Speaker 1: Can I just say, Steve, you have not pressed any
Speaker 1: of your bodily function sound effects on your keyboard, Thank
Speaker 1: you very much.
Speaker 2: Actually I did, but you don't have headphones on, so
Speaker 2: you didn't have them.
Speaker 1: Well wifty com and fame my pain, my honeys, my brain,
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 3: Where this lapdopp and live. It ain't easy on the
Speaker 3: soul taps. Gotta give me and let that whiskey cloone.
Speaker 4: Welcome everyone to this edition, which is super special of
Speaker 4: the Three Whiskey Happy Hour because the three of us
Speaker 4: are together in Texas at the School of Civic Leadership
Speaker 4: for a conference on the Pursuit of Happiness, and we
Speaker 4: all still have with us a very special guest, Phil.
Speaker 5: It's great to be here.
Speaker 1: Oh I thought it was me. I feel like I've
Speaker 1: been a guest for five years. Listen to your crack pots,
Speaker 1: trousi and stuff.
Speaker 4: You're always our favorite guest. I'm sorry to have to
Speaker 4: tell you that, Phil, but John's our favorite guest.
Speaker 2: Well, Phil has been begging like a dog to get
Speaker 2: on for the longest time, so it's a funny time
Speaker 2: to get.
Speaker 5: And we want to work on you know.
Speaker 2: But actually, Phil, we can either beat up on you
Speaker 2: or we can recruit you to help us beat up
Speaker 2: on John because you know that's our favorite.
Speaker 3: Because it still won't be fair fight. I need two
Speaker 3: more you guys.
Speaker 4: If he ever beats up on me, I wish they
Speaker 4: would so I could really go after him. Anyway. Anyway,
Speaker 4: we're very happy to be together. It's it's a lot
Speaker 4: of fun to spend time with these guys, honestly, if
Speaker 4: I have to be honest, and we have a really
Speaker 4: great show for you today. First we want to talk
Speaker 4: for just a moment about what's going on in Washington,
Speaker 4: d C. You know, it's it's actually funny. There's really
Speaker 4: serious news going on. But what is the news dominated
Speaker 4: about by Tiger Woods. I suppose that's because of his
Speaker 4: connection to the president. And then of course Christy nom
Speaker 4: who's asking her husband if there's anything he needs to
Speaker 4: get off his chest.
Speaker 1: Oh well, I hope I still the creat is out
Speaker 1: there taking notes.
Speaker 3: We thought, you know, we thought.
Speaker 5: Trump Trump came in and got rid of the EI.
Speaker 2: We would have thought he would have exiled all the
Speaker 2: cross dressers from Washington, but apparently not.
Speaker 3: That was not on my Bengo car out. Oh.
Speaker 4: I don't even know if cross dressing is well. I don't.
Speaker 4: I don't want to discuss it. That's enough of that.
Speaker 4: I suppose that in a slow news time, if they'd
Speaker 4: rather talk about that than they're on war. How do
Speaker 4: you think thereon war's going, John, I think.
Speaker 3: It's going extremely well.
Speaker 1: When the only military problem you have is right, elimiting
Speaker 1: small units running around the coastline of the Strait of
Speaker 1: Horror moves, that means we have completed all the other objectives. Right,
Speaker 1: So we're flying B fifty two's over Iran now, which
Speaker 1: are sitting ducks. If you actually had any airing aircraft missiles,
Speaker 1: we've got Apache helicopters. That means you have complete air dominance.
Speaker 1: There's I think I saw something like fourteen thousand targets
Speaker 1: now hit and Trump. I mean, you love him or
Speaker 1: you hate him for his rhetoric, but last night he says,
Speaker 1: you know, we're going to bomb him back to the Stone.
Speaker 3: Age, and then he goes where they belong.
Speaker 1: So, I mean, you know, I really think people don't
Speaker 1: understand how military campaigns work. There's not a video game
Speaker 1: where it's over in two or three hours. This is actually,
Speaker 1: again a tremendous feed of American arms. Now that's totally
Speaker 1: different than what the political solution should be. But you
Speaker 1: can't win a war more militarily in a more military
Speaker 1: dominant way than what we're doing with Iran.
Speaker 3: I think maybe the problem is Trump's.
Speaker 1: Lack of rhetorical ability actually makes it difficult for him
Speaker 1: to explain to the country how well the war is going.
Speaker 4: But he does have some very articulate underlings who could
Speaker 4: do that for him. Marco Rubio is great. Pete hag
Speaker 4: Seth gets so much fun made of him. You know,
Speaker 4: he's he's vilified by everybody that he may not be
Speaker 4: taken quite as seriously, but he's also.
Speaker 3: A very I think he's doing a good job.
Speaker 1: Actually, I think he's doing way better at this than
Speaker 1: he has at the other things he's been up to.
Speaker 1: And I think, you know, Dan raising Kane right like,
Speaker 1: he's doing a good job explaining it's just people expect
Speaker 1: outrageous results outside the realm of reality, right like they
Speaker 1: kind of think the Iranians were going to just surrender.
Speaker 2: Now, poor Phil, we're just walking all over you here
Speaker 2: at the opening, you should say.
Speaker 3: Hello and Phil. I thought we were done with Phil.
Speaker 3: Still hear he's still here.
Speaker 2: Well, they could comment about John a question, a technical
Speaker 2: question that if anybody knows anything about it might be you, John,
Speaker 2: because I don't. I know, I don't, but I'm hol
Speaker 2: enough to remember Lyingbacker too, and youone know.
Speaker 3: What that was. Yeah, from Vietnam exactly.
Speaker 2: But we lost a lot of B fifty twos in
Speaker 2: the closing weeks of that because you know, the Phoviet
Speaker 2: supplied air defenses were pretty good against those high altitude bombers.
Speaker 2: And you mentioned the B fifty two is can fly
Speaker 2: now with impunity. Is that because the Iranian has never
Speaker 2: bothered to get any serious.
Speaker 1: An No, no, no, they had top lines. I was
Speaker 1: about to say, Soviet, Russian and Chinese air defense systems.
Speaker 1: This is why China and Russia are freaking out, because
Speaker 1: it showed Venezuela and Iran had you know, Russian and
Speaker 1: Chinese anti aircraft defense systems. And they haven't shot down
Speaker 1: a single American Israeli plane, not one. We lost more
Speaker 1: in the Persian Gulf War just seen as one of
Speaker 1: the great all time successes.
Speaker 3: That's Phil. Phil pulled the.
Speaker 1: Fire alarm to stop me from talking.
Speaker 4: It's just a test. Sorry, I'm sorry, I'm sorry. I'm
Speaker 4: gonna just go off on a tangent here for a moment.
Speaker 4: I'm trying to explain to my students in class yesterday
Speaker 4: what it was like for the for the for those
Speaker 4: of us who grew up during the years of the
Speaker 4: Cold War, what it was like when we got those alerts,
Speaker 4: and how we would, you know, be told to find shelter,
Speaker 4: Go under your desk, put your leg, your head between
Speaker 4: your life and Chris you can cover, kiss your you
Speaker 4: know what. Goodbye is what we all understood, even at
Speaker 4: a very young age, like your desk was going to
Speaker 4: protect you from a nuclear attack. Anyway.
Speaker 1: Why there is this great scene from Airplane you or
Speaker 1: that joke movie. I'm sure it's one of Steve's favorite movies.
Speaker 1: A lot of Steve's humor clearly comes from Airplane I remember,
Speaker 1: like they're going down animal, there's just like very you know,
Speaker 1: demure woman who dresses like Lucretia with the Catholic cross
Speaker 1: and everything sank to the man in the passenger, I'm
Speaker 1: a virgin, and if we're all gonna die, could you?
Speaker 1: And then it would and then like five minutes later
Speaker 1: she's with another guy, I'm a.
Speaker 3: Virgin before we go down. Throughout the movie they would
Speaker 3: show her like with a different No.
Speaker 2: I do remember an episode from the nineteen eight too,
Speaker 2: Israeli Syrian War, really right, and that was another case
Speaker 2: of where American technology was so far superior. And the
Speaker 2: Arab said of the Soviets, Syrians and others said, so
Speaker 2: you know, you gave us these surface to air missiles.
