Speaker 1: Well, whiskey, come and take my pain moneys all right,
Speaker 1: oh whiskey. Why think alone when you can drink it
Speaker 1: all In with Ricochet's three Whiskey Happy Hour, join your bartenders,
Speaker 1: Steve Hayward, John U and the International Woman of Mystery Lucretia, Where.
Speaker 2: The lapped it up and David, ain't you easy on
Speaker 2: the should have you got to give me?
Speaker 1: And let that whiskey flow? Welcome to the three Whiskey
Speaker 1: Happy Hour, where the whiskey is always neat, almost as
Speaker 1: neat as the opinions of the three hosts. Starting with me,
Speaker 1: Steve Hayward, your host of this week, along with the
Speaker 1: ever positive positivist John You and the international woman of
Speaker 1: Less and Less Mystery every Day, Lucretia.
Speaker 3: So come on, I say, got lots of mystery left.
Speaker 3: And you know what I want you to know that
Speaker 3: on the version of this podcast last week that I
Speaker 3: put up on something else X, I think it was
Speaker 3: I got taken into account because I put the picture
Speaker 3: of the Sidney Sweeney. You forgot to put up the
Speaker 3: Sydney Sweeney and me as it merged, oh yeah right,
Speaker 3: and you know she did actually have the gun pointed
Speaker 3: like this and I got in trouble for posting a
Speaker 3: picture with such horrible gun management.
Speaker 1: Yeah, and by the way, you have your your academic
Speaker 1: name up on the the the I.
Speaker 3: Changed it, not today, mystery, I did before the start.
Speaker 1: Well it's it's still, says professor, changing it.
Speaker 3: Okay, everybody knows who I am.
Speaker 1: Well, okay. Our opening questions, as usual preempted by Lucretia,
Speaker 1: is they are? How and what? Which is? How are
Speaker 1: you doing? And what are you drinking? John? I saw
Speaker 1: you pour something? What are you drinking? Oh?
Speaker 2: I was always was always waiting to actually start to
Speaker 2: show before I poured it. So you can hear me
Speaker 2: right in the bottom right, although now that's on video,
Speaker 2: I don't know if this really matters anymore. And then
Speaker 2: pour it out. So this is a wild turkey rare
Speaker 2: breed barrel proof rye right with a ungodly high percentage
Speaker 2: of alcohol.
Speaker 1: Oh what does that mean? Very very high?
Speaker 2: And actually I think I've already gone blind in the
Speaker 2: service of drinking this and without glasses.
Speaker 1: Well that since Lucretia and I think you have a
Speaker 1: certain blindness to natural law. But that's we'll leave that
Speaker 1: for Christ's sake.
Speaker 3: You too, exactly. I didn't say it. Don't give up.
Speaker 3: He's trying to. He's trying to compete with Richard Samuelson.
Speaker 2: One hundred and twelve proof. Okay, that's that's pretty high
Speaker 2: for a rye.
Speaker 1: That's about the same as the kill Karen kill Kearny
Speaker 1: that I was drinking last week. I'm doing this my
Speaker 1: lettle like ten this week because it's been busy last
Speaker 1: couple of days and I've been running around and I
Speaker 1: didn't want to.
Speaker 3: About the bottle, but I'm drinking the the orphan barrel
Speaker 3: and it's one twenty proof.
Speaker 2: Oh god, worel Yeah, what does that mean?
Speaker 3: It means that it's a it's a distillery that finds
Speaker 3: these orphan barrels of Scottish whiskey that and makes it,
Speaker 3: puts them together. I don't know that anyway. It's like
Speaker 3: a very few of them made, and this one's actually
Speaker 3: just really nice.
Speaker 1: So yeah, all right, so we have three or four
Speaker 1: topics to try and get through.
Speaker 3: But I'm also sorry, sorry, Steve. I'm also still having
Speaker 3: my famous grouse chocolate with blitz too. You know how
Speaker 3: I'm about chocolate.
Speaker 1: Well, I did see a science magazine, not science, some
Speaker 1: Scientific magazine this week saying that dark chocolate apparently has
Speaker 1: just got amazing health benefits.
Speaker 2: Oh yeah, uh, that's really good for you.
Speaker 3: Yeah, it has flavonoids and any occidants and I don't
Speaker 3: know about the famous grouse in the middle, but yeah dark.
Speaker 1: All right, before we get to our three fourth subject,
Speaker 1: we'll try and say something sensible about a brief announcement.
Speaker 1: The three Whiskey Happy Hour is calling for you a
Speaker 1: complete and total shutdown of Tucker Carlson until we can
Speaker 1: figure out what the hell is going on. I'll just
Speaker 1: say that for the record, and we don't need to
Speaker 1: waste any time on that. But it just gets worse
Speaker 1: and worse.
Speaker 2: Way why now versus last week or the week before, Well, he.
Speaker 1: Just keeps, you know, he's he was in a Doah
Speaker 1: cutter this week, and he has a video out here
Speaker 1: in the last twenty four or thirty six hours spent
Speaker 1: you asking questions about the killing of Charlie Kirk, and
Speaker 1: it's all a very veiled and weird Yeah, and I
Speaker 1: think there's well, you know, I didn't mean to do this.
Speaker 1: I mean I was mostly just telling that as a joke.
Speaker 1: But Tucker said, what that he was he woke up
Speaker 1: with demons had invaded his bedroom, and I'm starting to
Speaker 1: think maybe he's right about the.
Speaker 2: Lucky guy.
Speaker 1: Well, I don't know. It's uh, it's uh, you know,
Speaker 1: he needs an exorcism or something. But all right, let's
Speaker 1: go on a serious business though. So Item one, there
Speaker 1: was quite an extraordinary moment I think in the Supreme
Speaker 1: Court on Monday, in the argument in the wonderfully titled
Speaker 1: case Trump versus Slaughter. I mean, I mean, that's.
Speaker 3: What mc gribbs, Steve, I'm sorry I did.
Speaker 1: Ribs. Well, we're gonna do that at the end. All right,
Speaker 1: what about mcgribbs coming from We're coming to that. John,
Speaker 1: Don't worry. So first of.
Speaker 2: All, I'm actually excited about what you're going to say.
Speaker 1: Well, I'm not going to say. I'm not going to
Speaker 1: say it in this segment. Hey, listeners, you can see
Speaker 1: how much trouble I have running the show with these
Speaker 1: two unruly co hosts I have. Okay, First of all,
Speaker 1: what happened was is Lucretia's favorite Justice Katanji Brown Jackson
Speaker 1: led the mask slip. Can I just say, by the way,
Speaker 1: I think I shared this with you guys and but
Speaker 1: not with listeners. The New York Review of Books, the
Speaker 1: latest issue, in a totally banana's article about wokery that
Speaker 1: I won't go into, has the following sentence. This is
Speaker 1: a direct quote Katanji Brown Jackson. Uh, I can't read
Speaker 1: my writing. Ah, sorry, Katanji Brown Jackson is proving to
Speaker 1: be the sharpest justice on the Supreme Court.
Speaker 2: It's just insane.
Speaker 1: It's that insane. Well, I told you the whole article
Speaker 1: is bananas. But the reason I bring this up is
Speaker 1: extraordinary moment. Well, I want to I want to do this.
