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Speaker 1: Welcome to The Oath and the Office podcast. I'm John

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Fiegel saying we've got a packed one this week. Redistricting,

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the mass comes off and there's a hood underneath. John

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Roberts and the Dirty six on Leach, a wave of

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rapidly racist jerry mandering, an attack on democracy like we've

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never seen. Not to be outdone, the DOJ has a

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new push to start stripping citizenship, and Trump's attacking his

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own judges. Plus to special guest Cecilia one legal director

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at the ACLU who argued the birthright citizenship case before

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the court. So let's bring in the star of our podcast,

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the author of The Oath and the Office, Professor Corey Bretschneider.

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It's good to see you, sir.

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Speaker 2: Thanks so much, John.

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Speaker 3: I look forward to this every week, and you know,

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this is really an amazing episode, one that speaks to

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the core of why we started this show in the

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first place. Trump's assault on birthright citizenship is attempted to

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reverse the Fourteenth Amendment first section guaranteeing birthright citizenship. You're

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born in the United States, You're a citizen, one of

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his most blatant attacks on the Constitution, and so to

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have an episode in which we're going to be joined

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by the person who argued the case. And it wasn't

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just any argument. It really was a superb argument. You'll hear,

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really how brilliant this person is, Cecilia Wang, this amazing lawyer.

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Speaker 2: So we have a lot to talk about.

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Speaker 3: Of course, the attack on our voting rights, and you

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know what's at stake in birthright citizenship is not just

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about non citizens being denied citizenship, but also the wider

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issue we'll speak to about this idea that the Trump

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administration is actually trying to take away citizenship from those

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who already have it.

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Speaker 1: That is correct, that is part of the goal, and

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we have a lot to unpack, so let's dive into it.

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Speaker 2: Corey.

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Speaker 1: Of course, to nobody surprise, as soon as the Supreme

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Court told the states that they can go ahead and

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jerrymander their districts anyway they want, as long as it's

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not based you know, on color, as long as it's

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not to redress historic and yeah, as long as it's

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not to address historic injustices but just perpetuate new ones

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have at it, and we have seen a feeding frenzy,

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particularly among the former Confederate States, Republican Party is ninety

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percent white. African Americans vote for Democrats about eighty five

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percent minimum, and it seems like Republican in this case

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is really a euphemism for white, so they can hide

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behind partisanship, but the impact is going to be the same.

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Tennessee is a state with a forty percent black population

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and majority black. Memphis hasn't lost the vote, They've just

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lost the power of the vote and any kind of

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representation as that city has been carved into thirds by

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a white supermajority that's now made those votes diluted and

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be minority members of all white districts. So it's tricky

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Cory they you know, some of our liberal friends say, oh,

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they're going back to Jim Crow. This is something more

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insidious and new ones. They haven't stripped them of their votes,

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but they have stripped them of their votes in Congress.

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We're going to see no black congress people from the

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South in either party by the time this is done.

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Are we really still watching isolated voting rights disputes or

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are we witnessing the beginning of a long term minority

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rule system that uses courts and maps and election law

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to dominate.

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Speaker 3: Wow you know, we talked last week about the Louisiana case,

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and we've talked before.

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Speaker 2: About the assault on voting rights.

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Speaker 3: But what we're really seeing this week, really within a

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few days, is why the Supreme Court, when it gives

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a green light to discrimination, people are going to take

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them up on that. And that's really the story of

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this week. So the Supreme Court read the nineteen sixty

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five Voting Rights Act essentially require kind of color blindness.

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Anytime race is taken into account, you have to show

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that it's intentional discrimination that you are fighting against, if

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you're trying to preserve black votes, if you're trying to

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preserve black voting power. And what the Supreme Court is

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really saying is an attempt to preserve black voting power

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and to create districts in which actually black.

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Speaker 2: Representatives will be elected. That that's no good anymore.

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Speaker 3: Even though, now let me just let this sink in.

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In nineteen sixty five, there was a movement, the civil

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rights movement. We know these images. We learned about them.

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Some of us grew up with them, others learned about

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it in school. But people being beaten, in many cases

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near death to try to get enact a very specific law,

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the nineteen sixty five Voting Rights Act, and in fact,

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even radical politics Malcolm X's speech The Ballot or the

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bullet is about how important this law was. People from

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all political vantage points, Moderates, some conservatives who were worried

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about the problem of race, liberals, progressives, and even radicals

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all joined together to push for this legislation. And what

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happened last week was nothing less than really eviscerating it.

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It was about legislation to protect black voting power, that

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recognize that attempts to dilute the black vote in particular

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wouldn't be allowed, and opening ways both through legislation but

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also for legislators who wanted to make good on the

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demands of this law to draw districts in a way

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that would preserve black voting power and that would elect

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black representatives. And the court just ripped into that. It

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left in place restrictions on things like literacy tests, but

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it did a lot to really say no more, we

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really to evsterate this nineteen sixty five Civil Rights Act,

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and in particular Section two.

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Speaker 2: And what's happened as a follow up is that.

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Speaker 3: You know, basically, lawyers used to tell those who wanted

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to draw lines in a way that would dilute black votes.

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You can't do that. There's a law that prevents it.

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And now I think Republican legislators are hearing the opposite.

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Go for it, you're no longer restricted. Just pretend it's

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about party, not about race, and you can do it.

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Speaker 1: That's it. And they are perpetuating an even more racist system,

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possibly the largest rollback of minority representation since reconstruction. And

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they're perpetuating this race through a really diabolically smart way

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by saying racism doesn't exist, it's not racist, we have

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nothing against them. We're just doing this for politics. We're

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not stealing the black vote because we hate black people.

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We're stealing the black vote because we are historically unpopular.

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Gas is so expensive, the Epstein files are not going away,

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and we need to cheat to win an election. So

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we're not rac we're not racist. We're just going to

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put a racist system in place to help us hold

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power at a time that we are historically unpopular. And again,

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we touched on this briefly last week, but look at

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look at this mentality race conscious college admissions to address

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centuries of discrimination. Well, that's illegal. Race conscious voting maps

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to remedy centuries of voter dilution that's illegal, but race

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conscious immigration crackdowns, race conscious policing, race conscious travel bands.

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This court really only seems to think, Professor, that we've

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got to be color blind only at the times when

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race is used to help minorities. And what we've witnessed

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with the Virginia Supreme Court is downright diabolical. These Republican

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governors who have just imposed these just imperially imposed these redistrictings.

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Whereas California and Virginia went to the voters and said,

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Republicans are doing this, we don't want to do it,

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should we do it to save democracy and counter their

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attempts to steal the House? The voters decided, and then

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three white people undid the votes of the majority of

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Virginians and now they're going to try to redistrict and

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rob people of their vote. I mean, how significant was

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the Virginia Supreme Court decision striking down the voter approved

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redistricting system. This isn't really just a legal dispute at

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this point. It's representing courts just overriding democratic self government.

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Speaker 3: Yeah, I mean, you know, one hope was Okay, we've

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eviscerated the nineteen sixty five Voting Right Tact.

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Speaker 2: Maybe we'll leave things to the states.

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Speaker 3: This example shows is no state supreme courts, just like

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the United States Supreme Court can undo decisions of local

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majorities the same way the Supreme Court really.

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Speaker 2: Undid Let's just call it what it is, the decision.

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Speaker 3: Of a national majority to enact that law, the nineteen

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sixty five Voting Rights Act. I do want to, in

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the big picture, come back to something that you said,

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because I want to make sure listeners are following it.

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I mean, it really is the case that now, if

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you want to be involved in diluting black votes and

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making sure there are no black representatives in your state, the.

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Speaker 2: Supreme Court has given you a roadmap.

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Speaker 3: It said, even though that's prevented by the nineteen sixty

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five Civil Rights Act. You can't say it explicitly, but

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just pretend that you're doing partisanship, that you're trying to

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maximize Republican votes and Republican seats, and then we won't

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say anything about it. Now here's the pernicious part. Just

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to expand on your point, if you're trying to rectify

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a current and pass system of discrimination against black voters

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and draw districts in a way to comply with the

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nineteen sixty five Civil Rights Act demand that really non

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discrimination in the vote means respecting black voting power. If

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you're trying to enable black voting power, that's highly suspicious

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and almost certainly unless you can show that you're rectifying

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intentional discrimination, that you have the goods, the kind of

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smoking gun that's very, very hard to get, then I

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don't think so you can't do it. You mentioned the

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travel band. I mean, what a horrible instance. You know,

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Donald Trump in the travel band case said I want

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to complete in total shutdown of Muslim immigration.

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Speaker 2: Into the United States.

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Speaker 3: And then he did a little bit. His lawyers did

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a little bit to try to cover that up. That

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was an example of intentional discrimination. This is just going

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to illustrate how hard it is to show the lawyers

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covered it up.

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Speaker 2: How did they do it?

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Speaker 3: They added North Korea and Venezuela, which are not Muslim

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majority countries. They got rid of the preference for Christian

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over Muslim refugees that was in the first travel ban.

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They took out any marker of intentional discrimination.

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Speaker 2: And unbelievably.

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Speaker 3: The court was like, oh, that's not intentional discrimination, it's

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just by coincidence, relates to that other travel band that

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they're talking about before the election. And one last sentence,

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Trump Trump told us repeatedly, I prefer the first travel band.

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He let us know that the whole thing was a subterfusion,

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and the court still didn't do anything about it.

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Speaker 2: Yeah.

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Speaker 3: In the Virginia case, you know, democracy, we tried to

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resolve the problem through democracy.

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Speaker 2: The people voted, and here came the.

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Speaker 3: Virginia Supreme Court and overrode a process that took millions

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of dollars. Many people were involved in the voters of

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Virginia spoke, and they just undid it. Now, that's a

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different set of issues legally from what's happening at the

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national level, but it's certainly part of the wider story

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of undoing Yeah, guarantees some civil rights and non discrimination

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to vote.

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Speaker 1: And again, you know, they seem to think that this

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isn't racist because they don't have hate in their hearts.

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This is what systemic racism looks like because they've rigged

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it that there's not going to be any black Republicans

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in Congress either, they have rigged it so black people

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will still get to go vote, and maybe those votes

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will count for state and local elections in some areas,

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but in other areas.

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Speaker 2: No.

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Speaker 1: They have found a way to make sure that majority

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black neighborhoods are now minorities in a wider white neighborhood.

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And this is how the system works. They're arguing that

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they're defending constitutional originalism Corey, they're defending judicial restraint. But

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when courts overturn voter approved reforms only after voters approved them,

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that's an important point. They didn't come out and say

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before the referendum, you can't do this. They waited to

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see how the referendum went, and then they came out

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and said, oh, that's what you want. Uh, well, that's wrong.

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I mean, when courts are overturning the will of the

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voters after the voters approved them, how should Americans interpret that? Louisiana,

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they're throwing out votes that have already been cast so

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they can cheat.

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Speaker 2: Yeah.

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Speaker 3: Their argument is that this legislation came too late, The

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process took too long, and some of the people who

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voted thought they were voting under the old scheme, not

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the one that had been voted into Virginia's law, and

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so the Supreme Court struck it down on the grounds

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that you know, this was not There wasn't fairness, there

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wasn't kind of notice that it was retroactive. But the

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bottom line is, you know, in the big picture that

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we have the Supreme Court undoing democracy by really rewriting

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the nineteen sixty five civil rights sacks. So it wouldn't

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be recognizable to anybody at the time. The idea that

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this is somehow based in the text is beyond foolish.

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Speaker 2: You know, people fought not.

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Speaker 3: For white rights, not for worries about discrimination against white

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people in drawing maps, which is essentially what the Supreme

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Court has done, has rewritten it to mean that. And

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then you know, one common thing that you hear from

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conservatives too is well, states rights, states rights.