Speaker 2: Next time, we would like surface to plane missiles, please,
Speaker 2: So you can ask something.
Speaker 1: But once you're seeing about this before, at least feel
Speaker 1: still here did we get rid of No?
Speaker 3: He's so? I actually no, no.
Speaker 4: So.
Speaker 1: I actually studied the Israel Syrian War for a book
Speaker 1: I wrote, And it's not the equipment.
Speaker 3: This is the interesting thing.
Speaker 1: Soviet equipment sometimes was better rated than American equipment, but
Speaker 1: it was a command and control on how to fight. Yeah,
Speaker 1: and so these and I'm sure this happened in ron.
Speaker 1: Especially in countries where you don't trust the loyalty of people,
Speaker 1: you have to very strict hierarchical command and control, and
Speaker 1: American and Israeli fighting is lowest commanders make the decisions.
Speaker 1: You're allowed to improvise, take initiative, and it kicks the
Speaker 1: crap out of these So if you're China you're thinking
Speaker 1: about invading Taiwan, you're a little worried right now because
Speaker 1: American technology plus training and organization crushes Russian and Chinese
Speaker 1: centralized control command and control.
Speaker 3: Forces, even if the technology is inferior. Yeah, that's interesting.
Speaker 1: I'm sure it's like something about the difference between Plato
Speaker 1: and Aristotle. I'm sure, like we're the Platonic fighters and
Speaker 1: they're like the little ants that Aristotelian fighters over in
Speaker 1: Russian China.
Speaker 4: You know, we can actually, I know, you could muscles
Speaker 4: out of the sky. Now, remember when during the nineteen
Speaker 4: eighties that was considered Star Wars technology and Reaganagan was
Speaker 4: absolutely right, was right again. But what it reminds me
Speaker 4: of is is how there is just this huge pantheon
Speaker 4: of opposition to whatever Trump does. That was the same
Speaker 4: thing with Reagan. You know, the Soviets believed we could
Speaker 4: do Star Wars what was it called the.
Speaker 3: Strategy, But you know, I always thought.
Speaker 2: I always thought calling it Star Wars was a huge
Speaker 2: blunder of the left because your average American said.
Speaker 3: Oh, Star, I love Star Wars. You could do that.
Speaker 1: Yeah.
Speaker 2: No, they pulled, always pulled really well, and you know,
Speaker 2: so that was okay.
Speaker 5: Okay, Well yeah, Phil is Phil still here?
Speaker 4: Okay. I'm gonna you guys stop being mean to phil'
Speaker 4: and ask Phil some questions which I know. I've actually
Speaker 4: had about half a dozen people reach out to me,
Speaker 4: listeners reach out to me over the last i'm gonna say,
Speaker 4: eight nine months asking about this question, believe it or not.
Speaker 4: And I keep saying, yes, we're gonna get Phil Munos
Speaker 4: on and he's going to explain it to us. I
Speaker 4: want Phil to explain where we are after the Kennedy
Speaker 4: versus Bremerton decision, which came out at right about the
Speaker 4: same time as the Dobbs decision. The Kennedy versus Bremerton.
Speaker 4: Dobbs is the you know, overturning abortion rights. The Kennedy
Speaker 4: versus Bremerton is a First Amendment freedom of religion decision,
Speaker 4: and it was really quite earth shaking, but it didn't
Speaker 4: get very much attention. So take it away, but tell listeners.
Speaker 3: What that case was about. Sure, well, it's great to
Speaker 3: be here. I think.
Speaker 5: You'll regret it by the time we're donn Well, it's I.
Speaker 6: Know, I'm very thankful to be here for a reason.
Speaker 6: You guys don't even know. It's it's Holy week. We're
Speaker 6: recording her in Holy week and recently went to confession
Speaker 6: and my priest was like, you need to find do
Speaker 6: something very penitential.
Speaker 3: And so when you offered, I thought, perfect, nothing.
Speaker 1: I don't understand any string of words.
Speaker 4: To find somebody poor and give them some money.
Speaker 6: Phil that's what I'm completing the sacrament by being here
Speaker 6: with you.
Speaker 1: Can we give them one of the would call those
Speaker 1: things the scourges that you hit yourself with.
Speaker 3: I mean, let's go elevates. Elevate your game, phill Oh
Speaker 3: Kennedy Kennedy v.
Speaker 6: Bremerton, UH Supreme Court decision that involved a high school
Speaker 6: football coach who would prey on the fifty yard line
Speaker 6: after the team's games. So public high school and you
Speaker 6: know how like the NFL play players and sometimes the
Speaker 6: coaches gather on the fifty yard line.
Speaker 3: So this coach would do this.
Speaker 6: In Bremerton, Washington, outside of Seattle, a big naval naval
Speaker 6: base there, and he'd done this practice, this prayer practice
Speaker 6: for years, I think something like seven years, and then
Speaker 6: it wasn't a big deal. And the way it actually
Speaker 6: gets attention is an opposing coach mentioned it to someone
Speaker 6: in the superintendent's office, the public school office, and said,
Speaker 6: you know, it's great that this coach is able to
Speaker 6: do this, and like within a week, the superintendents that
Speaker 6: told him, you can't do this anymore, and it caused
Speaker 6: a local stir and he ended up they told him
Speaker 6: you can go pray in the press box as long
Speaker 6: as after the game, as long as the students can't
Speaker 6: see you, and he was, you know, sort of obstinate
Speaker 6: about it, and then the community really supported him. So
Speaker 6: he was always praying the fifty yard line and then
Speaker 6: the game all of sudden became about him in this episode,
Speaker 6: and so his contract wasn't renewed.
Speaker 3: So he basically got fired.
Speaker 6: In his story for praying on the fifty yard line
Speaker 6: a high school football game. Okay, fast forward, it gets
Speaker 6: all the way to the Supreme Court. Supreme Court rules
Speaker 6: in favor of coach Kennedy and says the school districts
Speaker 6: violated his free exercise rights, free exercise of religion. But
Speaker 6: the real importance, or the trinal importance, it was that
Speaker 6: the court said, and all of that establishment claused jurisprudence,
Speaker 6: that where previous courts said a wall of separation and
Speaker 6: the Lemon test, which is the way they enforced the
Speaker 6: wall of separation, were abandoning that. Now that was the
Speaker 6: court's term, a term they used that those precedents have
Speaker 6: been abandoned. And I don't quite know why they said abandoned.
Speaker 6: They didn't overturn. They just said, we've stopped using these precedents.
Speaker 6: So it seems it seems that they were instructing the
Speaker 6: lower courts to stop saying that the First Amendment erects
Speaker 6: a wall of separation, and also to stop using Lemon
Speaker 6: the three part Lemon test. All laws must have a
Speaker 6: secular purpose, cannot advance religion, and cannot cause excessive entanglement
Speaker 6: with religion. Such a vague test you could reach whatever
Speaker 6: result you wanted, and yet, and often to the detriment
Speaker 6: of religious believers. So supposedly those precedents have been abandoned
Speaker 6: and therefore presumably should not be used now. But what
Speaker 6: can when now to finally get to your question, well,
Speaker 6: what does this mean. What does the establishment clause actually
Speaker 6: now prohibit? If it's not the wall of separation, what
Speaker 6: is it? What can the state not do visa an
Speaker 6: establishment of religion? And here it's just not clear. Just
Speaker 6: we don't have a clear doctrine. Justice Scalia said state
Speaker 6: cannot coerce religion because religious establishments were coersive. It's plausible
Speaker 6: the court seems to be disposed to look at the
Speaker 6: history and tradition to find out what is allowed. But
Speaker 6: of course that something's allowed doesn't tell you what's prohibited.
Speaker 6: So right now, I think we don't have a clear
Speaker 6: understanding of what the establishment clause prohibits a legislator, legislature,
Speaker 6: or a school district. It's just not clear what is
Speaker 6: prohibited by the First Amendment.