Speaker 1: Give me, give me forty five seconds of latitude to
Speaker 1: set this up properly, because it guilds the point. You know,
Speaker 1: it happens frequently that I'll read something a leftist says
Speaker 1: about conservatives. I mean I leftis intellectual or journalists, and
Speaker 1: it's always always inaccurate, usually distorted, usually incomplete. And it
Speaker 1: reminds me of the great comment by the Caltech physicist
Speaker 1: Richard Feynman, who was listening to some guy make no
Speaker 1: sense one time, and he said, well, that's not right,
Speaker 1: that's so stupid, it's not even wrong. And so the
Speaker 1: point is is that when I read leftist thinkers, you know,
Speaker 1: serious ones or supposedly serious ones. And right now I'm
Speaker 1: writing a very dense article on postmodernist linguistics, mostly to
Speaker 1: annoy Lucretia. But the point I, yes, you do, I
Speaker 1: will thank you. The point is is that I always
Speaker 1: want to make sure I understand them accurately, and that
Speaker 1: I'm not making up a straw man to knock over right, uh,
Speaker 1: and so on progressive ism, Katanji Brown Jackson. So I
Speaker 1: worry about you know, we clare monsters talk about the
Speaker 1: progressive era, progressive thought and Woodrow Wilson and all those guys,
Speaker 1: and once sometimes say I wonder if they really believe
Speaker 1: what we say they thought, and what the meaning of
Speaker 1: their principles are. And so Keatanji Brown Jackson. In the
Speaker 1: middle of the argument, let's fly by the way for
Speaker 1: listeners who haven't followed this. This is the case about
Speaker 1: whether Trump should have the authority as president to fire
Speaker 1: appointees to all the independent agencies and so forth, of
Speaker 1: which we now have a million of them. Right, So
Speaker 1: what you say here, here's what she said. Some issues,
Speaker 1: quoting Justice Jackson. Some issues, some matters, some areas should
Speaker 1: be handled in this way by nonpartisan experts that Congress
Speaker 1: is saying have the expertise that matters with respects to
Speaker 1: aspects of the economy and transportation. So having presidents come
Speaker 1: in and fire all the scientists and the doctors and
Speaker 1: the economists and the PhDs and replacing them with loyalists
Speaker 1: and people who don't know anything is actually not in
Speaker 1: the best interest of the United States. These issues she
Speaker 1: thought should not be within presidential control. So right, Okay,
Speaker 1: So the point is she wasn't making a legal argument
Speaker 1: point number one. That's a very important point. But she
Speaker 1: just confirmed everything we have been saying for decades now
Speaker 1: about progressives thinking we should be governed by experts, sealed
Speaker 1: off from the consent of the governed or from political accountability.
Speaker 1: Because her last sentence, I skipped a bunch, is we
Speaker 1: don't want the president controlling She said, well who should
Speaker 1: control them?
Speaker 3: Then PhDs and the elite.
Speaker 1: Right, Yeah, your comment, Lucretia, you go first on this.
Speaker 3: I'm actually gonna say that you saw a lot of
Speaker 3: backlash on that comment, probably because she said it said
Speaker 3: the part out loud that we're not really supposed to say,
Speaker 3: we're all supposed to believe that, But because it sounds
Speaker 3: so incredibly stupid when somebody says the whole thing out
Speaker 3: loud like she did, in part because of what we
Speaker 3: suffered through with COVID right not to mention all, you know,
Speaker 3: the fact that we're thirty eight trillion dollars in debt
Speaker 3: because all of these experts and elites have figured out
Speaker 3: that we're gonna cure POW and we're gonna do all
Speaker 3: these things that none of them have been able to
Speaker 3: do with their elite expertise and their fancy Ivy League degrees.
Speaker 3: The point of the matter is it is, in fact
Speaker 3: a very frank statement of what progressives believe. And I
Speaker 3: will go one step further and just throw this out
Speaker 3: there for John who has such a great respect for
Speaker 3: what he thinks is the moral philosophy of things like
Speaker 3: separation of powers. The reason that separation of powers needs
Speaker 3: a natural law foundation is exactly what Katangie has to
Speaker 3: say about it, which is, if either you turn to
Speaker 3: a fundamental view of human nature that says, you know what,
Speaker 3: it doesn't matter how smart they are, it does you
Speaker 3: knowed to be Isaac Newton. Doesn't matter how many degrees
Speaker 3: they are, they are still capable of being rotten, horrible tyrants.
Speaker 3: And the separation of powers is there not because separation
Speaker 3: of powers in and of itself is something good, good
Speaker 3: that stands on its own. It's because the understanding of
Speaker 3: human nature tells us human beings can't be trusted with power,
Speaker 3: and that doesn't change just because somebody has a stupid
Speaker 3: ass PhD. And in fact, it makes it worse.
Speaker 1: Well, before I call you, John, let me sort of
Speaker 1: add this modification, not modification, but additional thought, which is
Speaker 1: again to try and understand them as they understood themselves
Speaker 1: one hundred years ago when they brought out these theories.
Speaker 1: Maybe it was plausible to think sincerely that you know,
Speaker 1: the revolution and science and social science made it possible
Speaker 1: for greater human control over human affairs. And so one
Speaker 1: of my favorite statements from you know, more than a
Speaker 1: hundred years ago now was John Burgess, who was a
Speaker 1: very famous political science one of Woodrow Wilson's teachers and
Speaker 1: later colleague, and he wrote a passage I don't have handy,
Speaker 1: but I'm going to put it up on our substack,
Speaker 1: and he said, you know, we need to have these experts.
Speaker 1: It's because it'll be so much better than hack politicians
Speaker 1: and appointees, and they will be no more ideological in
Speaker 1: their functions than judges are today after the war, court
Speaker 1: Revolution and all the rest of that. You just laugh
Speaker 1: at this, not to mention the utter failure of expertise.
Speaker 1: I mean, how could Jackson say something that stupid after
Speaker 1: we've been through COVID, climate change, all the things I believe,
Speaker 1: I know they do, But it's yeah, okay, anyway, John,
Speaker 1: give us your two or five or ten cents.
Speaker 2: Yeah. So I don't want to be a defender of
Speaker 2: Tangi Brown Jackson. I will say that. Spending all my
Speaker 2: time with progressives as I do at Berkeley, they I
Speaker 2: don't think anybody there would think what she said was
Speaker 2: remotely controversial. It's not on the left you're saying, yeah, no, yeah,
Speaker 2: I mean they say things like this all the time.
Speaker 2: It's more I think that conservatives are surprised to hear
Speaker 2: liberals say this, But they say it all the times
Speaker 2: in all the journals, the workshops, the classes. So it's
Speaker 2: not the surprising to me that they say that. When
Speaker 2: I argue with people about the Trump administration and try
Speaker 2: to explain what he's doing, and they say things like,
Speaker 2: but he would let people who aren't experts make scientific decisions.
Speaker 2: I mean, this is a great outrage to them. So
Speaker 2: that's one second point though, which Linda raised, which I
Speaker 2: think really interesting topic, is whether I'm trying to understand
Speaker 2: it properly. So are you saying that natural law requires
Speaker 2: that we have a separation of powers?
Speaker 1: See?
Speaker 2: To me, it's just an instrument. I mean, Lucretia was teasing,
Speaker 2: but it's true. I do believe this, that the separation
Speaker 2: of powers is an instrument, and you know, we should
Speaker 2: have it depending on whether it works or not, you know,
Speaker 2: whether it's successful or effective. It's not clear to me
Speaker 2: that it would work in other countries. It's not clear
Speaker 2: to me necessarily it's the only form of government that
Speaker 2: would work in the United States. You know, a lot
Speaker 2: of other countries have parliamentary democracy, which has no separation
Speaker 2: of powers at all the time that we accept. But
Speaker 2: it seems to be British government seems to work pretty well.
Speaker 1: I don't.
Speaker 2: I think their folks are not their government. It's not
Speaker 2: their only as their government. I think it's the people
Speaker 2: have bad policy preferences, so that I want it to
Speaker 2: be clear whether that's clear. You think that government must
Speaker 2: have it.
Speaker 3: You have it backwards. You have it exactly backwards. John.
Speaker 3: As a matter of fact, they do agree with you
Speaker 3: that it's not necessarily separation of powers which allows a
Speaker 3: government or prevents a government from becoming tyrannical. You know,
Speaker 3: that's Madison's view. The when all the powers of government
Speaker 3: are joined the same hands, set of hands, it's the
Speaker 3: very definitieve definition of tyranny. And you know, when I
Speaker 3: explain that to students, the idea is very simple. I
Speaker 3: usually use this as an example. John, You'll like it.
Speaker 3: I will say I'm the tyrant in this class because
Speaker 3: I am the legislator, I made the syllabus.