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Speaker 2: States rights, and used to say that, yeah.

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Speaker 3: The moment that a state engages in a democratic process

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to preserve the vote, the Supreme Court of Virginia steps in,

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and you know, I don't see it used to be

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maybe there would have been recourse under the nineteen sixty

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five civil rightsack that we could have brought this to

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the Supreme Court. I would have said federal law, you know,

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is play here. But what I'm hearing from experts is

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no that Virginia's spoken. The nineteen sixty five Voting Rights

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Act has largely been a viscerated, and this might be

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the end of it.

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Speaker 1: I mean, you're right, they only care about states rights

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when they want to be racist in some way. If

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the state of New York wants to have gun safety laws,

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they don't believe in states rights, then medical cannabis. I mean,

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we've seen so many areas where they don't really care

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about states rights. They care about their own power, and

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they'll believe whatever they have to believe to push that over.

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So everyone's saying, all right, how are these Democrats going

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to fight back? How are we going to save this democracy?

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How hard are they going to play hardball? I mean,

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I heard that Chuck Schumer was so angry he tore

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one of the tassels off of one of his loafers.

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Like that level of rage. We need more than that.

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And there's a lot of ideas floating around, And I

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want to ask you about a very interesting legal theory,

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which is that, okay, if they're going to do this,

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if they're going to throw out the will of the voters. Well,

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under Virginia's constitution, they let the General Assembly set mandatory

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retirement rules for judges. So if Democrats wanted to approach

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this and play it the way Republicans do, you know,

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dirty but legal, they could constitutionally lower the judicial retirement age,

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force these judges out of work, and then appoint all

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new judges and reopen the entire redistricting fight. Again, it's

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dirty as sin, but legally it could work, and the

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amount of rage on Fox News over this idea almost

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makes it worth it. This reminds me of how Fdr

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when three Supreme Court judges were trying to undo the

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new Deal. He didn't really try to pack the court.

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He just threatened to pack the court, and those judges

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back down. I'm all in favor cory of Democrats going

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for this as hard as they can. Whether they do

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it or not, I think people just want to see

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them on the offense and say, all right, if you're

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going to use procedure as a weapon against democracy, we're

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going to try that out too.

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Speaker 3: Well, go back to that, durppoint, it's worth going into

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a bit of history with this. That exactly as you say,

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He never carried it out, but the idea was during

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the New Deal, conservative justices on the Supreme Court, this

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is going to resemble many ways what we're facing now.

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We're looking at democratically passed legislation and not rewriting it

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in the way the Court did with the nineteen sixty

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five Voting Rights Act. They didn't strike it down or

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say it was unconstitutional. They essentially reinterpreted it until it

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meant nothing. But at the time they were more aggressive.

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They said, this is all the New Deal essentially is

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all illegal. It's violating the federal Constitution. There's no power

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in particular of the federal government to enact a new deal. Now,

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America was in the Great Depression and FDR realized that

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this couldn't stand. They couldn't be passing his signature agenda

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with the support of Congress, and here come these unelected

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Supreme Court coming in and striking it down on pretty

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dubious legal theories I think, I mean longstanding, but ones

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that certainly since the New Deal have been abandoned. One

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thing that he did, in addition to arguing in court

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for the constitutionality of his own agenda, was to say, well,

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what if we add justices until the existing justices votes

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are so diluted, and there's nothing illegal in that nothing.

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We've had different numbers of Supreme Court justices at different

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points in time, and so through legislation, you could up

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the number, say to thirty, and keep getting through the

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again the legal process of nomination and confirmation new justices.

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So now, as we're facing this plethora of attacks on

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our democracy, it's looking more and more like the crisis

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of the New Deal.

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Speaker 2: And I'm not underplaying that crisis. It was a real crisis.

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Speaker 3: How FDR didn't have to actually carry it out. Scholars

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disagree about the reasons, but I think one reason why

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the Supreme Court magically changes its mind. In fact, there's

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something called the switch in time that saves nine, where

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all of a sudden, the New Deal goes from being

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struck down to being upheld. Go figure. Partly it was

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about this threat. Partly it was about the power of Congress.

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The justices just couldn't see themselves opposing a democracy in

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this massive sense. So now the question is should we

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do this now too? Should we threaten to if Democrats,

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of course, would have to retake both Congress and.

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Speaker 2: The presidency we add justices. Should we play constitutional hardball?

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This is certainly an example, and I'm affirmed yes.

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Speaker 3: I mean how that's going to play out, whether the

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number is thirty, whether it's doing it, you know, in

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a variety of different ways, using impeachment.

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Speaker 2: There are a lot of legal tools to do this

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that also we.

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Speaker 3: Can talk about it. I've talked about packing the court,

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my colleague. This is the phrase court reform. So I'm okay,

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I'll call it court.

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Speaker 1: Reform whatever I'm need it.

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Speaker 2: And that is a very good analogy of that point

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in history.

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Speaker 1: Yeah, I can't wait to interview and support and donate

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to candidates who are going to really bring the fight

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because they care more about democracy than power. Of course,

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Republican friend.

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Speaker 3: John, you know, during Biden's administration, there were so many opportunities,

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including a moment where this was at least looked into,

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I know, and much to my disappointment, Biden, you know,

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in so many ways, really failed to make the structural

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reforms that we needed to our constants.

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Speaker 1: Because he worshiped norms.

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Speaker 2: Can't be we can't allow it to escape again.

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Speaker 1: He worshiped norms and wanted to be the good guy

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and didn't want to do this sort of thing, which

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is understandable, but you know, I'm old enough to remember,

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because amnesia is the most deadly airborne virus in this country.

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These Republicans decided one time to change the Supreme Court

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from nine to eight for an entire year, just to

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deny a black president an up or down vote on

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his duly appointed Supreme Court nominee. I mean, I remember

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how right after doing that, they rushed Amy Cony Barrett

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through an election, after votes were already cast, before Ruth

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Bader Ginsberg was even cold. Yet, all we're talking about

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is doing the same kind of things that Republicans keep

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doing over and over again, because Republicans don't respect norms

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and they don't respect doing the right thing.

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Speaker 3: Yeah, and for those you know, there are a lot

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of objections, of course to what we're saying, And of.

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Speaker 1: Course there are some of them, but they're not coming

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from but I'm sorry, but those subjections came from people

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who had dick to say when Mitch McConnell decided we

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could have an eight person Supreme Court in a whole

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and that it's.

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Speaker 3: Going to be my point that look, what the objection

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normally says, is this the objection says, Look, if we

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engage in court packing or court reform, whatever you want

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to call it, but constitutional hardball of these different kinds,

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then what's going to happen is that now once Republicans

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are in power, they're going to do the same, and

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there's going to be you know, one hundred members of

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the Supreme Court, or it'll just be a back and forth.

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We're already there, and that moment that you're talking about

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with Merrick Garland's nomination and the refusal to act on

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it was the destruction of the norm And so if

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one group is just destroying the norms and the other

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group is pretending that the norms are still there.

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Speaker 2: I don't think so.

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Speaker 3: It's the same thing with redistricting too that California and

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New York.

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Speaker 2: California has already moved on this. New York needs to

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move really need to yes to reshape votes. I don't

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even want to call it, Jerrymann. It's a way of

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protecting against the destruction of dem Dockers, thank you.

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Speaker 3: What's happened on the other side, it's democratic defense.

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Speaker 1: I mean, Jim Cliburn's seat in South Carolina will disappear.

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They are not going to try to get rid of him.

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He's too popular, so they're just going to make sure

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that the folks who vote for him have votes that

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don't count for anything. Then the Court just allowed Alabama

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to pick a different map for this year's congressional elections,

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totally last minute. Again, Louisiana is throwing out thousands and

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thousands of votes because they don't care and Corey. Tennessee

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forty percent non white, and yet they're trying to dilute

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their representation. How should Americans understand what's happening in Tennessee historically.

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Speaker 3: Well, I think Tennessee, Alabama, where you know, there's an

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attempt to get the Supreme Court to intervene here on

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the basis of the nineteen sixty five Voting Rights Act.

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What we're going to see in a lot of these

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cases is, as there's an attempt to dilute black votes,

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black voting power, there'll be lower courts that intervene in

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the right way based on the old interpretation of the

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nineteen sixty five Civil Rights Act. And I shouldn't say old,

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they should say the right interpretation.

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Speaker 2: Thank you.

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Speaker 3: They will push back on a lot of these attempts

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to destroy districts that ensure black voting power.

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Speaker 2: But here's the problem.

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Speaker 3: The Supreme Court, I'm almost certain, is going to come

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in and say that in almost all these cases you

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failed to show intentional discrimination. The breakup of these districts

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is about partisanship.

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Speaker 2: And that's okay.

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Speaker 3: And that's why this decision matters so much because we're

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seeing on the ground already you mentioned Tennessee and Alabama

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attempts to destroy black voting power. We'll see lower courts

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push back, and then the Supreme Court's going to say,

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did you not read what we did?

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Speaker 2: You know a few days ago? And U that's where

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we are. Okay.

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Speaker 1: We got to take a quick break back in just

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a moment. This is the Oath in the Office. Welcome

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back to the Oath in the Office podcast. I'm John Feugelsang, Corey,

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let's talk about citizenship for just a minute. The DOJ

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is reportedly expanding their efforts to take citizens away from

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some American citizens because they feel like it historically, Corey,

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how rare is de naturalization as a political tool in

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this country.

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Speaker 3: Wow, it really is a tool of authoritarianism to say,

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if we don't like you, we're going to take not

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only you know, potentially violate your rights, but violate what

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the Supreme Court is called the right to have rights,

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the right of citizenship in the first place. And not

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only did the Court in the past rebuke these kind

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of efforts in many cases, there's one where they really

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use that phrase, the right to have rights, which is

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also made famous by the political philosopher Hannah or Rent,

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and it was a case called Trump versus Dulles, where

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the Supreme Court said that it was a violation of

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cruel and unusual punishment the Eighth Amendment to strip away

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as punishment for a crime, the rights of a citizen. Now,

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over time they made an exception for that, which is

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that if you committed fraud in your application.

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Speaker 2: The theory was, well, you never really became a citizen

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in the first place, so if you could.

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Speaker 3: Show fraud in the application process, it was a narrow win,

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but it was not one that was widely used, and

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it was one that the Court made very clear too.

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You can't just use that as your excuse for really

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engaging and stripping the citizenship of your enemies or people

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that you don't like.

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Speaker 2: Yet here we are revisiting this.

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Speaker 3: They're going to try to use this narrow exception, the

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supposed fraud, in order to go after I think a

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lot of naturalized citizens who they consider enemies. They've already

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said in the Khalil case that non citizens have no

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First Amendment rights.

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Speaker 2: Just insane. Yeah, and now they're trying to say you

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don't have a right to citizenship if you were naturalized. Amazing.

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Speaker 1: I mean, I mean, I don't know how to be

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scared about this. Do we need to start viewing citizenship

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not as a constitutional guarantee but something conditional, something revocable.

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I mean, have we crossed that authoritarian line?

477
00:23:46,519 --> 00:23:48,440
Speaker 3: We should view it as anything, but we should view

478
00:23:48,480 --> 00:23:51,200
it as irrevocable. And one of the amazing things and

479
00:23:51,240 --> 00:23:54,119
it's just coming up in a few minutes that Cecilia Wang,

480
00:23:54,160 --> 00:23:58,559
the legal director of the ACLU, has done, is present

481
00:23:58,640 --> 00:24:02,599
a beautiful argument for the Constitution as clear as day

482
00:24:02,759 --> 00:24:05,000
says if you're born in the United States, you're a citizen.

