Speaker 2: articles attacking the supposedly secure foundations of birthright. Citizenship his
Speaker 2: argument seemed exotic at the time and was summarily, dismissed,
Speaker 2: often of, course with some of the usual slurs and
Speaker 2: slanders that have come from the left when they don't
Speaker 2: want to argue the substance with. You and yet in recent,
Speaker 2: years more and more eminent constitutional scholars began to come
Speaker 2: around and endorse his critique of the accepted, view, which
Speaker 2: AS i, say now commands four votes on The Supreme.
Speaker 2: Court so in our conversation here we review the course
Speaker 2: of this unfolding rethinking that has brought us to this,
Speaker 2: moment and we also take up what might be next
Speaker 2: As eastman has his eye on a sweeping revision of
Speaker 2: another important and highly consequential constitutional provision that nearly everyone
Speaker 2: ignores or thinks is. Settled if he can repeat the
Speaker 2: story arc of the birthright citizenship, issue it might lead
Speaker 2: to one of the most significant reforms Of american government in.
Speaker 2: Decades but to find out what the sequel, is, well
Speaker 2: you'll just have to, listen which you can start doing right.
Speaker 2: Now all, Right, eastman let's start. Here it's now almost
Speaker 2: thirty years ago that you And Ed earler woke up one,
Speaker 2: day maybe not, literally but you guys, said, hey wait a,
Speaker 2: minute why do we assume that the Fourteenth amendment means
Speaker 2: unlimited birthright. Citizenship there's this clause in the middle of
Speaker 2: the Fourteenth amendment subject to the jurisdiction thereof which can't be.
Speaker 2: Meaningless and there's other. Things there's you, know the longer
Speaker 2: common law tradition and a lot of. History and everyone,
Speaker 2: THOUGHT i, MEAN i understood the logic of, it BUT
Speaker 2: i THINK i was like a lot of other people, saying,
Speaker 2: YEAH i see the logic of. It but is anyone
Speaker 2: going to buy? This, well fast forward now to recent,
Speaker 2: weeks and four justices of The Supreme court, said, actually,
Speaker 2: yes it does make. Sense so oh and, then by the,
Speaker 2: way you were very much all alone you want to
Speaker 2: add on this thirty years, ago and more recently you've
Speaker 2: seen you, know friends of ours Like Richard epstein and
Speaker 2: some younger scholars come along, saying, hey wait a, minute
Speaker 2: these guys are. Right so it's an example of a
Speaker 2: persistent and relentlessness and. Patience but that's start at the.
Speaker 2: Beginning walk me through how you first spotted and developed
Speaker 2: the argument that, hey wait a, minute this isn't a
Speaker 2: slam don for birthright. Citizenship, well you.
Speaker 3: Know it's a combination of our studies At claremont Under Harry,
Speaker 3: joffa and the importance of the declaration and the Old
Speaker 3: english law of, youth solely the law of the soil said,
Speaker 3: that you, know if you were born on the king,
Speaker 3: soil you were forever and perpetually The king's subject and
Speaker 3: you could never renounce. That and if you look at
Speaker 3: the closing paragraph of The declaration Of, independence it says
Speaker 3: we declare that These united colonies are and of right
Speaker 3: ought to be free and independent, states and we hereby
Speaker 3: absolve all allegiance to The British. Crown that's one of
Speaker 3: the most eloquent repudiations of The english common law doctrine ever.
Speaker 3: Written and and and you, know and the foundation of
Speaker 3: our government is not subject hip to a divine right of.
Speaker 3: Kings it is consent of the governed among equal human.
Speaker 3: Beings and the idea of perpetual allegiance was incompatible with
Speaker 3: the notion of. Consent and so we started taking our
Speaker 3: studies on the declaration and applying it to the Fourteenth.
Speaker 3: Amendment and then we dug in to the actual debates
Speaker 3: on the Fourteenth, amendment and and those debates inexorably lead
Speaker 3: to the conclusion that people who are temporarily visiting are
Speaker 3: not subject to the jurisdiction in the way they. Intended
Speaker 3: now there's a confusion because subject to the jurisdiction oftentimes
Speaker 3: modernly just means are you subject to our laws if you're.
Speaker 4: If you're working in you, know working On.
Speaker 3: Wall street and putting out stock, offers you're subject to
Speaker 3: the jurisdiction of The securities In Exchange. Commission and so
Speaker 3: we've just equated subject to the, jurisdiction was subject to the.
Speaker 3: Laws But Senator, howard who authored that, language was asked point,
Speaker 3: blank what about The, indians because they are most certainly
Speaker 3: subject to our, jurisdiction both civil and, military and he,
Speaker 3: said that's not what we. Mean they're not subject to
Speaker 3: our complete jurisdiction because they owe their primary allegiance to their.
Speaker 3: Tribes translate that discussion into the modern discussion about illegal
Speaker 3: aliens and temporary, visitors and you get the same answer
Speaker 3: That Senator howard offered with respect To, indians.
Speaker 2: Right, right and we should we should play that a
Speaker 2: little bit. FURTHER i think the other part of the
Speaker 2: DECLARATION i think bears on this in a general way
Speaker 2: is how's it one people need to dissolve their bands
Speaker 2: with another people people get to define their political, community,
Speaker 2: Right it's part of social contract.
Speaker 3: Theory by the, way this is Where Justice Brown jackson
Speaker 3: gets it so. Wrong she she she actually has a concurring.
Speaker 4: Opinion she.
Speaker 3: Says the incredible thing about the, declaration she, says it
Speaker 3: sets out a universal principle of human. Rights necessarily flowing
Speaker 3: from that is universal, citizenship which you, know that's the second.
Speaker 3: Paragraph she ignores completely the first paragraph when in the
Speaker 3: course of human, events one people decide they need to
Speaker 3: separate from, another.
Speaker 2: Right, Right, Yeah, well The Justice jackson seems to be
Speaker 2: a bottomless abyss of. Ignorance i'll just put it that.
Speaker 2: WAY i, shouldn't but it fits what was in the oral.
Speaker 2: Argument she, said, well you, know If i'm in. It
Speaker 2: all the logic of it, was If i'm In japan
Speaker 2: and have to obey their, Laws I'm. JAPANESE i, mean
Speaker 2: that was all to.
Speaker 3: Her to her, defense almost every brief on that side
Speaker 3: of the case made the same same, argument that that
Speaker 3: being simply subject to the laws means you are subject
Speaker 3: to the, jurisdiction and so she but it was it
Speaker 3: was ridiculous the way it came out of her, mouth
Speaker 3: because the position is. Ridiculous AND i like to draw
Speaker 3: the example suppose somebody From britain is visiting here tourist.
Speaker 3: Visa when they're, here they have to follow our. Laws
Speaker 3: they drive on the right side of the, road not
Speaker 3: the left side of the. Road, Right but we don't
Speaker 3: draft them into our. Army we don't prosecute them for
Speaker 3: treason if they take up arms against.
Speaker 4: This because they've owed no allegiance to us.