Speaker 2: I am well, you know, we have three branches here
Speaker 2: on the podcast, but you're the tyrant here too.
Speaker 1: System didn't work here on the podcast.
Speaker 3: But my point is, you know that. And so I'll
Speaker 3: say something like, and I'm the executive, I execute the class,
Speaker 3: and then I'm the judge. I'm the one that gives
Speaker 3: a grade. And if what if, say, for instance, the
Speaker 3: day before the finals due, I've finished grading everything up
Speaker 3: to that point, and I say, God, you guys are
Speaker 3: just a bunch of stupid idiots who didn't do any
Speaker 3: of your homework, who didn't study, who didn't do the readings,
Speaker 3: didn't pay attention to class. And you know what, if
Speaker 3: you want to pass this class, I want a fifty
Speaker 3: page paper tomorrow instead of the final or you will
Speaker 3: fail now. And you could see they're like, but the
Speaker 3: point of the matter is, you know that's not gonna happen.
Speaker 3: The Dean's gonna step in and something I said, but
Speaker 3: what if there's no dean, Because I'll ask them what
Speaker 3: would you do in that case. Some of them will
Speaker 3: turn it in, some of them will not turn it
Speaker 3: in and take the out. Some of them will go
Speaker 3: to the dean, and I'll say, but you know, remember government,
Speaker 3: there's no dean, there's no senior administrator that you go
Speaker 3: to when you say the government's wrong. If all of
Speaker 3: the powers of government are in the same hands, and
Speaker 3: then I'll usually do something like you know the case
Speaker 3: in priest Lake, the Sacket's case, and explain, yeah, that's
Speaker 3: exactly what happened to these people. That's the whole point
Speaker 3: of it. Here's the point, though, John, you said that,
Speaker 3: how did you put it? Separation of powers demands natural
Speaker 3: law or something along. No, the point of the matter
Speaker 3: is understand human nature. And if you set up a
Speaker 3: government with sufficient powers, as Madison said, to control the
Speaker 3: government the governed, you have to oblige it to control itself.
Speaker 3: In our system of government, without an aristocracy, without a monarchy,
Speaker 3: without some sort of other kind of balance of powers,
Speaker 3: separation of powers and checks and balances. Is what does that?
Speaker 3: And it is a follow through from understanding human nature.
Speaker 3: It is not nature. Human nature demands it. It's it
Speaker 3: however you put it.
Speaker 2: And so is so it's because it's a it's effective.
Speaker 2: It's not sort of a priori effective and whatever. I
Speaker 2: think your view is that there should be a limited government,
Speaker 2: and so it's effective because it produces limited government, and
Speaker 2: you want to have limited government.
Speaker 3: But why why limited government?
Speaker 2: So that's the question to me, it's a question of effectiveness.
Speaker 2: So you can say because limited government it is because
Speaker 2: limited government could be good or it could be bad.
Speaker 2: It depends on the society.
Speaker 1: Well like.
Speaker 2: Sorry finished Johnhead, Well, so was you know one problem
Speaker 2: with you know, they say with Latin American kind trees
Speaker 2: is that the governments were too weak there initially, and
Speaker 2: so then they collapse into a kind of dictatorship autocracy.
Speaker 2: Because the government's too limited. It can't do the things
Speaker 2: that are are the articles of confederation are too limited.
Speaker 2: So it can't be the case that limited government by
Speaker 2: itself is right. I didn't say the answer has to
Speaker 2: be a certain kind of government for each country, and I.
Speaker 3: Said, was a government strong enough to control the governed,
Speaker 3: and next place oblige it to control itself. And that's
Speaker 3: where Why do you care about that? Because of natural
Speaker 3: rights needing protection? Why do you care about that? Why
Speaker 3: do they need protection? Because human nature needs to be
Speaker 3: understood in a certain way. It's human beings are capable
Speaker 3: of good, they're capable of virtue, but it's unreliable. So
Speaker 3: what do you do about that unreliability? You need something.
Speaker 3: You first need a government powerful enough to control the
Speaker 3: government so that they don't take away each other's rights.
Speaker 3: And then you need a government ways to limit the government,
Speaker 3: not just because we like limited government for its own sake,
Speaker 3: but because we want individual freedom and autonomy to the
Speaker 3: greatest extent possible. We don't want a tyrannical government. And
Speaker 3: a government can be tyrannical if it's not protecting the
Speaker 3: rights of citizens. I would argue that that fat p O. S. Pritzker,
Speaker 3: governor in Chicago or Illinois, is as a tyrant. He
Speaker 3: is an absolute tyrant.
Speaker 1: Well he's sorry, Go ahead, yeah, go ahead, Steve, make
Speaker 1: a joke about well, he's a waddling argument for separation
Speaker 1: of lipids.
Speaker 2: At least Olympics Olympics.
Speaker 1: But let me make that, Let me make let me
Speaker 1: make four quick observations to press us along to a
Speaker 1: related matter that'll sharpeness, I hope. So first of all, John,
Speaker 1: you know, Andrew Roberts and some other British friends of ours,
Speaker 1: they actually make an interesting case. It's hard to understand
Speaker 1: that they kind of do have a separation of powers
Speaker 1: in British parliamentary government. It's I was skipping for today though,
Speaker 1: because I'm it's very hard to make out. But second
Speaker 1: point is, you know, separation of powers was new really
Speaker 1: with Montesque. He's the first theorist who really right.
Speaker 2: There was no empirical proof that it would work at
Speaker 2: the time they told it.
Speaker 1: But you know, I think it was John Adams, who
Speaker 1: wrote what a four volume treatise on constitutionalism, who said
Speaker 1: Montesque was the one great innovation of democratic theorizing, republican
Speaker 1: theorizing of that era.
Speaker 3: Uh.
Speaker 1: And that's remember Montesque is the most frequently cited person
Speaker 1: in the Federal's papers, not lock. Lock's is not mentioned
Speaker 1: at all. And remember that point three. Woodrow Wilson what
Speaker 1: he hated most about the old the Old Constitution was
Speaker 1: separation of powers. Right, he said, you know, we need
Speaker 1: a Darwinian constitution that gives us a living constitution. Right.
Speaker 1: But then then jump all the way forward to today.
Speaker 1: The subtext, and I think Catangie Brown Jackson's point makes
Speaker 1: us very clear the subtext is and again hear you say, oh,
Speaker 1: aren't you you know, setting up a straw man. But
Speaker 1: I thought this actually ever since Tom Bethill started writing
Speaker 1: about this forty years ago in the American Spectator really
Speaker 1: interesting journalists who I got to know pretty well, is
Speaker 1: that for the that sort of expert class in the
Speaker 1: bureaucracy and their allies at academia, elections are a nuisance, right,
Speaker 1: I mean, you know you want to ignore elections, right,
Speaker 1: and then they're.
Speaker 2: At and Wilson basically says that too.
Speaker 1: Yeah, and this is why the Trump challenge is an
Speaker 1: existential threat to them in all the right ways. I mean,
Speaker 1: I'm for this existential threat right. But that brings me
Speaker 1: an item number two, which is a related question for
Speaker 1: you John to say.
Speaker 2: Wait, this is item two out of four. Well, he
Speaker 2: said he's going to be quick.
Speaker 3: To be here for a year.
Speaker 1: Of course, not We're not going to make it at
Speaker 1: number four. I mean I will see what number three.
Speaker 1: So somewhere along the line this week, and I've been
Speaker 1: busy running around, I didn't grasp a hold of it.
Speaker 1: That doesn't matter because someone said, well, boy, this is
Speaker 1: really if the Court decides as we think it will,
Speaker 1: to overturn humphrees and grant prompt the power to dismiss
Speaker 1: appointees from the independent agencies and elsewhere and the commissions
Speaker 1: and so forth, this is really going to supercharge the
Speaker 1: Unitary Executive. So, first of all, for listeners who haven't
Speaker 1: been with this long were forgotten, will you please just
Speaker 1: give us a short primer on what is meant by
Speaker 1: the Unitary Executive. And since I think it's fair to
Speaker 1: say you are one of the premier advocates of the
Speaker 1: Unitary Executive, why that's a good thing.