483
00:24:05,359 --> 00:24:07,960
So that's step one is pushing back there. Now we

484
00:24:08,039 --> 00:24:10,240
have to recognize there are multiple fronts. This is the

485
00:24:10,279 --> 00:24:13,079
second front that they've opened up against the right to

486
00:24:13,079 --> 00:24:15,279
be a citizen. And here we've got to say too,

487
00:24:15,480 --> 00:24:18,759
using this really important case Trout versus Dulles, one of

488
00:24:18,799 --> 00:24:20,720
the most important I think when it comes to our

489
00:24:20,839 --> 00:24:21,920
rights as citizens, the.

490
00:24:21,880 --> 00:24:24,079
Speaker 2: Idea that we have a right to have rights, that.

491
00:24:24,039 --> 00:24:26,880
Speaker 3: Citizenship can't be stripped away as punishment for.

492
00:24:26,839 --> 00:24:28,680
Speaker 2: A crime, and we've got to insist on that.

493
00:24:28,759 --> 00:24:31,119
Speaker 3: We've got to do it through litigation, and we've got

494
00:24:31,119 --> 00:24:33,799
to do it I think through legislation. These are among

495
00:24:33,880 --> 00:24:36,599
the laws that need to be passed if Democrats ever

496
00:24:36,640 --> 00:24:38,720
retake the Congress and the presidency.

497
00:24:39,000 --> 00:24:42,519
Speaker 1: Yeah, it's pretty terrifying. I thought we had safeguards against

498
00:24:42,519 --> 00:24:45,640
this sort of thing. Do you think they'll be successful, Corey,

499
00:24:45,759 --> 00:24:49,279
I mean, do you think they'll just tell people you're

500
00:24:49,319 --> 00:24:50,480
not one of us anymore?

501
00:24:51,599 --> 00:24:53,960
Speaker 3: Well, I think the first test is, and we're about

502
00:24:54,000 --> 00:24:56,599
to talk about it, the birthright citizenship case.

503
00:24:56,799 --> 00:24:59,640
Speaker 2: And I was really hardened to listen to that case.

504
00:25:00,079 --> 00:25:03,680
Speaker 3: Here the justices defend the Constitution, and I think this

505
00:25:03,720 --> 00:25:05,839
is as clear here too, that you can't just take

506
00:25:05,880 --> 00:25:07,759
away somebody's citizenship because.

507
00:25:07,519 --> 00:25:08,480
Speaker 2: You don't agree with them.

508
00:25:08,720 --> 00:25:11,240
Speaker 3: Now, they're going to look for cases in the beginning

509
00:25:11,519 --> 00:25:13,839
in which there might really be fraud, and in those

510
00:25:13,880 --> 00:25:16,559
cases I think the administration, even though their motive is not,

511
00:25:16,759 --> 00:25:18,680
you know, just to combat fraud, they might get away

512
00:25:18,720 --> 00:25:20,839
with them. But as they go deeper, that's where the

513
00:25:20,880 --> 00:25:24,079
pushback will have to happen. And as with birthright citizenship,

514
00:25:24,079 --> 00:25:26,079
they're going to try, certainly to take away all of

515
00:25:26,119 --> 00:25:30,000
our rights. They're trying to destroy democracy. The administration Trump

516
00:25:30,119 --> 00:25:32,680
is and that's what it's about, and we'll fight back

517
00:25:32,680 --> 00:25:33,559
as hard as we can.

518
00:25:33,880 --> 00:25:35,880
Speaker 1: God we live in the only country on earth to

519
00:25:35,880 --> 00:25:40,680
produce white trash oligarchs. We're also seeing Trump publicly attack

520
00:25:41,039 --> 00:25:45,240
his own hires, Amy Cony Barrett and Neil Gorsich after

521
00:25:45,359 --> 00:25:48,319
rulings he disliked. When I say his hires, I mean,

522
00:25:48,400 --> 00:25:50,599
you know, the Federal of Society handing him a piece

523
00:25:50,599 --> 00:25:52,960
of paper saying this is who you like. But Corey,

524
00:25:53,000 --> 00:25:56,200
how unusual is it for a president to pressure justices

525
00:25:56,279 --> 00:26:01,039
from his own ideological cult in such per terms, so

526
00:26:01,240 --> 00:26:05,039
nakedly and publicly. I mean, I think I maybe heard

527
00:26:05,160 --> 00:26:07,519
George Bush Senior complain about suitor once.

528
00:26:07,599 --> 00:26:11,880
Speaker 3: Maybe Well, it shows you how little he understands about

529
00:26:11,880 --> 00:26:14,200
how the Constitution is supposed to work. He thinks that

530
00:26:14,240 --> 00:26:17,400
he appointed his judges and they're supposed to say this

531
00:26:17,519 --> 00:26:19,880
guy is great, the same way that the sick advance

532
00:26:19,960 --> 00:26:21,799
like Stephen Miller around him say every.

533
00:26:21,680 --> 00:26:23,440
Speaker 2: Day, and they're not saying that.

534
00:26:23,759 --> 00:26:26,359
Speaker 3: They are I think approving too much of his agenda

535
00:26:26,599 --> 00:26:28,759
through the shadow docket, which we've talked about.

536
00:26:28,559 --> 00:26:29,799
Speaker 2: And will continue to talk about.

537
00:26:30,119 --> 00:26:32,039
Speaker 3: But what he just saw at the Supreme Court and

538
00:26:32,119 --> 00:26:35,519
he walked out mid argument, was these justices essentially saying

539
00:26:35,559 --> 00:26:36,160
you can't do that.

540
00:26:36,200 --> 00:26:37,200
Speaker 2: What are you talking about?

541
00:26:37,799 --> 00:26:40,240
Speaker 3: The fourteenth Amendment says if you're born in the United States,

542
00:26:40,279 --> 00:26:41,920
you're a citizen, full stop.

543
00:26:42,279 --> 00:26:44,920
Speaker 2: And I think that really he can't quite understand it.

544
00:26:44,960 --> 00:26:47,640
Speaker 3: If you're an authoritarian, the idea that you were people,

545
00:26:47,720 --> 00:26:49,680
you were judges, and you know, even the way he

546
00:26:49,720 --> 00:26:52,039
talks about them, Neil and Amy, you know, these are

547
00:26:52,079 --> 00:26:56,319
supposed to be my people, that they're pushing back. It

548
00:26:56,359 --> 00:26:59,079
shows you how little he understands about this system. When

549
00:26:59,119 --> 00:27:00,839
you and I met I wrote a piece for Politico

550
00:27:00,960 --> 00:27:03,799
called Trump Versus the Constitution of guys right, and this

551
00:27:03,880 --> 00:27:06,519
is the latest iteration of Trump versus the Constitution.

552
00:27:06,960 --> 00:27:09,559
Speaker 1: I mean, how much do you think about all these struggles,

553
00:27:10,039 --> 00:27:13,279
all these constitutional conflicts, How much is it really ultimately

554
00:27:13,319 --> 00:27:18,319
about pluralistic democracy itself. Who gets representation, who gets citizenship,

555
00:27:18,319 --> 00:27:22,839
whose votes count equally? Because these guys seem to despise

556
00:27:22,960 --> 00:27:26,440
the concepts of democracy while pretending to love it, and

557
00:27:26,559 --> 00:27:28,880
much the way they despise the teachings of the New

558
00:27:28,880 --> 00:27:30,640
Testament while pretending they love it.

559
00:27:31,160 --> 00:27:33,440
Speaker 3: Well, I think that really is when we talk about

560
00:27:33,440 --> 00:27:36,039
defending democracy, what you and I mean, we should use

561
00:27:36,079 --> 00:27:40,440
the phrase explicitly is multi racial democracy, multi ethnic democracy,

562
00:27:40,640 --> 00:27:45,000
pluralistic democracy. When Trump talks about democracy means a democracy

563
00:27:45,039 --> 00:27:48,039
where the white people are in charge. And you see

564
00:27:48,039 --> 00:27:51,519
that in so many of his animous, hatred based policies.

565
00:27:51,559 --> 00:27:54,640
The travel band we mentioned earlier, and the clearest example

566
00:27:54,720 --> 00:27:57,400
is trying to revoke one of the places where the

567
00:27:57,799 --> 00:28:01,759
Congress couldn't have been clearer in its fourteenth Amendment that

568
00:28:01,799 --> 00:28:03,440
if you were born in the United States, you are

569
00:28:03,480 --> 00:28:05,759
a citizen. It wasn't just a reversal of the dread

570
00:28:05,759 --> 00:28:09,160
Scott case that said black Americans are not citizens in

571
00:28:09,200 --> 00:28:12,279
our constitution, They're not even legal persons. It was meant

572
00:28:12,319 --> 00:28:16,400
to create a much broader multiracial democracy, and one that

573
00:28:17,240 --> 00:28:19,000
means what it says when it says, if you're born

574
00:28:19,000 --> 00:28:20,960
in the United States, full stop, you're a citizen. We're

575
00:28:21,039 --> 00:28:24,440
going to apply a test of parentage of race, and

576
00:28:24,599 --> 00:28:27,039
this president's trying to destroy it. That's why we're going

577
00:28:27,079 --> 00:28:29,519
to focus on this case in such depth today.

578
00:28:29,759 --> 00:28:32,079
Speaker 1: Well, I'm excited for this guest. Let's take a quick break.

579
00:28:32,119 --> 00:28:33,759
We'll be back in a moment on the Oath in

580
00:28:33,799 --> 00:28:35,759
the Office.

581
00:28:38,759 --> 00:28:41,839
Speaker 4: Hey all, Clang Kershner here. Friends, I hope you'll join

582
00:28:41,920 --> 00:28:45,920
me on my audio podcast, Justice Matters. We talk about

583
00:28:46,240 --> 00:28:48,839
not only the legal issues of the day, but we

584
00:28:48,880 --> 00:28:52,920
also talk about the need to reform ethics in our government.

585
00:28:53,680 --> 00:28:56,920
Here's one example. The Oath of Office, you know, the

586
00:28:56,960 --> 00:28:59,519
one I do solemnly swear to support and defend the

587
00:28:59,519 --> 00:29:04,079
Constantute US against all enemies foreign end domestic. Let's add

588
00:29:04,119 --> 00:29:08,559
twenty two words to that oath quote, and I will

589
00:29:08,599 --> 00:29:12,880
promptly report any instances of crime and or corruption by

590
00:29:12,920 --> 00:29:19,319
government officials and employees of which I've become aware. Friends,

591
00:29:19,599 --> 00:29:24,200
our democracy is worth fighting for. Join us in this

592
00:29:24,240 --> 00:29:31,200
fight because justice matters. Look for Justice Matters wherever you

593
00:29:31,400 --> 00:29:36,640
ordinarily find your podcasts.

594
00:29:38,519 --> 00:29:40,759
Speaker 3: Welcome back to the Oath in the Office. It really

595
00:29:40,839 --> 00:29:44,119
is an honor today to introduce to you Cecilia Wang,

596
00:29:44,400 --> 00:29:48,680
who is the ACLU's National Legal Director most recently, and

597
00:29:48,720 --> 00:29:50,720
this is what we're going to talk to her about.

