Speaker 1: This episode of the Three Whiskey Happy Hour is being
Speaker 1: recorded before a live audience at the University of Tulsa
Speaker 1: College of Law. Pay Why think alone when you can
Speaker 1: drink it all in with Ricochet's Three Whiskey Happy Hour.
Speaker 1: Join your bartenders, Steve Hayward, John You, and the international
Speaker 1: Woman of Mystery, Lucretia.
Speaker 2: Where this laps happen on.
Speaker 1: David ain't easy on the should taps gotta give me?
Speaker 3: Well, that is quite a welcome.
Speaker 4: Indeed, Steve, that's the most applause you've ever had in
Speaker 4: your life.
Speaker 5: Yeah, that was even better than the Magic Trick.
Speaker 1: For everybody would well, the listeners will not have even
Speaker 1: heard that, John, So all right for listeners who are
Speaker 1: picking us up the usual way on podcasts four, this
Speaker 1: is pretty unusual. We've never done an episode together in
Speaker 1: person before live audience, and we're grateful for the hospitality
Speaker 1: of the University of Tulsa.
Speaker 3: We're gonna skip usual banter about whiskys.
Speaker 1: I was not expecting to be supplied with some High
Speaker 1: West double rye and as it is really good, and
Speaker 1: I'm normally not a fan of American bourbon.
Speaker 4: Whiskies, but this is really You're barely a fan of
Speaker 4: America as it is.
Speaker 3: See, let the mud slinging begin.
Speaker 1: We're going to get right into our topic of the
Speaker 1: Declaration of Independence today, and I'm going to set it
Speaker 1: up this way. I want to give to all of
Speaker 1: you in my co panelists two quotations from British sources
Speaker 1: and then two from American sources, and then pitch the
Speaker 1: first question to Lucretia first in seventeen seventy six, just
Speaker 1: a few weeks after the declaration was finished, and it
Speaker 1: was controversial from the beginning, and it remain so today.
Speaker 1: Of course, Jeremy Bentham, the famous utilitarian philosopher and John
Speaker 1: Use favored philosopher, had the following to say about the
Speaker 1: declaration of the preamble.
Speaker 3: I have taken little or no notice. The truth is
Speaker 3: little or none.
Speaker 1: Does it deserve the opinions of the modern Americans on government,
Speaker 1: like those of their good ancestors on witchcraft, would be
Speaker 1: too ridiculous to deserve any notice, if, like them, too
Speaker 1: contemptible and extravagant as they be, they had not led
Speaker 1: to the most serious evils. He also said, or also
Speaker 1: disparaged that second paragraph by what he labeled the so
Speaker 1: called self evident truths. Now fast forward to just two
Speaker 1: weeks ago where Rory Sutherland, a columnist for the Spectator
Speaker 1: of London magazine, did say the Declaration was genius marketing.
Speaker 1: But they went on to say this seventeen seventy six,
Speaker 1: so one of the whiniest publications in history, a tedious
Speaker 1: SOB story called the Declaration of Independence, in which a
Speaker 1: collection of colonial real estate speculators confected a litany of
Speaker 1: spurious Rievens's they claim to have suffered at the hands
Speaker 1: of the British Crown, largely to advance their own narrow
Speaker 1: financial ambitions.
Speaker 3: So some thing's never changed. And by the way, let's
Speaker 3: not let.
Speaker 1: President Trump hear about that, or he'll want to restart
Speaker 1: the War of eighteen twelve.
Speaker 5: Just the thought.
Speaker 1: But then coming over to our country, there's Woodrow Wilson,
Speaker 1: our only pH d President, and I hope we never
Speaker 1: have another one, he said the follower.
Speaker 3: He didn't like the declaration.
Speaker 1: He said, if you want to understand the declaration, the
Speaker 1: real declaration.
Speaker 3: Do not repeat the preface.
Speaker 1: And by that he met the second paragraph about inable
Speaker 1: rights and natural law. In fact, he said that Jefferson's
Speaker 1: championing of as quote, abstract political truths was an American.
Speaker 3: That's why you think I don't like it.
Speaker 1: And at this point I think we refer to another
Speaker 1: American president, and that would be Lincoln, for whom the
Speaker 1: abstract truth of the declaration was its strongest point. And
Speaker 1: so Lucretia finished the Lincoln quote for us, because I
Speaker 1: didn't write it down.
Speaker 3: And who's got the better argument, Well, of.
Speaker 6: Course it's Lincoln.
Speaker 7: But there's so many quotes that, from different angles express
Speaker 7: the exact right idea that we should today even be
Speaker 7: thinking about the Declaration. But I will leave it to
Speaker 7: just one, I think, with a little bit of extra
Speaker 7: All honored to Jefferson, Lincoln said, all honored to Jefferson,
Speaker 7: to the man who, in the concrete pressure of a
Speaker 7: struggle for national independence by a single people, had the
Speaker 7: coolness forecasting capacity to introduce into a merely revolutionary document
Speaker 7: an abstract truth applicable to all men and all times.
Speaker 7: And so to embalm it there that today and in
Speaker 7: all coming days, it shall be a rebuke and a
Speaker 7: stumbling block to the very harbingers of reappearing tyranny and oppression.
Speaker 7: Now let me just go on for a moment Steve
Speaker 7: and say that it's very interesting how many different people
Speaker 7: since that time, since Lincoln's time, all the way up
Speaker 7: through today, argue that the Declaration of Independence, in part
Speaker 7: because it said all men are created equal, didn't include women,
Speaker 7: didn't include slaves, didn't include people of this color, of
Speaker 7: that color, and it just was designed as what was
Speaker 7: his name again, that dun Britt who said something about
Speaker 7: what you're both I know, but what right does he
Speaker 7: have to even to speak about our declaration? Fix your
Speaker 7: own damn country anyway?
Speaker 6: So Lincoln's very clear about it, you know it.
Speaker 7: It was impossible for our founding fathers in seventeen seventy
Speaker 7: six or seventeen eighty seven, any time in between, to
Speaker 7: have sort of immediately placed all human.
Speaker 6: Beings on a level of equality with one another.
Speaker 7: He says, in response to the dread Scott decision, that
Speaker 7: I know you have all heard of that this grave
Speaker 7: argument that you know, the declaration only applied to white
Speaker 7: people because only white people men were given equality. He says,
Speaker 7: it comes to nothing at all by the other fact,
Speaker 7: they did not even want at once or ever afterwards,
Speaker 7: place all white people on an equality with one another.
Speaker 4: They.
Speaker 7: He says, it's really unmistakable, very simple language, intended to
Speaker 7: include all human beings, regardless of color, size, intellect, and
Speaker 7: so on. He says they defined what they were equal in,
Speaker 7: which is natural rights.
Speaker 6: Lincoln says things like that over and over again.
Speaker 7: Who disagrees with Lincoln, The Confederates, the Southern.
Speaker 6: Slave owners, Justice Tawny.
Speaker 7: Mister Rory, whatever his name is, and lots of people
Speaker 7: on both the left and the right today argue that
Speaker 7: the declaration's self evident truth of the equality of human
Speaker 7: beings is either a myth, a lie, or just a
Speaker 7: hypocrisy by our founding fathers. One last word and I
Speaker 7: will be quiet. I used to tell my students all
Speaker 7: of the time. Okay, called Jefferson a hypocrite. He was
Speaker 7: a hypocrite from the you know, our way of looking
Speaker 7: at it. He owned slaves. The guy who said it's
Speaker 7: a self evident truth that all human beings are created
Speaker 7: equal own slaves. Definition of hypocrisy. Thank God for every
Speaker 7: one of us sitting here that Jefferson was willing to
Speaker 7: be a hypocrite because what he could have said, well,
Speaker 7: I look around and I see that white men with
Speaker 7: property are in much a superior position in our society
Speaker 7: to everyone else. So the only people who are truly
Speaker 7: equal are white men who own property. Where would we
Speaker 7: be today, I'm dun Steve, No, you're not, but for
Speaker 7: the moment.
Speaker 1: Okay, So John, let's let's actually go start going through
Speaker 1: some of the clauses in a little more detail, and
Speaker 1: we'll start with that famous first sentence of the second paragraph.
Speaker 1: We hold these truths to be self evident, that all
Speaker 1: men are created equals. So first, what is a self
Speaker 1: evident truth? And second, how does it connect to or
Speaker 1: inform what the term equal means?
Speaker 3: And don't blow it.
Speaker 5: I have no idea.