Speaker 2: Okay, But first I want to respond to Linda. Okay, no,
Speaker 2: I'm just kidding, but I do want to respond to Linda,
Speaker 2: but maybe we'll do it in writing or chords. No, No,
Speaker 2: it is a very interesting question. I think about a
Speaker 2: lot and teach about. You know, I taught the Separation
Speaker 2: of Powers. I teach it every other year, and I
Speaker 2: teach federalism in the off years, and so I always
Speaker 2: start the class with why do we have it? How
Speaker 2: do you evaluate that it works, whether it should And
Speaker 2: you know a lot of people want to dispense with both,
Speaker 2: including the Supreme Court for many decades. So what's the justification?
Speaker 2: So the unitary executive theory is pretty simple. I think
Speaker 2: it actually is the view that the Constitution sets up
Speaker 2: three branches, and each branch has assigned to it one
Speaker 2: of the three powers from Montesque separation of Powers, and
Speaker 2: the legislative power goes to the Congress, and the judicial
Speaker 2: power goes to the judiciary, and the executive power goes
Speaker 2: to the president. And so the unitary executive idea is
Speaker 2: that if the government is acting in a way that
Speaker 2: we classify as executive power, then it must go to
Speaker 2: the president under Article two. Then a corollary, that is,
Speaker 2: and everyone who works within the executive branch is a
Speaker 2: subordinate of the president because the Constitution only puts the
Speaker 2: duty of the executive branch in the president as an individual.
Speaker 2: It doesn't say the executive branch shall enforce the law,
Speaker 2: or the executive branch shall protect national security or be
Speaker 2: the commander in chief. It says the president shall. And
Speaker 2: so you could say the case of the removal power
Speaker 2: is an ancillary question about how the work out those
Speaker 2: principles and practice if the basic principles are true. And
Speaker 2: this is not something Trump made up, This is not
Speaker 2: something antonin Scalia made up. This is how Hamilton and
Speaker 2: Madison read the Constitution in its very first year.
Speaker 3: It has to be the case in the Federalist papers.
Speaker 2: Yes, and it's mentioned in the Federals papers.
Speaker 1: Yeah.
Speaker 2: I mean, the idea is that the president has to
Speaker 2: be able to fire people in the executive branch because
Speaker 2: otherwise there's no way to force them to carry out
Speaker 2: his orders. And if they don't carry out his orders,
Speaker 2: say this slaughter person on the FTC is saying, I
Speaker 2: want to break up the Netflix merger with Discovery Warner whatever,
Speaker 2: Warner Discovery. Even though President Trump believes the best enforcing
Speaker 2: of the law, enforcement of the law is to allow
Speaker 2: it to go forward, then you have people in the
Speaker 2: executive branch who are undermining his ability to take care
Speaker 2: that the laws are faithfully executed. So the removal power
Speaker 2: is not mentioned in the Constitution, but it's inferred as
Speaker 2: has to be present because otherwise the president could not
Speaker 2: actually perform as constitutional duties.
Speaker 1: So can I interrupt with the question about that, John,
Speaker 1: as I recall vaguely, and I know you will recall precisely.
Speaker 1: Wasn't there some controversy under President Washington in the seventeen
Speaker 1: nineties about whether a president to fire a cabinet member without.
Speaker 2: Yeah, yeah, there's two actually, so there's two controversies in
Speaker 2: the Washington administration that get resolved in favor of the
Speaker 2: unitary executive theory.
Speaker 1: Okay.
Speaker 2: One was when they passed the very first law creating
Speaker 2: the four you know, not the four the three major
Speaker 2: cabinet agencies, Treasury, State.
Speaker 1: And War.
Speaker 2: Right, some people in Congress try to insert something in
Speaker 2: the legislation saying that the president could not fire. Yeah,
Speaker 2: with that, And actually Madison and Hamilton, both from their
Speaker 2: different purchase, led the fight to have those stripped out.
Speaker 2: And so those statutes aren't because they thought it was unconstitutional.
Speaker 1: And then the second one.
Speaker 2: The full flowering actually of the unitary executive idea then
Speaker 2: comes on the second big Washington administration controversy, which is
Speaker 2: over the neutrality proclamation and the president decided to be
Speaker 2: neutral in the French Revolution. Constitution doesn't say who gets
Speaker 2: a set foreign policy, and Hamilton made the argument because
Speaker 2: the executive power is vested in the president, foreign affairs
Speaker 2: is executive by nature over historic, and he looks at
Speaker 2: British constitutional history therefore it must be presidential. So unless
Speaker 2: it's specifically taken away from him by constitutional text, that's
Speaker 2: the same large one that's Scalia makes and the Independent
Speaker 2: Council Statute.
Speaker 3: The one thing I would argue that is missing, I think,
Speaker 3: or just kind of glossed over maybe is a better
Speaker 3: way to put it, John, And that is the question
Speaker 3: of accountability or what Hamilton calls a due responsibility. He
Speaker 3: says that what is it that gives if we decide
Speaker 3: to give the president executive, a single person, the executive power.
Speaker 3: They get energy, they get dispatch and all those other things.
Speaker 3: But isn't that dangerous? And he says, it's a due
Speaker 3: dependence on the people and a due responsibility. So how
Speaker 3: do you hold the dumb person from FTC accountable. She
Speaker 3: is not elected. No one on the Federal Trade Commission
Speaker 3: is elected. The only person who is elected is the president.
Speaker 3: And you cannot remember I used my example of that
Speaker 3: dumb ass Obama all the time, where you know, when
Speaker 3: he was being called out on all of the different
Speaker 3: scandals of his administration, his his you know, the.
Speaker 1: Can I buy him on a specific example it was,
Speaker 1: you know, it was when the National Labor Relations Board
Speaker 1: tried to stop Boeing Aircraft from building their new seven
Speaker 1: eighty seven in non union South Carolina, clearly a stopping unions.
Speaker 1: And some people pressed Obama and says, oh, I had
Speaker 1: nothing to do with that. That's the NLRB. There was
Speaker 1: independent agents.
Speaker 3: Read about in the newspapers.
Speaker 2: Right, yes, I think so, I would just say, Linda's
Speaker 2: Linda's you know the argument.
Speaker 3: Whatever.
Speaker 2: See, this is the problem of dual executive. When the
Speaker 2: tyrants splits into two, it's very hard to keep them sitting.
Speaker 2: It was responsible so that, you know, so Lucretia's argument
Speaker 2: is actually what most of the focus was in the
Speaker 2: oral argument in the Supreme Court, because the major argument
Speaker 2: that today's justices favor more I think than the energy
Speaker 2: and the executive which was barely mentioned or you know,
Speaker 2: Hamilton's theory about the executive power in its text. Instead,
Speaker 2: they placed a lot of importance that these agencies are
Speaker 2: not accountable to anyone elected, and so if they aren't,
Speaker 2: there's no way for us as voters to hold the
Speaker 2: policy makers accountable. That's what I said, was the main justification.
Speaker 3: That's what they want.
Speaker 2: Yeah, yeah, they're very open about it.
Speaker 3: Yeah.
Speaker 2: I mean at the time and today, I mean, Katangie
Speaker 2: Brown Jackson is not saying something out loud that they're
Speaker 2: trying to keep secret. She just thinks she's in the
Speaker 2: faculty lounge, you know, chit chatting.
Speaker 3: But I you know, I think you're right, absolutely right,
Speaker 3: and we hear it especially. But I'm not sure that
Speaker 3: the average American no in any way influenced by the
Speaker 3: idea that, oh, you should let these decisions be made
Speaker 3: by the people who really know because they went to
Speaker 3: college and they went and they got graduate degrees and
Speaker 3: economics or whatever it might be. That works for the
Speaker 3: people that the three of us consort with most of
Speaker 3: the time. But I think that's the reason it got
Speaker 3: a lot of play, why it seemed like it was
Speaker 3: such a crazy thing for her to.
