WEBVTT 1 00:00:02.799 --> 00:00:07.200 Well, whiskey, come and fame my pains all. 2 00:00:07.160 --> 00:00:11.960 Ray, oh whiskey, Why think alone when you can drink 3 00:00:11.960 --> 00:00:12.240 it all? 4 00:00:12.279 --> 00:00:14.919 In with Ricochet's Three Whiskey Happy. 5 00:00:14.599 --> 00:00:18.960 Hour, join your bartenders, Steve Hayward, John U and the 6 00:00:19.000 --> 00:00:22.120 International Woman of Mystery, Lucretia. 7 00:00:25.480 --> 00:00:28.519 Where they slaps it happened, David, ain't you baby on 8 00:00:28.640 --> 00:00:31.199 the snow Tat's gotta give me. 9 00:00:31.440 --> 00:00:32.799 And let that whiskey flow. 10 00:00:33.520 --> 00:00:38.719 Welcome everybody to the Snowmageddon episode of the Three Whiskey 11 00:00:38.759 --> 00:00:42.159 Happy Hour, where I am the only true American on 12 00:00:42.159 --> 00:00:45.520 this podcast because I about to have a foot of 13 00:00:45.560 --> 00:00:49.920 snow dumped on me while Lucretia and Steve Hayward, my 14 00:00:50.000 --> 00:00:53.079 co hosts, sit in their sunny climbs and are wondering, 15 00:00:53.159 --> 00:00:56.920 what are we talking about? Freezing rain, snow? What are 16 00:00:56.960 --> 00:00:59.000 these magical substances they know? 17 00:00:59.159 --> 00:01:02.280 Not raining here? 18 00:01:02.560 --> 00:01:06.480 John, Yeah, it's it's cloudy here. It rained a little yesterday, 19 00:01:06.480 --> 00:01:07.359 but it's mild. 20 00:01:07.359 --> 00:01:10.599 I've been through those snow mageddons many times, and I 21 00:01:10.599 --> 00:01:14.079 did get to communicate yesterday from a friend, actually, someone 22 00:01:14.079 --> 00:01:16.200 on the faculty of George Mason Law School, who said 23 00:01:16.760 --> 00:01:19.760 she went to the local whole foods or whatever the 24 00:01:19.760 --> 00:01:24.319 market was, and they were sold out of Pellegrino, which. 25 00:01:24.120 --> 00:01:27.400 Is that's like the end of civilization. 26 00:01:27.799 --> 00:01:29.879 The Northern Virginia thing I've ever heard. 27 00:01:30.640 --> 00:01:32.920 So, as some of you know, I'm spending this semester 28 00:01:33.120 --> 00:01:35.239 at the University of Texas at Austin, and so I 29 00:01:35.280 --> 00:01:39.879 went to my first h e B which is, you know, 30 00:01:39.959 --> 00:01:43.799 some kind of cool supermarket here that rivals Walmart but 31 00:01:43.840 --> 00:01:47.200 only exists in Texas. The owner who's private, it's privately owned. 32 00:01:47.200 --> 00:01:48.680 I believe the owner doesn't want there to be any 33 00:01:48.680 --> 00:01:52.200 outside of Texas. And it was like a rodeo. People 34 00:01:52.239 --> 00:01:56.680 were going crazy buying up water pasta. It's actually interesting 35 00:01:56.680 --> 00:02:00.000 the things people buy in turn in case of a design, 36 00:02:00.439 --> 00:02:03.359 they'd buy water pasta and toilet paper. 37 00:02:04.280 --> 00:02:06.959 Oh yeah, I don't know why they think COVID creep? 38 00:02:07.239 --> 00:02:07.760 How about you? 39 00:02:07.879 --> 00:02:09.840 Is there going to be a disaster in Arizona? 40 00:02:09.960 --> 00:02:10.199 No? 41 00:02:10.360 --> 00:02:15.639 Two things. So, when I was about seven months pregnant 42 00:02:15.639 --> 00:02:18.039 living in upstate New York, we had an ice storm 43 00:02:18.120 --> 00:02:21.599 that took out our power for three and a half weeks, 44 00:02:22.000 --> 00:02:29.960 and so we had oil you know oil generators, right, 45 00:02:30.120 --> 00:02:34.719 but we had a some pump that kept the cellar 46 00:02:34.759 --> 00:02:36.680 from filling up with water, so we actually had to 47 00:02:36.680 --> 00:02:39.199 get a generator so that some pump would work. And 48 00:02:39.240 --> 00:02:41.159 then we were warm, and we were the only house 49 00:02:41.680 --> 00:02:43.840 in the entire town that had lights on, and all 50 00:02:43.879 --> 00:02:46.199 the soldiers are coming in eating stew that I was 51 00:02:46.240 --> 00:02:49.240 making on my gas stove and whatnot. We had absolutely fine, 52 00:02:49.400 --> 00:02:54.280 but it was a disaster. I mean, seriously, nobody, that's 53 00:02:54.360 --> 00:02:58.719 thing one, Thing two, thing two. How long could you 54 00:02:58.719 --> 00:03:04.120 guys go without making I mean I think I could 55 00:03:04.159 --> 00:03:06.840 go for two months with the food that I have 56 00:03:07.080 --> 00:03:10.439 here at the house the freezer. I wouldn't be eating 57 00:03:10.479 --> 00:03:12.000 things I want to eat eventually. 