Speaker 4: So I think that the question has taken on in
Speaker 4: some ways a new importance because people because you're seeing
Speaker 4: an interesting sort of alliance between maybe call it fundamental
Speaker 4: Christians and Muslims, first of all asking for a free
Speaker 4: exercise of religion, but on the other hand, then the
Speaker 4: same Christians who might have been pushing for prayer in
Speaker 4: schools and reading the Bible in schools are now getting
Speaker 4: very concerned about the possibility. Here we are in Texas,
Speaker 4: where you know, there's rumors all the time that entire
Speaker 4: cities are being erected that are going to have there
Speaker 4: They're going to be you know, Islamic cities with Sharia
Speaker 4: law and so forth. You know, who knows about all
Speaker 4: of that. But it does bring up some interesting questions
Speaker 4: because we've even had these these sort of questions before.
Speaker 4: Is there a fundamental separation of church and state that
Speaker 4: would prevent any kind of religion from taking hold in
Speaker 4: any sort of official way. And if we have prayer
Speaker 4: and schools we started talking at the beginning, if we
Speaker 4: have prayer and schools, how long before then we have
Speaker 4: to have equal time and we have to you know,
Speaker 4: pray towards Mecca.
Speaker 6: Well, I think the big question, the next really big question,
Speaker 6: could be do we have is it constitutional to have
Speaker 6: prayer in public schools? The leading president or one of
Speaker 6: the leading precedents still in the books nineteen sixty two
Speaker 6: Ingle Versus Fatale, there's.
Speaker 3: The regent's prayer.
Speaker 6: The regent's prayer was a prayer composed by the regents,
Speaker 6: the officials in charge of the new York school district.
Speaker 6: And it was a very simple prayer, one sentence. Gosh,
Speaker 6: I can't remember it off the top of my head, but.
Speaker 3: It was, oh great, pumpkin, wasn't it something like that, you.
Speaker 6: Know, thank God for the blessings of the country in
Speaker 6: our families and easily look it up. That was ruled
Speaker 6: unconstitutional in nineteen sixty two. So perhaps we'll have questions
Speaker 6: about post the Ten Commandments in school, But the really
Speaker 6: big question will be can you have prayer led by
Speaker 6: the school district or the teacher, even composed by the teacher?
Speaker 6: Is prayer in public school? School led prayer constitutional?
Speaker 3: Yeah?
Speaker 2: I mean well, I certainly wouldn't want some government written
Speaker 2: prayer that's generic and lowest common denominator. But what about
Speaker 2: jaff as mischievous suggestion from you know, thirty years ago?
Speaker 2: He said, look, you want to bring back prayer in
Speaker 2: public schools, Let's try this. He noted that forty nine
Speaker 2: of the fifty state constitutions have language. It sounds like
Speaker 2: the Declaration of Independence or the state constitutions from the
Speaker 2: seventeen eighties, even.
Speaker 3: Repeated by Alaska Hawaii.
Speaker 2: Our last two states have preambles that say grateful to
Speaker 2: God as the author of our rights, et cetera, et cetera.
Speaker 3: And so why not say.
Speaker 2: School children shall recite the preamble to the state Constitution
Speaker 2: at the beginning of every school day and then watch
Speaker 2: the ACLU say that it's unconstitutional to recite the Constitution.
Speaker 5: I think that would be a fun day in federal court.
Speaker 6: Now, you're right, especially these early state declarations of rights
Speaker 6: and constitutions have reference to Almighty God and the Creator.
Speaker 6: And it'd be hard to say that the Massachusetts can't
Speaker 6: the school children mass Jessas can't recite the beginning of
Speaker 6: the seventeen eighty Massachusets Institution. But I think, you know,
Speaker 6: I think the the people who really want prayer in school,
Speaker 6: really they really want prayer in school. They don't want
Speaker 6: a civic document. They want prayer. And whether that's a
Speaker 6: good idea, whether it's constitutional is one question. Whether it's
Speaker 6: a good idea, is it also a separate question?
Speaker 4: John, what do you want to say?
Speaker 1: Can we talk about something interesting? I'm so bored over here.
Speaker 4: I'm sorry.
Speaker 1: Well, we were talking about shooting down Russian Jatson. Now
Speaker 1: we're talking about some coach wants to pray at the
Speaker 1: fifty yard line some two bit.
Speaker 3: High school football game. Come on, Well, I don't know.
Speaker 2: I mean, well, okay, I can draw a veil over well,
Speaker 2: we could, you know. Jerry Bradley has this article out
Speaker 2: in First Things about how to fight her way back
Speaker 2: through to angle and overturn it or something, and.
Speaker 3: I don't know I did.
Speaker 2: I always like Ronald Reagan saying, you know, we made
Speaker 2: a mistake when you could do. I think a spurious
Speaker 2: correlation between the decline of education and the end of
Speaker 2: school prayer. Or there's the cynics who say, as long
Speaker 2: as there are exams, there will still be prayer in schools.
Speaker 1: But Phil does think that judicial review isn't necessary for
Speaker 1: exemptions like this, right, you still trust the legislature and
Speaker 1: the executive branch to create the exceptions and think that
Speaker 1: the courts are doing too much.
Speaker 6: Well that yeah, that's for free exercise clause. So but
Speaker 6: here on the establishment clause. I mean, the prayer in
Speaker 6: public school is. Look the argument Jerry Bradley has his
Speaker 6: Peace and First Things, which very very thoughtful, and it
Speaker 6: basically says, look, there's the type of prayer you could
Speaker 6: compose for public school kids. Is a prayer that it
Speaker 6: is based on natural theology, so theology that's accessible to reason,
Speaker 6: that there is a God, that we should be thankful
Speaker 6: for being alive, and you really, you know, thank you
Speaker 6: for the blessings of our country, thank you for creating
Speaker 6: us with endowing us with rights. I think you could
Speaker 6: say that on reasonable grounds, meaning grounded in human reason,
Speaker 6: does not derive from revelation. Also, is not sectarian. Its
Speaker 6: Catholic prayer. It's not a Jewish prayer. So I think
Speaker 6: you could do that constitutionally. Perhaps the difficulty is it
Speaker 6: uses religion for civic purposes. It instrumentalizes prayer, and I
Speaker 6: don't that's somewhat problematic. I think it treats prayer as
Speaker 6: a means and not an end.
Speaker 3: But why But here I saw this question.
Speaker 1: Why if you think courts shouldn't intervene in the free
Speaker 1: exercise area, why should they intervene in the establishing clause
Speaker 1: area too? Why not let them all be subject to
Speaker 1: enforcement by the legislature and the government and the political process.
Speaker 6: Yeah, yeah, but the court shouldn't intervene for exemptions because
Speaker 6: exemptions are not part of the right. So the court
Speaker 6: can intervene when the when the first Amendment is being violated,
Speaker 6: but it's not being violated when it simply burdens of
Speaker 6: religious believers.
Speaker 1: This clause isn't really a right either, right, it's a
Speaker 1: well limitation on government. It's to me it's like even
Speaker 1: less of an individual right than free exercise, because it
Speaker 1: says it's forbidding the government from right setting up a
Speaker 1: religion doesn't actually define that as a right that you
Speaker 1: have in you know, that little green paradise you guys
Speaker 1: call whatever that world is of the social contract or before?
Speaker 3: What is it called? Oh, state of nature? That's what
Speaker 3: it is.
Speaker 4: Here's here's my argument against your against your what did
Speaker 4: you call it? It becomes You said that turns prayer
Speaker 4: into instrumental That was it?
Speaker 5: Right?
Speaker 4: I would argue two things on that account. The sort
Speaker 4: of mundane thing is is that that habits are important.
Speaker 4: We learned that from Aristotle John that habits good habits,
Speaker 4: and the habit.
Speaker 3: Of is unaware of good habit manners.
Speaker 4: No, no, he means habits. He means that you are
Speaker 4: habituated to virtue. And I do think that in this
Speaker 4: in a very important sense, prayer, you know, just like
Speaker 4: you see pray before you have your you know, thank
Speaker 4: God before you eat, and people don't take that very seriously,
Speaker 4: but it's an important habit, phil isn't.
Speaker 2: Don't I recall that even a moment of silence has
Speaker 2: been objected to on separation of church and state grounds.
Speaker 6: Yeah. Yeah, in nineteen eighty five case called Wallacey Jaffe,
Speaker 6: that's a moment. There's a moment of silence law for
Speaker 6: prayer or voluntary meditation, and that was struck down by the.