Speaker 2: I think that's true. Yeah, you couldn't campaign for office
Speaker 2: saying things like that these days because it's fundamentally anti democratic.
Speaker 3: It is. But you know what a lot of those
Speaker 3: senators picking on picking on our friend Jay Badachario, but
Speaker 3: especially picking on RFK Junior. What you know, it's he's
Speaker 3: not a doctor, He's not he's not a whatever it
Speaker 3: was Fauci was, I forget some dumb thing. But you know,
Speaker 3: but they're actually making those arguments. Know that, so elected
Speaker 3: officials think that probably nobody's watching congressional hearings in their right.
Speaker 3: But that's their complaint is that he's ignoring able to look.
Speaker 2: The other problem with what she said, Tangi Brown Jackson
Speaker 2: has said is that no one in the exit Jacky
Speaker 2: Branch says we can't have PhDs. It's just that the
Speaker 2: people who ultimately make the decisions get advice from these people.
Speaker 2: That you can have experts, but they're not the final
Speaker 2: decision maker. And she made it sound as if the
Speaker 2: whole point of this is to drive all expertise out
Speaker 2: of the government, which is I mean, that's just silly.
Speaker 3: Yeah, but I'm sure that's that might actually be the
Speaker 3: way she looks at it, because you know Trump. To
Speaker 3: be fair to Trump, not all of his high level
Speaker 3: appointees are the usual Washington circle of I actually don't
Speaker 3: want to see this because I don't want to insult you. John.
Speaker 3: I don't believe you fall into this category. But it's
Speaker 3: not the U well A circle of Ivy league. You know,
Speaker 3: fraternity boys and who went to the same prep schools
Speaker 3: and so on, and they just you know, circle around.
Speaker 2: Now, now I'm an elitist, don't I don't apologize for that.
Speaker 2: I well, as I always say, what's the alternative? Is
Speaker 2: governed by the masses. Well, now, rather be an elitist
Speaker 2: two points democratic, just like Hamilton and the founders were.
Speaker 1: Yeah, there are two quick points about that. Just to
Speaker 1: twist Lucreatia's tail. Is Buckley used to be asked, are
Speaker 1: you well, never mind, I won't. I won't jump to
Speaker 1: that bait. I'll try, okay. Bill Buckley used to be
Speaker 1: asked are you an elitist? Who said, oh, yes, of course,
Speaker 1: I'm an elitist. You know, when I have to go
Speaker 1: in for brain surgery, I definitely want an elitist doctor.
Speaker 1: And then the other thing is specifically to you, John Is.
Speaker 1: One of my favorite racing stories is when he's assembling
Speaker 1: his first cabinet and they settle on Drew Lewis to
Speaker 1: be Transportation Secretary, and Edie says to him, yeah, but
Speaker 1: he went to Harvard. And Reagan's answer West, well, we
Speaker 1: won't hold that against him. Go ahead and make the
Speaker 1: appointment against you, John.
Speaker 3: Sorry. I one more point on this that I know
Speaker 3: you guys will agree with. I want a brains you know,
Speaker 3: a Harvard educated or JOHNS Hopkins educated, probably thirty years ago,
Speaker 3: a surgeon to do my brain surgery. I don't want
Speaker 3: a democratically elected brain surgeon, for sure. The problem is
Speaker 3: the rest of the progressive project has also undermined the
Speaker 3: possibility of merit being the defining quality of our elites.
Speaker 3: That ended with John.
Speaker 2: That's very true.
Speaker 3: I think John was the last elite who got there.
Speaker 2: No progressive there's no progressive. Progressive asm works in part
Speaker 2: if you have actually subject matter experts advising the government.
Speaker 2: But right, if the progressives believe the things that are
Speaker 2: best in life to advance these DEI projects, then I'm
Speaker 2: it undermines their very theory of why you give experts powers.
Speaker 1: To probably not last observations because I never get in
Speaker 1: the last word. But first of all, what was I
Speaker 1: gonna say about that one is that Trump's cabinet has
Speaker 1: an interesting mix of people with I think superb expertise.
Speaker 1: Of course, my favorite is my good friend Chris Wright,
Speaker 1: you know, has an advanced degree in nuclear physics from
Speaker 1: MIT and has his head on straight right. And I
Speaker 1: think Scott Bessant is a terrific Treasury secretary. He's not
Speaker 1: an academic, unlike say Larry Summers, who might have been
Speaker 1: actually okay Treasury secretary, which is why the left hates him.
Speaker 1: Okay rfk Junior. I'll just say that's a very interesting
Speaker 1: political appointment and leave it at that and for some
Speaker 1: other day. The other one is what let us remember
Speaker 1: that the problem we're dealing with is not just Katanji
Speaker 1: Brown Jackson believing the progressive kool aid. But let's face it,
Speaker 1: you know, Anthony Fauci was this hero to lots of
Speaker 1: people because a lot of exactly a lot of Americans
Speaker 1: are fools. And the fact that you know he's on
Speaker 1: TV every night, that was the first sign. I mean,
Speaker 1: by the way, I remember that guy from the AIDS
Speaker 1: epidemic in the eighties when he was terrible, and so
Speaker 1: when he showed up during COVID, that guy's still around.
Speaker 1: He's just as bad now as he was then. And
Speaker 1: the fact that he was on all the network news
Speaker 1: shows every night meant to me that he was not
Speaker 1: really doing his job, because I mean, I know, you
Speaker 1: do a lot of this job, but you do it
Speaker 1: for six minutes. He was doing these things every day.
Speaker 1: He was a media person from beginning to end, and
Speaker 1: he wasn't really paying attention to what was going on.
Speaker 1: And their decisions were just as political as any hack
Speaker 1: would have been. And I'd rather have political sure, Well, well, no,
Speaker 1: that's true, Yeah, I get that point. My point is
Speaker 1: I'd rather have a hack making some of those decisions
Speaker 1: than Anthony Fauci.
Speaker 3: That's very okay, Yeah, because it worked for a while.
Speaker 3: What John was saying too, it worked. There were including
Speaker 3: Trump Trump. It probably his biggest steak was listening to
Speaker 3: Deborah Burrs and Anthony Fauci and not listening to Scott Atlas, right.
Speaker 1: Yep, right, yeah, no, I think he knows that, right, Yeah.
Speaker 3: Yeah, he knows that now. But I mean, you have
Speaker 3: to give anybody including Trump, a little bit of leeway
Speaker 3: for thinking, Yes, these are people who have been in
Speaker 3: this particular field for decades and should have lots of
Speaker 3: experience and expertise to bring to the table, and they'll
Speaker 3: do the right thing. That sort of Contangi's argument, right,
Speaker 3: they will do the right thing because of their expertise
Speaker 3: and so forth, and they have been I mean, it's
Speaker 3: been proven how wrong that is in your face with COVID.
Speaker 3: I think it's been proven how wrong that is for decades,
Speaker 3: but COVID made it undeniable.
Speaker 1: Yeah, all right, let's let's move on. We can play
Speaker 1: this lot.
Speaker 3: I didn't get the last word by this, Steve Well,
Speaker 3: so I didn't.
Speaker 1: I didn't have time to really do this way I
Speaker 1: want to. And it's a big, sprawling subject. You guys
Speaker 1: had this wonderful back and forth on our substack on originalism,
Speaker 1: and we got down to you guys, Scott, I say we.
Speaker 1: I had said something about this months ago, but you
Speaker 1: guys got around a tangling about Dred Scott. And there's
Speaker 1: one particular aspect of bred Scott that I thought was
Speaker 1: left out from both of you that I want to
Speaker 1: bring up and see if you can't add on to
Speaker 1: it or sort it out, and we here go on
Speaker 1: for hours on this also. But look, you know, as
Speaker 1: Harry Jaffa pointed out, Justice Tawny's opening statement in that
Speaker 1: opinion is a perfect statement of original intent, right you
Speaker 1: quoted it, Lucretia. It was like, you know, we don't
Speaker 1: want to be changing the opinion of the people who
Speaker 1: drafted the constitution. It would be wrong with us to do.