58 00:03:12.120 --> 00:03:14.919 But in California, for me, that was easy because I 59 00:03:14.960 --> 00:03:16.439 didn't have a lot of food, but I had a 60 00:03:16.439 --> 00:03:19.759 lot of ammunition, so I could just stone next door 61 00:03:19.800 --> 00:03:23.520 and get as much food as I wanted. But Ruts 62 00:03:23.680 --> 00:03:27.919 that theory doesn't work anymore. So go to h me 63 00:03:28.000 --> 00:03:30.039 and get camed chili like everybody else. 64 00:03:30.360 --> 00:03:32.719 But wait a minute, John, you're facing you know army 65 00:03:32.840 --> 00:03:35.960 Snowmagedden in Texas, and you haven't socked up on whiskey 66 00:03:36.039 --> 00:03:36.680 for the weekend. 67 00:03:36.759 --> 00:03:39.039 No, that was dumb up. 68 00:03:39.599 --> 00:03:42.680 I didn't stop by the liquor. They also have everything 69 00:03:42.680 --> 00:03:45.159 here's bigger. So they have these enormous liquor stores that 70 00:03:45.199 --> 00:03:51.120 are the size of supermarkets Texas, right, yeah, Yeah, what's 71 00:03:51.159 --> 00:03:53.520 the old one? Three blocks from where I'm staying. 72 00:03:53.680 --> 00:03:55.000 Yeah, what's the old joke? 73 00:03:55.120 --> 00:03:57.479 Is that in Texas the Bureau of Alcohol, Tobacco and 74 00:03:57.560 --> 00:03:59.400 Firearms is a convenience store chain. 75 00:04:01.400 --> 00:04:05.120 So aha, what are you drinking, Freud? 76 00:04:05.840 --> 00:04:07.400 I'm drinking with Freud of course. Yeah. 77 00:04:07.560 --> 00:04:11.719 And I appreciate you're oh lucre of you, John, Yes, 78 00:04:11.960 --> 00:04:15.319 that's a great drink. Whistle pig piggyback rye. 79 00:04:15.599 --> 00:04:16.920 Yes. 80 00:04:17.279 --> 00:04:19.519 So, by the way, I should mention for listeners, John, 81 00:04:19.560 --> 00:04:21.839 I mean you're in charge of this, but the three 82 00:04:21.839 --> 00:04:23.959 of us are going to be there joining you in Austin. 83 00:04:24.000 --> 00:04:25.639 And was it two weeks? Yeah? 84 00:04:25.759 --> 00:04:30.759 Talk about live Yeah, we'll have a typing Well we'll try, 85 00:04:30.800 --> 00:04:32.240 I mean audient kind of. 86 00:04:33.720 --> 00:04:34.240 But I am. 87 00:04:34.399 --> 00:04:36.920 I am watching this whole storm with great interest because 88 00:04:36.920 --> 00:04:39.279 it will be relevant to that conference. You know, when 89 00:04:39.399 --> 00:04:42.360 Texas had that big freeze, what was a twenty twenty one. 90 00:04:42.240 --> 00:04:43.399 I think five years ago? 91 00:04:44.040 --> 00:04:46.480 Yeah, so you know you had huge power outages, but 92 00:04:46.560 --> 00:04:50.279 not just that because so many generators were offline and 93 00:04:50.279 --> 00:04:52.959 things weren't working. Uh, the Texas grid had to buy 94 00:04:53.040 --> 00:04:54.839 power from out of state where they could get it. 95 00:04:55.360 --> 00:04:57.720 They normally pay I think the average price in Texas, 96 00:04:57.759 --> 00:05:00.279 the spot price for electricity something like forty dollar a 97 00:05:00.279 --> 00:05:04.680 megawatt hour. The price during that crisis rose to nine 98 00:05:04.680 --> 00:05:08.399 thousand dollars for mega wow. And you know the utility 99 00:05:08.439 --> 00:05:11.079 has to eat that cost because you know, you get fixed, 100 00:05:11.079 --> 00:05:14.759 regulated retail prices to customers, so it costs them huge 101 00:05:14.800 --> 00:05:17.480 amounts of money. So now you're going to see possibly 102 00:05:17.519 --> 00:05:21.240 a freeze of that magnitude crossing tire southwest, like one 103 00:05:21.319 --> 00:05:24.959 hundred and fifty million people perhaps, And you see that, Steve. 104 00:05:25.079 --> 00:05:27.600 That our friend Robert Bryce said that the price of 105 00:05:27.680 --> 00:05:30.000 natural gas had already risen by fifty five percent. 