Speaker 4: Court, which is nonsense because the whole but the argument
Speaker 4: behind it is that somehow school children are are too
Speaker 4: susceptible to the pressure of the moment and other not
Speaker 4: and they cannot be exposed in any way, which is
Speaker 4: the exact opposite of the argument that I'm making, which
Speaker 4: is I remember discussing with one of my old professors
Speaker 4: who was a sort of an atheist, but agreed that
Speaker 4: you could not you could not raise your children in
Speaker 4: a non religious household and then expect that they would
Speaker 4: later on in life decide to become you know, they
Speaker 4: might convert in all of that, but the chances of
Speaker 4: it were very very low, as opposed to children raised
Speaker 4: in a household that's religious, with religious habits and religious
Speaker 4: rights and so forth are much more likely to be religious.
Speaker 4: That's the argument I would make about prayer in schools,
Speaker 4: even if it is the kind of prayer you talk about,
Speaker 4: there's a secondary issue. Really quickly, I want to get
Speaker 4: to and get your thoughts and then we'll move on.
Speaker 4: And that is that in today's society, where it is
Speaker 4: obvious that the final project of the left is to
Speaker 4: make themselves gods. Yes, there's just no doubt about that.
Speaker 4: That's why you have transgenderism, you know, et cetera, et cetera.
Speaker 4: They don't want to be limited in any way by
Speaker 4: by nature, they don't want to be limited in any
Speaker 4: way by any kind of religious revelation, and so they
Speaker 4: want to be gods. And then they want to force
Speaker 4: their godhood upon everybody else so that they can feel
Speaker 4: very comfortable in that. Making themselves gods another reason why
Speaker 4: we should have at least a neutral support for religion
Speaker 4: in public spaces. I don't know what you think about that.
Speaker 6: Yeah, So I would say, look, if specifically on a
Speaker 6: school district writing prayers, I have two concerns. One, the
Speaker 6: prayers are probably going to be pretty vacuous and you know,
Speaker 6: least offensive, lowest common denominator. So that's why I mean,
Speaker 6: maybe that's okay, that's not necessarily bad. Two the other
Speaker 6: fear is, I mean these prayers, like people who advocate
Speaker 6: the prayers assume that they will be writing the prayers,
Speaker 6: But you don't know who's going to be writing these prayers,
Speaker 6: and you don't know what gods these kids are going
Speaker 6: to be instructed to pray to. And so I'd be
Speaker 6: much more comfortable with a moment of silence, which actually
Speaker 6: recognizes both, look, there's a proper time for prayer, but
Speaker 6: also recognizes the limitations of state authority. We set aside
Speaker 6: a moment and invite everyone to prayer and thanksgiving in
Speaker 6: a way that you think is it appropriate. We set aside,
Speaker 6: we the state set up beside this moment because we
Speaker 6: think it's important, But it's not our job to tell
Speaker 6: you how to pray. You know, that's actually pretty civic
Speaker 6: and perhaps respectful of religion. I don't think that's really
Speaker 6: what the advocates of prayer and public school want.
Speaker 3: But I am more.
Speaker 6: Leary than perhaps many of them are about empowering government
Speaker 6: to write prayers because it involves an authority that I
Speaker 6: just don't think government officials should have.
Speaker 2: Can you imagine what the California State Prayer would be
Speaker 2: if the current government of California wrote it.
Speaker 1: The answer should go back to the nineteenth century, Steve's
Speaker 1: favorite time period, especially for the sanitation, and have no
Speaker 1: government run public schools at all. Obvious answer, right is
Speaker 1: just to privatize like it used to be for most
Speaker 1: of human history and just give everybody a voucher. And
Speaker 1: then you want to go to school where you know
Speaker 1: you waste time in the morning not memorizing and praying instead,
Speaker 1: you can do that if you want. And if you
Speaker 1: want to go to the Asian high school where we
Speaker 1: actually learned stuff, you can skip the prayer and go
Speaker 1: right to the mathematics.
Speaker 2: And you one more quick question for Phil I'm all
Speaker 2: for the moment of silence because.
Speaker 3: There is an objection to it.
Speaker 2: Was there is something reverential about that act and that's
Speaker 2: what the secular left hates. Question if we got that back,
Speaker 2: how we're going to stop the kids from looking at
Speaker 2: their phones?
Speaker 3: Well you should phone go ahead.
Speaker 4: Well, one other smaller point about this, and that is
Speaker 4: that even the Bible cannot be taught in schools, in
Speaker 4: public schools, and how crazy. Is that?
Speaker 2: Well, now, my public school got around it by teaching
Speaker 2: the Bible as literature.
Speaker 4: Of course, but your public school was how that was
Speaker 4: in like the nineteen thirties, right, But I mean, honestly,
Speaker 4: I am. I am sometimes utterly amazed at students complete
Speaker 4: lack of knowledge of anything having to do with you know,
Speaker 4: the literature of the Bible. As you would put, it's
Speaker 4: the most important book ever written from many points, I mean,
Speaker 4: anyway you look at it, honestly, and the fact that
Speaker 4: we are constitutionally prevented from learning about it in school
Speaker 4: is is I mean, it's just ludicrous.
Speaker 6: I had something. There's another path here too, which would
Speaker 6: be you open up the schools time before schools or
Speaker 6: at lunch where the kids can organize a Bible study, right,
Speaker 6: could even be led by a parent or a pastor,
Speaker 6: you know, and that you'd say, look, school begins at
Speaker 6: eight am, at seven thirty, you know, three days a
Speaker 6: week or every Friday, we're going to do a Bible
Speaker 6: study and let the let the kids and their parents
Speaker 6: organize themselves.
Speaker 3: And that doesn't have.
Speaker 6: To be excluded. Facilities could be used. It could be
Speaker 6: after school, could be during lunch. I actually quite liked
Speaker 6: the idea of school of during the lunch period the
Speaker 6: high school kids themselves organizing a once a week Bible study.
Speaker 6: I think that would be fantastic, and that sort of
Speaker 6: tokvillian voluntary association approach could be encouraged and nurtured in
Speaker 6: the schools. And I think that approach would be better
Speaker 6: both constitutionally but also just politically and culturally than imposition
Speaker 6: from the school itself on This is how we're going
Speaker 6: to pray.
Speaker 4: All right, sir. Yesterday John locked himself away in a
Speaker 4: tiny little room with a set of earphones on and
Speaker 4: listened all day long to the oral arguments made on
Speaker 4: behalf of the birthright citizenship case. I don't remember the
Speaker 4: name of it, John, and I apologize.
Speaker 7: He v.
Speaker 3: Barbara Barbara.
Speaker 4: I knew the Trump cart and John was telling us
Speaker 4: I want him to tell our listeners about how extraordinary
Speaker 4: it was for Trump of the Trump v. Barbara President
Speaker 4: Trump to show up at the sure remarkable.
Speaker 1: He's the first sitting president, we believe whoever showed up
Speaker 1: for an oral argument of the Supreme Court. And of
Speaker 1: course Trump's been quite the showman by doing this, bringing
Speaker 1: attention to the importance of the case. But but he
Speaker 1: doesn't have advisors as good as me, because if I
Speaker 1: was in charge of this visit, I wouldn't have had
Speaker 1: Trump sitting in the public gallery with all the other hoy, poloy,
Speaker 1: and apparently he sat silently. This must have been the
Speaker 1: longest period Trump's gone without talking.
Speaker 4: Like an anesthesia.
Speaker 1: I would have said, mister President, you have the right
Speaker 1: to go to the council table. Sit at the council
Speaker 1: table right next to the Solicitor General, and then you know,
Speaker 1: give hand signals and gestures to him while he's talking
Speaker 1: to the justices. Maybe make some faces at Amy Cony,
Speaker 1: Barrett and Brett Kavanaugh.
Speaker 3: Do thumbs down, thumbs up.
Speaker 1: And then once John Sower this General's done, guests stand
Speaker 1: up and give him a big bear hug and welcome
Speaker 1: back to the bench. I don't understand how they thought
Speaker 1: this was a good idea of having him sit there
Speaker 1: quietly by himself.
Speaker 3: Didn't you arguments, but.
Speaker 4: There's also a seat especially well.