Speaker 1: And the thing is, though, John, is that I've always
Speaker 1: thought that Justice McLean's dissent gets left out of all
Speaker 1: these discussions. So what Justice McLean said an assent was well,
Speaker 1: wait a minute, you pointed out, John, Sorry, be restarted,
Speaker 1: Which is you pointed out that Lincoln himself said in
Speaker 1: his inaugural address. You know, the Constitution's ambiguous about the
Speaker 1: Privileges and Immunities clause and whether Congress has the power
Speaker 1: or to what extent they have the power to regulate
Speaker 1: slavery in the territories. Okay, that's sort of true in
Speaker 1: our very short constitution. But the point is, MacLean said,
Speaker 1: slavery is only sustained by the positive law where it exists.
Speaker 1: And Jaffa's point was a slave could only be a
Speaker 1: slave or a negro could only be a slave under
Speaker 1: positive law, but not under natural law. Okay, The point
Speaker 1: I'm making is it ought to have not been difficult
Speaker 1: for justice to say the negro is a person. We
Speaker 1: know what a person is. The power of Congress over
Speaker 1: the territories ought to extend to not extending the positive
Speaker 1: law of Alabama to the whole country, to all the territories. Right,
Speaker 1: I'm not stating this very well, but that's the point.
Speaker 1: And instead what Tawny does, this is the crucial point.
Speaker 1: And I'll shut up and let you guys go at it.
Speaker 1: Who's the point is? Is that Tawny said, Yeah, that
Speaker 1: Declaration of Independence thing, sure all men would include on
Speaker 1: the surface, you know, negroes and slaves, but they really
Speaker 1: couldn't have meant it. I mean, we just know they
Speaker 1: couldn't have meant it. And so that's why we can't
Speaker 1: possibly apply that principle to this matter in front of us.
Speaker 1: It's that sleight of hand that he does it I
Speaker 1: think makes possible the wrongness of that decision. And if
Speaker 1: you would simply say the opposite, you know, the Declaration
Speaker 1: of Independence means, you know, as Lincoln argued in response
Speaker 1: to the dread Scott case that in fact, this is
Speaker 1: a maxim to be approximated, and this case before us
Speaker 1: presents an opportunity to approximate it in the right direction.
Speaker 1: That's what Justine stephen Field would have said if he
Speaker 1: who Lincoln appointed later? Right?
Speaker 2: Does that make sense?
Speaker 1: You understand the argument I'm making here, John, or.
Speaker 2: Not at all? But let's see it again. I'm just kidding.
Speaker 1: I'm just kidding.
Speaker 2: This is so my So what I understand you to
Speaker 2: be said, So, I think you and the Krestia have
Speaker 2: different views of dread Scott than from what I hear,
Speaker 2: because yeah, so I think what la Cruise argued was
Speaker 2: that dred Scott was correct as a purely originalist opinion
Speaker 2: if it's decided in a moral vacuum where there you know,
Speaker 2: you don't allow the Declaration of Independence to come in. Yeah, well, yeah,
Speaker 2: it's only because I've had a very strong rye and
Speaker 2: you know so, Steve. But Steve, your boy's a little different,
Speaker 2: because I think your point is that, uh right, that's uh.
Speaker 2: You're not saying that dread Scott is correct as an
Speaker 2: originalist matter. You're saying that dred Scott could well it
Speaker 2: was wrong because it got wrong the relationship between how
Speaker 2: the founders thought about positive law and natural law. But
Speaker 2: I'm not sure it makes a difference in the outcome
Speaker 2: of dread Scott, because right then, dred Scott, the positive
Speaker 2: law was that the states could decide right state by
Speaker 2: state whether to be free your slave, and that Congress
Speaker 2: could eliminate or allow slavery in the territories, as long
Speaker 2: as it passed the law to do it. If it
Speaker 2: had done nothing, then your point is that the natural
Speaker 2: law would have controlled. But I see why Jeff argued this,
Speaker 2: because what he wants to do is to say the
Speaker 2: reason why dread Scott is wrong is because you have
Speaker 2: to agree with him that natural rights and natural law
Speaker 2: are actually in operation. And my view is that dread Scott,
Speaker 2: I mean originalists mostly think dread Scott's incorrect, putting aside
Speaker 2: whether the Declaration of Independence exists or not, because the
Speaker 2: Articles of Confederation in the Northwest Ordinance had already prohibited
Speaker 2: slavery in the territories, and so it was understood. I
Speaker 2: think that Congress had control over the territories and that
Speaker 2: they could create slavery or they could end slavery. There
Speaker 2: and that also at the time of the fact. It's
Speaker 2: very similar to the way Justice Alito does Dabbs. He
Speaker 2: said he looks at the practice right before the Constitution,
Speaker 2: and he looks at the practice right after. And he says,
Speaker 2: if the Constitution really changed things, like did the fourteenth
Speaker 2: Amendment really change state law and their ability to regular abortion,
Speaker 2: you should see after the amendment lots of changes. And
Speaker 2: he says in Bobbs, you don't see states banning abortion,
Speaker 2: I'm sorry, I'm sorry allowing abortions after the fourteenth Amendment.
Speaker 2: So therefore they didn't think the fourteenth Amendment had anything
Speaker 2: to do with abortion. And so my boy would be
Speaker 2: you don't see states changing their view on whether they
Speaker 2: have the right to prohibit slavery or allow it to
Speaker 2: be free or slave. After the Constitution. They don't change
Speaker 2: their attitude on the territories. The Northwest Ordinance is just
Speaker 2: accepted under the new government. So that's my reason why
Speaker 2: I don't think anyone thought at the time of the
Speaker 2: founding that slaveries are preempted positive law. And therefore I
Speaker 2: just think putting aside whether the declaration is law or not,
Speaker 2: you still reach the same outcome. That Tawny was wrong
Speaker 2: in thinking this is the original stage.
Speaker 3: Here's the simple answer. Though it may be the case
Speaker 3: that for the reasons at the time, Congress, in both
Speaker 3: under the Articles and under the new Constitution in the
Speaker 3: Northwest Ordinance, determined that they would they would outlaws slavery
Speaker 3: in those places. However, and that's a where slavery is
Speaker 3: allowed to stay. Is positive law, right. The argument about
Speaker 3: slavery is it is a violation of natural law, and
Speaker 3: slavery exists only as a creature of positive law. So
Speaker 3: Congress decided in seventeen eighty seven not to allow slavery
Speaker 3: and to the territories, for whatever reasons they might have
Speaker 3: decided that. But if circumstances changed, and there is no
Speaker 3: principled basis for saying that slavery should not extend to
Speaker 3: the territories, to the places where it is not, then
Speaker 3: it's perfectly legitimate for the Court to say yes, as
Speaker 3: a matter of fact, if Congress decides, or if we
Speaker 3: decide for our reasons, a better understanding of the Constitution
Speaker 3: now that slavery that to deny a slave owner the
Speaker 3: right to take a slave into a territory is a
Speaker 3: denial of the slave owner's property rights, which is protected
Speaker 3: by the Constitution. And remember Toni's argument was the Constitution
Speaker 3: does in fact give protection to slaves in at least
Speaker 3: three four different areas. The fourth is a little harder
Speaker 3: to explain the whole idea of a republican government. So
Speaker 3: why not say that it's simply a different extension of
Speaker 3: the positive law into the territories. The only argument for
Speaker 3: not extending slavery into the territories is because the slave
Speaker 3: is a person and in the Constitution, and that creates,
Speaker 3: despite the conference demises of the Constitution, that creates a
Speaker 3: property in a person, an impossibility a different category of property.
Speaker 3: That's the only way. That's the only real argument against it.
Speaker 3: Because Douglas tries to make the argument against it very
Speaker 3: much in the way you do, and it doesn't work
Speaker 3: for very long. He wants it to be a nice
Speaker 3: little Kumbaya moment where we can stop fighting about it.