106 00:05:30.160 --> 00:05:31.639 Yeah, gas is way up. 107 00:05:32.279 --> 00:05:35.040 And right, that's just for not only home use, but 108 00:05:35.079 --> 00:05:37.319 for generators that are going to be going full blast. 109 00:05:37.399 --> 00:05:38.720 And well, now. 110 00:05:38.600 --> 00:05:40.600 Would you use natural gas on it? I guess if 111 00:05:40.639 --> 00:05:43.319 there was a permanent built in generator, you might, but 112 00:05:43.439 --> 00:05:44.319 normally well. 113 00:05:44.240 --> 00:05:46.560 No, no, natural I mean it's natural gas. 114 00:05:46.560 --> 00:05:49.800 Speaker plants for no, I mean natural gas, you know, 115 00:05:49.920 --> 00:05:51.199 combines the big plants. 116 00:05:51.279 --> 00:05:53.319 You know, you're big five in our megawatt plants gas 117 00:05:53.399 --> 00:05:55.680 as your producer, and. 118 00:05:57.279 --> 00:06:00.720 Okay, I'll stop there in the schooling Lucree on energy, 119 00:06:00.720 --> 00:06:02.439 which he's learn all about here in two weeks. 120 00:06:02.519 --> 00:06:05.439 So okay, well, let's yeah. 121 00:06:05.439 --> 00:06:10.160 I'm sure the reader's listeners they can send in comments 122 00:06:10.199 --> 00:06:13.000 about what they're going to do over the weekend during 123 00:06:13.079 --> 00:06:19.399 snow armageddon, and maybe favorite drink, favorite foods to eat 124 00:06:19.439 --> 00:06:23.480 while we're holed up for the next two days, like eskimones, cavemen, 125 00:06:23.639 --> 00:06:27.759 whatever you But why don't we start with our first topic, 126 00:06:28.360 --> 00:06:31.600 which was going to be I believe some of the 127 00:06:31.639 --> 00:06:35.040 Supreme Court oral arguments and cases this week. Is that 128 00:06:35.199 --> 00:06:40.000 what you guys? And also some questions about ICE searching 129 00:06:40.040 --> 00:06:42.720 people's houses for illegal aliens? 130 00:06:43.000 --> 00:06:43.800 Do I have that right? 131 00:06:44.439 --> 00:06:47.680 Let me start, John, because I had one of our 132 00:06:48.000 --> 00:06:51.399 very loyal listeners asked this question, and there have been 133 00:06:51.439 --> 00:06:53.439 things about it ever since he asked it, which was 134 00:06:53.480 --> 00:06:56.199 only yesterday afternoon, including what you said, here is the 135 00:06:56.319 --> 00:07:04.879 question the Democrats most mainstream media organizations outlets are are 136 00:07:04.959 --> 00:07:10.959 reporting that the when when an ICE agent goes into 137 00:07:11.160 --> 00:07:17.920 a home without judicial warrant but with uh and let 138 00:07:18.000 --> 00:07:21.519 me help not mess this up, John, an administrative warrant 139 00:07:21.680 --> 00:07:26.759 that is actually the result of the final determination through 140 00:07:26.800 --> 00:07:30.199 the whole process du process of determining that this person 141 00:07:30.399 --> 00:07:36.120 has actually removal orders that it is appropriate or is 142 00:07:36.160 --> 00:07:38.959 it appropriate? They're saying it's inappropriate. It's a Fourth Amendment 143 00:07:39.040 --> 00:07:45.879 violation to go into someone's house without a judicial warrant 144 00:07:46.000 --> 00:07:49.040 of the Fourth Amendment type. So fixed where I. 145 00:07:50.360 --> 00:07:54.000 So, let me describe what the law is and then 146 00:07:54.040 --> 00:07:56.439 we could have I think a very interesting discussion about 147 00:07:56.439 --> 00:08:00.879 what the original understanding of the Constitution should be, because 148 00:08:00.879 --> 00:08:04.079 I think those are quite those are different. So the 149 00:08:04.199 --> 00:08:09.360 law of these days is to get you can get 150 00:08:09.360 --> 00:08:12.680 a warrant that's called an administrative warrant, which allows you 151 00:08:12.720 --> 00:08:16.720 to search without going through the process that's used for 152 00:08:16.759 --> 00:08:19.079 the criminal justice system, where you go to a federal 153 00:08:19.160 --> 00:08:22.279 judge and you have to show probable cause that criminal 154 00:08:22.360 --> 00:08:26.519 activity is occurring in this location. The judge gives you 155 00:08:26.560 --> 00:08:29.720 that warrant and specifies exactly where you can search, when 156 00:08:29.759 --> 00:08:32.200 and so on, and then that gives you the. 157 00:08:32.399 --> 00:08:33.080 And the remedy. 