Speaker 1: I had told you, but now you said it, so
Speaker 1: I want you to I was just about to get
Speaker 1: sorry no, But anyway, so I thought that was great.
Speaker 1: I don't think it changed the outcome of so you know,
Speaker 1: the listeners of the podcast probably listened to the oral
Speaker 1: arguments to or read the transcript.
Speaker 3: I don't hear a majority of.
Speaker 1: Justices in the oral argument who are willing to overturn
Speaker 1: the birthright rule. I thought, in particularly the most important
Speaker 1: you got three liberal justices, we're going to vote to
Speaker 1: keep the rule. I think it sounded to me like
Speaker 1: Alito definitely will vote against the rule. I actually couldn't
Speaker 1: tell from Justice Thomas's questions, although everyone assumes he'd vote
Speaker 1: to overturn birthright, but I'm not convinced of that. And
Speaker 1: then of the three justices in the middle, the Chief
Speaker 1: Justice and Amy Coney Barrett and Breck Havanaugh, the Chief Justice,
Speaker 1: you know, his questions were mostly skeptical of the government.
Speaker 1: And if that's the case, I think you're going to
Speaker 1: have at least five, if not six, justices who are
Speaker 1: going to Oh, and I forgot Justice Gorcich, who also
Speaker 1: he seemed troubled by the government's theory as it would
Speaker 1: apply to American Indians. That says sor bet Noir, is
Speaker 1: American Indians treatment of record.
Speaker 3: On that does? Yeah?
Speaker 1: And his question Actually it was weird because if you
Speaker 1: look listen closely. The Solicity General was not prepared for this.
Speaker 1: So Gorsich said, basically, well, under your new theory of
Speaker 1: birthright citizenship, are American Indians even citizens eligible for citizenship?
Speaker 1: And sour said, I think so, but and it goes
Speaker 1: but I'd have to think about that more, which means
Speaker 1: he actually did not have thought that through and doesn't
Speaker 1: didn't really have a position and might have lost gors
Speaker 1: such as vote just on that exchange. So that's why
Speaker 1: I see, I could see even see seven to two,
Speaker 1: maybe even eight to one against the government. I know
Speaker 1: a lot of people who listen to it think it's
Speaker 1: much closer. I think that's just because people aren't used
Speaker 1: to hearing how the Supreme Court conducts themselves, where they
Speaker 1: treat both sides with great seriousness and respect, and they
Speaker 1: really explore the intellectual issues.
Speaker 3: I'm sure Trump was bummed.
Speaker 1: He was like, no, nobody was hitting the table, there
Speaker 1: were no witnesses, no surprise rulings from the court.
Speaker 3: That's why he left in the middle. He was so bored,
Speaker 3: He's like, get me out of here.
Speaker 4: So I have a question for you, just on the
Speaker 4: Native American part. That one I don't even understand why
Speaker 4: they would bother to ask the question. I don't know
Speaker 4: what Gorsich's deal is, but anyway, that seems to me
Speaker 4: to be the most simple shrewd of microcosm of the
Speaker 4: birthright citizenship debate, which is that it was very clear
Speaker 4: when the Fourteenth Amendment was passed that Indians Native Americans
Speaker 4: were not included in the provision that made them citizens,
Speaker 4: and that it took an act of Congress to make
Speaker 4: them citizens. Based upon the legislative history of the fourteenth Amendment,
Speaker 4: it took an act of Congress to make them birthright citizens.
Speaker 4: And I think that that actually ought to that should
Speaker 4: prove to be the correct way to look at the
Speaker 4: entire birthright citizenship question, which is that no, we know
Speaker 4: what the purpose of the fourteenth Amendment was. It was
Speaker 4: to guarantee overturned read Scott, guarantee citizenship to the newly
Speaker 4: freed slaves and to their children, so that you know, states.
Speaker 4: It also made federal citizenship primary and state citizenship derivative,
Speaker 4: which was, you know, turn things on its head, make
Speaker 4: sure that the newly freed slaves were citizens. It was
Speaker 4: not intended, and I don't want to make the practical
Speaker 4: argument here. But the last clause I've said this before.
Speaker 4: The last clause of the fourteenth Amendment says Congress law
Speaker 4: have the power to enforce the provisions of this article
Speaker 4: by the appropriate legislation. That's what they did with Native Americans.
Speaker 4: Why is that even a question anymore? What the heck
Speaker 4: was Gorsich talking about? There's no constitutional question having to
Speaker 4: do with Native Americans.
Speaker 1: Well, the government's theory could be read to exclude Native Americans.
Speaker 1: You would have to treat the statutes including them in
Speaker 1: the citizenship as naturalization statutes. But were they considered naturalization
Speaker 1: they even think about it that way, or.
Speaker 3: So that's I think, I mean, I agree.
Speaker 1: I think Sour could just easily have answered the question
Speaker 1: and said, no, of course they are.
Speaker 3: This is not a tough question.
Speaker 1: But he was trying to figure out that the implications
Speaker 1: of the government's theory of citizenship might actually cause a
Speaker 1: problem for Native Americans. It could, I mean, it really could.
Speaker 1: I actually thought Sour did a pretty good job. But
Speaker 1: there were these justices who asked him questions that were
Speaker 1: quite big openings that he didn't take advantage of. For example,
Speaker 1: Lucretia's last statement was the first question Justice Thomas asked,
Speaker 1: He said, isn't the fourteenth Amendment's purpose about citizenship for
Speaker 1: the freed slaves?
Speaker 3: And Sowar could have made the argument.
Speaker 1: He eventually got to it only till late where he said, yes,
Speaker 1: the fourteenth Everyone would agree. At the time of the
Speaker 1: pastors of the fourteenth Amendment they were not thinking about
Speaker 1: illegal immigration because they didn't have a concept of illegal immigration.
Speaker 3: It was to correct the error of dred Scott.
Speaker 1: So the government's best argument, I think is we have
Speaker 1: changed circumstances.
Speaker 3: This is a thing they didn't think about.
Speaker 1: The rule seems absolute, but they didn't take this into account.
Speaker 3: They just didn't under they didn't have a concept.
Speaker 1: Of illegal immigration at the time, and that's not clear
Speaker 1: from the oral argument that that was the government mean's position,
Speaker 1: And there's.
Speaker 3: Until almost the end.
Speaker 1: So I think he did okay sort of responding negatively,
Speaker 1: but he'd not do a good job presenting a positive
Speaker 1: argument to persuade the court.
Speaker 3: He was on defense most of the time.
Speaker 1: The A CLU lawyer who I don't the best part
Speaker 1: was listening to a c l you lawyers talk about
Speaker 1: original understanding. What founder said this, I don't think she
Speaker 1: could enter the word founder was too painful. They come out,
Speaker 1: but right they were. She was on the offense most
Speaker 1: of the time. I mean she it was much easier
Speaker 1: for her at the oral argument. So that's why I
Speaker 1: was saying, I don't think the government's going to win
Speaker 1: if you just project from how it went well.
Speaker 2: Now, question for Phil what's this? Uh like Emily Lttello,
Speaker 2: what's this business about Madison and birthright citizenship? And where
Speaker 2: do you I mean, we know John's a squish on this,
Speaker 2: but we want to find.
Speaker 3: Out squish squish, what do you mean? Squish?
Speaker 1: That's a compliment for you, John, I thought you you
Speaker 1: Claremont people concocted this theory which is unsettling American law
Speaker 1: for two hundred and twenty five years.
Speaker 3: What that Wong cam Mark was? Wanngley decided that's why.
Speaker 1: Oh see, here we go, the true nativist, impulsive merchase.
Speaker 3: I knew it.
Speaker 6: Wellt So I I caution I'm hesitant to say anything
Speaker 6: because I just stumbled upon this letter by Madison and
Speaker 6: I sent it to John. I really I just stumbled
Speaker 6: upon it. I was looking for something else, and uh,
Speaker 6: there's I don't even know all the details off the
Speaker 6: top of my head, but there was a question about
Speaker 6: someone who was elected to the House of Representatives early
Speaker 6: on and on whether he could be seated because he
Speaker 6: was he a citizen. He had been born in South
Speaker 6: Carolina before the Revolution. His parents then brought him out
Speaker 6: of the country I think, to England. Then he came
Speaker 6: back and he after the revolution and was elected to
Speaker 6: the House. John do you remember was a South Carolina
Speaker 6: and the person who lost the election, Ramsey, I believe
Speaker 6: is the name, wrote to Madison and said, Hey, this
Speaker 6: guy should not be seated in the House because he's
Speaker 6: not a citizen. And Madison wrote back, and I sent this.