Speaker 4: That's what you guys are here, your political philosophers who
Speaker 4: first time, I say thank you to Justice for inviting
Speaker 4: us to come and visit with you and also taking
Speaker 4: a chance on this different kind of format for a
Speaker 4: speech which is supposed to be is in your honor,
Speaker 4: and so I hope that at the end of it
Speaker 4: you still think this was all honoring you, which it's
Speaker 4: intended to be, even though I spend most of the
Speaker 4: podcasts insulting the other two panelists for not being lawyers
Speaker 4: and not understanding and part of that's The root of
Speaker 4: my remarks is on this question is I think it's
Speaker 4: very difficult to treat the part of the Declaration that
Speaker 4: we all know by heart as legal, as law that
Speaker 4: has to be implemented by courts. And I think the
Speaker 4: level of which we're discussing it, it's a philosophy.
Speaker 5: It's a moral worldview.
Speaker 4: I don't think, for example, if the government, even though
Speaker 4: I would oppose it, if the government did something today
Speaker 4: that violated whatever we think the pursuit of happiness is,
Speaker 4: that it would be acting illegally or unconstitutionally, because this
Speaker 4: is the moral view of the founders, but it's not binding,
Speaker 4: I would say on us in any kind of legal sense.
Speaker 4: It is to me aspirational. I think it's you know,
Speaker 4: these are inaliable truths. I might believe they are, and
Speaker 4: I bet most people in the room think they are,
Speaker 4: but I don't think they can that we can compel
Speaker 4: that moral view on people. And my impression is, and
Speaker 4: you guys, that's why I saying, you guys, tell me
Speaker 4: why this is wrong. Most philosophers today think the natural
Speaker 4: law world where this ca came out of is they
Speaker 4: were the famous phrase, it's nonsense on stilts that it's ahistorical.
Speaker 4: There was never any state of nature. There was never
Speaker 4: any social contract where we got together and made a
Speaker 4: deal to enter society. And that, you know, Lacke is nice,
Speaker 4: but the idea on which he built the philosophy, that
Speaker 4: influence of famers was built on this sort of ahistorical,
Speaker 4: flawed experiment, not a true state of nature. So I
Speaker 4: wrote a piece where I think the actual parts of
Speaker 4: the declaration that are very interesting are all for a lawyer,
Speaker 4: is all the rest of it that we don't talk
Speaker 4: about that much in school. The rest of the Declaration
Speaker 4: I think has a lot of interesting precursors to our constitution.
Speaker 5: And it's not just a list of.
Speaker 4: Grievances like the British commentary made it sound like, oh,
Speaker 4: it's just made up stuff that we came up with
Speaker 4: because we wanted to break away from England and make
Speaker 4: a lot of money, although anyone who broke away from
Speaker 4: England these days would make a lot of money just
Speaker 4: by not being in England. Right, But but you know
Speaker 4: that that there if you that the are the are
Speaker 4: the Americans of the eighteenth century have real, honest to
Speaker 4: goodness political grievances. This is not just some kind of
Speaker 4: Marxist excuse to just try to increase wealth. And so
Speaker 4: if you look at it, there's a lot of complaints
Speaker 4: about the role of the judiciary, the British undermining the
Speaker 4: independent judiciary, the British taking away the right of juries,
Speaker 4: the if you think about canceling the decisions of legislatures,
Speaker 4: sending if you might think about independent councils to the
Speaker 4: colonies who could not be controlled by the elected representatives,
Speaker 4: by the governors, if you want to see it's like
Speaker 4: as if uh, right, there's lots of jack Smith's being
Speaker 4: sent by the British monarch out to the colonies to
Speaker 4: run the to run everything, who could not be removed, right,
Speaker 4: who had ultimate power.
Speaker 5: They're describing special.
Speaker 4: Councils in the Declaration of Independence. So, actually, I think
Speaker 4: because we're so far stop, we were so focused on
Speaker 4: the beautiful language of Jefferson at the beginning and one
Speaker 4: of the greatest pieces of rhetoric and English political rhetoric
Speaker 4: and English language, we actually understudy the rest of the document,
Speaker 4: which I think could actually be very useful for constitutional interpretation.
Speaker 3: Are you going to sit still for that, Lucretia.
Speaker 7: I'm gonna I'm gonna do what John often does, which
Speaker 7: is answer the question that wasn't asked.
Speaker 5: Did you asked you a question at all?
Speaker 3: I did, Yes, ye who cares?
Speaker 7: So what I would What I would ask John is
Speaker 7: where would this notion of law come from?
Speaker 6: You say that you know, I might. You don't like
Speaker 6: Jack Smith.
Speaker 7: You don't like the kinds of government policies that might
Speaker 7: take away the rights of individuals. But you don't think
Speaker 7: that the Declaration has anything to teach us about why
Speaker 7: that might be the case. So you might argue that
Speaker 7: law that our American legal system has its entire basis
Speaker 7: and foundation in common law. I do not believe that.
Speaker 7: But let's even go one step further. Where does that
Speaker 7: come from? And if it's merely an historical put it
Speaker 7: an historical set of decisions and so forth that got
Speaker 7: us to where we are today? Why do we care?
Speaker 7: Why would we care? Is there any logic to the
Speaker 7: common law? And where does that logic.
Speaker 6: Find its basis?
Speaker 7: My argument about the Declaration, the relationship between those first
Speaker 7: two paragraphs and the rest of it, is that those
Speaker 7: complaints against King George of Great Britain can only be
Speaker 7: complaints if you understand the import of those first two
Speaker 7: paragraphs if you understand the idea that all human beings
Speaker 7: have rights, that government exists for one purpose and one
Speaker 7: purpose only, and that is to secure those rights that
Speaker 7: are insecure by nature. That God has not created man
Speaker 7: human beings with rulers, does designated by him by God
Speaker 7: and ruled. And that means that each one of us
Speaker 7: has rights and the right to what we would today
Speaker 7: call sorry self determination. That's what makes all of those
Speaker 7: problems that John talks about, that he says can lead
Speaker 7: us into understanding our government today perhaps and what might
Speaker 7: be wrong with it. It only makes sense in the
Speaker 7: context of understanding human equality, natural rights, and the purpose
Speaker 7: of government. And if you remove that, it's mere his history,
Speaker 7: which next time, you know, we should have moved on.
Speaker 7: If it's just history, I guess no.
Speaker 3: No, that's all right.
Speaker 1: You know. The funny thing is, John, is that I
Speaker 1: can actually derive reputations what you just said from your
Speaker 1: own paper, which I will.
Speaker 3: Come back to in a minute.
Speaker 5: I look forward to trying.
Speaker 2: Go ahead.
Speaker 5: I let me be clear, I'm not saying I.
Speaker 4: Disagree with the moral views of the Declaration. I think,
Speaker 4: like again most Americans do, but it's not law, and
Speaker 4: so I think it's a historical document.
Speaker 5: I agree with you, it is history.
Speaker 4: And so the main document we interpret is the Constitution, right.
Speaker 5: That is the law.
Speaker 4: The Declaration helps us understand the actually legally applicable document
Speaker 4: because it's part of the mindset of the people who
Speaker 4: drafted and ratified the Constitution. But I don't think you
Speaker 4: could say, I don't think the Declaration gives you the
Speaker 4: power of judges here may disagree, but I don't think
Speaker 4: judges have the power to say I'm striking that down
Speaker 4: because it's inconsistent with the Declaration of Independence. I think
Speaker 4: you can say I'm striking that down because inconsistent with
Speaker 4: the Constitution of the State of Oklahoma or the Constitution
Speaker 4: of the United States. Maybe their phrasesn't the Declaration which
Speaker 4: helped me understand what the Fifth Amendment means when it says,
Speaker 4: nor can life, liberty, or property be taken away without
Speaker 4: due process. But that's because it's that is the legally
Speaker 4: applicable text. And you're what it worries me about what
Speaker 4: you want to do is you're saying, here's this body
Speaker 4: of morality.
Speaker 5: I mean, you've talked a law about God.
Speaker 4: Here's this body of morality which I think you think
Speaker 4: comes from God, which I am allowed to import into
Speaker 4: judicial decisions and the law without it going through any
Speaker 4: kind of democratically accountable lawmaking process. It's because it's in
Speaker 4: the Declaration. That's almost the way you describe it. Almost
Speaker 4: sounds like the declarations superior to the Constitute.
Speaker 1: Oh well, now hold that thought, because I have a
Speaker 1: series of questions to post to both of you about
Speaker 1: the relation between the Declaration and the Constitution. It should
Speaker 1: just add so people understand what's going on here. It
Speaker 1: is true that Lucretian and I studied chiefly political philosophy,
Speaker 1: but we also did do a lot of course work
Speaker 1: in constitutional history with Leonard Levy, one of the famous
Speaker 1: constitutional historians back in the sixties, seventies and eighties, political
Speaker 1: prize winner, New Deal Liberal, friend of Felix Frankfurter, and
Speaker 1: a big ACLU civil libertarian. He loved us and we
Speaker 1: loved him because he was one of the great classroom teachers.