Speaker 2: Right now they do. Have this gets back to your
Speaker 2: example you gave. Of if you're doing business, here you
Speaker 2: have to obey our laws of The Securities Exchange. Act
Speaker 2: but it's also let's do it this. Way if you
Speaker 2: are mugged or you're, robbed you get the protections of
Speaker 2: our criminal law and you get the due. Process or
Speaker 2: if you're arrested for committing a, crime you get the
Speaker 2: protections of due process for. Anybody but you don't get
Speaker 2: as full civil. Rights you're not entitled to.
Speaker 4: Vote, yep this is the.
Speaker 3: Different this is the difference spelled out in the fourteen's.
Speaker 3: Amendments different. Clauses the privileges and immunities apply to. Citizens
Speaker 3: the equal protection of the laws and the guarantee of
Speaker 3: due process apply to all. Persons and by the, way
Speaker 3: textually equal protection applies to everybody within the, jurisdiction which
Speaker 3: is different phrasing than the citizenship. Clause it says subject
Speaker 3: to the. Jurisdiction And Chief Justice roberts in his, opinion
Speaker 3: just seems to ignore. That you, know normally we take
Speaker 3: different texts meaning different.
Speaker 4: Things, well as we.
Speaker 2: Have, seen The Chief justice can be very skillful at
Speaker 2: overlooking things when it's convenient for. Him all, right let's
Speaker 2: come at it in a general level this. WAY i
Speaker 2: think even ten years, ago the idea that The court
Speaker 2: would even take up this issue seemed, remote, RIGHT i,
Speaker 2: mean you would have thought that if somebody Of congress
Speaker 2: had passed a bill or somebody had issued executive order or,
Speaker 2: something they would have simply denied cert and upheld a
Speaker 2: lower court opinion that said, no you can't do. That
Speaker 2: but they did hear this. Case and then the next one,
Speaker 2: was AS i already alluded, to this is four. VOTES
Speaker 2: i mean the headline that's seventy. Three but Really kavanaugh said, no,
Speaker 2: actually this is a statutory. Problem maybe that's, true Or
Speaker 2: i'll leave that, aside but, constitutionally the argument of The
Speaker 2: trump administration is. Sounds so there's four votes for your.
Speaker 2: Position AND i don't think anyone, thought a the case
Speaker 2: will be heard in b that you would get four.
Speaker 3: Votes, WELL i wasn't even sure of getting four votes
Speaker 3: or five. VOTES i, mean there was a distinct possibility
Speaker 3: we could have lost nine to. Zero you, know one
Speaker 3: of two of my primary debate opponents on this issue
Speaker 3: over the last twenty, years it been Other thomas, Clerks
Speaker 3: John yu And Jim, hoe And Jim hoe's now a
Speaker 3: very prominent federal judge down on The Fifth circuit In.
Speaker 3: Texas But, no the ARGUMENT i thought was, compelling And
Speaker 3: Justice thomas ninety one page descending OPINION i think just
Speaker 3: dismantles the argument by The Chief justice for the.
Speaker 4: Majority.
Speaker 3: No but leading up to, that the first case out
Speaker 3: of the. Box Remember trump signed this executive order on
Speaker 3: day one of the second. TERM i was fortunate to
Speaker 3: be watching not from The oval, office But i'd made
Speaker 3: it back to my home and was able to watch
Speaker 3: on television him sign a bill THAT i had a
Speaker 3: hand in craft him and an executive order THAT i
Speaker 3: had a hand in. Crafting but the first suit was
Speaker 3: brought immediately In, Seattle, washington and the judge up there
Speaker 3: basically threatened The department Of justice lawyers with sanctions and
Speaker 3: a referral to bar disciplinary things for making the frivolous
Speaker 3: arguments defending the president's executive. Order that's how bad the
Speaker 3: lower courts thought this issue was that it would squarely
Speaker 3: lose nine zero if The court even bothered to take it.
Speaker 3: Up and the fact that they took it, up and
Speaker 3: then you're right five to four on the key constitutional.
Speaker 3: Issue four justices agreed with us that The constitution means,
Speaker 3: this and the argument in the majority opinion the other
Speaker 3: direction is just historically. FLAWED i, Mean Chief Justice roberts
Speaker 3: begins his analysis In, Westminster england in sixteen oh, eight
Speaker 3: AND i write an article, saying you, know maybe he'd
Speaker 3: been better served beginning In philadelphia in seventeen seventy, six
Speaker 3: because he actually says this demonstrably false claim that The
Speaker 3: english feudal rule of youth solely the law of the,
Speaker 3: soil crossed The, atlantic unchanged in The american system of,
Speaker 3: government and you, know and doesn't bother to point out
Speaker 3: the exact repudiation of it in The declaration Of.
Speaker 2: Independence, yeah, Okay, now so you Mentioned thomas's ninety one page.
Speaker 2: Descent near AS i can, tell it's his second longest descent.
Speaker 2: Ever there may have been one other That i've missed
Speaker 2: or others have. Missed i've been asking, around and apparently
Speaker 2: his longest one Was JOHN u tells me was his
Speaker 2: term limits descent back in the late nineteen. Nineties And
Speaker 2: owner members that now and it seems like a dead.
Speaker 2: Issue so in certain. Ways this IS i think his
Speaker 2: most significant. Descent, now you read way more of these
Speaker 2: opinions THAN i, do BUT i read through, it and
Speaker 2: in addition to the compelling logic of, it what struck
Speaker 2: me was how readable it. Is in other, words you
Speaker 2: don't have to be finally schooled and understanding the way
Speaker 2: These league arguments often set out And Supreme court opinions
Speaker 2: said often hard for lapor to. Follows tell me If
Speaker 2: i'm overreading, this but it seems to me that that's
Speaker 2: an opinion that not only is solid on the, substance
Speaker 2: but is comprehensible to the lace.
Speaker 3: Citizen, well AND i think by, design because in his,
Speaker 3: view this issue is only. Beginning The Supreme court's pronouncement
Speaker 3: did not end. It AND i remind people another ARTICLE i,
Speaker 3: wrote you, know, okay The Supreme court's. Ruled what happens?
Speaker 3: Now and the answer from most people, is, Well Supreme court,
Speaker 3: ruled that's the end of the. Matter and certainly as
Speaker 3: a technical, matter just Because Justice kavanaugh, said, Well congress
Speaker 3: can fix us with a statute that only got one.
Speaker 3: Vote five votes, said The constitution mandates automatic citizenship for
Speaker 3: everybody here except the children of, diplomats all, Right and
Speaker 3: So congress can't by statute change. That But congress can
Speaker 3: push back by statute to force The court to. Reconsider
Speaker 3: and we had an example in our history about, that
Speaker 3: the Dred, scott the egregious wrong Dread scott.
Speaker 4: Decision it said two.
Speaker 3: Things it said blacks can never be, citizens and it
Speaker 3: Said congress has no authority to prohibit the slavery in the. Territories,
Speaker 3: well in eighteen sixty, Two congress passed the law saying
Speaker 3: prohibiting slavery in the, territories And Abraham lincoln signed that
Speaker 3: law direct contrary to The Supreme court's pronouncement in Dred.
Speaker 3: Scott and Remember lincoln says in his first inaugural, address
Speaker 3: the Dread scott decision is final for the parties in the.
Speaker 3: Case but if we're to treat it as final on
Speaker 3: a hotly contested issue on which there remains, disagreement we
Speaker 3: will have, ceased to that extent to be our own.