598
00:29:50,880 --> 00:29:54,759
She in the Supreme Court argued that Trump's executive order

599
00:29:54,839 --> 00:29:59,160
essentially revoking birthright citizenship was unconstitutional, and she's going to

600
00:29:59,160 --> 00:30:01,079
walk us through some of that argument, what it was

601
00:30:01,200 --> 00:30:04,119
like to participate in it. And as of course listeners

602
00:30:04,160 --> 00:30:07,559
know listening to this show since the beginning, since we've

603
00:30:07,559 --> 00:30:11,799
started it, we've regarded this promise to revoke birthright citizenship

604
00:30:11,839 --> 00:30:14,839
as really a symbol not just any ordinary case, but

605
00:30:14,880 --> 00:30:18,079
a symbol of Trump's attack on the Constitution. So this

606
00:30:18,119 --> 00:30:21,279
isn't any ordinary case. It's a historic one that was

607
00:30:21,480 --> 00:30:23,799
I listened to it. It was an amazing argument, a

608
00:30:23,920 --> 00:30:26,799
historic argument, one that will be taught in constitutional law,

609
00:30:27,119 --> 00:30:30,839
I think for forever. As long as we have a country,

610
00:30:30,880 --> 00:30:34,240
we have constitutional law. So Cecilia Wang, welcome to the

611
00:30:34,240 --> 00:30:35,240
oath in the office.

612
00:30:35,559 --> 00:30:37,519
Speaker 5: Thank you so much, Corey, it's a pleasure to be

613
00:30:37,599 --> 00:30:37,799
with you.

614
00:30:38,440 --> 00:30:40,279
Speaker 2: Can we just start with the big picture.

615
00:30:40,559 --> 00:30:43,079
Speaker 3: We have, of course, the first section of the Fourteenth

616
00:30:43,119 --> 00:30:46,279
Amendment that until this executive order many people thought was

617
00:30:46,319 --> 00:30:48,680
pretty plain. This day, it says if you're born in

618
00:30:48,720 --> 00:30:50,920
the United States that you are a.

619
00:30:50,880 --> 00:30:52,119
Speaker 2: Citizen full stop.

620
00:30:52,200 --> 00:30:54,279
Speaker 3: And there is this phrase, of course that we'll get

621
00:30:54,279 --> 00:30:57,200
into subject to the jurisdiction. But let's start with a

622
00:30:57,200 --> 00:30:59,519
big picture. What's really at stake with this case.

623
00:31:00,319 --> 00:31:05,519
Speaker 6: So the immediate stakes in the birthright citizenship case, of course,

624
00:31:05,720 --> 00:31:10,119
is whether President Trump's executive order regarding the Fourteenth Amendment

625
00:31:10,200 --> 00:31:15,440
citizenship clause can go into effect. So he contrary to

626
00:31:15,480 --> 00:31:20,839
the plain words of the Fourteenth Amendment and its historical context,

627
00:31:21,319 --> 00:31:24,079
as well as statute passed by Congress, who's trying to

628
00:31:24,160 --> 00:31:29,559
exclude the children of undocumented immigrants and people who are

629
00:31:29,599 --> 00:31:32,359
here in the United States lawfully but on a temporary

630
00:31:32,440 --> 00:31:36,960
visa temporary sometimes meaning yours from being covered by the

631
00:31:37,000 --> 00:31:40,640
Fourteenth Amendments guarantee of birthright citizenship. So those are the

632
00:31:40,640 --> 00:31:47,039
immediate stakes. Can President Trump carry out his revisionist view

633
00:31:47,359 --> 00:31:51,400
of the Fourteenth Amendment citizenship clause through an executive order

634
00:31:51,839 --> 00:31:55,359
that purports to reinterpret the Fourteenth Amendment in a way

635
00:31:55,400 --> 00:31:59,880
that's contrary to what both the Congress and the Supreme

636
00:32:00,400 --> 00:32:00,960
and all.

637
00:32:00,839 --> 00:32:02,759
Speaker 5: Of us ordinary Americans thought.

638
00:32:03,279 --> 00:32:05,880
Speaker 6: You know, it's been almost one hundred and sixty years

639
00:32:06,119 --> 00:32:08,359
since the fourteenth Amendment was ratified.

640
00:32:09,000 --> 00:32:11,279
Speaker 5: So those are the immediate stakes. But to take a

641
00:32:11,359 --> 00:32:12,440
step back.

642
00:32:12,400 --> 00:32:16,160
Speaker 6: And look at an even bigger picture, what's really at

643
00:32:16,200 --> 00:32:20,759
stake is whether the President of the United States can

644
00:32:21,200 --> 00:32:29,680
redefine and narrow our national tradition of birthright citizenship. Can

645
00:32:29,839 --> 00:32:35,799
the president decide that the people that he disfavors should

646
00:32:35,799 --> 00:32:39,519
be excluded, should not have a sense of belonging in

647
00:32:39,559 --> 00:32:43,400
our national community. And those are kind of the larger stakes.

648
00:32:43,559 --> 00:32:47,160
And if we take even another step back to look

649
00:32:47,200 --> 00:32:51,000
at the really bigger picture that you know, President Trump

650
00:32:51,079 --> 00:32:56,039
came into a second term really on day one trying

651
00:32:56,119 --> 00:33:01,440
to undo the work of reconstruction, which includes the citizenship

652
00:33:01,480 --> 00:33:05,920
clause of the fourteenth Amendment, but also so many aspects

653
00:33:06,279 --> 00:33:10,640
and progressive laws that were enacted and implemented as part

654
00:33:10,680 --> 00:33:14,480
of the second Reconstruction with the Civil Rights movement.

655
00:33:14,279 --> 00:33:15,119
Speaker 5: And Jim Crow.

656
00:33:15,599 --> 00:33:19,680
Speaker 6: And so those are all the stakes, from the narrowest.

657
00:33:19,240 --> 00:33:20,880
Speaker 5: View to the broader view.

658
00:33:21,319 --> 00:33:23,720
Speaker 3: Yeah, I love that you laid it out that way, because,

659
00:33:23,759 --> 00:33:26,720
of course, the immediate question is about whether this specific

660
00:33:26,799 --> 00:33:30,160
executive order is constitutional or not. But the wider question,

661
00:33:30,240 --> 00:33:32,279
of course, is what's going on with the president that

662
00:33:32,319 --> 00:33:35,519
wants to revoke a symbol of the idea of equality

663
00:33:35,599 --> 00:33:38,359
under law and the very symbol of multi racial and

664
00:33:38,440 --> 00:33:41,359
multi ethnic democracy. Well, it's because it's part of a

665
00:33:41,400 --> 00:33:45,559
wider assault on democracy. He doesn't believe. And I think

666
00:33:45,640 --> 00:33:48,519
the idea of multi racial democracy not only that you

667
00:33:48,559 --> 00:33:51,240
and I believe him, but that the crafters of this

668
00:33:51,319 --> 00:33:55,079
Fourteenth Amendment, with its birthright citizenship clause it's guaranteed and

669
00:33:55,359 --> 00:33:58,519
also of equal protection of the law, fought so hard

670
00:33:58,519 --> 00:34:00,519
for I want to get into a lot of the

671
00:34:00,599 --> 00:34:04,400
doctrine here and see how this argument played out and

672
00:34:04,440 --> 00:34:06,440
ask you about some of the questions. But I have

673
00:34:06,519 --> 00:34:08,880
to ask you, since we've been talking about Trump is,

674
00:34:09,000 --> 00:34:10,039
of course at the center of this.

675
00:34:10,119 --> 00:34:11,440
Speaker 2: It's an executive order.

676
00:34:11,480 --> 00:34:14,880
Speaker 3: What was it like to argue his case with the

677
00:34:14,880 --> 00:34:18,400
President of the United States, with Donald Trump sitting right there.

678
00:34:18,480 --> 00:34:20,880
I think it was historically the only time that a

679
00:34:20,960 --> 00:34:23,440
president showed up, and he showed up to hear what

680
00:34:23,480 --> 00:34:24,280
you had to say.

681
00:34:24,360 --> 00:34:25,360
Speaker 2: So what was that like?

682
00:34:25,800 --> 00:34:29,360
Speaker 6: Well, candidly, Corey, I didn't know whether he was in

683
00:34:29,400 --> 00:34:33,559
the courtroom or not. I'd gotten notice the night before,

684
00:34:33,679 --> 00:34:36,280
of course, when he posted I guess on social media

685
00:34:36,400 --> 00:34:39,440
that he was planning to attend. We got advanced notice

686
00:34:39,519 --> 00:34:43,159
because we needed to arrive at the court earlier than

687
00:34:43,280 --> 00:34:47,199
usual because of the increased security around the President being

688
00:34:47,239 --> 00:34:49,199
in the house, and so.

689
00:34:49,559 --> 00:34:51,119
Speaker 5: I knew that he might be there.

690
00:34:51,199 --> 00:34:54,639
Speaker 6: But even as I was walking into the courtroom, the

691
00:34:55,039 --> 00:34:58,199
information I was getting from the clerk's office was that

692
00:34:58,239 --> 00:35:01,360
they weren't sure one hundred percent or that the President

693
00:35:01,360 --> 00:35:04,320
would be there. So I didn't notice one way or

694
00:35:04,320 --> 00:35:07,400
the other. I was very focused on the nine justices.

695
00:35:07,920 --> 00:35:10,480
I was focused on my opposing council and what he

696
00:35:10,559 --> 00:35:14,199
was saying, and so it didn't occur to me. It

697
00:35:14,239 --> 00:35:16,400
didn't affect me one way or the other that he

698
00:35:16,519 --> 00:35:18,519
was in the room. I didn't find out until later

699
00:35:18,679 --> 00:35:20,960
that he was in fact in the room at least

700
00:35:20,960 --> 00:35:22,000
for the first few minutes.

701
00:35:22,320 --> 00:35:23,360
Speaker 2: Amazing moment.

702
00:35:23,400 --> 00:35:25,199
Speaker 3: I mean, one of the signs of your effectiveness is

703
00:35:25,199 --> 00:35:29,360
that he evidently walked out mid argument, and also has recently,

704
00:35:29,480 --> 00:35:32,440
as I think you know, been talking about why in

705
00:35:32,480 --> 00:35:35,440
his words, Neil and Amy have not really been loyal

706
00:35:35,559 --> 00:35:37,480
enough then, which I think might have something to do

707
00:35:37,559 --> 00:35:41,440
with watching them respond to your arguments in a sympathetic way.

708
00:35:41,880 --> 00:35:43,599
Speaker 2: I do want to ask you about the dynamics in

709
00:35:43,599 --> 00:35:45,000
the courtroom, but I also want.

710
00:35:44,840 --> 00:35:47,679
Speaker 3: To ask about the specifics, because of course the Trump

711
00:35:47,719 --> 00:35:50,639
administration had to come up with a reason why he

712
00:35:50,639 --> 00:35:55,599
could essentially undo this guarantee of birthright citizenship and the

713
00:35:55,719 --> 00:36:00,119
court and Trump himself claims to care about the constitutional taxes,

714
00:36:00,559 --> 00:36:03,880
so they turned to this idea of subject to the jurisdiction.

715
00:36:04,119 --> 00:36:07,079
So tell us about how that argument works and how

716
00:36:07,079 --> 00:36:11,400
it relates, in particular, the related idea that the Fourteenth

717
00:36:11,440 --> 00:36:16,199
Amendment birthright citizenship clause was really only about black Americans

718
00:36:16,199 --> 00:36:19,559
and a reversal of the dread Scott case and not

719
00:36:19,760 --> 00:36:23,079
the broader guarantee that you and I have been talking about.

720
00:36:23,159 --> 00:36:26,360
Speaker 2: And they offer this idea of also related of allegiance.

721
00:36:26,800 --> 00:36:29,559
Speaker 3: So tell us about what their argument is and how

722
00:36:29,559 --> 00:36:30,320
you respond to it.

723
00:36:30,480 --> 00:36:33,519
Speaker 6: Yeah, So, you know, as a lawyer, you always want

724
00:36:33,519 --> 00:36:36,599
to start the words in the case of the fourteenth Amendment.