Speaker 1: But we combine those two things together, and yeah, I
Speaker 1: can't do the case.
Speaker 3: Law on the fifth different level of right.
Speaker 5: You mean you can't pass the bar.
Speaker 3: Well, I seldom do pass the bar if I can
Speaker 3: help it.
Speaker 4: No, no, no, Steve, you often don't pass by a bar
Speaker 4: without stopping.
Speaker 3: That's true.
Speaker 1: The point is is, well, the counter argument is this,
Speaker 1: and I want to go back to I think we
Speaker 1: need to do justice of some of those key things
Speaker 1: in the second paragraph, which, by the way, you write,
Speaker 1: some things that are so close and yet just miss.
Speaker 3: I think I'll come to a couple of examples.
Speaker 1: But look as that you cannot understand the constitution except
Speaker 1: through the lens of the declaration, and your paper says that.
Speaker 1: But forthcoming paper, it's the National Affairs this summer, right
Speaker 1: at the title itself the Declaration of Independence as a constitution.
Speaker 1: I'll ask you specifically what you mean about that. But look,
Speaker 1: let's i'll just take things quick and if I fill
Speaker 1: in and help here. But self evident truth does not
Speaker 1: mean something obvious to every self walking down the street.
Speaker 1: It's really the formal proposition. And the person who understood
Speaker 1: that best in America was Lincoln, who right, he explained
Speaker 1: his understanding of equality because of what he learned about
Speaker 1: self evidence and demonstration from Euclid.
Speaker 3: Where else do you find that directly discussed that way?
Speaker 1: Thomas Aquinas in his Treatise on Law the famous question
Speaker 1: ninety four. It's uncanny how close Aquinas's language is there
Speaker 1: about what is a self evident truth?
Speaker 3: And he says it's not evident. He says, some of
Speaker 3: these things.
Speaker 1: Are only evident to the wise, which may be problematic,
Speaker 1: but it's contained in the principles of the term itself.
Speaker 1: You know, man is a rational being. That is the
Speaker 1: first proposition that Aquinas makes. It says, he who knows
Speaker 1: what a man is will know what a rational being is.
Speaker 1: And that being is not God and not a dog
Speaker 1: or a horse. There was an intermediate being, right, and
Speaker 1: then equal then becomes more. I think confined is not
Speaker 1: the right word, but it's in modern times.
Speaker 3: It's very simple.
Speaker 7: Go ahead that among the human species there are no
Speaker 7: natural rulers.
Speaker 6: Those are two choices.
Speaker 7: There are simply only two choices, either God or nature
Speaker 7: or whatever evolution has clearly delineated among the human species
Speaker 7: who is to be the ruler and who is to
Speaker 7: be the rule or they haven't, which leaves you with
Speaker 7: only one conclusion. That each human being is his or
Speaker 7: her own natural ruler. You have to start there, and
Speaker 7: that if you are your own natural ruler. You have
Speaker 7: the right to life. You have the right to do
Speaker 7: what you want to with that life. And let me
Speaker 7: go back to life for a moment. We like to
Speaker 7: turn this concept of rule into something softer. We talk
Speaker 7: about leadership and those sorts of things, but rule means
Speaker 7: the power of life and death and all lesser powers.
Speaker 6: Either you have that right over.
Speaker 7: Yourself or somebody by some higher being or whatever I
Speaker 7: don't even know what it would be, has designated like
Speaker 7: you know, the divine right of kings. The whole concept
Speaker 7: behind the divine right of kings is why is.
Speaker 6: King George the third King? Because God said so?
Speaker 4: Right?
Speaker 7: I mean, over simplifying a bit, do you believe that
Speaker 7: or don't you? Do you believe that all human beings
Speaker 7: are created equal?
Speaker 6: Or don't you?
Speaker 7: And then so much follows from that. We mess up
Speaker 7: the whole thing by saying, but people are smarter, and
Speaker 7: people are this, and people are prettier that. Whatever it
Speaker 7: might be, there is no argument. And Lincoln was very
Speaker 7: good at this too. There is no argument for a
Speaker 7: superior quality you can bring forward about one person over
Speaker 7: another that you can end up saying, well, that person
Speaker 7: deserves to be the absolute ruler.
Speaker 6: Over the other person. Of course he applied it to slavery.
Speaker 6: But it's important.
Speaker 7: What when he you know, he talks about it, Well,
Speaker 7: why did you make a slight Why do you think
Speaker 7: this group of people should be says, well, their skin's darker.
Speaker 7: We'll be careful because when somebody's got darker skin, lighter
Speaker 7: skin than you, they can make you your slave. And
Speaker 7: so it's a very simple place to begin, which is
Speaker 7: what makes it a little bit different from Aquinas. By
Speaker 7: the way, it doesn't require wisdom. Jefferson tells us he
Speaker 7: was merely expressing the common sense of the subject, that
Speaker 7: people understood. They weren't born rulers and ruled some with
Speaker 7: saddles on their backs, the favored few, booted and spurred,
Speaker 7: ready to ride them legitimately by the grace of God.
Speaker 7: It's everything fallows from that. So I don't argue that
Speaker 7: a judge should open up their declaration of independence, say
Speaker 7: I'm overruling that because the declaration says this. That has
Speaker 7: never been the argument, but he likes to frame it
Speaker 7: that way. However, let me give you an example we have.
Speaker 7: I'll talk about Virginia. Anybody here a big fan of
Speaker 7: Abigail Spanberger. Am I going to insult you by what
Speaker 7: I'm about to say about her? So she gets rid
Speaker 7: of sanctuary policies, or excuse me, she gets rid of
Speaker 7: the policies that allowed I don't want to go into
Speaker 7: the details. Do we, as a sovereign people who have decided,
Speaker 7: under the principles of the Declaration to form ourselves as
Speaker 7: a sovereign people, get to decide who comes into this
Speaker 7: country and who doesn't.
Speaker 6: Do we get to do that? The Declaration says.
Speaker 7: Absolutely, and yes, And not only do we get to
Speaker 7: do that, because we each of us are own natural rulers.
Speaker 7: We get to do it and must do it in
Speaker 7: a way that confirms our safety and happiness, the alpha
Speaker 7: and omega of political life. So, no, you can't turn
Speaker 7: to the Declaration of Independence. The Declaration says this, So
Speaker 7: your laws, I'm gonna overrule it. But we can learn
Speaker 7: things about how we should think about government, the role
Speaker 7: of government and political society, the role of citizens with
Speaker 7: respect to one another, the role that we play must
Speaker 7: play in securing our rights and not endangering them. All
Speaker 7: of those things that we see in the Declaration can
Speaker 7: help us understand how laws should be promulgated, how they
Speaker 7: should how they should be implemented, how they should be
Speaker 7: applied by judges.
Speaker 4: This is a great example of why you guys are wrong,
Speaker 4: amongst many other examples. But I don't see what the
Speaker 4: declaration has to do with immigration policy.
Speaker 5: Frankly or Abigail Spambigger, what you just so the declaration
Speaker 5: the right you say, immigration.
Speaker 4: Is just handled by the Constitution, it says, right or
Speaker 4: we have presumed ever since the beginning that the states
Speaker 4: initially set the terms of citizenship and they use the
Speaker 4: common law rule. Right, they all chose to use a
Speaker 4: common law rule upon independence. There's a fourteenth Amendment makes
Speaker 4: clear that birthright citizenship is the test because dred Scott
Speaker 4: aired in trying to say only some people get.
Speaker 5: To have birthright citizenship.
Speaker 4: Where city policy is set by the federal system that's
Speaker 4: set up by the Constitution is interpreted by the Supreme Court.
Speaker 4: And in fact, the Supreme Court has said states don't have.
Speaker 5: To cooperate with the federal government on immigration.
Speaker 4: Just like red states didn't cooperate with the Biden approach,
Speaker 4: Blue states are now not cooperating with the Trump administration approach.
Speaker 4: But the Court has said states don't have to participate
Speaker 4: in cooperation with the federal government on immigration.
Speaker 5: That doesn't.
Speaker 4: It's not really handled or addressed by the Declaration of Independence.
Speaker 5: It's just set by constance.
Speaker 3: Isn't I forgot my copy of the decoration.