Speaker 3: Rulers and that's WHAT i Think Justice thomas's ninety one
Speaker 3: page dissent is. Inviting, now are we going to get
Speaker 3: anybody In congress to take up that? Mantle probably. NOT
Speaker 3: i mean they're demonstrating they're so spineless they can't even
Speaker 3: pass A Save act that eighty five percent Of american.
Speaker 3: Support but what it's been most amazing to me in
Speaker 3: the reaction to the decision is how uniformly the people
Speaker 3: on the right side of the aisle think that our
Speaker 3: views were so correct that it's ridiculous that the majority
Speaker 3: did what it, did, when just as you point, out
Speaker 3: five years, ago the exact opposite was. TRUE i, mean
Speaker 3: we have really moved the, discussion And Justice thomas's descent
Speaker 3: just kind of hammers, it And Justice alito in his
Speaker 3: descent and he, said this may be one of the
Speaker 3: most profound and profoundly wrong decisions in our.
Speaker 2: History, yeah, WELL i, mean you, know several people made the,
Speaker 2: observation this is The Roe versus way to the current, moment,
Speaker 2: right that case was seven. Too but then over time
Speaker 2: people would point out that the reasoning of the case
Speaker 2: was so bad that even the Late Justice skinberg, said
Speaker 2: the reasoning of this case is really. Bad, right so
Speaker 2: obviously couldn't hold up for very, long and something similar
Speaker 2: may happen. Here the broader point you just, make you,
Speaker 2: Know lincoln talking about wait a, minute we shouldn't be
Speaker 2: bound by what The Supreme court, says, especially and it's divided,
Speaker 2: closely and it's amazing how few people grasp that. TODAY
Speaker 2: i think maybe more do, now BUT i mean off topics.
Speaker 2: Slightly BUT i thought one of the low moments For
Speaker 2: President GEORGE. W bush is when he signed the McCain
Speaker 2: Fine Gold Campaign Finance act and said at the SIGNING
Speaker 2: i think this act is, unconstitutional but that's really an
Speaker 2: issue for The Supreme. Court AND i, thought did The
Speaker 2: bush ever read his oath of office to, preserve, protect
Speaker 2: and defend The constitution and he has this thing called a?
Speaker 2: Veto AND i thought that, was you, know that's probably
Speaker 2: an impeachable offense in the abstract. Right but that's kind
Speaker 2: of the where we got. TO i think we're drawing
Speaker 2: away from, that and this is up and well.
Speaker 3: Mark and it didn't begin with his signing. Statement it
Speaker 3: began with McCain and Fine gold both on the floor
Speaker 3: of The senate saying they are parts of this that are,
Speaker 3: unconstitutional but that's for The Supreme court. Decide in other,
Speaker 3: words we've moved from judicial, review where each branch of
Speaker 3: government has an independent obligation to uphold The constitution to
Speaker 3: judicial supremacy when the judge there's a wonderful quotation From
Speaker 3: Justice Oliver Wendell holmes Or hughes Probably holmes, Said, yeah
Speaker 3: The constitution is the supreme law of the, land but
Speaker 3: it is whatever we say it.
Speaker 1: Is.
Speaker 2: Right, WELL i thought that Was cooper Versus, aeron and
Speaker 2: maybe it was. Both. Right, okay that's stuck a little.
Speaker 2: Bit BECAUSE i was fuzzy on where this came. OUT
Speaker 2: i didn't have time to chase it down the birth
Speaker 2: tourism aspect of this whole. Thing, NOW i know the
Speaker 2: numbers are comparatively, small but there's still real. Numbers and
Speaker 2: regardless of how you can test subject to the jurisdiction,
Speaker 2: thereof it seems to me you cannot make any plausible
Speaker 2: argument that someone who flies in From china just have
Speaker 2: a baby and get An american birth certificate and leaves
Speaker 2: that person in no sense can be said to be
Speaker 2: subject to the jurisdiction of The United.
Speaker 3: States, well if you falsely equate subject to the jurisdiction
Speaker 3: the Way Senator howard who authored that language meant, it
Speaker 3: and subject to the, Laws, well while they've landed IN
Speaker 3: la and or at THE la hospital on the drive down.
Speaker 3: There they got to follow our traffic. Laws they're subject
Speaker 3: to our. Laws you if you say subject to the
Speaker 3: laws and subject of the jurisdiction mean the same, thing
Speaker 3: then it makes some. Sense it's it's. INSANE i, mean
Speaker 3: The british themselves have got rid of the youth solely.
Speaker 3: Doctrine a few years. Ago they recognized how particularly modern times.
Speaker 3: Look you, know in the eighteenth century or the early nineteenth,
Speaker 3: century if you came to THE us, shores unless you
Speaker 3: Were Ben, franklin that was. It you didn't go back
Speaker 3: and forth, right and and so by coming here and
Speaker 3: us allowing you to land meant that we had that
Speaker 3: bilateral consent to make you part of our political. Community
Speaker 3: that's no longer. True and during the during the oral,
Speaker 3: Argument John, sower The Solsener, general made that point and
Speaker 3: said times have. Change And Chief Justice, roberts you, know. Drippingly,
Speaker 3: oh but our constitution hasn't. Changed the underlying principle hasn't,
Speaker 3: changed but how it plays out certainly. Has and it's
Speaker 3: not numbers may be, small but they're. DRAMATIC i mean
Speaker 3: there Are i've seen in some reports there are hundreds
Speaker 3: of thousands Of chinese men of military age who are
Speaker 3: in this, country who had become citizens by virtue of
Speaker 3: this erroneous. Interpretation that's an army on our shores with
Speaker 3: full citizen rights to go wherever they, want including to military, installutions,
Speaker 3: installations or what have. You this is insane that our
Speaker 3: leading political enemy on the world stage has an army
Speaker 3: on our shores and we haven't done a dang thing about.
Speaker 1: It.
Speaker 2: Yeah, so by the, way you brought Up robert saying
Speaker 2: in the oral, argument it's still the same. Constitution there
Speaker 2: WAS i thought. It Maybe i'm overreading this. TOO i
Speaker 2: thought there was a curious footnote In kavanaugh's. Concurrence first of,
Speaker 2: All kavanaugh surprised. ME i thought he'd easily flipped With
Speaker 2: roberts on the constitutional. Question but there's a footnote where
Speaker 2: he quotes at, length First Robert. BORK i thought that's,
Speaker 2: interesting and Then Justice scalia and they're both, SAYING i
Speaker 2: forget how it, went but he had quotes from them
Speaker 2: that bared on the question of it maybe the same,
Speaker 2: constitution but you know, what like The Fourth, amendment we've
Speaker 2: adapted The Fourth amendment for the age of modern, telecommunications,
Speaker 2: right and maybe we draw the line in the wrong place,
Speaker 2: Sometimes but the fact that we can draw new lines
Speaker 2: for new circumstances ought to be something that's not beyond our.
Speaker 2: Grasp AND i, Thought, ah was that meant as a
Speaker 2: subtle rebuke Of. ROBERTS i don't, know BUT i thought
Speaker 2: that was an interesting part Of kavanaugh's.
Speaker 4: OPINION i would say not so.
Speaker 3: Subtle, yeah he was clearly Rebuking robert's ridiculous statement or
Speaker 3: in the oral argument with that footnote where he goes.