Speaker 3: It's not going to happen.
Speaker 2: Because I'm not sure I understand. I'm sure understand. So
Speaker 2: you're I assume you agree that if Congress wants to
Speaker 2: allow slavery or not allow slavery in the territories, there's
Speaker 2: no constitutional provision that prevents it, and there's no way
Speaker 2: to actualize natural law to override a positive law. Yeah,
Speaker 2: I'm like, I'm not I'm not sure because I'm not
Speaker 2: sure how it but if i'm or maybe effectuat or implements.
Speaker 2: So Congress just passes something one there they say the
Speaker 2: Northwest Ordince, no slavery in the territories, or they pass
Speaker 2: something like the Missouri Compromise slavery and part of the territories.
Speaker 2: There's nothing that can override that.
Speaker 3: Yeah, no, there's nothing that natural law doesn't override it. Yeah,
Speaker 3: the question is what should Congress be considering. I mean,
Speaker 3: if there's no problem at all with slavery, make it
Speaker 3: legal everywhere who cares.
Speaker 2: So this is the other point I'd make is that
Speaker 2: the Constitution does not allow the federal government to And
Speaker 2: this is this is another reason why I think Twani's wrong.
Speaker 2: Is an original matter is people did not think Congress
Speaker 2: itself could ban slavery throughout the country or make the
Speaker 2: whole country free. That's a matter for the states. Yeah, yes,
Speaker 2: so I don't.
Speaker 3: Really left in the states as a compromise.
Speaker 2: Yeah, well, I mean I agree with you if you're
Speaker 2: saying well, the people who have the authority under the
Speaker 2: Constitution to make the decision, which is Congress in the territories.
Speaker 2: They of course can be motivated by natural rights or
Speaker 2: natural law or whatever, when they also be motivated by
Speaker 2: utilitarianism when they make their decision, or the desire for
Speaker 2: a political compromise. But if you're saying that the natural
Speaker 2: law doesn't itself implement somehow through the system as law
Speaker 2: unless Congress passes it, then we actually don't disagree over
Speaker 2: very much, because.
Speaker 3: I just think that's fine for Congress.
Speaker 2: It can be informed by anything.
Speaker 1: Well can I can? I can? I? I mean, we
Speaker 1: can and should resume all this. If I had all
Speaker 1: the time in the world, I would have dust off
Speaker 1: Don Fahrenbacher's epic book on the gred Scott case, which
Speaker 1: really lays out a great history of why the Tawny
Speaker 1: Court was constrained a lot of ways by the lower
Speaker 1: court cases in state and federal district courts up to
Speaker 1: that time. It's a point, well, it kind of is.
Speaker 1: Here's why. Jaffa, by the way, was a huge admirer
Speaker 1: of that book. I went looked up his review of
Speaker 1: it today. He loved just using it Okay, here's here's
Speaker 1: my summary point, which both of you are going to
Speaker 1: quarrel with. I'm sure, which is part of the argument
Speaker 1: here is a legal constitutional one, and part of it
Speaker 1: is a political one. And the dividing line between those two,
Speaker 1: the vital connection between those two, is fuzzy. Let me
Speaker 1: make this proposition, which I think you will agree with.
Speaker 1: Lucretia is part of Lincoln's case is one about the law.
Speaker 1: As a teacher. The Supreme Court is a teacher and
Speaker 1: is taught here like Douglas is I don't care as
Speaker 1: Labies voted up or down is corrupting of the soul
Speaker 1: of the country. That's a political and social point, not
Speaker 1: a legal point. But there are legal points that buttress that,
Speaker 1: and they're reciprocal to each other. Is that I don't disagree.
Speaker 3: That's not the that's not the dispute between John and me,
Speaker 3: and and I think what it is. It takes a
Speaker 3: little as usual, Steve.
Speaker 2: You're like a tangential thing, which with the second barrel
Speaker 2: of a shot, actually she has spare.
Speaker 3: It gets down to the very basic question. Because John
Speaker 3: always wants to say that what I'm trying to do
Speaker 3: is implement natural law. Or that natural law actualizes or anything.
Speaker 3: That's not the point. The question is when you look
Speaker 3: at the provisions of the Constitution as a judge and
Speaker 3: you try to figure out if there's something that's ambiguous,
Speaker 3: the question of whether or not I actually agree with
Speaker 3: you that I think it was very clear that the
Speaker 3: territories had the power and Congress had the power to
Speaker 3: outlaw slavery in the territories. Absolutely, I agree with that. However,
Speaker 3: why does it matter one way or the other. The
Speaker 3: question of why it matters is the question of whether
Speaker 3: or not a slave was a human being, because otherwise
Speaker 3: it's just a policy and it doesn't make very much difference. So,
Speaker 3: if I'm a Supreme Court judge and I'm looking at
Speaker 3: the dread Scott case before me, and despite all the
Speaker 3: things Steve was mentioning about the you know, the intricacies
Speaker 3: of the case, if I'm a Supreme Court justice, what
Speaker 3: am I looking at? Is a slave a mere article
Speaker 3: of property just like a cow or a sheep, or
Speaker 3: is a slave a human being? And therefore a different
Speaker 3: category that requires a different set of a constitutional interpretation
Speaker 3: to be brought to bear. That's the question, That's what
Speaker 3: I'm saying, I'm not saying natural law enforces something on
Speaker 3: the courts that they have to do. And then, like
Speaker 3: you always say, and I'll write about that, you have
Speaker 3: these liberal progressive judges who say I'm implementing natural law.
Speaker 3: I get the fear of that, but that's not That's
Speaker 3: not what I'm saying. And we need to keep debating
Speaker 3: what those natural law principles are and not lose sight
Speaker 3: of them like TANGI has for.
Speaker 1: Instance, and all the addss.
Speaker 3: So seriously, and what you said, Steve actually agreed with
Speaker 3: about the idea of educating people. If we if we
Speaker 3: take a completely utilitarian view of slavery, John, it's really
Speaker 3: hard to argue against it because.
Speaker 2: It's a it's it doesn't work, it's inefficient.
Speaker 1: Wait a minute, I mean, I'm not going to do
Speaker 1: this except to say I've read that book.
Speaker 2: I've read those books.
Speaker 1: The Robert vocal time on the Cross. I well, let's
Speaker 1: not do that.
Speaker 2: Then let's say they look at society.
Speaker 1: I mean, go ahead, let's get out with this.
Speaker 2: Uh uh.
Speaker 1: Actually, I'm just gonna get what I had two things,
Speaker 1: but I don't remember them. Let's let's do this. Let's
Speaker 1: properly end and move to close. But first the very
Speaker 1: brief news item and then to talk about why you
Speaker 1: out to be having a very happy holiday, John. So,
Speaker 1: my news item is late word here Friday is that
Speaker 1: President Trump has reduced to the choice to the next
Speaker 1: chair of the Federal Reserve too, Kevin Hassett and Kevin Warsh.
Speaker 1: And I want to go on records.
Speaker 2: We have to be for Hassett because well, wait a minute,
Speaker 2: I was gonna say I'm going to go on record
Speaker 2: firmly for Kevin.
Speaker 1: No, I've met him both. I know Kevin was my boss,
Speaker 1: and I've met Kevin Warsh several times and they're both dripping.
Speaker 2: Yeah, he's a good guy too, But Hassett's our guy.
Speaker 1: Okay, wasn't I was mostly making a joke and you
Speaker 1: took me.
Speaker 2: I know what you're gonna You're gonna say something. So
Speaker 2: I'm bringing out my my Ammo. This is the best
Speaker 2: speaker's gift I ever received from Lucretia when I spoke
Speaker 2: at the University of Arizona. McDonald's gift cards. McDonald's gift cards.
Speaker 2: Well that's my next come in this very fancy, hard
Speaker 2: to acquire holders. I've been hoarding them for good. So
Speaker 2: I I've used some of it. I took my relatives out.