Speaker 1: Isn't one of the complaints against the king, specifically that
Speaker 1: the king is obstructing the sovereign legislatures of the states
Speaker 1: from making their laws of immigration.
Speaker 5: I know, but we don't.
Speaker 4: We don't actually enforce those in our legal system.
Speaker 1: See the point, which is the principle there? I think
Speaker 1: what Lucretian's pointing out is the principle there. Never mind
Speaker 1: the tangles of where we've gotten to in the current
Speaker 1: case and all the rest of that. The principle there
Speaker 1: is is deeply involved with the principles of consent and
Speaker 1: sovereignty of the PC.
Speaker 4: This story, I think you guys are wrong because you
Speaker 4: think that a birthright citizenship is not the actual rule.
Speaker 4: You think that if you believe what you say about society,
Speaker 4: the political society, and the United States being formed on consent,
Speaker 4: then you would say no one can enter the country
Speaker 4: without the consent of the country, and then have children
Speaker 4: who are who become citizens because the nation did not
Speaker 4: consent to them actually joining the community.
Speaker 1: Well, I'm not quite sure I put it that way,
Speaker 1: but we're gonna get off into the weeds of the
Speaker 1: current controversy and subject of the jurisdiction thereof.
Speaker 4: Because, like I think this is just I just don't
Speaker 4: think that's ever been the rule in the history of
Speaker 4: the country. I don't think there's ever except for the
Speaker 4: mistake of dread Scott, there's never been a period in
Speaker 4: our history where we said, well, you could be you
Speaker 4: could be born here, but the government or the nation
Speaker 4: has to consent to you joining society too, which seems
Speaker 4: to be the way you guys are reading the declaration.
Speaker 1: Well, okay, let us, as we usually do, agree to disagree,
Speaker 1: and let me move on to another part of the declaration,
Speaker 1: which is you have an observation. It's correct the Declaration
Speaker 1: is replete with references to the proper working of the
Speaker 1: separation of powers. I think that's true, but you derive
Speaker 1: it mostly from all those build of particulars against the king.
Speaker 1: I think that's absolutely correct, But I want to try
Speaker 1: a different way of getting at that that I think
Speaker 1: you're allergic to or have myss.
Speaker 4: Well, probably hidden in those ropes you were pulling. Now,
Speaker 4: am I supposed to see it?
Speaker 3: Well? How about this?
Speaker 1: God appears in the declaration three times, once as legislator,
Speaker 1: once as executive, and once as their judicial power. Right,
Speaker 1: the very first mention is the laws of nature and
Speaker 1: Nature's God.
Speaker 3: Then he is the creator. That's an executive act. And
Speaker 3: at the end the.
Speaker 1: Side of the declaration appeal to the Supreme Judge of
Speaker 1: the world for the rectitude of our actions. Now, maybe
Speaker 1: I didn't want to push the theologist Roopie.
Speaker 4: You think the separation of powers derives from the declaration
Speaker 4: of independence of some kind of natural law, you know, regamarole,
Speaker 4: or you know God is I thought God was three
Speaker 4: different forms. But it wasn't judge, executive and legislator. I
Speaker 4: thought it was this other thing about father's son and
Speaker 4: a holy ghost.
Speaker 2: I wasn't the holy ghost of Supreme.
Speaker 4: Court, because you need three of them to three people
Speaker 4: show up and then the holy ghosts like a chord.
Speaker 5: And I mean we're talking about John.
Speaker 8: I would say you in the spirit, no, John, what
Speaker 8: it's a It's uh no, I was I was trying
Speaker 8: to say before you so typically interrupted that I was
Speaker 8: not pushing the theology of the trinitarian God of Christianity or.
Speaker 3: Anything like that.
Speaker 1: It's up to note that the logic of the separation
Speaker 1: of powers for human beings is because only God could
Speaker 1: be trusted to have all those powers in one being,
Speaker 1: because it was wisdom of omnipotence and the witness for this.
Speaker 1: Federals fifty one right, you want to finish the sentence
Speaker 1: for me, lucretia.
Speaker 7: If men were angels, no, no.
Speaker 3: Uh, no government necessary.
Speaker 7: No government would be necessary if angels were to government,
Speaker 7: Neither external nor internal controls on government would be necessary
Speaker 7: in a government of men over men. The great difficulty
Speaker 7: lies in this. You first must enable the government to
Speaker 7: control the governed, which is no mean feat. We are
Speaker 7: seeing a lot of problems with that today, and in
Speaker 7: the next place, oblige it to control itself.
Speaker 6: Now, my the most important part of.
Speaker 7: That quote for me is the final phrase, which is
Speaker 7: a dependence on the people is no doubt the primary
Speaker 7: control on government. We can have all of these checks
Speaker 7: and balances, the careful setting up of you know, these
Speaker 7: uh conflicting powers. We've seen where that's gotten us. We've
Speaker 7: got Steve's.
Speaker 6: Dumb ropes to prove it.
Speaker 2: Madison looking wrong.
Speaker 5: Madison was idiot, He was wrong, and he was a
Speaker 5: terrible president.
Speaker 4: And when he tried to put his theories into power
Speaker 4: this he almost caused the country to be destroyed by
Speaker 4: the British Empire. And this idea of like, oh, these
Speaker 4: little spheres of three branches are going to revolve around
Speaker 4: each other. Put that never worked. It never worked before
Speaker 4: he made it up. And our government has been a
Speaker 4: failure when it's tried to work that way instead.
Speaker 5: Hamilton was right.
Speaker 4: The three branches are separated by their function, not by
Speaker 4: their blocking capabilities on each other, but because they specialize
Speaker 4: and effectively do the job.
Speaker 7: And that's that's that's why everybody says how effective our
Speaker 7: government is said, doing their job.
Speaker 4: It's way more effective than all the other ones in
Speaker 4: the country, the government the world has tried, but second
Speaker 4: are used guys saying that, okay, so God created natural law,
Speaker 4: and natural law requires a separation of powers. Because most
Speaker 4: of the other countries of the world don't have a
Speaker 4: separation of powers, right, they have parliamentary supremacy and no
Speaker 4: division really of formal authority between their branches of government.
Speaker 4: Are they all a violation of the natural law, no right,
Speaker 4: So why how can you read the separation of powers
Speaker 4: or even.
Speaker 5: Federalism out of.
Speaker 9: No?
Speaker 2: It doesn't make any sense.
Speaker 6: We're not trying to win a court case.
Speaker 5: Why are you in law school?
Speaker 3: Then?
Speaker 5: Why did you show?
Speaker 4: Why did you We're sitting in a room that looks
Speaker 4: like a courtroom.
Speaker 3: Now you're just because you have home field advantage. John,
Speaker 3: doesn't mean we're going you get away with this.
Speaker 5: You don't realize.
Speaker 4: So we lawyers just you know, we just like suffer
Speaker 4: you for amusement purposes while we actually run the society,
Speaker 4: and you guys make us feel good while we do it.
Speaker 7: The one thing that I'm going to accuse John rightly
Speaker 7: of is that he agrees with almost all of the conclusions,
Speaker 7: but refuses to look into the foundations of where he
Speaker 7: gets those opinions from. He just says he prefers them.
Speaker 7: He prefers living in a society with the rule of law.
Speaker 7: He prefers living in a society it's not a parliamentary system,
Speaker 7: et cetera, et cetera, et cetera, having his rights protected,
Speaker 7: But he does not want to confront where those rights
Speaker 7: and privileges and benefits come from He just happens to
Speaker 7: think that maybe we can say that the United States
Speaker 7: turned out pretty well, and it's got this, you know,
Speaker 7: great economy, and it's this and that, and so therefore
Speaker 7: it was the right thing to do.
Speaker 4: Yes, that's exactly, that's exactly what for once?
Speaker 5: That's right?
Speaker 2: Yeah, that's it is true.
Speaker 4: I mean I I see it because you guys seem
Speaker 4: to think it is morally required that the government be structured.
Speaker 4: I think we're lucky that through whatever messure factors historical
Speaker 4: and geographic and our history, that we figured out the
Speaker 4: right package of things. And now everyone else in.
Speaker 6: The world, right, what what what standard?
Speaker 5: By no? Bye? By the success and happiness of the people?
Speaker 6: And are the two related in any way?
Speaker 7: Or was it just a complete what's the word I'm
Speaker 7: looking for, a complete accident of history that it worked
Speaker 7: out that way? Or was is there anything in those
Speaker 7: Founding principles that you say just matter in the eighteenth
Speaker 7: century and they don't matter today? Is there anything in
Speaker 7: those Founding principles about the nature of man, the nature
Speaker 7: of government, the worry about government, all of those things
Speaker 7: that the Founding fathers believed.