Speaker 3: Wrong and by the, way this is the same FIGHT
Speaker 3: i had With Bill barr in the First trump. Administration
Speaker 3: trump Asked barr to sit down with, me And barr,
Speaker 3: does and he, says, well the statute that they adopted
Speaker 3: in nineteen thirty eight and then fifty, two they had
Speaker 3: a different understanding than the original. Meaning so even if
Speaker 3: you're right about the original meaning of The, constitution the
Speaker 3: statute conferred. Citizenship AND i, said, well they used the
Speaker 3: same exact, language and so what they meant to do
Speaker 3: is confer citizenship as much as and only as much
Speaker 3: as The constitution. Requires that they were wrong about what it,
Speaker 3: required didn't mean they intended to go any. Further kavanaugh
Speaker 3: falls into that. Error it's exactly the same. Language and
Speaker 3: he says it means something different in The act than
Speaker 3: it means in The, constitution which is a very bizarre
Speaker 3: way of interpreting statutory.
Speaker 2: Text, yeah, okay what do you think the next steps?
Speaker 2: Are where should we go from?
Speaker 3: Here, well if we had members with spine In, CONGRESS
Speaker 3: i would encourage them to do what the you.
Speaker 2: Could just stop right.
Speaker 3: THERE i would encourage them to do to add some
Speaker 3: bills to the appropriation bills explaining that why they think
Speaker 3: that court got it wrong and readopting by statute the
Speaker 3: more limited original understanding of Fourteenth. Amendment, now The court
Speaker 3: will then be confronted with an immediate legal challenge to that,
Speaker 3: statute and The court can react in a couple of.
Speaker 3: Ways and we've seen. This we've seen this recently in
Speaker 3: a very important religious liberty case Called Employment division Verse.
Speaker 3: Smith congress pushed back against that with a, statute and
Speaker 3: it went up to The court and the majority of
Speaker 3: the court, said we've, spoken end of.
Speaker 4: Story very.
Speaker 3: Arrogant justice O'Connor right separately, say a coequal branch has
Speaker 3: suggested that we got this. Wrong we ought to take
Speaker 3: that seriously and reconsider upon further, reflection we might come
Speaker 3: to the same conclusion, anyway but we ought not to
Speaker 3: just dismiss it with the back of our. Hand that's
Speaker 3: the way it ought to go with coequal. Branches and
Speaker 3: the question is whether This court is so arrogant that
Speaker 3: when it makes a, decision everybody's supposed to just bend
Speaker 3: the knee and end the. Discussion, remember this is What
Speaker 3: Justice tawny did with Dred. Scott, Everybody i've settled. It
Speaker 3: we don't have to fight over this. Anymore, well that
Speaker 3: didn't work out so well, then and didn't work out
Speaker 3: so well With roe Versus, waight or Plus.
Speaker 4: He's Versus ferguson or any of the other egregiously wrong. Decisions,
Speaker 4: yeah so.
Speaker 3: A pushback, now that required spine Of, congress and you
Speaker 3: had it in eighteen six sixty, two largely encouraged by
Speaker 3: a president that had a lot of Spine. Lincoln we
Speaker 3: have a president with a lot of, spine and maybe
Speaker 3: he'll force the issue with This. Congress but there are
Speaker 3: two other things that we should talk, about and that
Speaker 3: Is congress could propose a constitutional amendment now if they
Speaker 3: don't have enough spine to pass a statute by simple majority.
Speaker 3: Vote they are never going to propose a constitutional amendment
Speaker 3: by two thirds vote in each house in The, senate
Speaker 3: not going to. Happen so what other option is? There
Speaker 3: and that is the other alternative That James madison gave
Speaker 3: us An article five to have thirty four state legislatures
Speaker 3: call for a limited convention of The states addressing just this.
Speaker 3: Issue thirty four, STATES i think we would get and
Speaker 3: then they would propose an amendment saying it means What
Speaker 3: trump's executive order says it mean it doesn't include temporary
Speaker 3: visitors or people who are here, illegally both, cases again
Speaker 3: without our consent right and propose an. Amendment and quite,
Speaker 3: FRANKLY i think there are thirty eight states that would
Speaker 3: ratify such an.
Speaker 4: Amendment, Yeah i've.
Speaker 2: Always thought The article five convention. Idea it's been around
Speaker 2: for years on bounced budget and. Stuff if it ever
Speaker 2: came to, be it would terrify the political class In
Speaker 2: washington and around the country and so. Forth it'd be
Speaker 2: just fun to watch The New York times lose their.
Speaker 3: Mind, well and then you, Know i've had. FIGHTS i
Speaker 3: had fights with The Great Phyllis schlaffley over this. Issue
Speaker 3: we had a big debate about this at one of
Speaker 3: The Sea pack conferences years and years, ago long before
Speaker 3: she passed, away and she, said if we get An
Speaker 3: article five, convention it could be a runaway. Convention, Yes
Speaker 3: AND i, said, well phyll.
Speaker 4: Us two.
Speaker 3: Things, one nothing that comes out of The convention becomes
Speaker 3: constitutional law unless it's ratified by thirty eight. States so
Speaker 3: you're concerned that they take away The Second.
Speaker 4: Amendment not. Happening there's not thirty eight states that would
Speaker 4: agree to. THAT i mean quite the.
Speaker 3: Opposite we get thirty eight states to strengthen and a
Speaker 3: mandate everybody to carry.
Speaker 4: Arms and the.
Speaker 3: Second POINT i made to her, is phyllis the way
Speaker 3: the courts have been. Operating we've had a runaway convey
Speaker 3: every time The court meets since the nineteen. Thirties and
Speaker 3: this would be designed to put a stop to run away.
Speaker 2: Convention so that's WHAT i used to think it. WAS
Speaker 2: i used to be persuaded about. Argument AND i finally
Speaker 2: wrote an article ten years ago saying this is a
Speaker 2: bad idea whose time has. COME i don't think it's.
Speaker 4: Bad, well you, know and look the.
Speaker 3: Notion let's talk about, spending you, know we're forty trillion
Speaker 3: in debt, now and that most of that is unconstitutional.
Speaker 3: Spending the constitution Spending clause actually has limits on.
Speaker 2: It, well that's topic number, Two and why don't we
Speaker 2: just turn to. THAT i, mean we you, know the
Speaker 2: the birthrights of this and ship. Thing it's just getting
Speaker 2: started stipulate. That but there's Right article, One section eight
Speaker 2: sets out specific. Things but then there's this we regarded
Speaker 2: as a throwaway phrase about the you can spend for
Speaker 2: the general. Welfare now that HAD i think a pretty
Speaker 2: specific and intelligible meaning at the, time and it's become
Speaker 2: wholly unintelligible and anything. Goes so you've written about, this
Speaker 2: signed a couple of your articles to, students and only
Speaker 2: one or two other people have been, saying, hey wait a,
Speaker 2: minute we completely departed decades and decades. Ago, Right so
Speaker 2: my thought, is, okay you have this long arc long
Speaker 2: march on birthright. Citizenship is something similar possible by putting
Speaker 2: back some meaning in the general welfare?