725
00:36:36,679 --> 00:36:40,239
So the fourteenth Amendment says, all persons born in the

726
00:36:40,400 --> 00:36:44,519
United States and subject to the jurisdiction thereof are citizens

727
00:36:45,079 --> 00:36:50,000
of the United States. And so the only leeway in

728
00:36:50,039 --> 00:36:53,159
that text that the president, you know, tried to explore

729
00:36:53,239 --> 00:36:55,679
or take advantage of was, of course, that phrase subject

730
00:36:55,719 --> 00:36:58,199
to the jurisdiction, which you just referred to.

731
00:36:58,880 --> 00:36:59,679
Speaker 5: So you start with.

732
00:36:59,639 --> 00:37:05,320
Speaker 6: Ax and then you look to two sources to figure

733
00:37:05,320 --> 00:37:08,760
out what those words meant to the framers, to the

734
00:37:08,800 --> 00:37:12,760
Republican drafting committee that wrote the words of the fourteenth Amendment.

735
00:37:13,239 --> 00:37:16,960
And we know two things. The first is that the

736
00:37:17,000 --> 00:37:23,119
framers of the Fourteenth Amendment wanted to have broad birthright

737
00:37:23,199 --> 00:37:28,000
citizenship for almost everyone in the United States, but they

738
00:37:28,079 --> 00:37:35,039
wanted to encompass these pre existing historical exceptions to birthright citizenship,

739
00:37:35,239 --> 00:37:38,199
and that was what they meant by those words subject

740
00:37:38,239 --> 00:37:41,360
to the jurisdiction. Who are we talking about. Most people

741
00:37:41,440 --> 00:37:46,000
know that ambassadors, right, you know, foreign ministers, you know,

742
00:37:46,079 --> 00:37:49,679
representatives of foreign government when they're in the United States

743
00:37:49,920 --> 00:37:53,639
have immunity. And that's a matter of comedy between the two.

744
00:37:54,119 --> 00:37:57,960
Not comedy like haha, but com I t y that

745
00:37:58,079 --> 00:38:02,119
you know, these two countries, as a matter of mutual respect,

746
00:38:02,320 --> 00:38:06,320
and in order to be able to do diplomacy, give

747
00:38:06,360 --> 00:38:12,000
each other this immunity from prosecution. The ambassador in the

748
00:38:12,119 --> 00:38:16,280
United States is treated as if they're physically still in

749
00:38:16,679 --> 00:38:21,159
their home country. And so the children of ambassadors were

750
00:38:21,199 --> 00:38:25,559
excluded from birthright citizenship under that phrase subject to the

751
00:38:25,639 --> 00:38:29,199
jurisdiction there There were a number of other exceptions that

752
00:38:29,400 --> 00:38:33,719
originated in the English common law, including the ambassador exception,

753
00:38:33,880 --> 00:38:38,880
which the Framers wanted to carry over. The only exception

754
00:38:39,400 --> 00:38:43,079
to birthright citizenship that didn't come from the English common

755
00:38:43,159 --> 00:38:47,199
law that the Framers were trying to carry over after

756
00:38:47,199 --> 00:38:51,760
the fourteenth Amendment was ratified was an exception for members

757
00:38:51,880 --> 00:38:55,480
of Native American tribes known as Indian tribes in the

758
00:38:55,559 --> 00:39:00,280
technical legal term, and so that was it to the

759
00:39:00,320 --> 00:39:04,719
jurisdiction thereof in the citizenship clause simply meant that everyone

760
00:39:04,760 --> 00:39:07,840
born in the United States who is subject to the

761
00:39:07,960 --> 00:39:10,760
jurisdiction of the United States, meaning they have to obey

762
00:39:10,840 --> 00:39:13,360
the laws and they have a protection of the laws

763
00:39:13,400 --> 00:39:16,039
of the United States, is a citizen. And the only

764
00:39:16,119 --> 00:39:23,000
exceptions were these narrow categories like ambassadors and under the Constitution,

765
00:39:23,760 --> 00:39:25,719
members of tribal nations.

766
00:39:26,519 --> 00:39:29,159
Speaker 3: So the way as I understand that the Solicitor General

767
00:39:29,199 --> 00:39:32,639
tried to take this historical fact that they're referring to

768
00:39:32,679 --> 00:39:34,960
and turn it into an argument, I mean, I have

769
00:39:35,000 --> 00:39:36,800
to say from the beginning, I've been wondering how are

770
00:39:36,800 --> 00:39:39,360
they going to create an argument so that the thing

771
00:39:39,400 --> 00:39:41,920
that we've all seen with our own eyes, how can

772
00:39:41,920 --> 00:39:44,559
they turn it into something that makes this an even

773
00:39:44,599 --> 00:39:48,159
plausible executive order. It seems to just clash directly with

774
00:39:48,239 --> 00:39:51,119
the meaning of the Constitution and its tex So they're

775
00:39:51,119 --> 00:39:53,760
relying heavily on this idea of subject to the jurisdiction.

776
00:39:53,840 --> 00:39:55,880
I guess one thing that I don't know if I

777
00:39:55,920 --> 00:39:58,039
want to say it's a full argument resembled an argument,

778
00:39:58,480 --> 00:40:01,760
is that, well, there wasn't this i idea of undocumented

779
00:40:01,800 --> 00:40:05,239
people in the nineteenth century, that the immigration systems were

780
00:40:05,280 --> 00:40:06,039
just so different.

781
00:40:06,599 --> 00:40:07,440
Speaker 2: So if you.

782
00:40:07,400 --> 00:40:10,960
Speaker 3: Think of the principle that applied here, that these exceptions

783
00:40:11,440 --> 00:40:14,840
and the meaning of who the amendment refers to wouldn't

784
00:40:14,880 --> 00:40:18,599
apply to the children of undocumented people. So that raises some,

785
00:40:18,800 --> 00:40:21,840
you know, interesting puzzles about how to think about, you know,

786
00:40:22,079 --> 00:40:24,760
facts that are different in the nineteenth century from now,

787
00:40:24,840 --> 00:40:27,000
how to think about history and texts.

788
00:40:27,199 --> 00:40:29,119
Speaker 2: So tell us how did you handle that and how.

789
00:40:28,960 --> 00:40:31,920
Speaker 3: Did you read the justices who, of course, you know,

790
00:40:32,199 --> 00:40:35,119
I would say a majority or so heavily focused on

791
00:40:35,159 --> 00:40:37,159
the idea that the law is the text.

792
00:40:38,440 --> 00:40:41,719
Speaker 6: Yeah, So you know what you're referring to, is is

793
00:40:41,840 --> 00:40:44,679
kind of you know, there are two broad schools of

794
00:40:44,760 --> 00:40:48,079
thought when it comes to the interpretation of our Constitution,

795
00:40:48,719 --> 00:40:52,199
and the prevailing one for a majority of the Supreme

796
00:40:52,239 --> 00:40:56,400
Court currently is an originalist, a school of thought which says,

797
00:40:56,719 --> 00:41:00,480
when we're interpreting the words of the Constitution, we need

798
00:41:00,519 --> 00:41:05,679
to pay attention only to what the framers of those words,

799
00:41:05,760 --> 00:41:09,920
whether it's in seventeen eighty nine or in eighteen sixty

800
00:41:09,960 --> 00:41:13,079
eight in the case of the Fourteenth Amendment, what they

801
00:41:13,079 --> 00:41:17,679
were thinking, what was the original public meaning that was understood?

802
00:41:18,239 --> 00:41:20,239
And you know, the other school of thought, of course,

803
00:41:20,440 --> 00:41:22,639
is what you know, it might be referred to as

804
00:41:22,719 --> 00:41:26,880
living constitutionalism. So you know, the idea that you know,

805
00:41:26,920 --> 00:41:30,880
the framers weren't thinking about all possible future applications of

806
00:41:30,920 --> 00:41:35,440
their words necessarily, and that we do our best interpret

807
00:41:35,480 --> 00:41:39,360
you know, what the spirit behind those words was. As

808
00:41:39,440 --> 00:41:41,960
I said, the original school of thought is the prevailing

809
00:41:41,960 --> 00:41:45,199
one on the Supreme Court now, and sometimes that creates

810
00:41:45,440 --> 00:41:50,599
some real problems of constitutional interpretation, but not when it

811
00:41:50,639 --> 00:41:54,920
comes to the citizenship clause of the Fourteenth Amendment. We

812
00:41:55,000 --> 00:42:00,480
set out a purely originalist interpretation that I just laid

813
00:42:00,480 --> 00:42:03,920
out for you and your listeners that the Republican committee

814
00:42:04,000 --> 00:42:06,880
that was drafting the fourteenth Amendment, and indeed, all the

815
00:42:06,960 --> 00:42:11,920
members of Congress who debated the words of the citizenship Clause,

816
00:42:12,760 --> 00:42:18,039
we're all in agreement that the only exceptions were ambassadors,

817
00:42:18,679 --> 00:42:22,000
tribal members, and the other very very narrow exceptions that

818
00:42:22,079 --> 00:42:24,800
only applied to a couple people at most under the

819
00:42:24,800 --> 00:42:28,559
English common law, and that would include people born on

820
00:42:28,960 --> 00:42:31,039
foreign ships, you know, that were.

821
00:42:30,880 --> 00:42:33,360
Speaker 5: Docked in a US port, for example.

822
00:42:34,079 --> 00:42:36,440
Speaker 6: And so it was interesting, you know, as I was

823
00:42:36,480 --> 00:42:39,719
preparing the little aside here, as I was preparing for

824
00:42:40,000 --> 00:42:43,199
the argument. You know, lawyers do these practice sessions.

825
00:42:43,239 --> 00:42:44,119
Speaker 5: We call them moots.

826
00:42:44,840 --> 00:42:47,480
Speaker 6: And I had a Supreme Court, a member of the

827
00:42:47,519 --> 00:42:50,360
Supreme Court bar so who's you know, very experienced Supreme

828
00:42:50,360 --> 00:42:53,920
Court practitioner, who said, this is a really weird case

829
00:42:54,079 --> 00:42:59,199
because you have the ACLU making an originalist argument, and

830
00:42:59,360 --> 00:43:02,960
you have the Solicitor General of the United States talking

831
00:43:03,039 --> 00:43:07,000
about policy. And so, you know, I bristle a little

832
00:43:07,039 --> 00:43:09,119
bit at the idea of the ACLA used normally making

833
00:43:09,119 --> 00:43:12,800
policy arguments, that they were making textual list and original

834
00:43:12,840 --> 00:43:16,159
meaning arguments all the time. But in this case, there's

835
00:43:16,239 --> 00:43:21,039
just no question that that is what the framers and

836
00:43:21,119 --> 00:43:25,519
the state legislators who ratified the fourteenth Amendment understood the

837
00:43:25,519 --> 00:43:28,719
words to mean. Now, to get to another part of

838
00:43:28,719 --> 00:43:31,400
your question, you know, what is the Trump administration trying

839
00:43:31,440 --> 00:43:34,920
to do here? And what is their move to try

840
00:43:34,960 --> 00:43:39,039
to go against what everybody has understood about the meaning

841
00:43:39,239 --> 00:43:42,519
of the fourteenth Amendment since eighteen sixty eight and certainly

842
00:43:42,960 --> 00:43:47,480
since eighteen ninety eight. And you know what they did

843
00:43:47,760 --> 00:43:52,760
was they started with a Supreme Court decision from eighteen

844
00:43:52,840 --> 00:43:58,480
ninety eight called Wonkim arc, which was the first case

845
00:43:58,920 --> 00:44:04,159
in which the US government was trying to exclude the

846
00:44:04,280 --> 00:44:10,039
US born child of a foreign national from US citizenship.