Speaker 6: Is there anything that they put together.
Speaker 7: That can teach us about where we are today, and
Speaker 7: according to you know, no.
Speaker 4: No, of course they help us understand how we got here,
Speaker 4: but they're not priori compelling, you know, moral choice that
Speaker 4: we must obey. What if so, for example, how would
Speaker 4: you give definition to the phrase pursuit of happiness?
Speaker 5: How would you legally enforce that? And why would say
Speaker 5: you should? But why would that be?
Speaker 4: And if you can't, then was it really an ingredient
Speaker 4: in the success and the happiness of the American people
Speaker 4: and the development of our institution where I do think
Speaker 4: we live in the best country in the world. Was
Speaker 4: the first pursuit of happiness? And it was a phrase
Speaker 4: pursuit of happiness?
Speaker 5: Necessary for that?
Speaker 4: Or if it's not, If you can't put it into
Speaker 4: legally binding language and decisions, then to me, it's just
Speaker 4: political rhetoric.
Speaker 1: There are rich histories about what inspired that phrase, the
Speaker 1: pursuit of happiness, which is often said, not quite accurately,
Speaker 1: to've been a substitute for life liberty and property or
Speaker 1: life liberty property.
Speaker 5: Is much better, like we can we have a whole
Speaker 5: class on that here. You guys may not know that,
Speaker 5: but we have.
Speaker 4: Many classes on property in law school, and we can
Speaker 4: tell you what is property, what is not property?
Speaker 5: How do you protect the well, how do you take
Speaker 5: What I.
Speaker 7: Would say quickly about that is that it's not that
Speaker 7: that's not included. But the notion of the pursuit of
Speaker 7: happiness is a little bit broader than that. And I
Speaker 7: will sometimes actually compare it directly with Marxist thought, because
Speaker 7: remember Marxism says, from each according to his abilities, to
Speaker 7: each according to his knee. There is no relationship between
Speaker 7: the talents and faculties that each individual human being possesses
Speaker 7: and what they should have as a result of that.
Speaker 7: In the United States Founding Principles, we believe that your
Speaker 7: labor put into some otherwise useless materials and turning it
Speaker 7: into something gives you a right to property. What Jefferson
Speaker 7: does in many ways by the pursuit of happiness is
Speaker 7: to harken back to an ancient time where living in
Speaker 7: a good society meant you had the freedom to do
Speaker 7: the right thing, You had the freedom to become a
Speaker 7: good person, you had the freedom to live a virtuous life.
Speaker 6: And with Jefferson, it includes all of.
Speaker 7: Those aspects of property, but it also includes the idea
Speaker 7: that the goal of every civil society is not just
Speaker 7: the safety, but it's the safety and happiness of the society.
Speaker 7: And that if you don't have a government that is
Speaker 7: is uh working towards that end, you have to revolt
Speaker 7: against it. You have a duty to get rid of
Speaker 7: that government. And so pursuit of happiness includes and is
Speaker 7: in many ways definable by right to property.
Speaker 6: But it's more than that.
Speaker 5: So if the government doesn't make us happy, we have to.
Speaker 7: Have no nobody makes you happy. But if your pursuit
Speaker 7: of happiness is let's say you you could play the cello.
Speaker 4: Boy, that's why we need three of those.
Speaker 6: But yes, it does make sense.
Speaker 7: The pursuit of your happiness might be to see if
Speaker 7: you can actually acquire property by realizing your talent.
Speaker 5: So property, I get, it's in the constitution.
Speaker 6: Where's it in the constitution?
Speaker 5: What anyone studying for the bar?
Speaker 6: Where's the property in that? Where's property in the constitution?
Speaker 7: Well the minute, Yeah, it's not that it was added
Speaker 7: to the constitution in the Bill of Rights.
Speaker 6: It's not where is it in the constitution?
Speaker 5: You mean the original gues I do you said it?
Speaker 4: So the Bill of Rights doesn't get included in your
Speaker 4: vision of the constitution.
Speaker 6: No, but well, well then okay, then the constitution.
Speaker 4: It was actually they did not put property in.
Speaker 5: It was a mistake. They immediately corrected it two years later.
Speaker 4: Can I I'm just curious, what is the pursuit of
Speaker 4: happiness beyond the right of property?
Speaker 5: And then how would you actually give it me?
Speaker 4: I mean I heard you just say if the government
Speaker 4: stops you from pursuing happiness as you see it. Look,
Speaker 4: that's a ground too. There's a there's a disobey the
Speaker 4: constitution and the law.
Speaker 1: There's rich scholarship about what it was meant by Jefferson
Speaker 1: at the time of the Founding, which could take us
Speaker 1: three hours to go through in a serious way.
Speaker 5: It would be one example that's not already included in
Speaker 5: the right of property.
Speaker 1: Oh no, look, I mean this was Douglas Stairs view
Speaker 1: was that Jefferson and other authors of the Founding had
Speaker 1: in mind an Aristotelian idea which was way beyond property.
Speaker 3: I'm just gonna assert that. Just no, I don't.
Speaker 5: This is what lawyers do.
Speaker 3: Let me see, Well, hold on, Johnny, let me let
Speaker 3: me just in it like hurting cats man.
Speaker 1: Sometimes, let me just interrupt with a quick fun fact
Speaker 1: for everybody, and then we'll switch gears a bit.
Speaker 6: We have to go to questions soon.
Speaker 3: In ten, about nine minutes, we'll go to questions. I'm
Speaker 3: watching o'clock.
Speaker 2: Don't worry.
Speaker 3: Fun fact.
Speaker 1: On July fourth, seventeen seventy six, King George the Third
Speaker 1: wrote a short sentence in his daily diary which read,
Speaker 1: nothing of importance happened this day. Now, the phrase pursuit
Speaker 1: of happiness, John, has appeared in eighty three Supreme Court cases.
Speaker 3: I haven't looked them up. I take that from.
Speaker 1: Carly Conkline, the legal historian at the University of Missouri.
Speaker 3: Now, I'm going to go on the attack. Since you've
Speaker 3: been doing it.
Speaker 5: I'm still waiting for my one.
Speaker 3: No, I'm not giving you one because you clearly don't
Speaker 3: get it. But let me.
Speaker 4: But I'm a lawyer, would say you refuse to answer
Speaker 4: the question, it must be sai by the judicial authority.
Speaker 1: John, You have clearly been bamboozled by the fact that
Speaker 1: we're in a courtroom setting that you can behave like
Speaker 1: a lawyer in citizens.
Speaker 3: Now, John, now hareck to go on the attack.
Speaker 1: You do mention in your paper that the only justice
Speaker 1: who has invoked a.
Speaker 3: Declaration of Independence in his judicial reasoning.
Speaker 1: Is the justice you clerk for Justice Thomas, And is
Speaker 1: it true that you used to try and persuade.
Speaker 3: Him not to include those references. Yes, so, and shame
Speaker 3: on you if you know.
Speaker 5: I think he's mentioned this.
Speaker 4: So he is the only justice who's cited the Declaration
Speaker 4: of Independence as a legal authority as opposed to I
Speaker 4: bet in all those examples.
Speaker 5: You say the Supreme Court is used the pursuit of
Speaker 5: happiness is rhetorical, they're not.
Speaker 4: The Supreme Court is not saying we're making this decision
Speaker 4: because of this phrase pursuit of happiness and the Declaration
Speaker 4: of Independence. So, as far as I know, Justice Thomas
Speaker 4: is the only one who's done that, and he did
Speaker 4: it in a case called Adiran versus Pina, which was
Speaker 4: about whether the government could consider race when it was
Speaker 4: giving out contracts government contracts. And so there has been
Speaker 4: this argument made by what I call liberal originalists, who
Speaker 4: say the government is allowed to use race based on
Speaker 4: the original understanding of the fourteenth Amendment because of the
Speaker 4: presence of post Civil War programs to help the freed slaves.
Speaker 4: So that those arguments were well the government that the
Speaker 4: same people wrote the reconstruction amendments also allowed race conscious
Speaker 4: programs that benefited races. So Justice Thomas cites the Declaration
Speaker 4: of Independence for as to verify the idea that the Constitution,
Speaker 4: in his view, is colorblind. So yeah, I said, Justice,
Speaker 4: you can't cite the Declaration of Independence. No justice has
Speaker 4: ever cited the Declaration of intensey, it's not.
Speaker 5: No, But he didn't know.
Speaker 2: He cited as legal authority.
Speaker 5: He quoted from it. And so Justice said to me.