Speaker 3: Class it, Is And i've been in discussions with the
Speaker 3: bean counters in The trump administration to try and get
Speaker 3: them before the. Issue so let's lay down the. Cards
Speaker 3: but by the, way our founders Were Milton. Friedman economists
Speaker 3: Before Milton, friedman, right they understood that there's a problem
Speaker 3: with rent, seeking they didn't use that. Phrase and the
Speaker 3: way they addressed it in The constitution is on both
Speaker 3: sides of the, coin taxes had to be apportioned according to,
Speaker 3: population or duties on imports equal among all the ports
Speaker 3: of the. Country so on the revenue receiving, end they
Speaker 3: had a built in prohibition or constrained against rent, seeking
Speaker 3: the ability of one class to tax another. Class it's built.
Speaker 3: In and they also had it on the spending side
Speaker 3: of the. Coin the spending could only be for the
Speaker 3: common defense and the general. Welfare and as you point,
Speaker 3: out that had. Meaning Now chief Former Chief Justice ranks
Speaker 3: bollocks this in the mid nineteen eighties gets it.
Speaker 4: Wrong he, said we don't.
Speaker 3: Know what welfare, means and so we have to defer
Speaker 3: To congress on whether it's good for us or. Not
Speaker 3: but that may be true on the word, welfare but
Speaker 3: it's not true on the word. General the distinction between, general,
Speaker 3: national and local is easy to.
Speaker 2: Enforce, well let's linger on. That from. THAT i, mean
Speaker 2: so you, know one of the things that Says congress
Speaker 2: can spend money on is postal roads but not roads,
Speaker 2: Generally and SO i, mean as you, know but a
Speaker 2: lot of listeners probably. Don't one of the big debates
Speaker 2: in the early nineteenth century was what the national system
Speaker 2: Of Henry clay and all the rest of. That it,
Speaker 2: was can we build canals and? Roads and because it's
Speaker 2: limited to you, know just The Erie canals For New,
Speaker 2: york that's not in the general. Welfare it's In New
Speaker 2: york's welfare If New york wants. It that's how that
Speaker 2: debate fell. Out, Right New, york you want a, canal
Speaker 2: you build it. Yourself and they did and it was a.
Speaker 2: Success But washington then had the Discipline washington D. C
Speaker 2: they had to just, say, no that is not general.
Speaker 2: Welfare but then by degrees they, thought, well, okay what
Speaker 2: about a road through three or four. States it's not
Speaker 2: all the, states but it knits together a bunch of,
Speaker 2: states and that starts to look like something that's in
Speaker 2: the national. Interest so maybe that's the beginning of the slippery.
Speaker 2: SLOPE i don't, know you, know people could disagree about,
Speaker 2: that but the point is it doesn't, mean you, know
Speaker 2: The Harry Reid library AT unlv In Las. VEGAS i,
Speaker 2: mean that's the stuff that gets pugged into all all
Speaker 2: the spending bills, now, right it's particular special interest local
Speaker 2: things that all the taxpayers In america have no business
Speaker 2: funding and shouldn't be. Funding and that's part of why we're.
Speaker 3: So far hawk well and not my favorite, President but
Speaker 3: he was right about. This James buchanan actually does a
Speaker 3: veto message on one of these and he, says if
Speaker 3: if we sign off on, this and it'll become the
Speaker 3: greatest accomplishment of our national elected officials to bring money
Speaker 3: home to their own constituents at the expense of everybody.
Speaker 3: Else and the EXAMPLE i like to GIVE i was
Speaker 3: living In Long, Beach, california and they proposed a bond
Speaker 3: measure to widen one of our roads to line it
Speaker 3: with you, know palm trees leading into the taj mahal
Speaker 3: of the city, hall, Right and the voter, said this is.
Speaker 3: Nuts we're not spending the money to put your you,
Speaker 3: know boulevard up to your city. Hall and the next
Speaker 3: thing we, know our members Of congress are getting an
Speaker 3: earmark to widen the dang road that we didn't think
Speaker 3: was worth the money for. Ourselves even though we were
Speaker 3: going to get the. Benefit but by, god if people
Speaker 3: In Rhode island are going to pick up the, tab
Speaker 3: it sounds all of a sudden good. No and and
Speaker 3: again the founders had figured this out there there were you,
Speaker 3: know when they when they funded a lighthouse system along
Speaker 3: the entire, coast that was that was in the general.
Speaker 3: Welfare when when the city Of charleston burn to the
Speaker 3: ground and they wanted A fema, bailout BEFORE, fema they, said,
Speaker 3: no that's that's not. Us when they wanted to improve
Speaker 3: the navigation of navigable, waterways that was. Covered when they
Speaker 3: wanted to extend the navigation of The Savannah river up
Speaker 3: further Into, georgia that was For georgia to pay. For
Speaker 3: and we understood this, RIGHT i mean at the. Margin
Speaker 3: sometimes those lines can be hard to. Draw but here's
Speaker 3: How i've tried to get The trump administration to force
Speaker 3: the issue because the courts have completely, abdicated.
Speaker 4: And there's a BILL.
Speaker 3: Uh there's a provision of the inaptly NAMED Uh Inflation
Speaker 3: Reduction act they're in The biden administration that that has
Speaker 3: a massive grant program and one of the conditions for
Speaker 3: receiving grants is that it be exclusively for local. Projects
Speaker 3: so built right into the law is a blatant violation
Speaker 3: of The constitution's. Requirement and and you, know ever since
Speaker 3: The nixon, Administry congress has got this recision bill where
Speaker 3: if the president wants to not spend, money he asked
Speaker 3: to beg the Very congress that spent the money for
Speaker 3: permission not to spend.
Speaker 4: It it's.
Speaker 3: Ridiculous and So i've advised this is a prohibition speddle
Speaker 3: out in The, constitution more clear than anything we've seen
Speaker 3: in fifty. Years so you don't Ask congress for permission
Speaker 3: not to spend for those local grant. Programs you just
Speaker 3: SAY i can't do it Because i'm obligated to take
Speaker 3: care that the, law including The, constitution be faithfully. Executed
Speaker 3: and this violates The. Constitution get the lawsuit brought and
Speaker 3: then defend, it, right that would.
Speaker 2: Be a fun. Day, yeah it just occurred to. Me,
Speaker 2: now the last president that understood, this not, surprisingly Was Calvin.
Speaker 2: Coolidge you, know there was The Great Floods Mississippi floods
Speaker 2: of nineteen twenty. SEVEN i think it turns Out coolidge
Speaker 2: was it was paying attention and what he was investigating
Speaker 2: was what's the state capacity to deal with this In,
Speaker 2: Alabama mississippi and all those, Places and turned out to
Speaker 2: be fairly. Robust But congress passed a relief bill And
Speaker 2: coolidge vetoed, it and he, said it's not. Necessary they've
Speaker 2: got to handle local. Level oh and by the, WAY
Speaker 2: i think this bill is. Unconstitutional oh my. GOD i
Speaker 2: mean you imagine someone saying that. Today, yeah, yeah so
Speaker 2: that's a big. One all, right let's just do some
Speaker 2: fun here a little. Bit so you AND i started
Speaker 2: graduate school the same. YEAR i think it was like
Speaker 2: seventeen ninety two or something like. It we both Had Leonard,
Speaker 2: levy the great constitutional. Historian i've talked about him a
Speaker 2: few times on various. PODCASTS i describe him as you.