847
00:44:10,320 --> 00:44:13,480
And this was a case where the Supreme Court held

848
00:44:13,519 --> 00:44:17,159
in eighteen ninety eight that this man, Wankim Mark, born

849
00:44:17,199 --> 00:44:21,360
in San Francisco to parents who were Chinese nationals, was

850
00:44:21,400 --> 00:44:25,320
a US citizen. And the Trump administration basically used a

851
00:44:25,400 --> 00:44:29,960
move that has been tried out previously by a number

852
00:44:30,000 --> 00:44:32,519
of people on the far right, who are you know,

853
00:44:32,599 --> 00:44:34,559
anti immigrant activists.

854
00:44:34,880 --> 00:44:35,920
Speaker 5: You know, throughout the.

855
00:44:35,960 --> 00:44:39,960
Speaker 6: Last few decades, you know, we have seen efforts on

856
00:44:40,000 --> 00:44:43,880
the far right to take away the citizenship of people

857
00:44:44,239 --> 00:44:47,440
of non citizens, take away citizenship from the children of

858
00:44:47,480 --> 00:44:51,639
non citizens. And the move that they make is that

859
00:44:51,840 --> 00:44:56,719
in the wonkim Arc decision, the Supreme Court just dis gray,

860
00:44:56,800 --> 00:45:02,079
writing majority opinion happens to mention several times by the

861
00:45:02,119 --> 00:45:04,840
government's count, twenty two times in all, in a very

862
00:45:04,880 --> 00:45:12,079
long opinion, that wankim Ark's parents were domiciled in the

863
00:45:12,239 --> 00:45:16,840
United States. And so the Trump administration basically has used

864
00:45:16,880 --> 00:45:19,760
a move that has been tried unsuccessfully in the past

865
00:45:19,800 --> 00:45:25,239
to try to reverse engineer an argument from that happenstance

866
00:45:25,519 --> 00:45:29,239
in the wangkim Ark decision to say, oh, that means

867
00:45:30,039 --> 00:45:33,360
you have to your parents have to have been domiciled

868
00:45:33,360 --> 00:45:35,480
in the United States at the time of your birth

869
00:45:36,039 --> 00:45:38,960
for you to be a citizen under the fourteenth Amendment.

870
00:45:39,199 --> 00:45:40,440
Speaker 5: And so that kind.

871
00:45:40,320 --> 00:45:44,960
Speaker 6: Of explains how the President structured his executive order, at

872
00:45:45,039 --> 00:45:48,119
least in part, because the one thing that he can't

873
00:45:48,280 --> 00:45:53,559
explain still is how he can exclude children born in

874
00:45:53,599 --> 00:45:58,119
the US to unauthorized immigrants who are domiciled in the

875
00:45:58,199 --> 00:46:01,880
United States. Right, many people, millions of people in this

876
00:46:01,960 --> 00:46:05,599
country who over state of visa or who entered without

877
00:46:05,639 --> 00:46:08,320
inspection but have lived in the US and have these

878
00:46:08,360 --> 00:46:11,559
strong ties and have no other home in many cases

879
00:46:11,559 --> 00:46:14,480
for decades, in many cases since they were young children themselves.

880
00:46:14,920 --> 00:46:19,599
So that basically is how we got to the president's

881
00:46:20,039 --> 00:46:22,079
theory of the fourteenth Amendment.

882
00:46:22,559 --> 00:46:24,679
Speaker 3: Yeah, that they looked at wankim Mark, which is of

883
00:46:24,719 --> 00:46:27,719
course about the idea of the plain meaning of the

884
00:46:27,840 --> 00:46:31,239
birthright citizenship guarantee that if you're born in the United States,

885
00:46:31,239 --> 00:46:35,000
you're a citizen. It of course applies beyond Black Americans,

886
00:46:35,480 --> 00:46:37,440
and yet they try to use it in a way

887
00:46:37,519 --> 00:46:41,360
to say that No, in that specific case, the facts

888
00:46:41,360 --> 00:46:44,280
were that the person had allegiance. Win kim Mark had

889
00:46:44,320 --> 00:46:46,719
allegiance to the United States because of the fact that

890
00:46:46,719 --> 00:46:47,559
he was domiciled.

891
00:46:47,559 --> 00:46:49,480
Speaker 2: Here, I mean, so let's get into the argument.

892
00:46:49,480 --> 00:46:51,239
Speaker 3: I mean, it's fascinating, I have to say too, just

893
00:46:51,280 --> 00:46:53,079
giving us those notes, and I think people want to

894
00:46:53,119 --> 00:46:55,880
hear more about it. That coming into this, you thought, wow,

895
00:46:56,159 --> 00:46:59,400
I don't always get to argue straight originalism to use

896
00:46:59,519 --> 00:47:03,519
the theory of justice Gorsicch and Justice Barrett and at

897
00:47:03,599 --> 00:47:07,079
least supposedly justice as Alito and Thomas. But here it

898
00:47:07,159 --> 00:47:09,639
just screams out that we have the text and as

899
00:47:09,639 --> 00:47:13,440
you've been telling us, we have this amazing case that says, yes,

900
00:47:13,519 --> 00:47:16,920
this is not just about reversing dread Scott and dread

901
00:47:16,960 --> 00:47:20,960
Scott's evil holding that black Americans don't have citizenship under

902
00:47:20,960 --> 00:47:22,920
the Constitution or even legal personnel.

903
00:47:22,960 --> 00:47:24,119
Speaker 2: That goes way beyond.

904
00:47:23,840 --> 00:47:26,199
Speaker 3: That to mean what it says, you know, born in

905
00:47:26,239 --> 00:47:29,400
the United States, you are a citizen. So tell us

906
00:47:29,480 --> 00:47:31,719
what it was like as you are arguing the case

907
00:47:31,800 --> 00:47:34,079
with this preparation. I mean, did you feel like the

908
00:47:34,119 --> 00:47:37,719
originalist arguments were clear? Did you feel resistance in places

909
00:47:37,760 --> 00:47:39,440
that you were surprised by?

910
00:47:39,960 --> 00:47:40,400
Speaker 5: Yeah?

911
00:47:40,840 --> 00:47:43,920
Speaker 6: So, you know, I think we went into this argument

912
00:47:44,119 --> 00:47:47,880
very confident in our arguments, not only because you know,

913
00:47:47,920 --> 00:47:52,119
we had written a brief that reflected, as you said,

914
00:47:52,199 --> 00:47:56,079
the plain words of the fourteenth Amendment and also, you know,

915
00:47:56,199 --> 00:47:57,559
the English.

916
00:47:57,159 --> 00:47:59,840
Speaker 5: Common law context.

917
00:47:59,679 --> 00:48:03,440
Speaker 6: For American citizenship right, which the Supreme Court explained in

918
00:48:03,480 --> 00:48:05,519
the Won cam Work decision in eighteen ninety eight.

919
00:48:06,119 --> 00:48:08,119
Speaker 5: But we also had confidence.

920
00:48:07,719 --> 00:48:11,960
Speaker 6: Because we had such a broad array a Friend of

921
00:48:12,000 --> 00:48:15,960
the Court briefs that were submitted on our side, including

922
00:48:16,719 --> 00:48:22,880
very conservative legal scholars and lawyers who all joined forces

923
00:48:22,920 --> 00:48:26,719
to say, look, the original public meaning of the fourteenth

924
00:48:26,760 --> 00:48:29,840
Amendment is really clear. The other thing that gave me

925
00:48:29,920 --> 00:48:33,599
a lot of confidence, and really not just confidence, but

926
00:48:34,360 --> 00:48:37,840
I felt, Corey, like I was channeling the voices of

927
00:48:37,920 --> 00:48:42,559
millions of Americans who like me, are Fourteenth Amendment citizens

928
00:48:42,719 --> 00:48:47,000
born when our parents weren't yet naturalized, and our ancestors

929
00:48:47,000 --> 00:48:50,199
all you know, most Americans, unless you were a descended

930
00:48:50,280 --> 00:48:53,239
from someone who was an enslaved person of African origin,

931
00:48:53,840 --> 00:48:56,760
or if you are descended from people, or if you're

932
00:48:56,760 --> 00:49:00,800
an Indigenous American, all of us have some ancestor at

933
00:49:00,840 --> 00:49:04,039
some point in our family's history who's been in this situation.

934
00:49:04,920 --> 00:49:08,559
And I really felt that I was standing there at

935
00:49:08,599 --> 00:49:12,880
the lectern in the Supreme Court channeling all of those

936
00:49:12,960 --> 00:49:18,360
voices of people living and our ancestors to really stand

937
00:49:18,440 --> 00:49:21,800
up for that original public meaning of the Fourteenth Amendment.

938
00:49:22,360 --> 00:49:25,559
You know, you've mentioned a few times that the President,

939
00:49:25,880 --> 00:49:28,039
I think, in a really cynical move that's meant to

940
00:49:28,119 --> 00:49:32,639
try to divide people, says look, Fourteenth Amendment citizenship was

941
00:49:32,679 --> 00:49:37,159
only for Black Americans. And there was a really wonderful

942
00:49:37,320 --> 00:49:41,079
Amekus brief front of the Court brief filed by the

943
00:49:41,159 --> 00:49:47,159
historian Martha Jones, who's written the definitive history of Black Americans.

944
00:49:47,280 --> 00:49:53,039
Free Black Americans struggles for birthright citizenship both before and

945
00:49:53,239 --> 00:49:56,679
in the wake of the Dredge Scott decision. And what

946
00:49:57,400 --> 00:50:03,679
her brief made absolutely clear is that free black Americans

947
00:50:04,039 --> 00:50:09,199
who were responding to the Supreme Court's dread Scott decision

948
00:50:09,320 --> 00:50:13,159
that excluded all black people based on race from birthright

949
00:50:13,199 --> 00:50:15,760
citizenship in the United States and responding to that free

950
00:50:15,800 --> 00:50:21,559
black Americans weren't trying to win birthright citizenship only for

951
00:50:21,639 --> 00:50:29,360
Black Americans. They wanted universal birthright citizenship. And those efforts

952
00:50:29,400 --> 00:50:34,840
by Black Americans, you know, fed into the radical Republicans

953
00:50:35,280 --> 00:50:38,760
who framed the fourteenth Amendment. You know, there's nothing in

954
00:50:38,800 --> 00:50:41,880
the words of the fourteenth Amendment that say this is

955
00:50:42,039 --> 00:50:46,239
just to give citizenship to Black Americans and to overturn

956
00:50:46,360 --> 00:50:49,599
dread Scott. If that was what the framers of the

957
00:50:49,599 --> 00:50:52,360
fourteenth Amendment meant, they would have written.

958
00:50:52,119 --> 00:50:53,280
Speaker 5: Very different words.