Speaker 6: This is what I stumbled up on. There's this letter
Speaker 6: from Madison to this David Ramsey, and Madison seems to
Speaker 6: associate citizenship with place of birth. Ah And now, no,
Speaker 6: I've not I read this letter really quickly. I fired
Speaker 6: off an email to John. I'm like, hey, has anyone
Speaker 6: referenced this letter since this case is going before the
Speaker 6: Supreme Court? And my impression, as John, is no one's
Speaker 6: actually talked about this letter, which maybe it's not important.
Speaker 6: I thought it was interesting.
Speaker 4: Yeah, there are some issues about citizenship that are specific
Speaker 4: to the founding period, to the revolutionary period, about whether
Speaker 4: or not you could be a citizen if you were
Speaker 4: not loyal and part of the body politic Once the revolution,
Speaker 4: once the Declaration was signed, that was the creation of
Speaker 4: the country, and there were lots of questions about who
Speaker 4: could and could not be a citizen at that time.
Speaker 4: And remember that's even articulated in the Constitution itself, which
Speaker 4: talks about, you know, what it means to be eligible
Speaker 4: for being for president and you had to be a
Speaker 4: how does it go? A naturalized citizen, a natural born citizen,
Speaker 4: and you had to have lived there for fourteen years? Yes,
Speaker 4: but why is the fourteen years there? Because they want
Speaker 4: to make sure that you fourteen years exactly is the
Speaker 4: time at which the you know, the revolution, the founding
Speaker 4: of the country in seventeen seventy six. So there's all
Speaker 4: of those questions that have to do with that particular
Speaker 4: question of citizenship. I don't think it's relevant because the
Speaker 4: whole discussion of the fourteenth excuse me of this Trump
Speaker 4: versus Barbara, is about the fourteenth Amendment and what does
Speaker 4: subject to its jurisdiction mean? I mean, ultimately, that's the
Speaker 4: constitutional question, is am I wrong, John, I.
Speaker 1: Mean, oh go ahead, no, no, no, no, I mean so
Speaker 1: I think, oh, sorry, So this thing bears on this letter,
Speaker 1: and then Lucretia thought bear on the There was a
Speaker 1: lot of turmoil at the time of the revolution because
Speaker 1: it re scrambled who was a citizen, because right until
Speaker 1: seventeen seventy six, they were all citizens the subjects of
Speaker 1: Great Britain. And so Madison's view is important, but his
Speaker 1: view is not determinative because it was up to the
Speaker 1: states to determine citizenship. So it comes up only because,
Speaker 1: as Lucretia says, you have to be a citizen to
Speaker 1: be eligible for certain federal offices, and so the federal
Speaker 1: government wouldn't need to make a determination, but they would
Speaker 1: look to see what the.
Speaker 3: States had found.
Speaker 1: But even so, even though that's the rule, there's this
Speaker 1: weird period between seventeen seventy six and the formation of
Speaker 1: the country where everything was scrambled and people were effectively
Speaker 1: choosing whether they were going to remain subjects or where
Speaker 1: they were going to be part of the new United States.
Speaker 3: And so I've always thought that was always.
Speaker 1: A good example for the Claremont Institute approach, which you
Speaker 1: guys believe in because it does suggest that there's this
Speaker 1: consent idea to it. If people are able to choose
Speaker 1: their citizenship in this period, then doesn't that suggest there's
Speaker 1: some kind of autonomous choice that you have to it.
Speaker 1: But I always thought that that doesn't set precedent because
Speaker 1: of this this weird revolutionary era where the normal rules
Speaker 1: are cleared out but the new rules are not yet fixed,
Speaker 1: And so I think it's I treat all the stuff
Speaker 1: from the revolution as a one off. But you could
Speaker 1: always say, look, even Madison thought it was birthplace, because
Speaker 1: nobody really had a different view. If there's anyone who
Speaker 1: would have had the Claremont view who was the social
Speaker 1: contract guy of his time, it would been medicine, and
Speaker 1: he doesn't take the view that you guys take.
Speaker 4: But again, the fourteenth Amendment is a game changer because
Speaker 4: it's well yes and no, because, as you put it,
Speaker 4: states determined citizenship not anymore, not after the fourteenth Amendment.
Speaker 4: It is in fact now a federal constitutional question about
Speaker 4: who is and who's not a citizen of the United States,
Speaker 4: and then they become a citizen of the state, not
Speaker 4: vice versa. So honestly, I don't see how any of
Speaker 4: those sorts of state appeals to come and law.
Speaker 3: Depends if the rule if you think so. What I
Speaker 3: think happened is that the fourteenth Amendment.
Speaker 1: Codified the rule what it was, which was birthplace, and
Speaker 1: what it was doing was eliminating the exception that Chief
Speaker 1: just Tawny created in dred Scott which is not there,
Speaker 1: which was to deny it to blacks.
Speaker 3: So that's what the rule did.
Speaker 1: Then the common law is really important because the fourteenth
Speaker 1: I haven't codified whatever it was all those states had
Speaker 1: been doing.
Speaker 3: You need to figure out what that is.
Speaker 1: And that's why we go back to the revolutionary period.
Speaker 6: But even the birth uh now I should say I
Speaker 6: I don't have any really considered opinions on this. So
Speaker 6: this is why you're so unsweet for podcasting.
Speaker 1: People don't listen to your philm millnos go, I don't
Speaker 1: know what to think. I don't have a view. I'm
Speaker 1: gonna give you both sides of the view because I'm
Speaker 1: mister wishy. Was she just drive down the middle of
Speaker 1: the road and hit me.
Speaker 6: I think my sins are now forgetting yeah, yeah, yeah,
Speaker 6: So look, the even if citizenship is connected to birth
Speaker 6: to being born on the territory in the country, doesn't
Speaker 6: it presume that you're born of of citizens, Like I
Speaker 6: think this conversation that we're having about Madison is that, well,
Speaker 6: because you you are, you're born here, your citizenship is
Speaker 6: through your parents who are citizens.
Speaker 1: Your citizenship is because you're just in the place, territory
Speaker 1: and the flag of the United States.
Speaker 8: Like why Actually, the doesn't because anywhere, Because consent as
Speaker 8: an operative principle means that you the individual, consent to
Speaker 8: be part of the regime, but also the regime, the
Speaker 8: existing people of the regime consent to you being there.
Speaker 6: Well, how a child can't consent, so the consent is
Speaker 6: to his parents, But the consent on the part of
Speaker 6: the community is that, well, your parents, we've accepted your parents,
Speaker 6: and therefore we except for individual.
Speaker 1: Like you have to the commedian has to consent. Every
Speaker 1: the consent is through the Constitution. I mean, two thirds
Speaker 1: of the Congress and three quarters of the states consented
Speaker 1: to the birthplace rule. That's why I don't when you
Speaker 1: guys say this consent thing, I don't understand it.
Speaker 3: Because the nation created, what.
Speaker 1: Did we consent to that every body born on the
Speaker 1: territory of the United States.
Speaker 4: But it specifically says in the legislative debates that it
Speaker 4: doesn't say everybody. It has all. It doesn't say everybody.
Speaker 3: It's all persons born.
Speaker 1: I mean, I don't have it in front of me,
Speaker 1: but all persons born or naturalized on in the United States.
Speaker 3: And this is subject to the jurisdiction thereof.
Speaker 4: And so what does that mean?
Speaker 1: But already the background norm is birthplace in all the cases,
Speaker 1: So take out subject that we can talk about who's
Speaker 1: in that category. But outside of that category, it's birthplace
Speaker 1: regardless of parental citizenship. Like even you guys don't think
Speaker 1: that it's consent for everybody, right, Like if if you're
Speaker 1: born on the units, if you're just born in the
Speaker 1: United States and you don't fall into the exception, you
Speaker 1: agree that you're a citizen automatically or do you think, like,
Speaker 1: like you could be born so you could be Steve
Speaker 1: Hayward from a.