Speaker 2: Agree he was an old new deal, liberal which today
Speaker 2: you would be a fascist on you, know history and law.
Speaker 2: Faculties but even forty some years ago when we encountered,
Speaker 2: him he liked us like conservative, students that's the. Point he.
Speaker 2: Liked Harry jaffa would send, all say to study With,
Speaker 2: levy and he loved having. Us AND i reflected on that.
Speaker 2: Later the reason he liked us so much is were
Speaker 2: necessarily better students than the history students are, smarter but
Speaker 2: we weren't his history. Assists you, KNOW i remember being
Speaker 2: in a couple of classes with the history students and
Speaker 2: they'd kind of, SAY i guess they want to be.
Speaker 2: PROFESSORS i don't, know but they seemed unambitious in certain,
Speaker 2: ways and it was like their attitude was, always, well
Speaker 2: is this going to be on the? Test our attitude
Speaker 2: was wait a, minute why Did madison say? That maybe
Speaker 2: it was? Right and if it's not, right why? Right
Speaker 2: so so we took the matter more seriously and more.
Speaker 2: Deeply but, anyway Sorry i'm rambling on. That, well, no
Speaker 2: there would give me a couple of your Favorite levy.
Speaker 3: Memories but BEFORE i could do, that it was one
Speaker 3: of the other history professors and we asked, him why
Speaker 3: do you teach, history because we think you teach history
Speaker 3: to learn lessons about, truth and he, said, well know
Speaker 3: that there's no such thing as.
Speaker 4: True he, said we do the.
Speaker 3: History because we like to tell nice, stories, Right and
Speaker 3: it's just you, Know levy didn't believe that he was
Speaker 3: much closer to us on, this that you study history
Speaker 3: like you study great biographies to learn how to address
Speaker 3: human condition and human problems that are are consistent throughout,
Speaker 3: history and you, know some people of great minds confront
Speaker 3: these issues and if they're, right that's that's a lesson to.
Speaker 3: Learn if they're, wrong that's a mindfield to avoid in the.
Speaker 3: Future but either way you learn something. Right And levy
Speaker 3: approached history in that in that fashion that was it was,
Speaker 3: good you, know and he you know the.
Speaker 4: Stories.
Speaker 3: Uh he was a more absolutist On First, Amendment, yes
Speaker 3: including things THAT i don't think the founders would have
Speaker 3: thought covered The First.
Speaker 4: AMENDMENT i was going to bring that.
Speaker 2: Up. Yeah he was always sort of a classic old
Speaker 2: A c L u civil, libertarian including defending. Pornography AND
Speaker 2: i remember in one time a public, event So i'm
Speaker 2: not really you, know BUT i remember one time he, says,
Speaker 2: no pornography is absolutely protected by The First. Amendment he, says,
Speaker 2: SIDES i like. PORNOGRAPHY i use. Pornography he was, shocked
Speaker 2: that Was but to his, credit you, know he went
Speaker 2: beyond THE aclu parameters you might, say and late in
Speaker 2: life he, said, hey wait a, minute property rights are
Speaker 2: a human right every bit as much as freedom of
Speaker 2: speech and freedom of. Religion and what did he write.
Speaker 2: SOME i mean he never. QUITE i don't think he
Speaker 2: followed or Studied Richard epstein's, work for, example but he
Speaker 2: arrived at the same. Place.
Speaker 3: Yeah, no and and AND i, mean, look we have
Speaker 3: we have rights in our, property but we have property
Speaker 3: in our, rights you, Know. Madison madison's essay on property
Speaker 3: is one of the great statements of the fundamental human rights,
Speaker 3: property because property is more a fundamental right than anything,
Speaker 3: else because it is it is a creation of your
Speaker 3: own hand that leads your ability to have. Property and
Speaker 3: so an extension of your human right to liberty is
Speaker 3: a function of the thing that is produced.
Speaker 4: With that, liberty your.
Speaker 3: Property And madison goes further and, says because we have different,
Speaker 3: capatities it's going to be. Unequal and so to try
Speaker 3: and treat our equal rights under law as a guarantee
Speaker 3: of equal outcome is to destroy the notion of property.
Speaker 3: Rights and that's this is the main fight between the
Speaker 3: socialist wing and The Democrat party and the rest of
Speaker 3: the sane.
Speaker 4: Country.
Speaker 2: YEAH i have two more questions for you THAT i
Speaker 2: did not prepare you, for so we'll just see how it.
Speaker 2: Goes one, is was It napoleon who said make no
Speaker 2: small plans somebody like. That so you know you've taken
Speaker 2: on birthright citizenship and we've just talked about the General welfare.
Speaker 2: Clause those are no small. Things is there another not
Speaker 2: small thing out there that's on your radar.
Speaker 3: Screen, well it was on our radar. Screen we've just won.
Speaker 3: It and that was the pushback against the notion of
Speaker 3: independent agencies in the federal, government which you, KNOW i
Speaker 3: went back when we founded The Constitutional Jurisprudence center twenty
Speaker 3: five years. Ago, NOW i wrote a memo of thing
Speaker 3: the dozen or a dozen and a half bad decisions
Speaker 3: of The Supreme court that we wanted to, target and
Speaker 3: we've won about three quarters of. Those, now the biggie this,
Speaker 3: YEAR i think the one that's going to have the
Speaker 3: most staying power and be the most consequential is taking
Speaker 3: out the cornerstone of the administrative state from The New
Speaker 3: deal case Called Humphreys, executor where it said The president
Speaker 3: The congress can limit the president's ability to remove executive
Speaker 3: officers and this is. Insane Uh and and the argument
Speaker 3: made In Humphrey's executor by The New deal era court,
Speaker 3: UNANIMOUSLY i, mean not even the good guys Came our
Speaker 3: way on this was that because they didn't Like roosevelt
Speaker 3: being the one that wielded the executive. Power the argument, was,
Speaker 3: well we need these independent agencies to be directly accountable
Speaker 3: to the people without being filtered through the elected, Representatives
Speaker 3: like how are they directly accountable to the people if
Speaker 3: not being filtered through the one guy that we can.
Speaker 3: Elect and so the case Called trump Versus slaughter Slaughtered
Speaker 3: humphrey's executive and and and it restored the president's ability
Speaker 3: to control the executive branch except for THE, fed which you,
Speaker 3: know kind of as an incoherent split the baby decision
Speaker 3: By Chief Justice. Roberts but this means that the president
Speaker 3: gets to remove you. Know and there's wonderful the case
Speaker 3: that came Before humphrey's executor that had it. Right it
Speaker 3: was case Called myers. Right And President hoover sent a
Speaker 3: letter to a postmaster first class, saying you, KNOW i
Speaker 3: THINK i need to have a full confidence in the
Speaker 3: people that are running the various bureaus under, me AND
Speaker 3: i don't have a full confidence in, you so please step.
Speaker 3: Down he, refused And hoover fired. Him and then that
Speaker 3: case goes all the way up in The court agreed
Speaker 3: the president has the authority to remove this. Guy, Well
Speaker 3: trump's executive order Removing slaughter at The Federal Trade commission
Speaker 3: use similar. LANGUAGE i need to have a full. CONFIDENCE i,
Speaker 3: said it was just.