158 00:08:33.120 --> 00:08:35.279 The interesting thing is, right, what is the real remedy 159 00:08:35.320 --> 00:08:38.600 for a violation of that? Is that at your criminal 160 00:08:38.679 --> 00:08:43.679 trial the evidence that's gathered is suppressed. So administrative warrant 161 00:08:43.720 --> 00:08:46.200 is this kind of thing that was created by these 162 00:08:46.240 --> 00:08:50.320 progressive era agencies where they would say, I'm not mentioning 163 00:08:50.399 --> 00:08:54.039 your statute, Steve, don't get excited. But the case is 164 00:08:54.120 --> 00:08:56.120 that exists come out of that, right, There are these 165 00:08:56.200 --> 00:08:59.120 cases that come out of Well, if you're the EPA 166 00:08:59.320 --> 00:09:03.240 and you are going to inspect a business to make 167 00:09:03.279 --> 00:09:07.879 sure they were complying with unnamed statutes, would you really 168 00:09:07.919 --> 00:09:09.840 have to go to a court and get a warrant. 169 00:09:09.840 --> 00:09:12.720 There's no criminal punishment at the end of it. So 170 00:09:12.840 --> 00:09:16.360 they created this idea of the administrative warrant where you 171 00:09:16.399 --> 00:09:20.639 wanted to search for violations of quality of things. We're 172 00:09:20.639 --> 00:09:25.159 not going to mention in violation of a regulation. You 173 00:09:25.360 --> 00:09:30.639 could go and get a warrant from a non judge, 174 00:09:31.120 --> 00:09:33.799 and the court has kind of upheld these, but they 175 00:09:33.919 --> 00:09:39.600 haven't decided exactly how independent that quote unquote judge would 176 00:09:39.600 --> 00:09:42.440 have to be. It wouldn't have to be a federal judge. 177 00:09:42.440 --> 00:09:45.200 It could be a judge like the kind that work 178 00:09:45.200 --> 00:09:48.639 at agencies. Perhaps, So this is a question, right when 179 00:09:48.679 --> 00:09:53.000 you are enforcing immigration law, Theoretically that's not a criminal proceeding. 180 00:09:53.080 --> 00:09:56.440 You're just grabbing them and kicking them out, that's not criminal. 181 00:09:57.799 --> 00:10:02.039 Could an immigration judge is the warrant to go catch 182 00:10:02.080 --> 00:10:08.000 these people, enter house, catch them and eject them. How 183 00:10:08.039 --> 00:10:11.240 independent does that immigration judge have to be? Immigration judges 184 00:10:11.240 --> 00:10:14.200 work for the Justice Department. They're not part of the 185 00:10:14.240 --> 00:10:17.399 federal bench. And so that's that's actually not been decided 186 00:10:17.440 --> 00:10:19.039 by the Supreme Court, believe it or not. 187 00:10:19.519 --> 00:10:21.759 Well, now, John, you don't have to use a certain 188 00:10:22.600 --> 00:10:25.879 favorite unnamed statute. You could use OSHA inspections where I 189 00:10:25.879 --> 00:10:27.360 think this has been a live issue for a long 190 00:10:27.360 --> 00:10:31.679 time because I remember being controversies about OSHA Occupational Safety 191 00:10:31.679 --> 00:10:34.440 and Health Administration. Right, they would show up at workplaces 192 00:10:34.480 --> 00:10:37.360 to do an unannounced inspection for safety purposes, and people said, 193 00:10:37.399 --> 00:10:39.399 isn't this a don't they need a warrant? Isn't this 194 00:10:39.440 --> 00:10:41.320 a Fourth Amendment violation? And I don't know where that 195 00:10:41.399 --> 00:10:44.120 all landed, although I do know the data that we 196 00:10:44.200 --> 00:10:48.080 learned a few years ago that proceedings before administrative law 197 00:10:48.159 --> 00:10:51.399 judges of the IRS or the SEC were always hugely 198 00:10:51.440 --> 00:10:53.279 favorable to guess what the agency? 199 00:10:53.799 --> 00:10:56.080 Yeah, right, So I don't know where it all stands. 200 00:10:56.120 --> 00:10:57.159 But interesting question. 201 00:10:57.639 --> 00:11:00.200 Well, it's interesting also because the arguments that are being 202 00:11:00.279 --> 00:11:03.440 raised against this used to be raised by conservatives defending 203 00:11:03.480 --> 00:11:06.360 property rights right and wanting to limit the power of the 204 00:11:06.360 --> 00:11:08.720 administrative state, and so he has right. 