Speaker 4: I'm not I don't think I'm breaking any uh bounds
Speaker 4: of of confidentiality. But the Justice said, in his immortal
Speaker 4: words to me, he said, just watch me.
Speaker 1: Him.
Speaker 5: And that's my job as a clerk.
Speaker 6: Doesn't get it.
Speaker 4: No, my job as a clerk is to make sure
Speaker 4: that the judge understands the legal consequences.
Speaker 5: Of what they're doing before they do it. It's not
Speaker 5: my job to make the decision.
Speaker 7: There's where the Declaration of Independence can actually give us
Speaker 7: some guidance about what is the right thing to do
Speaker 7: in the case of affirmative action, in the case of
Speaker 7: race based discrimination.
Speaker 6: Why is race based discrimination wrong? There's nothing in.
Speaker 7: The Constitution specifically that tells us why it's wrong to
Speaker 7: discriminate on the basis of the immutable characteristic of race.
Speaker 7: You only can understand why color blindness and the approach
Speaker 7: to the Constitution is a fundamental principle if you refer
Speaker 7: to the Declaration of Independence. Otherwise, yeah, there's I mean,
Speaker 7: you can't get rid of segregated schools from an originalist
Speaker 7: point of view, because even the legislative history of the
Speaker 7: Fourteenth Amendment says, we don't intend this to mean that
Speaker 7: there shouldn't be segregated these, that there should be integrated schools.
Speaker 7: They were very clear about that. It's only the principle
Speaker 7: that is embodied in the Fourteenth Amendment, which Lincoln says
Speaker 7: over and over that the Civil War was fought to
Speaker 7: take out the flaw, the original flaw of the Constitution.
Speaker 7: The Fourteenth Amendment completes it. The Fourteenth Amendment authors said
Speaker 7: the same thing. How does it complete it by saying
Speaker 7: that race cannot be one of those factors that denies
Speaker 7: the fundamentally qualities?
Speaker 5: I disagree.
Speaker 4: I think that without the text of the Teeth Amendment
Speaker 4: and the equal Protection Clause, then the government would be
Speaker 4: free to make distinctions on the basis of race, unfortunately,
Speaker 4: as it did for the first right sixty some years
Speaker 4: seventy years of its history.
Speaker 5: So are you saying.
Speaker 6: First two?
Speaker 4: Are you saying that before the fourteenth Amendment was enacted
Speaker 4: that the government could not base decisions because of race?
Speaker 7: Even though these are that, there's no way to understand
Speaker 7: why discriminating on the basis.
Speaker 6: Why the race is a problem.
Speaker 5: Why do we need to understand it?
Speaker 4: Why do we need to understand it if the amendment
Speaker 4: just forbids us from doing it, Why it doesn't matter?
Speaker 5: Why the text tells us not?
Speaker 1: Can I jump in here say the numb of the
Speaker 1: problem is is I'm trying to put us in neutral language.
Speaker 1: The key thing for citizens is to understand and historians,
Speaker 1: I think is to understand the difference between the principles
Speaker 1: of the Constitution and the compromises of the Constitution. I
Speaker 1: think a lawyer has trouble doing that. I think citizens
Speaker 1: have less of a problem doing that. And so the specifically,
Speaker 1: that's why we don't let the citizens do dangerous.
Speaker 3: Things but interpret the law. Oh we do let them
Speaker 3: vote though, yes we do.
Speaker 1: Look, John, I'll just repeat Lincoln's challenge to Douglas. The
Speaker 1: Declaration of Independence has found where in American law at.
Speaker 3: The beginning of the statute books.
Speaker 1: Now, I think I know what your answer is going
Speaker 1: to be, But it can't your answer can't.
Speaker 3: No, this isn't your answer.
Speaker 1: You're gonna you're gonna wheel out of it. It can't
Speaker 1: possibly be that it has no meaning, even if it
Speaker 1: has difficult or maybe no specific applications.
Speaker 4: So, like I said, statue, if you're trying to interpret
Speaker 4: the Constitution, we are trying to recreate if you're an originalist,
Speaker 4: and you could just say, and maybe you guys are originalists, because.
Speaker 5: There are people who say we're not originalists.
Speaker 4: We should be allowed to take our current philosophies about
Speaker 4: morale into account when we interpret the Constitution. You could say,
Speaker 4: you guys believe in natural law, and there are other
Speaker 4: people who say, I believe in John Rawls's theory of equality,
Speaker 4: and we're going to use that when we interpret the Constitution,
Speaker 4: because that's today what we think is you're not saying
Speaker 4: that Ralls or.
Speaker 7: The Founders, who's right good, who's interpretation of.
Speaker 6: Right?
Speaker 4: So for me, that does not matter when it comes
Speaker 4: time to interpreting the Constitution as an originalist, I think
Speaker 4: we are just trying to recreate the understanding of the people.
Speaker 5: Because I think that because I think the contract the Constitution.
Speaker 4: Was adopted and ratified in a legitimate way by the
Speaker 4: American people, and that's our governing document.
Speaker 5: Are you saying that?
Speaker 4: Nomore, So you're saying we should just follow the Constitution
Speaker 4: because we think it's morally.
Speaker 5: The best governing document.
Speaker 4: Because we haven't it all right, we have the only
Speaker 4: alternative to originals.
Speaker 1: We have to call time because we're going to open
Speaker 1: it up now to questions from the audience.
Speaker 3: Our subtitle is.
Speaker 1: About the future of the Republic after now that we've
Speaker 1: reached two fifty, we don't have time to get into that.
Speaker 1: So while you're getting ready for questions, and I think
Speaker 1: we have two students who are queued up first, right while.
Speaker 3: You're getting queed up for questions. Another quick fun fact.
Speaker 1: About thirty years ago, the British made a great movie
Speaker 1: about King.
Speaker 3: George the Third.
Speaker 1: Maybe you saw it, The Madness of King George the Third,
Speaker 1: with Nigel Hawthorne, a great actor playing him well. When
Speaker 1: it was released the United States, it was released as
Speaker 1: just the Madness of King George. Why I Am not
Speaker 1: making us up. The studio thought American movie going audiences
Speaker 1: would say, but I didn't see the first two movies
Speaker 1: and I don't want to see the sequel.
Speaker 3: It's a true story, it's not really.
Speaker 1: But okay, i'd like to ask people. You know, this
Speaker 1: is not required, but I love people asking questions. If
Speaker 1: you'll give us your first name, and if you're a student,
Speaker 1: tell us you know what year, what program you're in, and.
Speaker 3: So who's who's does it need to be first?
Speaker 1: Oh?
Speaker 3: Yes, sorry, yeah, Marcus.
Speaker 10: I'm a I'm finishing my first year here at the university.
Speaker 5: It's all downhill.
Speaker 6: Yes.
Speaker 10: So the declaration talks about the right and even the duty.
Speaker 2: To alter or about us to destructive.
Speaker 10: So for those of us who are entering the legal
Speaker 10: profession in the next few years, what does that responsibility.
Speaker 5: Look like in practice? Does it mean working within the system,
Speaker 5: does it mean challenging it?
Speaker 3: Or does it mean something else?
Speaker 2: Oh?
Speaker 1: Great, you know I had I had a whole line
Speaker 1: of questions about the right to revolution part of the
Speaker 1: second paragraph, but John kept going to nitpick with us.
Speaker 3: So now I'm glad you brought it up.
Speaker 7: Guys, So the duty is always to I'm sorry I'm
Speaker 7: gonna say it, to make.
Speaker 6: Sure that the laws passed at the.
Speaker 7: Local level, at the state level, at the national level.
Speaker 7: As lawyers to fight for just laws. What are the
Speaker 7: definition of just laws. It's a little simpler, I think
Speaker 7: than that any other place.
Speaker 6: It really is just laws.
Speaker 7: Are those consistent with the Declaration of Independence promoting our
Speaker 7: safety and happiness. Safety is the first thing, Okay. Laws
Speaker 7: that endanger the safety of citizenry, whether they're sorry, sanctuary laws,
Speaker 7: whether they're getting rid of no cash bail or getting
Speaker 7: no cash bail, sorry, those kinds of things, that's what
Speaker 7: you have to fight against because every citizen has a
Speaker 7: right to be safe, and the government has an obligation
Speaker 7: to make every citizen right.
Speaker 6: Do you alter do you abolish it?
Speaker 4: Not?
Speaker 6: Probably not.
Speaker 7: That's a really complicated question, Jefferson says. It's something that
Speaker 7: has to be approached with the greatest amount of prudence.
Speaker 6: But altering and a mean uh prudence.
Speaker 7: Altering laws so that they are more just, that they
Speaker 7: are conducive to the safety and happiness of the citizen.