Speaker 3: Long line of America born in the United.
Speaker 1: States, and you're saying that when he turns whatever eighteen,
Speaker 1: we're going to have an evaluation where society decides to
Speaker 1: kick Steve out.
Speaker 4: From a theoretical point of view, know, but you mean
Speaker 4: from a theoretical no. No, From a theoretical point of view,
Speaker 4: when he turns eighteen, he makes a decision to consent
Speaker 4: or not to get.
Speaker 1: What he's saying is society also gets this, of course,
Speaker 1: and then so we could decide to kick Steve and
Speaker 1: every American out.
Speaker 4: That he probably wouldn't.
Speaker 3: No, no, but it doesn't he probably you're saying it
Speaker 3: could happen.
Speaker 4: What I'm trying to say is that it is up
Speaker 4: to the society to make those rules that determine who
Speaker 4: is and who is not going to be part of
Speaker 4: the body politic, which is what you're saying. I get it.
Speaker 3: It's a constitutional amendment.
Speaker 4: But the constitutional amendment itself has some very specific an
Speaker 4: exception in it. Yes, and what are those exceptions?
Speaker 1: I'm saying, No, you have to agree. If you're not,
Speaker 1: this is really quite radical.
Speaker 4: But the exception is what matters.
Speaker 1: But I want to know, what do you think is
Speaker 1: the rule outside of the exception? Right, it's the rule,
Speaker 1: and it's just an exception. Is a tiny part of
Speaker 1: the rule. The rule, I assume you agree, is if
Speaker 1: you were born on the territory of the United States,
Speaker 1: you don't fall into the exceptions of subject to the
Speaker 1: jurisdiction thereof, you are automatically a citizen, so it is
Speaker 1: birthplace without regard to the citizenship of your parents is
Speaker 1: the base.
Speaker 6: I don't know what the subject of the jurisdiction thereof
Speaker 6: is right, because.
Speaker 3: You're then we can explore what that means.
Speaker 1: But what is the basic rule that applies to most cases?
Speaker 1: See your theory consent means that actually, right, you could
Speaker 1: deny citizenship to anyone in the country.
Speaker 3: When they turn eighteen. No society a.
Speaker 6: Matter of justice, though a child who is born of
Speaker 6: citizens becomes a citizen matter of justice because justice it
Speaker 6: would be you're for the same reason as you're pointing to. Like,
Speaker 6: if we evaluated Steve when he turned eighteen, you.
Speaker 1: Know, and have a panel, probably might be a divide
Speaker 1: a panel, but surely.
Speaker 3: The majority would kick him ass. Kick his ass back
Speaker 3: to Sweden wherever his family is from. Yeah, I think
Speaker 3: that's where is your family from. I'm Steve, all right, Yeah,
Speaker 3: I again, we can all agree.
Speaker 4: I'll concede the point so that we can move on.
Speaker 4: But what what what actually is really important is the
Speaker 4: inclusion of subject to the jurisdiction. And I would like
Speaker 4: to bring up my favorite justice my least favorite. But Katenji,
Speaker 4: who you know, this week, really showed herself. You know
Speaker 4: that she was really pretty much idiotic all week long
Speaker 4: because Jasmine Crockett came out this morning or yesterday and
Speaker 4: praised her because of course she's a black woman and
Speaker 4: she's brilliant and everything she says is brilliant. And that's
Speaker 4: why everybody's making fun of her because they just because
Speaker 4: they can't stand a black woman to be brilliant.
Speaker 5: But here's a lot just I mean, what's the case
Speaker 5: earlier in the week that was eight to.
Speaker 3: One, where.
Speaker 4: About whether or not Colorado's law outlawed h.
Speaker 5: I don't care about the vision.
Speaker 2: What was interesting there is Justice Kagan and sodam or
Speaker 2: in a footnote attacker for being stupid.
Speaker 4: Yeah, that's the.
Speaker 5: That's the relevant thing to me is even the other
Speaker 5: liberals know she's a moron.
Speaker 4: Yeah babe. So yes, so that was earlier in the week,
Speaker 4: and the things she said are just their nonsense. But okay, yesterday,
Speaker 4: this is an I quote. When the question of subject
Speaker 4: to the jurisdiction, the deeper question is the subject to
Speaker 4: the jurisdiction means to whom do you owe allegiance and
Speaker 4: if you are even if you are born here, if
Speaker 4: you're the child of diplomats, if you're the child of
Speaker 4: an invading army. You know, those were the kinds of
Speaker 4: issues that they were worried about in the eighteen seventies.
Speaker 4: But she says, okay, so the question is allegiance subject
Speaker 4: to the jurisdiction means that you owe allegiance to the
Speaker 4: United States. That's the way the argument's going. This is
Speaker 4: her comment. I was thinking, I a US citizen and
Speaker 4: visiting Japan, and what it means is that if I
Speaker 4: steal someone's wallet in Japan, the Japanese authorities can arrest
Speaker 4: me and prosecute me. It's allegiance, meaning they can control
Speaker 4: you as a matter of law.
Speaker 1: Okay, that's not right. I'm not defending that.
Speaker 7: I know.
Speaker 2: I know.
Speaker 1: Plus, if you were in Japan and you stole a wallet,
Speaker 1: you would have to commit Harry Kari right there.
Speaker 4: Yeah exactly. So, all right, on one last topic before
Speaker 4: we have to close the day out, Steve's going to
Speaker 4: take this over and he's going to give Phil a
Speaker 4: really not really a hard time about his pace.
Speaker 3: It's a great piece in the.
Speaker 4: Claremont Review Books called Ancient and Modern how Straussians interpret
Speaker 4: the Founding?
Speaker 2: Take it away, ste Well, we're a short of time
Speaker 2: to do a complete treatment, So simple question.
Speaker 5: I think it all turns on one.
Speaker 2: Uh, the way you phrase it is an Aristilian lock,
Speaker 2: or as I call it, lack of Stotle. So can
Speaker 2: you explain in just a few sentences or maybe a
Speaker 2: few more, what do you mean by what's the lack
Speaker 2: of Stotle?
Speaker 3: Proposition? Yeah? Well that no, not in a few sentences
Speaker 3: or even a few more.
Speaker 6: The essay came out in the double issue of the
Speaker 6: Claremont Review of Books, and it's actually about how Straussians
Speaker 6: and students of strauss have studied the Founding, including Harry Jaffas.
Speaker 6: So when the three of us had to study, opportunity
Speaker 6: to study from?
Speaker 3: And who? Who?
Speaker 6: John still doesn't understand despite all the never medial education
Speaker 6: that's been provided to him.
Speaker 3: That's because there's no essay t test on. Why would
Speaker 3: I study?
Speaker 5: No, Phil?
Speaker 2: I mean, I mean, this is like the best four
Speaker 2: page treatment I've ever seen.
Speaker 3: I mean, really, I do yeah, really, Oh I might read.
Speaker 1: Pages, but it's also got big pictures, so it's really two.
Speaker 3: Pages wait, wait, I know I read this.
Speaker 1: I already forgot about it.
Speaker 6: I was one of the last undergraduate students of Harry Jaffa.
Speaker 6: He read my undergraduate thesis. He had been forced to
Speaker 6: retire by then. So Harry Jaffa was a big influence
Speaker 6: on intellectual influence on my life. And I went back
Speaker 6: and I reread Crisis of the House Divided is the
Speaker 6: book that made him famous. I think it's a wonderful
Speaker 6: book on the Lincoln Douglas debates. And when I went
Speaker 6: back and reread this, this is when he was still alive,
Speaker 6: and there was a I think the fiftieth anniversary on
Speaker 6: the publication of Crisis, so we all met in Clairemont
Speaker 6: to talk about it with Jaffa himself. And I went
Speaker 6: back and read it, and I thought, Harry Jaffa is
Speaker 6: the founder of East Coast Strausians.
Speaker 5: Now that's a funny proposition.
Speaker 3: Yeah, that jumped out of it.
Speaker 1: And what that means I would a listener know what
Speaker 1: East Coast versus?
Speaker 2: Oh, and by the way, is there a Midwestern school
Speaker 2: of Strausianism. I just bring it up to mess with
Speaker 2: John's head, because right.