Speaker 2: Wonderful my, recollection Wasn't Chief Justice taft wrote that opinion
Speaker 2: who'd been? President, right which is a kind of an.
Speaker 2: Ira and then AS i recall his, OPINION i THINK
Speaker 2: i did a word. Count it was fifty five thousand words.
Speaker 2: Long it seemed to me it could have done that
Speaker 2: in five hundred and fifty.
Speaker 3: Words but, really, well AND i think there Was Leonard
Speaker 3: levy that taught us. This once you, know you can
Speaker 3: tell the caliber of the reasoning inverse relationship to the
Speaker 3: number of.
Speaker 5: Words it takes a, lot it takes right there you,
Speaker 5: Go although that's not quite true entirely Because Justice thomas's
Speaker 5: ninety one page descent is just dismantles the majority.
Speaker 2: Opinion, right all, right last question that this is maybe
Speaker 2: an odd one or maybe maybe requires a whole, hour
Speaker 2: and don't want to do. That so your principally work
Speaker 2: in you, know constitutional, law and you're practicing, lawyer but
Speaker 2: also have a background in political. Philosophy SO i wonder
Speaker 2: if you have some sort of leading thoughts about what
Speaker 2: is now going under the banner of post liberalism or
Speaker 2: or you, Know catholic, integolism if You're Adrian. Formule and
Speaker 2: there's several different strains of, this but there's also a
Speaker 2: strain of it like For. MULE i suppose other people
Speaker 2: on the right who they don't you hear us from
Speaker 2: young conservatives who ARE i think The founding was. Defective
Speaker 2: their argument really is it failed to stop the progressive
Speaker 2: onslaught of the last one hundred, years therefore it was
Speaker 2: insufficient or defective in some. WAY i think that's. Mistaken
Speaker 2: but you, KNOW i think we agree on. That but
Speaker 2: what do you make of all? That and are you
Speaker 2: engaged in it? Much or have you you stick to your.
Speaker 4: KNITTING i stick to my.
Speaker 3: Knitting i'm not engaging in that BECAUSE i think a
Speaker 3: lot of it is naval gazing and. Wrong but it's
Speaker 3: also a reflective of a a progressive movement view of
Speaker 3: the common sense and wisdom of people. Generally it flows
Speaker 3: out of the progressive notion that we're not capable of
Speaker 3: governing ourselves and we need experts to tell us how
Speaker 3: to do, things And.
Speaker 2: Oh, yeah vermil in particular defends the administrative. State he
Speaker 2: And Cass sunstein are united on. That that's.
Speaker 3: Amazing and and you, know years AGO i taught of
Speaker 3: a seminar on the federalist and anti federalist, debates and
Speaker 3: the paper assignment was to have them pick one of
Speaker 3: the issues debates between the federal an anti federalists and
Speaker 3: write a paper about it looking at modern.
Speaker 4: Dispute and look at it in light of.
Speaker 3: That and one of the best students in the class
Speaker 3: came back with saying that the anti federalists were right
Speaker 3: about the explosive expansion of the central. GOVERNMENT i, SAID
Speaker 3: i agree that that's, happened BUT i want you to
Speaker 3: now address the second, question when did it?
Speaker 4: Happen and she came back and.
Speaker 3: She, says you, know the federalists were right for the
Speaker 3: first century of our nation's. History this change occurred after
Speaker 3: we get the sixteenth and Seventeenth. Amendment and so the
Speaker 3: federals were, right but the prediction of the anti federalists
Speaker 3: became right once we altered the. Structure that the structure
Speaker 3: The senate being elected by the state legislatures was a
Speaker 3: protection of states and state authority against an overreaching federal.
Speaker 3: Government and when you get rid of, that which is
Speaker 3: one of the first things the progressive movement, does all
Speaker 3: held breaks.
Speaker 4: Loose now that's not.
Speaker 3: Directly on the common, good you, know and virtue and
Speaker 3: all that, stuff but it is on kind of A
Speaker 3: catholic subsidiary.
Speaker 4: Principle.
Speaker 3: Right if you've got the local community taking care of
Speaker 3: the local, things they are going to learn to be
Speaker 3: virtuous in a way that you don't get when things
Speaker 3: are being decided three thousand miles away without. Input and
Speaker 3: so the two were, connected it seems to.
Speaker 2: Me, Yeah and you also just suggest their attention that
Speaker 2: hardly anyone notices you mentioned, subsidiarity Longtime catholic. Doctrine and
Speaker 2: yet some of the proponents of common good, constitutionalism Like
Speaker 2: mule Or patrick denine that seems very centralized in practice
Speaker 2: and not harmonious with. Subsidiarity and that's one OBSERVATION i.
Speaker 2: MADE i did Tell Vermule ones actually cornered him at a.
Speaker 2: Debate but his little, book you, know it's tiny little.
Speaker 2: BOOK i, said this book needs to be at least
Speaker 2: AS i was, teasing, well not, REALLY i was propri
Speaker 2: this book needs to be five times. Longer it's got
Speaker 2: to be on the scale of raws to actually get
Speaker 2: into details of what this really means in. Practice so
Speaker 2: will you please give us that? Book, well you can't do,
Speaker 2: IT i, Think.
Speaker 3: BUT i think the fact that they gravitate towards centralized
Speaker 3: decision making on key cultural questions is exactly the, problem
Speaker 3: because the system we have is set up so that
Speaker 3: people can make. Mistakes when you bring experts in that
Speaker 3: think they're the ones that settle all, things Like Anthony,
Speaker 3: fauci and they make a, mistake it's. Catastrophic and the
Speaker 3: whole idea of subsidiarity or, federalism to put it in constitutional,
Speaker 3: terms is that we can make a mistake at a
Speaker 3: local level and it doesn't destroy the entire. System whereas
Speaker 3: you do it, centralized you necessarily gravitate toward kind of
Speaker 3: oligarchy authoritarian decision, making and nobody else gets to challenge.
Speaker 3: It and those two things seem incompatible on the front,
Speaker 3: end but they are central to each.
Speaker 2: Other, OH i have one more wild question to ask
Speaker 2: you just occur to. Me, now do you think there
Speaker 2: is a pathway or a chance That obergafel will be overturned?
Speaker 3: Someday, well in The dobbs, Decision Justice thomas certainly invites,
Speaker 3: that and.
Speaker 4: So you know it's. Possible, WELL i think you can
Speaker 4: read it that.
Speaker 2: Way BUT i always tell people who the left who
Speaker 2: attacks him on that, POINT i, say read the next
Speaker 2: page where he, says shouldn't some of THESE i, Mean
Speaker 2: i'm not sure which decisions he, means but it just
Speaker 2: shouldn't some of these old precedents that were flabby used
Speaker 2: to do process. Claws shouldn't they be re anchored in
Speaker 2: The privileges And immunities. Clause Now i'm not sure that
Speaker 2: would reach to A bergefeller not but STILL i think
Speaker 2: you got it both sides of that. Eye that's.
Speaker 3: Right but but and he does this in The Second amendment.