205 00:11:08.919 --> 00:11:09.120 Now. 206 00:11:09.120 --> 00:11:13.879 The other let me ask acretion of this is if 207 00:11:13.919 --> 00:11:16.840 you believed in natural rights, and you thought that the 208 00:11:16.919 --> 00:11:20.200 Bill of Rights was just a statement of some but 209 00:11:20.320 --> 00:11:22.919 not all, then would you have to believe that the 210 00:11:22.960 --> 00:11:25.080 government just has no power to search your house ever 211 00:11:25.399 --> 00:11:28.799 for any reason except when it can get a criminal warrant. 212 00:11:29.399 --> 00:11:32.360 Right would the natural right presumption be well, there is 213 00:11:32.440 --> 00:11:34.559 no power ever given to the government to search your 214 00:11:34.600 --> 00:11:38.559 house for administrative purposes, So why does the government get 215 00:11:38.639 --> 00:11:38.960 do it? 216 00:11:39.320 --> 00:11:39.519 Now? 217 00:11:40.600 --> 00:11:44.200 Well, this doesn't sorry, go ahead ahead, you can answer, Steve. Well, 218 00:11:44.240 --> 00:11:47.519 I'll just go this is a criminal matter being investigated. 219 00:11:47.559 --> 00:11:49.559 We're you know, it's one thing to say we're looking 220 00:11:49.559 --> 00:11:53.320 for civil violations of safety regulations. It's a different thing 221 00:11:53.360 --> 00:11:56.279 to say we are looking for someone who's violated immigration 222 00:11:56.399 --> 00:11:58.159 laws and in many cases, many others. 223 00:11:58.600 --> 00:11:59.440 But immigration is. 224 00:11:59.440 --> 00:12:03.279 Non crypt Immigration is not criminal. It's not okay, well, 225 00:12:05.240 --> 00:12:06.720 it is considered administrative. 226 00:12:07.360 --> 00:12:11.200 But you can be a felon under immigration law. 227 00:12:11.240 --> 00:12:12.679 That's one of the reasons to kick you out. 228 00:12:12.879 --> 00:12:17.519 Yeah, yes, yes, And and presumably presumably I couldn't tell 229 00:12:17.519 --> 00:12:20.639 you in any given case, we are talking about illegal 230 00:12:20.679 --> 00:12:25.720 aliens who have been adjudicated as removable deportable. 231 00:12:25.919 --> 00:12:27.120 Yeah, by these judges. 232 00:12:28.120 --> 00:12:31.240 I still have a really hard time, based on social 233 00:12:31.279 --> 00:12:34.320 contract theory, with the idea that the for that anything 234 00:12:34.360 --> 00:12:38.840 in the Bill of Rights applies to a non citizens, 235 00:12:39.519 --> 00:12:43.279 especially to a non citizen who is here not subject 236 00:12:43.440 --> 00:12:45.720 to the jurisdiction of the United States. 237 00:12:46.720 --> 00:12:48.879 But and then you're going to throw that in. 238 00:12:52.240 --> 00:12:55.399 I do agree with you that it, you know, I 239 00:12:55.480 --> 00:12:58.799 like to throw out there the dissent from Olmsted versus 240 00:12:58.919 --> 00:13:03.759 us that, you know, whatever, whatever else. A civilized society believes, 241 00:13:03.799 --> 00:13:06.320 it believes in an a sphere of privacy into which 242 00:13:06.320 --> 00:13:11.440 the government made on intrude right, and I do believe that. However, 243 00:13:12.120 --> 00:13:16.080 I honestly do think that in this case, if you 244 00:13:16.159 --> 00:13:20.919 have been adjudicated to be deportable, it's a what it's 245 00:13:20.919 --> 00:13:23.960 a technicality about how Ice finds you and gets you 246 00:13:24.000 --> 00:13:28.039 out of here. You have no right not to stay 247 00:13:28.039 --> 00:13:30.000 in your house and not be deported, is what it 248 00:13:30.000 --> 00:13:32.440 would come down to. I don't know that's not a 249 00:13:32.519 --> 00:13:34.200 very good legal theory, and I won't know be a 250 00:13:34.279 --> 00:13:34.879 lawyer today. 