Speaker 7: That should always be, in my opinion, what lawyers should do,
Speaker 7: whether they're fighting before court, whether they're advising legislators, whether
Speaker 7: they become legislators themselves, whether they're judges. The safety and
Speaker 7: the happiness of the American people is always the end
Speaker 7: for which our government is intended.
Speaker 4: I would say everything Lucretia just described as what lawyers
Speaker 4: should not do, those are all things that all of
Speaker 4: us can do as citizens. So I think the Constitution
Speaker 4: sets up a system where you have moral preferences. Policy
Speaker 4: desires increasing safety at the cost of higher taxes to
Speaker 4: hire more police officers. Everything is a trade off in
Speaker 4: government policy. Those I think are properly the decisions of
Speaker 4: the legislature. And you and I elect people to the legislature,
Speaker 4: and we can ask them to pass certain laws that
Speaker 4: would maximize one value versus another one. But the lawyer,
Speaker 4: your job is to read the laws that are passed
Speaker 4: by those legitimate set up by the Constitution and execute
Speaker 4: them even if you disagree with them. So I mean
Speaker 4: again the sanctuary laws. I mean according to the Supreme Court.
Speaker 4: I happen to agree with the Court on this. Our
Speaker 4: federal system so that the national government controls certain aspects
Speaker 4: of immigration and that the states are not to impede it,
Speaker 4: but they don't have to cooperate with it. In Lucretia's
Speaker 4: view that mayse may increase crime in certain parts of
Speaker 4: the country or along the border states where we both live.
Speaker 5: That doesn't mean I think.
Speaker 4: As a lawyer, you have the right to refuse to
Speaker 4: implement the laws of a sanctuary city if you are
Speaker 4: an employee of that sanctuacy, or you're a lawyer in
Speaker 4: the bar of the state that has passed even statewide
Speaker 4: sanctuary policies. You could go to legislature and say, please
Speaker 4: change the law. But as long as that's the law,
Speaker 4: I think as a lawyer, you have to carry it out.
Speaker 5: I don't think you have any flexibility to do what
Speaker 5: Lucretia just said.
Speaker 1: So I'll just state for the record that maybe our
Speaker 1: greatest train wreck of an episode ever was about the
Speaker 1: same object of prudence, where John was even more streperous
Speaker 1: and stubborn than usual.
Speaker 4: Whenever I get you guys knailed down, you start using
Speaker 4: words that have no legal meeting at all.
Speaker 2: Well, pursuit of happiness.
Speaker 4: And that's why we don't These are all your escape act.
Speaker 2: Soon it's going to be the.
Speaker 5: Republican form of government.
Speaker 4: Next, there's all the refuges of scoundrels really quickly.
Speaker 7: I read on social media, probably a lawyer who said
Speaker 7: that in order to access some kind of court system
Speaker 7: I wasn't really clear entirely, but basically being able to
Speaker 7: file things and so on, and now an electronic system,
Speaker 7: he was forced to sign a statement saying that he
Speaker 7: would not cooperate in any way, shape or form with
Speaker 7: any immigration law.
Speaker 6: I forget.
Speaker 7: I think it was Colorado, of course, that this this happened,
Speaker 7: and that he had a choice either to sign that
Speaker 7: so that he could actually get his access to the
Speaker 7: court symm that he absolutely needed to defend.
Speaker 6: His clients or not and then not be any longer
Speaker 6: be able to do his job.
Speaker 7: Now, Okay, he signed it, and he said, I signed it,
Speaker 7: and I'm opposing it. He did exactly what you did.
Speaker 7: But where does the hesitancy to sign something like that
Speaker 7: come from.
Speaker 4: No, Like I said, he can have the moral view
Speaker 4: that that's wrong.
Speaker 6: But you said, what the moral view that the law
Speaker 6: is wrong?
Speaker 5: The law is the law.
Speaker 4: No, he can and then seek to have it changed
Speaker 4: by the legislature.
Speaker 5: But until it's changed by the legislature, he has to
Speaker 5: obey it. Unless you want to have a revolution.
Speaker 4: Right, you can always say I just I want to
Speaker 4: overthrow the government because I think it's in person unjustice.
Speaker 3: I want to get the next question up.
Speaker 1: But remember that the other sentence before that is something
Speaker 1: like this right should not be invoked for light and
Speaker 1: transient causes, right, which.
Speaker 6: Means shall dictate.
Speaker 3: Yeah, exactly the point me. Okay, okay, you I'm gonna
Speaker 3: throw this.
Speaker 5: Great John talent that we all have and John operate,
Speaker 5: but we don't know what it means.
Speaker 1: Is the statesman higher than the lawyer in the hierarchy
Speaker 1: of human excellence?
Speaker 5: No?
Speaker 3: Oh, there you go.
Speaker 4: Statesman's get us into trouble all the time and the
Speaker 4: lawyers save them.
Speaker 3: Yes, lawyers like Lincoln who become statesman.
Speaker 1: You just got beaten. Okay, let's have the second question.
Speaker 1: Was there another student who was cued up for this?
Speaker 1: Otherwise I will throw it open to anybody.
Speaker 3: Flora is yours? Yeah? Are you twitching for a question?
Speaker 2: No? No?
Speaker 4: Yes, go ahead, Yes, I am a pragmatist.
Speaker 5: I love it. Yeah, No, don't start.
Speaker 4: Remember that guy, why is a precedent?
Speaker 5: Because president is amazing problematic than Yeah.
Speaker 4: I would even go farther and say, I'm probably what
Speaker 4: you would think of as a utilitarian, which is even
Speaker 4: worse than a pragmatist. But I mean, I think that's
Speaker 4: what pragmatists you really are. And it goes to my
Speaker 4: answer to your question is to me, you know government, Uh,
Speaker 4: when you actually have to make decisions as a lawyer
Speaker 4: or in government, I wish they all boiled down to
Speaker 4: what is the meaning of the pursuit of happiness.
Speaker 5: They don't.
Speaker 4: They boil down to trade offs that you have to make.
Speaker 4: That unfortunately, and we have a world of limited resources.
Speaker 4: Every decision you make is a trade offer. We're gonna
Speaker 4: have more police, We're gonna spend more on welfare benefits,
Speaker 4: we're gonna spend more on defense. Right, and one goes up,
Speaker 4: You're gonna have to suffer costs somewhere else.
Speaker 2: So that's a utilitarian.
Speaker 5: Point of view, I think.
Speaker 4: I think, I think Stephen Lucretia, they would reject precedent
Speaker 4: pragmatism cost benefit analysis because they want.
Speaker 5: To see things in moral absolutes.
Speaker 4: And I think when you see the world that way,
Speaker 4: sort of, I think moral absolutes and then you throw
Speaker 4: in a little prudence and you mix it around. Great,
Speaker 4: and that's how they think, and I think that's just
Speaker 4: it's very charming. That's what happens when you put prudence
Speaker 4: in with other stuff. So see, this is much more.
Speaker 4: You're gonna remember that, much more than Steve's trick with
Speaker 4: the ropes. But that but I think that's the thing
Speaker 4: when you're I think when you become a lawyer, you
Speaker 4: have to figure out how to run government.
Speaker 5: You know, run the decisions that the people vote for,
Speaker 5: and those are.
Speaker 3: Going to be trade offs and limited resources.
Speaker 2: Just when you say what's prudence?
Speaker 5: How is prudence? Give you a war because you use
Speaker 5: to choose.
Speaker 2: Here's a simple one.
Speaker 4: You could say, well, we could spend more money on
Speaker 4: your point security if we spend more money on police,
Speaker 4: say we know the primate will go down a certain bill,
Speaker 4: and then we measure out against what else would we
Speaker 4: have spent the money on that we're going to Now.
Speaker 2: Will you calculate the cost of benefits.
Speaker 6: Like just everybody based on what standard?
Speaker 2: What do you mean?
Speaker 5: What standard?
Speaker 4: Cost of betterf you reduce them to dollars if you can,
Speaker 4: that's a standard.
Speaker 3: All right?
Speaker 5: So what the government does and every decision it.
Speaker 1: Makes, you don't think so I want to save time
Speaker 1: for the least the two more questions. I see, I'm
Speaker 1: just going to stipulate John that you have become hiromaniac
Speaker 1: in the field of straw men, because if you understand
Speaker 1: prudence correctly, which you never will.
Speaker 2: Are you guys people?
Speaker 5: No, No, And I'm the because that's true.
Speaker 3: If you understand, if you understand.
Speaker 6: Never go against him in court. That is my advice
Speaker 6: to you.