Speaker 3: CASES i got a Grand by the, way The Reason
Speaker 3: Second amendment, Case Justice, alito writing on behalf of the,
Speaker 3: majority gives a huge hat tip To Justice thomas from
Speaker 3: the McDonald, decision saying this has to be grounded in privileged.
Speaker 3: Immunities we had a fight with the Late Justice scalia over.
Speaker 3: This oh, yes because because the historical record from the
Speaker 3: crafting of the Fourteenth, amendment there were two, things the
Speaker 3: freedom of contract and the right to keeping bare arms
Speaker 3: for self. Defense this was front and center why we
Speaker 3: have the privileged communities, Clause and Even scalia wouldn't go,
Speaker 3: there you, know the biggest critic of substantive due. Process
Speaker 3: rather stick with subst to do process than open up
Speaker 3: a New pandora's box on privileged. Communities and that just
Speaker 3: means he doesn't understand the historical pedigree of the natural
Speaker 3: law tradition of privileged.
Speaker 2: Community, well, right we, know we know his difficulty on.
Speaker 2: That so. Strange see IF i remember this, right the McDonald.
Speaker 2: Case that was The chicago gun. Case and AS i,
Speaker 2: recall the court asked and the cert grant to have
Speaker 2: the case briefed on the privileges and immunity's aspect of.
Speaker 2: It and the lawyer Was Alan gura gets up and
Speaker 2: brings it up And scalia cuts him off his, no
Speaker 2: we're not doing, that go, on move, on? Right oh
Speaker 2: and then did did he write the opinions or Was
Speaker 2: alito who said we were invited to review this and
Speaker 2: we declined that. INVITATION i think that opened up. That,
Speaker 2: okay SO i missed.
Speaker 3: Opportunity, well but But Justice thomas is separate concurring. Him
Speaker 3: he did not concur in the opinion on subs and
Speaker 3: who do? Process he wrote separately and concurred only in the.
Speaker 3: Judgment and that means that without his analysis and privileged,
Speaker 3: communities that case goes the other.
Speaker 4: Direction his is the this hiding.
Speaker 3: Vote but uh, no, uh you, know we we had
Speaker 3: we had years. AGO i Invited Justice scalia to talk
Speaker 3: To Chapman Law school WHEN i was still with. Him and,
Speaker 3: uh he, Said i'll be happy to come. Out, heuman
Speaker 3: BUT i can't come a. Graduation it's too busy up.
Speaker 4: Here, Well Justice, clee you can come whenever you.
Speaker 3: Want it's. Great what do you want me to talk?
Speaker 3: About you can talk about whatever you, want he. Said the,
Speaker 3: men we're going to talk About lockner because you're wrong About. Lockner,
Speaker 3: oh and so we came, in but you have The.
Speaker 2: David bernstein view of oh, yeah, yeah.
Speaker 4: Of COURSE i. Did that's.
Speaker 3: Right and and, UH i, Said Justice, Scalia, uh it's
Speaker 3: one hundredth anniversary Of lockner and we're going to re enact.
Speaker 3: It you can play the role With Chief, justice which may,
Speaker 3: be which may be as close as you ever get to.
Speaker 3: That and we we.
Speaker 4: Had we had.
Speaker 3: Five law students and three undergraduate students on the bench with,
Speaker 3: him and we start off and he, said SO i started,
Speaker 3: arguing we've Got Attorney general Of, California Bill. Locker oh,
Speaker 3: god it was an, idiot but it was Representing New
Speaker 3: york in The New York Versus lockner. Case AND i start,
Speaker 3: OFF i, said you, know this violates the privilege we
Speaker 3: got rid of privileged, immunities you got anything? ELSE i, said,
Speaker 3: well violates the due process of law.
Speaker 4: Clause and he said.
Speaker 3: What part of what part of due process of law
Speaker 3: has substance to? IT i, said it's in the word,
Speaker 3: law your, Honor and he, said who said? THAT i, said,
Speaker 3: WELL i know one day your court's not going to
Speaker 3: like to have foreign sources of a Thirty but that Was.
Speaker 4: Cicero he's a pretty good.
Speaker 2: One what states he?
Speaker 4: From AND i Said?
Speaker 2: ILLINOIS i, THINK i, said.
Speaker 4: The state Of. Sicily you're honored just like your, Family, like,
Speaker 4: oh that was.
Speaker 3: Good, Yeah so we had agree And Bill locker is
Speaker 3: sitting there cut clueless of what they what they're going
Speaker 3: back and forth, was but that was that was great.
Speaker 3: Fun but you, know it, Demonstrated, look you look At
Speaker 3: lockner and the right of people to earn a, living you,
Speaker 3: know without undue restrictions on their, ability.
Speaker 4: And that's a core property.
Speaker 3: Right to get back to what we talked about, earlier
Speaker 3: that the court got. Right and you, know unfortunately The,
Speaker 3: descent The descent that said they, were you, know Forcing
Speaker 3: spencer's social. Status that's just not what what The descent
Speaker 3: was trying to do is do. That and and so
Speaker 3: it's one of the great mischievous recharacterizations we've ever.
Speaker 2: SEEN i, think by the, WAY i Think jaffa uh
Speaker 2: never thought about the case, deeply BUT i think to
Speaker 2: the extent he, ever there's one or two References i've
Speaker 2: seen to him where he seems to take the conventional
Speaker 2: view Of, lockner AND i think he would have changed
Speaker 2: his mind if he lived long enough to, see, Say
Speaker 2: David bernstein's work and so. Forth but, yeah, right all,
Speaker 2: right let's get out with a little bit of. FUN
Speaker 2: i won't tell listeners about when we were. Housemates you,
Speaker 2: know you're trying to burn down the house with letting
Speaker 2: your car go on. Fire AND i won't tell listeners
Speaker 2: about swinging from the chandelier on the going away.
Speaker 4: Party that wasn't, me that was that was one of
Speaker 4: our other.
Speaker 2: Mickey he set your car on, fire, RIGHT i know.
Speaker 3: That the non PhD student in the room decided he
Speaker 3: was angry at us because we had a barbecue On sunday,
Speaker 3: night and, then without realizing barbecue charcoal stays a, lot
Speaker 3: he dumped it onto a pile of dead leaves over
Speaker 3: which my car was.
Speaker 4: Partying oh was that?
Speaker 2: IT i couldn't remember how that a'll. WENT i just
Speaker 2: remember all of our high jinks and mischief and figured
Speaker 2: you probably had some blackmail material on me somewhere in
Speaker 2: the recesses of your. MIND i don't.
Speaker 3: KNOW i brought him to the front of my, mind
Speaker 3: ready to be armed IF i needed.
Speaker 2: Them, well Thanks, john this has been really, fun and
Speaker 2: we will pay attention to what's.
Speaker 3: Next let's see if the just this apartment And russvoyte
Speaker 3: takes up my invitation to quit spending on local projects
Speaker 3: and we force that, issue BECAUSE i think getting the
Speaker 3: court back in.
Speaker 4: The game is the only thing that saves us from.
Speaker 3: What's the old, line nations gradually get toward bankruptcy and
Speaker 3: then all of.
Speaker 4: A, Sudden oh that's. Right, yeah well we're getting close
Speaker 4: to the all of a sudden. Cliff, yeah so very. Good,
Speaker 4: well Thanks steve for having me On ricochet join the,
Speaker 4: conversation