251 00:13:35.639 --> 00:13:38.080 I can I throw on two things. It pains me 252 00:13:38.159 --> 00:13:43.639 to support Lucretia's arguments with evidence, so why I mean, 253 00:13:43.679 --> 00:13:47.240 because humfully they're much better without any evidence. But love 254 00:13:47.320 --> 00:13:51.159 argument is and this need the implication people haven't teased out. 255 00:13:51.200 --> 00:13:52.840 But you know that. 256 00:13:54.159 --> 00:13:57.240 Justice Thomas and some folks in the Claremont School think 257 00:13:57.320 --> 00:14:00.519 that the Bill of Rights should be incorporated against the 258 00:14:00.559 --> 00:14:03.159 States through the Privileges and Immunities. 259 00:14:02.639 --> 00:14:04.519 Clause, not the due process clause. 260 00:14:04.799 --> 00:14:07.120 That would make a big difference on your point, because 261 00:14:07.159 --> 00:14:10.440 the privileges and immunities are privileges and immunities of citizens 262 00:14:10.480 --> 00:14:13.879 of the United States, and the due process clause is 263 00:14:13.919 --> 00:14:17.879 just to persons. So if actually in corporation of things 264 00:14:17.919 --> 00:14:20.360 like the Fourteenth Amendment against the States were to shift, 265 00:14:21.519 --> 00:14:25.039 then you might have to figure this out whether aliens 266 00:14:25.039 --> 00:14:28.320 who are here illegally actually get constitutional rights of the 267 00:14:28.360 --> 00:14:30.960 same kind that citizens get when you do it through 268 00:14:30.960 --> 00:14:33.679 the due process clause. The Court has said when you 269 00:14:33.720 --> 00:14:35.840 do it through the process clause, because it's to persons, 270 00:14:36.360 --> 00:14:38.600 everyone on the territory of the US gets the same 271 00:14:38.639 --> 00:14:41.720 constitutional rights. It's really that could make a big difference. 272 00:14:41.759 --> 00:14:44.200 But you know, the court doesn't seem to show any 273 00:14:44.240 --> 00:14:47.720 signs of One last thing is that the original understanding 274 00:14:47.759 --> 00:14:50.440 does seem to be from the fourteenth Amendment that privileges 275 00:14:50.480 --> 00:14:53.919 and immunities. It really is the right sparing provision, not 276 00:14:54.240 --> 00:14:54.879 exactly what. 277 00:14:54.879 --> 00:14:58.000 I was going to say. Give evidence to your evidence, John, 278 00:14:58.360 --> 00:15:00.759 And that evidence also includes the fact that it was 279 00:15:00.799 --> 00:15:02.679 the Supreme Court who really mucked it up in the 280 00:15:02.720 --> 00:15:07.440 first place. And again, all of the legislative history, evidence 281 00:15:07.519 --> 00:15:09.679 and so on of the passage of the Fourteenth Amendment 282 00:15:10.080 --> 00:15:12.960 indicates that it was intended to take the Privileges and 283 00:15:13.039 --> 00:15:17.159 Immunities clause as the proof that the at least the 284 00:15:17.200 --> 00:15:20.600 first eight amendments in the Bill of Rights, the first 285 00:15:20.639 --> 00:15:23.639 eight amendments would be in fact applied to the states. 286 00:15:23.639 --> 00:15:27.120 And that's, you know, really because it was designed to 287 00:15:27.200 --> 00:15:32.080 change that relationship between between citizens and their states versus 288 00:15:32.080 --> 00:15:34.799 citizens and their federal government. The original Bill of Rights, 289 00:15:34.840 --> 00:15:38.320 Marshall told us, was to protect us against federal government abuse, 290 00:15:38.440 --> 00:15:41.360 because that was the considered the greatest danger in the founding. 291 00:15:41.440 --> 00:15:43.679 But the Civil War sort of puts that on its head, 292 00:15:43.960 --> 00:15:47.360 and so I think that Thomas has always been right 293 00:15:47.360 --> 00:15:50.240 about that. Whether the court will I mean, that would 294 00:15:50.279 --> 00:15:53.879 be a major that would be bigger even than overturning Humphreys. 295 00:15:53.960 --> 00:15:55.039 Let's just put it down way. 296 00:15:55.080 --> 00:15:59.360 Oh I agree, So let's take a go to commercial Well, yeah, 297 00:15:59.360 --> 00:16:03.840 go ahead with and also raise Steve's favorite topic of 298 00:16:03.960 --> 00:16:14.279 parents genderism. And when we return, Steve, your thoughts on 299 00:16:14.639 --> 00:16:19.200 differences in constitutional rights or between the aliens and citizens, 300 00:16:19.240 --> 00:16:20.399 or the privileges and ease. 301 00:16:20.279 --> 00:16:21.039 Caused or the right. 