Speaker 2: You gave me a lot of money on these. I
Speaker 2: took my relatives out to McDonald's but the day before Thanksgiving,
Speaker 2: and they got a lot of stuff and they didn't
Speaker 2: even use one card. But that's also because mcdonald' says,
Speaker 2: we all know such a great deal.
Speaker 1: So listeners, John is showing us all as McDonald's swag.
Speaker 1: I must say, John, you must be having a very
Speaker 1: cooty monster right you must be having a great holiday system.
Speaker 1: McRib is back in circulation right now.
Speaker 3: Except yeah, today in the New York Post. It was
Speaker 3: so great. I thought of you. This is the headline. Okay,
Speaker 3: and it's really stupid when you actually read it, But
Speaker 3: this is the headline. McDonald's fans both hungry and horrified
Speaker 3: after worker exposes how the McRib sandwich is made. Mchel nah.
Speaker 3: That's the headline.
Speaker 2: And then when it.
Speaker 3: Goes in and it says basically what we've known all along.
Speaker 3: It's actually a ground pork formed patty that's fried on
Speaker 3: the grill and then put in the barbecue sauce and
Speaker 3: then reheat.
Speaker 2: You're making me hungry.
Speaker 3: I know, people say, you're making me more hungry. But
Speaker 3: there are actually people and there was this who say
Speaker 3: things like, well I thought it was a real rib.
Speaker 1: Well, no, it's.
Speaker 3: The dumbest thing I've ever read.
Speaker 2: Honestly, What do they think a hamburger is actually a
Speaker 2: slice of a cow?
Speaker 3: A slice of a cow? Yeah, you know, as you
Speaker 3: put it yourself.
Speaker 2: It's just a story from it.
Speaker 1: It is spam. It's like, that's why I like it,
Speaker 1: because I like spam too.
Speaker 3: But here's the other thing is that McDonald says, this
Speaker 3: is what's in it, This is what's actually in the patty.
Speaker 3: I gotta find it. Sorry, it's ground pork on I
Speaker 3: had it round pork, water, salt, a little bit of sugar,
Speaker 3: dextros and rosemary extract. They use pork picnic or pork shoulder.
Speaker 3: Preservatives were removed from the mcgribs seven years ago.
Speaker 1: Pork shoulder is pretty cool. I mean, okay, yeah, I.
Speaker 3: Mean ground pork. I mixed up with ground pork all
Speaker 3: the time. I may.
Speaker 1: Wait, we are we are running along Lucreatius. Give give
Speaker 1: us a true Babylon bees. Yes you can try, just try.
Speaker 3: No, I can't because five Jasmine Crockett hits campaign trail
Speaker 3: to acts for votes. You heard Betty Johnson yesterday act
Speaker 3: I will, I will shorten it a little bit. You
Speaker 3: didn't this one. I got to get out there, didn't
Speaker 3: talk about it. Don't need to. Pope urges Jesus and
Speaker 3: Satan to put all their differences aside in the name
Speaker 3: of peace. Not funny, is it?
Speaker 1: No?
Speaker 3: California family still waiting for permit to gingerbread house. Oh yeah, right,
Speaker 3: finally revealed. This is probably my favorite. Quans are finally
Speaker 3: revealed to be elaborate prank on white people.
Speaker 1: Oh yeah, that's that's actually true, right it is?
Speaker 3: And then the last thing is my favorite op ed.
Speaker 3: You'll appreciate this, guys. What's the use of having a
Speaker 3: Second Amendment if I'm not allowed to drive around the
Speaker 3: neighborhood gunning down Christmas inflatables?
Speaker 2: I like that, you know. I want there to be
Speaker 2: an Asian Christmas holiday because then we would, you know,
Speaker 2: because Asian I don't know whether you white guys argue
Speaker 2: about this a lot. We argue a lot about whether
Speaker 2: to give gifts are cash, because most Asian gifts are
Speaker 2: these little cash and these little red envelopes, which I
Speaker 2: think is an American, but the economists all say you
Speaker 2: should give cash, and a lot of Asian people rather
Speaker 2: give cash. Yeah, I'd like twelve days or someone gives
Speaker 2: me cash every day every day, or McDonald's or McRib yeah,
Speaker 2: or the magic of the mccookie monster gift card.
Speaker 1: Well, now, John, I mean, uh, maybe you don't know
Speaker 1: because you you know, you left Korea when you were
Speaker 1: just a little kid. What is I mean South Korea?
Speaker 1: This is an amazing modern story to skip over. But
Speaker 1: it's a very Christian country. And what's Christmas like in
Speaker 1: South Korea? I don't know.
Speaker 2: Oh, they love Christmas. Actually they love Christmas in Japan too, okay,
Speaker 2: which is not heavily Christian, but they love the gift
Speaker 2: giving and the I mean, you know, I'll tell you
Speaker 2: a funny story. When I was a first year law student,
Speaker 2: we had a Christmas party and I put on the
Speaker 2: Santa costume and just skip Jesus out of all the kids.
Speaker 2: They didn't know Santa was Korean. Yeah, it was very funny. Oh,
Speaker 2: there is a picture, but I think I destroyed it.
Speaker 1: All right, John, say your lines here and we'll get
Speaker 1: to an end here.
Speaker 2: Because always buy more books than I think I heard
Speaker 2: Steve talking about flying to Powell's Books just to buy books.
Speaker 1: Is that? Yeah, I'm doing a Yeah, I am crazy.
Speaker 2: You've heard of this thing called Amazon and the postal service, right,
Speaker 2: But yeah, anyway.
Speaker 1: You discover stuff when you look through the stacks.
Speaker 2: See that's really that's not on their online catalog. Because
Speaker 2: I got a great set of the papers of Alexander
Speaker 2: Hamilton from Powell's Books sitting up there there you go,
Speaker 2: under one thousand dollars. And he wrote a lot, it's
Speaker 2: like thirty volumes.
Speaker 1: Well I did today. I will mention this just to
Speaker 1: annoy Lucretia. I did to Gay get four very thick
Speaker 1: volumes of the letters of T. S. Eliot, which I
Speaker 1: will enjoy. And because pretentious intellectual as Lucretian never tires
Speaker 1: of saying, all right, here's here's this week's a.
Speaker 2: I'd say, And I said, buy more books, and always
Speaker 2: strike your whiskey, meat and meat. And then Steve, what
Speaker 2: latest ai confection do you have? It's not even remotely
Speaker 2: as good as a McRib.
Speaker 1: So I have a news analysis article and the headline
Speaker 1: is John you discovers a new threat to liberty the
Speaker 1: McRib and here's the first couple paragraphs. By now you've
Speaker 1: heard the news. In a stunning act of judicial overreach,
Speaker 1: an activist court has declared to McDonald's McRib sandwich unconstitutional
Speaker 1: and somewhere deep and somewhere deep within the labyrinth of
Speaker 1: the Federal Society email lists, Sir John yu is furiously
Speaker 1: drafting a memo explaining why this is not really wrong,
Speaker 1: but an existential threat to the American way of life. You,
Speaker 1: that's true, best known for his belief that the Constitution
Speaker 1: is less a legal document than a suggestion box, would
Speaker 1: likely begin with.
Speaker 2: You see, I think Steve actually put that in there.
Speaker 2: I don't think that was ai.
Speaker 1: He would likely begin with first principles. The framers, he
Speaker 1: would explain, lived in a time of smoked meats, questionable
Speaker 1: pork products, and limited time only offerings. James Madison himself,
Speaker 1: you will assure us, almost certainly envisioned a robust ex
Speaker 1: executive power to reintroduce seasonal sandwiches without interference on the judiciary.
Speaker 1: The Constitution, you would write, is silent on the McRib and,
Speaker 1: as he has taught us before, silence is not a restraint,
Speaker 1: It is an invitation. Okay, that's enough. I have taught
Speaker 1: Ai so much. All Right, bye guys. Next week we
Speaker 1: might get sunder subject pseudos.
Speaker 2: We might.
Speaker 1: M hm. Ricochet join the conversation.
Speaker 3: H