Speaker 6: Yeah, there is, I think, but East Coast so Jaffa, the.
Speaker 1: Way listeners in each of those schools is about two people.
Speaker 1: Because there's only about ten of them left, then they're
Speaker 1: shrinking rapidly.
Speaker 6: Jaffa in Crisis said about natural rights and about locks
Speaker 6: teaching on natural rights that natural rights effectively are hobbsy
Speaker 6: and means you can do anything you want right. This
Speaker 6: is the one thing John, you understands from the history
Speaker 6: of political thought. You can do anything you want if
Speaker 6: you have a right. And Jaffa's later position, so that's
Speaker 6: the East Coast Straussian that rights or natural rights is
Speaker 6: really just a way of saying self preservation, which means
Speaker 6: there's no morality that guides rights. To really make it
Speaker 6: very simple, Jaffa's later position was, so was no natural
Speaker 6: rights are we have natural rights because are part of
Speaker 6: the natural law. The natural law is the law of reason.
Speaker 6: And so your right to free speech, for example, is
Speaker 6: a right to say things that are reasonable that doesn't
Speaker 6: include libel. There are natural limits on natural rights. Natural
Speaker 6: rights are a moral concept in moral laws governed the
Speaker 6: proper exercise of natural rights. You could say, that's the
Speaker 6: later Jaffa. And to answer your question, Jaffas said, the
Speaker 6: invention of natural rights that are part of the natural
Speaker 6: law is the best way to have sound politics in
Speaker 6: the modern world after the advent of Christianity and the
Speaker 6: Protestant Reformation. That the idea Aristotle's idea of the just
Speaker 6: regime is that the polus exists to make men citizens,
Speaker 6: doers of noble deeds.
Speaker 3: Right.
Speaker 6: But Christianity says, the highest ends or highest good of
Speaker 6: an individual is beyond is the next life, does not
Speaker 6: belong to this life. So christian Rianity pause, it's an
Speaker 6: authority and an end for human being that's beyond the
Speaker 6: political community. And and so how do we limit the
Speaker 6: political community to its proper ends in light of Christianity Aristotle,
Speaker 6: an Aristotilian approach to politics in Christianity becomes theocratic.
Speaker 2: Uh.
Speaker 6: And then you have the Protestant Reformation. And then if
Speaker 6: you're Catholic, you want to kill the Protestant king. If
Speaker 6: you're presidentt you want to kill the Catholic king. And
Speaker 6: it leads to terrible politics. How do we solve that?
Speaker 1: I want to kill both of them because I'm sitting
Speaker 1: on a guys, you all know, in a podcast with
Speaker 1: monarchists and worshippers of the English Throne.
Speaker 3: You have to put up this abuse.
Speaker 6: Okay, So how do we limit how do we make
Speaker 6: politics more rational? How do we establish the rule of law?
Speaker 6: And jaff has thought an Aristatilian approach to a sound
Speaker 6: political order, where you have the rule of law and
Speaker 6: the rule of laws for the common advantage or the
Speaker 6: common good that modern natural rights doctrine provides the framework
Speaker 6: that will work in the in the Christian world.
Speaker 1: I don't get we've we've talked about this in that time,
Speaker 1: because we're almost at the end of the hour. Is yeah,
Speaker 1: Jeff could say that, you guys could say that, how
Speaker 1: do you know your right correct? I mean, I could
Speaker 1: construct all kinds of interesting castles have fought about philosophy.
Speaker 1: But why is your count anymore correct than John Rawls's
Speaker 1: account or oh Marx's account?
Speaker 6: Well, I think I mean you, I mean so well,
Speaker 6: I don't know that proof is the right standard.
Speaker 3: What is right? But sounds good.
Speaker 1: It gives me a warm, fuzzy feeling that we had
Speaker 1: West Coast inside now No.
Speaker 3: No.
Speaker 6: The fact that I mean, take simple things, the fact
Speaker 6: that start with the fact that people want to come
Speaker 6: live here. Why do they want to live here because
Speaker 6: they can find opportunities to work, they can raise their kids,
Speaker 6: and the religious tradition that is theirs.
Speaker 3: I think John Rawls said autonomy.
Speaker 6: But that Catholics and Catholics and Protestants and Jews have
Speaker 6: found a way to live together peacefully as fellow citizens.
Speaker 6: So these are criteria that even you, John could understand.
Speaker 8: Pieces so that would be his starting But it's not
Speaker 8: just you know, this is.
Speaker 3: Great wealth and national strength.
Speaker 2: John is just being mischievous because now that you have
Speaker 2: launched a torpedo at his essential Hobbsianism, he's throwing rolls
Speaker 2: back at us just to be annoying because we only
Speaker 2: have a couple of minutes left.
Speaker 3: Very clever, John, but you're not fooling anybody. It's Turtles
Speaker 3: all the way down.
Speaker 2: If you know the story Turtles.
Speaker 4: You can overstate the importance of the fact that the
Speaker 4: United States is the first regime ever in the history
Speaker 4: of the world that was able to solve that problem
Speaker 4: with theological political problem, the how do you have your laws?
Speaker 4: How do you get the authority of a lawmaker without
Speaker 4: a god that sanctions it? Because it never it had
Speaker 4: never been done.
Speaker 3: What about the British Empire?
Speaker 4: Have you heard of the Church of England. John, Seriously,
Speaker 4: it doesn't matter.
Speaker 3: We're gonna have to have the laws of England really
Speaker 3: come from God. We're going to come from the common law.
Speaker 3: We're gonna have to.
Speaker 2: Have you back for a sober discussion at length the
Speaker 2: theological political problem.
Speaker 1: Without John's volunteer there, I willingly see my place. I
Speaker 1: do want to have a great three hour podcast episode.
Speaker 4: I just want to say that that what what Phil
Speaker 4: just said about why people want to come here, I
Speaker 4: don't think that you can. It is possible. It is
Speaker 4: It is not possible to overstate the importance of that
Speaker 4: separation of politics from theology, or from theological rule or
Speaker 4: theocratic rule. I guess it is the better way to
Speaker 4: put it. Uh. It has provided for the most prosperity,
Speaker 4: the most freedom you do have. I think I won't
Speaker 4: even name the religion, but religions who come here, they
Speaker 4: don't come here to take advantage of our freedom of religion.
Speaker 4: They come here to try to destroy what is that
Speaker 4: amazing feat of in all of human history. One of
Speaker 4: the most amazing things ever done is that ability to
Speaker 4: have the freedom of religion and no theocratic rule.
Speaker 1: You're making my favorite arguments consequentialist arguments.
Speaker 3: These are all the results. You asked, how do you
Speaker 3: know all this?
Speaker 1: But how do you know Jeff's account of this is
Speaker 1: the true cause?
Speaker 4: Long story?
Speaker 3: Yeah, and you do this. I just ask for a
Speaker 3: proof of evidence. What's so bad about that?
Speaker 4: Just the facts, man, Jeffa.
Speaker 1: It's just like in your dialogue a nineteen fifties TV show.
Speaker 4: It's just the facts, just pointed out. Jaffa himself spent
Speaker 4: many years trying to understand the whole issue completely, and
Speaker 4: he really, you know, Oh.
Speaker 3: He's lucky I wasn't in his class. He would have
Speaker 3: given up much earlier than he did.
Speaker 4: I doubt it. All right, enough of you guys, I'm
Speaker 4: going to read some Babylon bees.
Speaker 3: Oh, I got it.
Speaker 4: You can't say two just in compelling argument for birthright citizenship,
Speaker 4: Justice Jackson eats entire stick of glue.
Speaker 1: One more is coming around to me now.
Speaker 4: To Tingy, how can a law be unconstitutionally if I
Speaker 4: don't if I like it? And all right? One one more?
Speaker 4: Chicago bulls offer to reinstate Jade and Ivy if he
Speaker 4: will do some cocaine and beat a few women.
Speaker 5: Scamble. You don't know about John, what are your gaps?
Speaker 1: So always drink your whiskey, Neat, buy more books and Steve.
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Speaker 2: They're perfectly good hour listening to the three Whiskey Happy
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Speaker 2: And the bumper music is chosen by me with the
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