302 00:16:21.320 --> 00:16:23.320 I'm sure you're going to turn this in some kind 303 00:16:23.360 --> 00:16:28.759 of discussion environmentalism, but about administrative schurches and the Fourth 304 00:16:28.799 --> 00:16:32.480 Amendment was the leading Supreme Court case is called I 305 00:16:32.480 --> 00:16:36.200 think it's Monsanto versus Ruckle Shouts or something. So, oh, yeah, 306 00:16:36.519 --> 00:16:38.039 you know it's a Monsanto case. 307 00:16:38.120 --> 00:16:39.639 Yeah, but Steve, go ahead yourself. 308 00:16:39.799 --> 00:16:41.399 I already got that out of my system in the 309 00:16:41.440 --> 00:16:45.360 opening bit about power prices in Texas this weekend. I 310 00:16:45.399 --> 00:16:47.519 actually I was going to bring up something slightly different. 311 00:16:48.320 --> 00:16:50.559 We've done a decent job with the Fourth Amendment there, 312 00:16:50.799 --> 00:16:52.039 and that is just as Thomas. 313 00:16:52.080 --> 00:16:52.600 You mentioned. 314 00:16:52.639 --> 00:16:56.639 Something else this week is embraceive natural law in the 315 00:16:56.679 --> 00:16:59.679 what the Ellenberg case about to whether a certain kind 316 00:16:59.720 --> 00:17:04.079 of font civil find was constitutional under the expost facto clause. 317 00:17:04.720 --> 00:17:08.079 The court ruled, no, Only that's only a criminal fine 318 00:17:08.359 --> 00:17:13.960 that can be on retro act. Sorry, I'm staying it backwards. 319 00:17:14.640 --> 00:17:17.240 Only a civil find can be retroactive, not a criminal one. 320 00:17:17.920 --> 00:17:20.079 My taxes can be retroactive, right. 321 00:17:20.200 --> 00:17:24.359 Yes, right, yeah, And you know, Thomas is I won't 322 00:17:24.440 --> 00:17:25.759 spend too much time on this, but I just thought 323 00:17:25.759 --> 00:17:28.480 it was funny at a whole page about that passage 324 00:17:28.720 --> 00:17:31.359 that I have quoted many times in the classroom from 325 00:17:32.279 --> 00:17:34.720 Madison's notes on the Convention, where James Wilson says, we 326 00:17:34.759 --> 00:17:37.240 don't need an ex post facto clause. Everybody knows it's 327 00:17:37.240 --> 00:17:40.000 against the natural law, and people will think we're idiots 328 00:17:40.319 --> 00:17:43.799 if we I'm paraphrasing, right, but that's his real colloquial meanings. 329 00:17:43.839 --> 00:17:46.000 People think we're idiots if he wrote that in there, 330 00:17:46.039 --> 00:17:48.440 that's as dumb as saying, you know, the sun rises 331 00:17:48.440 --> 00:17:51.000 in the east, right. And so I thought that was fun. 332 00:17:51.359 --> 00:17:56.599 But the serious point is that distinction between the expost 333 00:17:56.599 --> 00:18:00.440 factor law applying to criminal but not civil law goes 334 00:18:00.480 --> 00:18:03.000 all the way back to the seventeen nineties, and this 335 00:18:03.039 --> 00:18:04.880 will connect to the next case I'll bring up but. 336 00:18:05.039 --> 00:18:08.920 Called their bulk casus bull. So what the case is? 337 00:18:08.920 --> 00:18:10.720 What seventeen ninety seven or something. 338 00:18:11.279 --> 00:18:14.640 And the point is, if we talk about before Marshall, 339 00:18:14.680 --> 00:18:17.160 but if we talk these days about how you know, 340 00:18:17.359 --> 00:18:20.240 a long practice of the way we applied to law, 341 00:18:20.480 --> 00:18:25.279 Thomas's skepticism about whether that distinction is valid would face 342 00:18:25.319 --> 00:18:26.839 an awful steep uphill climb. 343 00:18:26.839 --> 00:18:28.920 I think, now that's a long discussion. 344 00:18:28.680 --> 00:18:34.599 Right, Lucretia on Lucretia, on the fascinating topic of retroactivity. 345 00:18:35.599 --> 00:18:37.680 No, I'm actually going to go to the deeper topic 346 00:18:37.759 --> 00:18:43.160 of those things that we as Americans, with our constitutional focus, 347 00:18:43.200 --> 00:18:47.279 shall we say, our beliefs are that I was having 348 00:18:47.279 --> 00:18:50.640 a discussion with my classes last week about the Declaration 349 00:18:50.759 --> 00:18:52.640 and how it that's really sad, Steve. 350 00:18:53.000 --> 00:18:54.640 I know, good guy, Steve. 