Speaker 3: If you understand prudence, you would never say moral absolutes.
Speaker 4: I know you guys think there's moral absolutes and then
Speaker 4: you mix prudence and to help you make decisions. But
Speaker 4: prudence is this kind of undefined, a morphist skill of judgment.
Speaker 1: All right, Right, The last word before I call the
Speaker 1: next question is to paraphrase something.
Speaker 3: In one of C. S. Lewis's great novels is John
Speaker 3: is an example of going for utilitarism to pragmatism and
Speaker 3: the lasts out into the complete void.
Speaker 1: Yes, sir, who should try to incorporate the decoration as I.
Speaker 5: Can understand how thought should be used, you know, with
Speaker 5: judicial review to enforce itself.
Speaker 4: Everything that would I mean I said that really is
Speaker 4: what worries me is that you will have judges who say,
Speaker 4: I know what pursuit of happiness means and I have
Speaker 4: unless the state constitution authorizes the judiciary to do that,
Speaker 4: which unfortunately does in the state of California.
Speaker 5: And you can see what's.
Speaker 4: Happened right in the the state of California. The judiciary
Speaker 4: is allowed to make policy short of the constitution as
Speaker 4: it's just as granted policy the law making power.
Speaker 6: So he has a lighter right. Thank god, are.
Speaker 2: You the straw person again?
Speaker 5: I want to make sure.
Speaker 4: So. I think though, and this is my point about
Speaker 4: the declaration. I think you can agree with the morale
Speaker 4: the moral view it sets out or not, and then
Speaker 4: you can try to use the democratic process electing people
Speaker 4: to office, and they have the right to do it.
Speaker 4: They could say, I think the right to pursuit of
Speaker 4: happiness includes fracking. I think the right fus it does
Speaker 4: not include fracking. It might produce this is a trade
Speaker 4: off more pollution, right or you know, you know, groundwater,
Speaker 4: groundmar contamination or unstable jobs.
Speaker 5: I don't know.
Speaker 4: But that's a job for the legislature to and so
Speaker 4: I think the legislatures totally. Its job is to be
Speaker 4: informed by moral views and policy objectives. But I don't
Speaker 4: think the judiciary should be I think the judiciar has
Speaker 4: to stick to the text that's been approved and not
Speaker 4: import ideas from outside it.
Speaker 7: That's what they did, by the way, in a Supreme
Speaker 7: Court case in nineteen twenty eight called Olmsted versus Us,
Speaker 7: they said, the Constitution is very clear. It speaks to persons, places, houses,
Speaker 7: and effects. It doesn't speak to electronic wire taps because
Speaker 7: they didn't have electronic wire taps in seventeen ninety one when.
Speaker 6: The Bill of Rights was passed.
Speaker 7: So the Supreme Court finds that Olmsted was guilty even
Speaker 7: though there was no warrant to tap his phones, et cetera.
Speaker 7: Is there a principle involved in that that might have
Speaker 7: informed the court not going, well, what is that declaration
Speaker 7: say about this?
Speaker 6: That's not what we're looking for.
Speaker 7: Is there a principle, the idea of a realm of
Speaker 7: privacy that an individual that a citizen has into which
Speaker 7: government may not intrude, and how we can define that privacy,
Speaker 7: how we can understand it that might inform us about
Speaker 7: whether or not just because the Fourth Amendment didn't mention
Speaker 7: electronic wire taps, it might still apply. That's how you
Speaker 7: use the Declaration of Independence. You don't say I'm going
Speaker 7: to take this particular.
Speaker 6: Thing pursuit of happiness or whatever it is, and I'm
Speaker 6: going to.
Speaker 7: Apply it in this case and show how this is
Speaker 7: the Declaration of Independence that rules the day.
Speaker 6: That's not what it's about.
Speaker 7: It's about understanding a theory of government, a theory of
Speaker 7: human nature that is expressed in the Declaration of Independence
Speaker 7: that gives meaning to some of these principles that are
Speaker 7: articulated in the Constitution and in the law.
Speaker 4: The Court exactly that and did it in a case
Speaker 4: called Cats, which is a disaster because Olmsted is replaced
Speaker 4: by the law Catsmers, United States, where the Court says, yes,
Speaker 4: we have to define this view of privacy which we've
Speaker 4: created from all these different sources, including the Declaration, and
Speaker 4: so therefore, what controls where we have privacy?
Speaker 2: What society expects.
Speaker 4: There to be a right of privacy which is completely
Speaker 4: circular and has no meaning.
Speaker 2: And so Cats has been a disaster.
Speaker 4: And so how would you apply your theory from the
Speaker 4: declaration to actually answer hard questions? Would you say at
Speaker 4: these are the questions the court is that would you
Speaker 4: say that you can't walk around a community with a
Speaker 4: heat detector to try from the outside of the houses
Speaker 4: to try to find marijuana growing plants.
Speaker 2: I hear.
Speaker 4: I don't know, but I hear that people grow marijuana
Speaker 4: in their houses with lamps when you could just go
Speaker 4: to San Francisco buy it on the street corner.
Speaker 6: I don't know why you everywhere?
Speaker 3: All right? All right?
Speaker 9: You know?
Speaker 4: Are you allowed to use are you allowed to use
Speaker 4: GPS tracking? You know information from cell phones? Is that
Speaker 4: including the right to privacy? I don't think your decoration
Speaker 4: of independence any way to inside any of those questions.
Speaker 3: Go ahead, question last question, it's gonna have to be.
Speaker 4: Doesn't get worse from here then it gets worse, So.
Speaker 5: Not that meaningless?
Speaker 6: Why not? But anyway? Continue?
Speaker 4: I hate to say it, but do you know there's
Speaker 4: a statistic which is true that seventy five percent of
Speaker 4: all articles published in law reviews are never cited ever.
Speaker 2: Yeah, oh man, it's so cynical at such a young age.
Speaker 6: Perceptive, I think is the word he meant?
Speaker 9: Gotles? What what? I guess?
Speaker 1: I see.
Speaker 2: You disagree? Now you could you could see it that way.
Speaker 4: I think I think of the Constitution as setting out
Speaker 4: the tools of self government. But it doesn't tell you
Speaker 4: exactly what you and I should want to use them for.
Speaker 5: So you could say, I actually do, I mean, they
Speaker 5: are right.
Speaker 4: I do happen to agree with most of what they think,
Speaker 4: but not through this sort of blunderbuss a stomp on
Speaker 4: all opposition, unreasoning, you know, approach and invoking.
Speaker 5: God and God knows what else on their side.
Speaker 4: But you could say, I could say, I agree with
Speaker 4: what's in the declaration right. I do believe everyone is equal,
Speaker 4: and we write to liberty, and so we should use
Speaker 4: the tools set out in the Constitution for self governments
Speaker 4: to achieve those policies. But you can also have see
Speaker 4: this is why I also willing to accept we might
Speaker 4: have Americans who are Marxists who disagree with Lucretia's theory
Speaker 4: of property.
Speaker 7: We do have Americans that are Marxists, and they do disagree,
Speaker 7: and they share governing at the moment, and.
Speaker 5: She wants to have a revolution against them, you know. Yeah,
Speaker 5: But I think the.
Speaker 4: I think the Americans Constitution allows for redistributionary policies which
Speaker 4: affect do a take from the labor and property of
Speaker 4: one and transfer it to another, because I mean, I
Speaker 4: don't think that's necessarily consistent with the declaration.
Speaker 5: But the Constitution. But the rights, I don't think the
Speaker 5: Bill of Rights prohibits it.
Speaker 6: What provision would the due process class?
Speaker 4: It says you can take away property, but it has
Speaker 4: to be with due process, and you.
Speaker 5: Can't take away property and just compensate.
Speaker 3: Never mind, we are running over time.
Speaker 6: So we really do like each other.
Speaker 5: By the way, speak for yourself.
Speaker 3: So John, do you want to begin?
Speaker 2: Oh?
Speaker 4: Yes, we always have a sign off which goes, always
Speaker 4: drink your whiskey, neat which I've ruined by pouring prudence.
Speaker 5: I'm not gonna forgive me five more books. And then
Speaker 5: Steve always gets the last tagline.
Speaker 1: Today it's just the new We're skipping some of the
Speaker 1: usual ruffles and flourishes and the way.
Speaker 3: We'll just say thank you for listening to the three Whiskey.
Speaker 1: Happy Hour sponsored by the Simatas Institute at the University
Speaker 1: of Texas at Austin, produced and hosted by Ricochet dot
Speaker 1: Com and today pleased to be at.
Speaker 3: The University of Tulsa College of Law. Cheers everybody.
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