959
00:50:53,920 --> 00:50:57,559
Speaker 6: And the beauty of the fourteenth Amendment and the first

960
00:50:57,639 --> 00:51:02,000
sentence of it, the citizenship clause, as a reconstruction document,

961
00:51:02,639 --> 00:51:05,800
you know, after a first abolishing slavery thirteenth Amendment, then

962
00:51:05,800 --> 00:51:08,559
you get the fourteenth Amendment. I started out by wanting

963
00:51:08,639 --> 00:51:12,400
to provide for equal rights for all people in the

964
00:51:12,480 --> 00:51:15,480
United States. But then they added this sentence at the

965
00:51:15,480 --> 00:51:19,199
beginning that dealt with citizenship, and it was centrally about

966
00:51:19,679 --> 00:51:25,000
completing the project of free black Americans who were fighting

967
00:51:25,000 --> 00:51:29,679
for universal birthrights citizenship. And there was so much history,

968
00:51:30,519 --> 00:51:36,159
such rich history behind this argument in those Amikas briefs,

969
00:51:36,199 --> 00:51:40,599
not only Professor Jones's historical brief, but a really lovely

970
00:51:40,639 --> 00:51:44,679
brief filed by Professor Tyler Ambinder and Professor Garrett Epps,

971
00:51:45,400 --> 00:51:50,119
which I actually referred to during the argument. When you know,

972
00:51:50,599 --> 00:51:54,000
Justice Alito was asking, you know, well, the framers of

973
00:51:54,039 --> 00:51:57,360
the Fourteenth Amendment in eighteen sixty six, as they were

974
00:51:57,360 --> 00:51:59,960
writing those words, there was no such thing as an

975
00:52:00,079 --> 00:52:04,920
undocumented immigrant at that point, because Congress only enacted restrictions

976
00:52:04,920 --> 00:52:07,559
on immigration a few years later. The first one was

977
00:52:07,599 --> 00:52:10,639
in eighteen seventy five. So you know, it can't be

978
00:52:10,920 --> 00:52:15,880
that the Fourteenth Amendment encompasses the children of undocumented immigrants.

979
00:52:15,960 --> 00:52:19,199
And there are many responses to that based on the history.

980
00:52:19,719 --> 00:52:24,519
First and foremost, there was a debate about the citizenship

981
00:52:24,559 --> 00:52:29,920
clause where senators, you know, were all acknowledging that the

982
00:52:30,039 --> 00:52:34,760
children of immigrants would be citizens under this language.

983
00:52:35,159 --> 00:52:36,119
Speaker 5: And there were those.

984
00:52:36,000 --> 00:52:39,239
Speaker 6: Senators who opposed that and said, we don't want the

985
00:52:39,320 --> 00:52:44,480
children of people they called gypsies, roma or Chinese immigrants.

986
00:52:44,480 --> 00:52:47,760
We don't want their children to become us citizens. And

987
00:52:47,800 --> 00:52:51,119
that's exactly what these words do. And then you saw

988
00:52:51,559 --> 00:52:56,599
other senators, including really movingly Senator John Conness, who was

989
00:52:56,639 --> 00:53:02,400
an Irish immigrant himself, Senator of California, who responded directly

990
00:53:03,039 --> 00:53:08,320
to the views of the opponents of the Fourteenth Amendment, saying, yes,

991
00:53:08,719 --> 00:53:13,039
the children of so called gypsies, the children of Chinese immigrants,

992
00:53:13,119 --> 00:53:16,280
much as they are reviled right now and a disfavored

993
00:53:16,280 --> 00:53:20,480
minority in my home state of California, their children are

994
00:53:20,519 --> 00:53:22,719
all going to be citizens. And that's exactly why I'm

995
00:53:22,800 --> 00:53:27,960
voting for this amendment. And there's all that rich history.

996
00:53:28,239 --> 00:53:31,480
You have the brief that I started to mention. The

997
00:53:31,519 --> 00:53:34,800
Anne Binder Epps brief also talked about the fact that

998
00:53:34,960 --> 00:53:38,800
in right before then, the ten to fifteen years before

999
00:53:39,719 --> 00:53:43,679
the Fourteenth Amendment was framed in eighteen sixty six, there

1000
00:53:43,679 --> 00:53:48,280
were millions of Irish immigrants who came to the United

1001
00:53:48,360 --> 00:53:52,159
States because of the famine in Ireland, and the No

1002
00:53:52,320 --> 00:53:56,639
Nothing Party, which was ascended in the eighteen fifties in Congress,

1003
00:53:57,559 --> 00:54:02,280
you know, was just virulently zenobic and anti Irish, anti Catholic,

1004
00:54:02,760 --> 00:54:08,199
and they believed that these Irish Catholic impoverished immigrants were unassimilable.

1005
00:54:08,840 --> 00:54:12,639
The No Nothing Party members felt that these Irish Catholic immigrants.

1006
00:54:12,239 --> 00:54:13,280
Speaker 5: Were less than human.

1007
00:54:13,880 --> 00:54:17,320
Speaker 6: And yet even they Know Nothing Party believed that the

1008
00:54:17,440 --> 00:54:18,400
US born children.

1009
00:54:18,679 --> 00:54:21,719
Speaker 3: They didn't want to go Trump, even the No Nothing

1010
00:54:21,760 --> 00:54:23,480
Party didn't want to go as far as Trump.

1011
00:54:23,519 --> 00:54:25,760
Speaker 2: That's an amazing detail, exactly.

1012
00:54:25,880 --> 00:54:29,239
Speaker 6: And so there was such a rich history about the

1013
00:54:29,280 --> 00:54:34,239
movement of free black Americans for universal birthright citizenship and

1014
00:54:34,440 --> 00:54:39,800
the experience of Irish Catholic immigrants and the experience that

1015
00:54:40,199 --> 00:54:45,320
incredibly moving colloquy between Senator Cowan of Pennsylvania, who opposed

1016
00:54:45,360 --> 00:54:50,679
birthright citizenship, and Senator John Conness of California, who spoke

1017
00:54:50,800 --> 00:54:54,880
as an immigrant himself, saying, this is the beauty of

1018
00:54:54,960 --> 00:54:57,719
birthright citizenship, this is the beauty of these words. We'll

1019
00:54:57,800 --> 00:55:01,760
all be Americans. And that's what I' voting for all

1020
00:55:01,840 --> 00:55:03,679
of that, you know, I was, I was trying to

1021
00:55:03,800 --> 00:55:07,039
channel all of them while I was standing there in

1022
00:55:07,079 --> 00:55:08,280
front of the Supreme Court.

1023
00:55:08,920 --> 00:55:11,679
Speaker 3: It's an amazing moment in American history. And you know,

1024
00:55:11,719 --> 00:55:14,440
as I listened to it, I was thinking, you know,

1025
00:55:14,559 --> 00:55:18,599
teaching the nineteenth century, teaching reconstruction, that this is an

1026
00:55:18,639 --> 00:55:21,719
amazing drama because what's happening is you have an administration

1027
00:55:21,840 --> 00:55:25,719
trying to essentially destroy the result of a war, what

1028
00:55:25,840 --> 00:55:29,480
it took to create the idea of equal protection that

1029
00:55:29,559 --> 00:55:32,199
everybody born in the United States as a citizen. Of course,

1030
00:55:32,440 --> 00:55:34,480
this one case is part of, as we were talking

1031
00:55:34,480 --> 00:55:37,280
about in the beginning, the wider fight for what Frederick

1032
00:55:37,280 --> 00:55:40,119
Douglass long called equal protection and the words that make

1033
00:55:40,159 --> 00:55:43,400
it into also the Fourteenth Amendment for a section equal

1034
00:55:43,440 --> 00:55:47,119
protection under the law. And to hear that you were

1035
00:55:47,239 --> 00:55:50,320
channeling thinking about this history, because in a way, you

1036
00:55:50,360 --> 00:55:54,119
weren't just championing all of us. You were championing these

1037
00:55:54,639 --> 00:55:59,239
long ago heroes fighting for democracy and fighting for multi

1038
00:55:59,360 --> 00:56:03,039
racial demandsocracy specifically. And you know, so often the Trump

1039
00:56:03,079 --> 00:56:06,159
administration brings up the people who lost that fight, the

1040
00:56:07,000 --> 00:56:10,000
virulent races. I love the idea that even the no

1041
00:56:10,119 --> 00:56:14,159
not that it's understood that the next generation you couldn't discriminate. There,

1042
00:56:14,320 --> 00:56:16,800
come on, people, and Trump has gone too far. So

1043
00:56:17,079 --> 00:56:21,400
what an amazing firsthand account of really living history, I guess,

1044
00:56:21,440 --> 00:56:22,480
is what I would call it.

1045
00:56:22,519 --> 00:56:25,239
Speaker 2: That's what you were doing and channeling these voices.

1046
00:56:25,320 --> 00:56:27,559
Speaker 3: And you know, often when we talk about the text,

1047
00:56:27,719 --> 00:56:30,440
it can sound very technical, very semantic.

1048
00:56:30,599 --> 00:56:32,239
Speaker 2: But what you've brought out I think in.

1049
00:56:32,199 --> 00:56:35,519
Speaker 3: This conversation is the text is there for a reason.

1050
00:56:35,599 --> 00:56:38,559
And this text, in particularly the Fourteenth Amendment, for as section,

1051
00:56:39,239 --> 00:56:43,119
is a realization, not just a symbol, but an encapsulation

1052
00:56:43,360 --> 00:56:47,320
of the fight for multi racial democracy and literally on

1053
00:56:47,400 --> 00:56:51,159
the heels of the most violent conflict in American history.

1054
00:56:51,199 --> 00:56:53,639
So what an amazing thing for our listeners to hear

1055
00:56:53,679 --> 00:56:56,159
that that was in your mind as you were doing it.

1056
00:56:56,199 --> 00:56:57,800
Many of us would be thinking like, oh, no, are

1057
00:56:57,800 --> 00:56:59,000
my notes in the right worder?

1058
00:57:00,119 --> 00:57:02,119
Speaker 5: Oh believe me, I was thinking that too.

1059
00:57:03,880 --> 00:57:07,360
Speaker 3: Can I ask Cecilia, what an amazing discussion? But I

1060
00:57:07,480 --> 00:57:10,199
just as we reached the end of this amazing discussion

1061
00:57:10,639 --> 00:57:13,599
wanted to ask you about of course, to me, anyway,

1062
00:57:13,679 --> 00:57:16,119
this looks like a great moment, a moment where the

1063
00:57:16,159 --> 00:57:19,280
Supreme Court is about to rebuke the President of the

1064
00:57:19,400 --> 00:57:24,079
United States with his really racist and anti democratic executive order.

1065
00:57:24,239 --> 00:57:26,440
But I just invite you to talk about where you

1066
00:57:26,519 --> 00:57:29,440
see the Of course, as the legal director of the

1067
00:57:29,519 --> 00:57:33,199
National ACLU, you are thinking strategically about how to stop

1068
00:57:33,760 --> 00:57:36,280
all of these attacks on our democracy. So how does

1069
00:57:36,320 --> 00:57:38,199
this fight fit in and what are you thinking about

1070
00:57:38,199 --> 00:57:41,079
when it comes to the wider assaults on democracy if

1071
00:57:41,079 --> 00:57:43,039
you wanted to. We've been talking for instance about the

1072
00:57:43,079 --> 00:57:47,760
dj trying to revoke citizenship of naturalized people, the next step,

1073
00:57:47,760 --> 00:57:51,159
and the war on democracy, But really, any thoughts about

1074
00:57:51,159 --> 00:57:54,880
this wider assault on democracy and what you, as legal director,

1075
00:57:55,039 --> 00:57:57,119
are in the midst of doing in this fight.