351 00:18:55.559 --> 00:18:58.559 It's sad that you that you actually let yourself run 352 00:18:58.599 --> 00:18:59.599 out anyway. 353 00:18:59.240 --> 00:19:00.319 Back to that. 354 00:19:00.759 --> 00:19:04.359 So, we were discussing the right to property and its protection, 355 00:19:05.279 --> 00:19:07.680 you know, the whole argument of it in the Declaration 356 00:19:07.759 --> 00:19:11.200 of Independence, even at Locke and then into the Constitution, 357 00:19:11.440 --> 00:19:13.519 and a student asked, what you know. It was a 358 00:19:13.559 --> 00:19:16.160 really good question. He said, if they were so concerned, 359 00:19:16.920 --> 00:19:20.519 the founders about protecting the right to privacy. Why in 360 00:19:20.559 --> 00:19:26.920 the original Constitution is there no specific, specifics statement to 361 00:19:27.000 --> 00:19:30.359 the effect that, you know, other than the takings clause, 362 00:19:30.960 --> 00:19:34.920 which is not a statement for the right to privacy. 363 00:19:34.960 --> 00:19:37.319 It doesn't say anything, for instance, about the need of 364 00:19:37.359 --> 00:19:40.319 government to protect your right to privacy. It's you know, 365 00:19:40.640 --> 00:19:44.359 And the argument that I gave back was the argument 366 00:19:44.359 --> 00:19:46.400 that Steve just did, and I said, I didn't use 367 00:19:46.440 --> 00:19:50.559 sex post fecto. I used guilty until proven innocent. That 368 00:19:50.640 --> 00:19:53.119 it was that, you know, the founding Flauthers were so 369 00:19:53.279 --> 00:19:56.960 committed to the idea of the right to privacy to 370 00:19:57.000 --> 00:19:59.920 property excuse me that it didn't even occur to the 371 00:20:00.119 --> 00:20:02.640 in some ways to have to spell it out in 372 00:20:02.680 --> 00:20:04.599 the Constitution. Is that unfair? 373 00:20:07.000 --> 00:20:08.200 Yeah, I know. 374 00:20:08.319 --> 00:20:11.000 I mean there's other things in the Constitution like that, 375 00:20:11.039 --> 00:20:14.759 Like it doesn't actually say legislation passes by a majority vote, 376 00:20:14.880 --> 00:20:18.519 all right, It just said it gives us super majority requirements. 377 00:20:18.519 --> 00:20:20.799 So there's all kinds of things like that in the Constitution. 378 00:20:22.240 --> 00:20:24.119 So my argument, which you guys don't like, is that 379 00:20:24.160 --> 00:20:26.880 we read it against the common law and its definition 380 00:20:26.960 --> 00:20:28.880 of terms and concepts, and. 381 00:20:28.880 --> 00:20:29.640 We kind of fill it. 382 00:20:29.839 --> 00:20:31.640 I mean, whether you read that or not, that's what 383 00:20:31.680 --> 00:20:34.279 the Supreme Court has done, is that they use the 384 00:20:34.279 --> 00:20:35.960 common law to fill in gaps. 385 00:20:36.720 --> 00:20:39.200 But you guys know don't like that. Yeah, I'm like that, 386 00:20:39.400 --> 00:20:39.880 just fine. 387 00:20:40.160 --> 00:20:44.440 Oh you guys okay, no igs what I'm the only 388 00:20:44.920 --> 00:20:47.279 really quickly so we can move on. My only argument 389 00:20:47.319 --> 00:20:51.519 against it would be when the common lass somehow stands 390 00:20:51.519 --> 00:20:54.039 in the face of what we know the Constitution really means. 391 00:20:54.200 --> 00:20:56.480 Like in the case of birthright citizenship. 392 00:20:55.960 --> 00:21:03.640 John Well, there was a I don't remember the case now, 393 00:21:03.640 --> 00:21:05.240 it's a long time ago, but there was a moment 394 00:21:05.319 --> 00:21:08.279 in an oral argument where one of the lawyers says 395 00:21:08.319 --> 00:21:10.759 something like, you know, my client wants to repair behind 396 00:21:10.799 --> 00:21:15.279 his constitutional right, wasn't self incriminated? Oh no, behind the 397 00:21:15.319 --> 00:21:20.880 constitutional presumption of innocence until proven guilty, and Justice Scalia 398 00:21:20.920 --> 00:21:23.119 piped up says, oh yes, where in the text does 399 00:21:23.200 --> 00:21:26.200 that clause appear? And the point is it doesn't, but 400 00:21:26.279 --> 00:21:29.519 it's well understood, like the expost facto clause that James 401 00:21:29.519 --> 00:21:32.079