1076
00:57:58,199 --> 00:58:01,519
Speaker 6: Yeah, I would say, you know, this actually happens to

1077
00:58:01,559 --> 00:58:04,079
be a tough moment. You and I are talking the

1078
00:58:04,159 --> 00:58:08,679
day after the Supreme Court issued in order that vacated

1079
00:58:09,199 --> 00:58:14,599
an injunction that we won through litigation against racially discriminatory

1080
00:58:14,679 --> 00:58:18,599
congressional districting map in the state of Alabama. We'd won

1081
00:58:18,639 --> 00:58:22,800
the case in the lower federal court and then one

1082
00:58:22,960 --> 00:58:26,039
in the Supreme Court three years ago, and then, of

1083
00:58:26,039 --> 00:58:28,719
course a couple of weeks ago, the Supreme Court issued

1084
00:58:29,199 --> 00:58:34,000
a decision in Louisiana congressional redistricting case. We also were

1085
00:58:34,039 --> 00:58:39,719
on with LDF called Louisiana versus cala and really undermined

1086
00:58:40,280 --> 00:58:43,760
and gutted Section two of the Voting Rights Act, the

1087
00:58:43,760 --> 00:58:49,440
crown jewel of the Civil Rights era, legislation passed by

1088
00:58:49,480 --> 00:58:53,920
Congress in nineteen sixty five in order to give voters

1089
00:58:54,440 --> 00:58:57,199
a tool to go into court and fight against race

1090
00:58:57,239 --> 00:59:02,199
discrimination and voting laws. And you know, immediately over the

1091
00:59:02,239 --> 00:59:05,760
next couple of weeks since the Calais decision came down,

1092
00:59:06,360 --> 00:59:11,199
including last night, the ACLU and LDF and other partners

1093
00:59:11,320 --> 00:59:15,320
around the country, but particularly in the South, have had

1094
00:59:15,400 --> 00:59:18,800
to rush into court. I literally have lost count of

1095
00:59:18,840 --> 00:59:21,960
how many emergency applications we filed in the last couple

1096
00:59:21,960 --> 00:59:25,360
of weeks in some cases, you know, with the Supreme

1097
00:59:25,400 --> 00:59:29,599
Court last night issuing this order that changes the rules

1098
00:59:29,719 --> 00:59:34,079
when voting is already underway in Alabama in the primary

1099
00:59:34,119 --> 00:59:37,079
election that where election day is May nineteenth, and people

1100
00:59:37,159 --> 00:59:39,639
are doing early voting right now under the map that

1101
00:59:39,679 --> 00:59:43,519
now has been vacated by the Supreme Court, and so

1102
00:59:44,239 --> 00:59:46,519
there's a lot coming at us, you know. The Coup also,

1103
00:59:46,559 --> 00:59:50,360
of course, is currently considering again the State of Louisiana's

1104
00:59:50,440 --> 00:59:57,119
effort to block people's access to mifipristo and medication abortion nationwide.

1105
00:59:57,440 --> 00:59:57,639
Speaker 5: Right.

1106
00:59:58,000 --> 01:00:00,920
Speaker 6: So for those of us who are fighting for civil

1107
01:00:01,000 --> 01:00:04,719
rights and civil liberties, you know, these are tough times.

1108
01:00:04,719 --> 01:00:07,800
We have a lot of challenges, including in the Supreme

1109
01:00:07,800 --> 01:00:11,519
Court and in other federal courts. But you know, I

1110
01:00:11,559 --> 01:00:14,760
want to just say that those efforts have really borne fruit.

1111
01:00:14,880 --> 01:00:18,599
The ACLU has filed I think the count currently is

1112
01:00:18,639 --> 01:00:21,360
at one hundred and eighty four lawsuits we have filed

1113
01:00:21,360 --> 01:00:25,639
since inauguration day last year, and in cases that have

1114
01:00:25,760 --> 01:00:29,880
already been closed, we've got about a sixty two percent

1115
01:00:29,960 --> 01:00:33,440
success rate. And in the cases that we're still fighting,

1116
01:00:33,880 --> 01:00:37,280
you know, we're winning many of those battles and getting

1117
01:00:37,400 --> 01:00:42,039
real relief from federal courts for people who are harmed

1118
01:00:42,159 --> 01:00:44,320
by this administration's policies.

1119
01:00:45,199 --> 01:00:46,400
Speaker 5: But that's just.

1120
01:00:46,559 --> 01:00:51,280
Speaker 6: One piece of the story. People in these states that

1121
01:00:51,400 --> 01:00:55,920
are now fighting for democracy after the Supreme Court's decision

1122
01:00:55,920 --> 01:01:00,199
in Louisiana versus Calais, you know, are packing the state houses.

1123
01:01:00,760 --> 01:01:02,360
Speaker 5: Louisiana voters, you know.

1124
01:01:02,599 --> 01:01:06,000
Speaker 6: Packed the state House in Baton Rouge a few days

1125
01:01:06,039 --> 01:01:10,440
ago in order to express their views that we want

1126
01:01:10,480 --> 01:01:14,119
to be able to vote and have our votes count equally.

1127
01:01:14,159 --> 01:01:18,360
With everyone else's, regardless of our race. We want you,

1128
01:01:19,239 --> 01:01:23,039
the legislature of Louisiana, to enact a fair map that

1129
01:01:23,239 --> 01:01:28,559
gives black Louisiana voters the same weight as white Louisiana voters.

1130
01:01:29,119 --> 01:01:32,920
People are marching in Tennessee, where just as we file

1131
01:01:33,119 --> 01:01:36,239
a lawsuit and an application for emergency relief in the

1132
01:01:36,239 --> 01:01:40,639
federal court, thousands and thousands of Tennesseeans are marching in

1133
01:01:40,679 --> 01:01:44,599
the streets to say, we are fighting for the life

1134
01:01:44,639 --> 01:01:47,199
of our democracy in the United States right now.

1135
01:01:47,480 --> 01:01:49,239
Speaker 5: And you know, in addition.

1136
01:01:48,920 --> 01:01:51,840
Speaker 6: To filing all those lawsuits, the ACLU has trained eighty

1137
01:01:51,880 --> 01:01:57,599
seven thousand people in zoom meetings about their rights to protest.

1138
01:01:57,920 --> 01:02:00,639
You know, what we can do to sustain in our

1139
01:02:00,679 --> 01:02:05,239
democracy and the rule of law and equality under the Constitution.

1140
01:02:06,079 --> 01:02:11,360
And there's so many places where Americans are making a difference,

1141
01:02:11,519 --> 01:02:16,159
whether it's lobbying your city government to enact pro civil

1142
01:02:16,239 --> 01:02:20,400
rights and pro civil liberties legislation, or taking into the

1143
01:02:20,440 --> 01:02:23,159
streets to protest what the president is doing. There's so

1144
01:02:23,239 --> 01:02:27,119
many things that we're all doing in this moment of

1145
01:02:27,480 --> 01:02:31,159
real challenges, of real struggles, where it feels like the

1146
01:02:31,199 --> 01:02:33,400
federal government of the executive branch is trying to push

1147
01:02:33,519 --> 01:02:37,679
us backwards and undo Reconstruction and undo the civil rights we've.

1148
01:02:37,480 --> 01:02:40,159
Speaker 3: Been Yeah, so well said, and you know, I think

1149
01:02:40,159 --> 01:02:43,440
it's also a sobering but importantly honest place to end,

1150
01:02:43,480 --> 01:02:46,679
which is as great a moment as this was before

1151
01:02:46,719 --> 01:02:49,159
the Supreme Court, to have the Presidents sitting there as

1152
01:02:49,239 --> 01:02:52,400
essentially the justices, through their questions and through their analysis

1153
01:02:52,400 --> 01:02:56,000
and through your arguments, we're rebuking him and his white

1154
01:02:56,000 --> 01:02:58,920
supremacy and his attack on our democracy.

1155
01:02:58,960 --> 01:03:01,960
Speaker 2: As great a moment as that is. In the end, right, it.

1156
01:03:01,920 --> 01:03:04,880
Speaker 3: Has to be a multifaceted strategy that we're using to

1157
01:03:04,920 --> 01:03:08,360
stop this, because when it comes to the Court's decision

1158
01:03:09,000 --> 01:03:12,199
in the nineteen sixty five Voting Rights Act and interpretation

1159
01:03:12,400 --> 01:03:15,719
the Louisiana cases, you say it's doing the opposite of

1160
01:03:15,760 --> 01:03:19,119
respecting the text. It's really undoing what was also a

1161
01:03:19,159 --> 01:03:23,519
monumental second Reconstruction, a fight for our democracy, and taking

1162
01:03:23,559 --> 01:03:25,719
a law that took a mass.

1163
01:03:25,480 --> 01:03:27,960
Speaker 2: Movement to create and ondoing it.

1164
01:03:28,000 --> 01:03:30,480
Speaker 3: And we've been covering that on the Oath in the Office,

1165
01:03:30,480 --> 01:03:33,719
alongside your important argument in the birthright citizenship case. And

1166
01:03:33,719 --> 01:03:35,960
I guess as we wrap up what I'm hearing you say.

1167
01:03:36,000 --> 01:03:39,360
And I know, of course the ACLU has a multifaceted

1168
01:03:39,400 --> 01:03:42,800
way of defending democracy, but that litigation is part of it,

1169
01:03:43,239 --> 01:03:46,440
and that can inspire what is also a fundamental part,

1170
01:03:46,480 --> 01:03:50,199
which is citizens rising up, defending our own rights and

1171
01:03:50,440 --> 01:03:55,440
in various strategies, using politics and democracy to defend democracy.

1172
01:03:55,960 --> 01:04:01,960
Speaker 6: Yeah, and using stories, using history, using the arts, using comedy,

1173
01:04:02,280 --> 01:04:08,360
comady this time to tell a story about not just

1174
01:04:08,719 --> 01:04:12,760
what the constitution says, but you know, the country that

1175
01:04:12,840 --> 01:04:17,360
we are hoping to build towards and always trying to

1176
01:04:17,400 --> 01:04:21,320
do better and to you know, ensure that freedom inequality

1177
01:04:21,320 --> 01:04:23,119
are lived reality for everyone.

1178
01:04:24,360 --> 01:04:26,840
Speaker 3: What a great place to end, Cecilia Wang, Thank you

1179
01:04:26,880 --> 01:04:29,960
for your efforts, thank you for your amazing argument before

1180
01:04:29,960 --> 01:04:32,519
the Supreme Court, and thank you for your words about

1181
01:04:32,559 --> 01:04:36,760
history the way that our historic fight for democracy inspires

1182
01:04:36,800 --> 01:04:39,199
our current fight. It's really been a pleasure to have

1183
01:04:39,239 --> 01:04:40,519
you on the oath in the office.

1184
01:04:40,559 --> 01:04:41,519
Speaker 2: Thank you for joining us.

1185
01:04:41,880 --> 01:04:44,159
Speaker 5: Thank you Corey, thank you for all your work.

1186
01:04:44,920 --> 01:04:45,599
Speaker 2: Thanks so much.

1187
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Speaker 1: I want to thank Cecilia Wang for coming in and

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being so brilliant and professor. I want to thank you

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for talking me off a ledge. What is the best

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way for our listeners to follow you, Corey and keep

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up with your work.

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Speaker 3: Well, we have the oath in the office substack, we

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have all over you can review us. Be sure to

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subscribe wherever you're listening to us right now. You can

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watch us on YouTube. And I've got to just add

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a note of thanks. The ACLU, of course, has been

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a sponsor of this podcast repeatedly, and to have this

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amazing litigator, Cecilia Wang join us and talk about what

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it was like to be in the courtroom with Donald

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Trump watching her and pushing back and arguing on behalf

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of our rights, on behalf of the text of the

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fourteenth Amendment, it's first section guaranteeing that anyone born in

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this country is a citizen.

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Speaker 2: It really was a special.

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Speaker 1: Episode, Amen, And I want to thank everyone who puts

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the show together, especially Beowulf and Wendy. And I want

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to thank you Professor as always. You guys can hear

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me every night on Sirius XM Progress or in the

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mornings on the John Fiegelsang podcast and my book's called

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Separation of Church and Hate. Professor, thank you so much.

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Speaker 2: I'm being a pleasure John.

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Speaker 1: We will see you guys next time. Bubby Oath and

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the Office