WEBVTT 1 00:00:00.960 --> 00:00:03.359 This episode of the Three Whiskey Happy Hour is being 2 00:00:03.399 --> 00:00:06.440 recorded before a live audience at the University of Tulsa 3 00:00:06.519 --> 00:00:19.640 College of Law. Pay Why think alone when you can 4 00:00:19.719 --> 00:00:22.839 drink it all in with Ricochet's Three Whiskey Happy Hour. 5 00:00:23.320 --> 00:00:27.600 Join your bartenders, Steve Hayward, John You, and the international 6 00:00:27.679 --> 00:00:30.120 Woman of Mystery, Lucretia. 7 00:00:33.479 --> 00:00:34.799 Where this laps happen on. 8 00:00:34.960 --> 00:00:39.159 David ain't easy on the should taps gotta give me? 9 00:00:41.240 --> 00:00:43.039 Well, that is quite a welcome. 10 00:00:42.719 --> 00:00:45.399 Indeed, Steve, that's the most applause you've ever had in 11 00:00:45.439 --> 00:00:46.280 your life. 12 00:00:47.119 --> 00:00:49.240 Yeah, that was even better than the Magic Trick. 13 00:00:49.320 --> 00:00:52.479 For everybody would well, the listeners will not have even 14 00:00:52.520 --> 00:00:58.000 heard that, John, So all right for listeners who are 15 00:00:58.000 --> 00:01:00.240 picking us up the usual way on podcasts four, this 16 00:01:00.280 --> 00:01:03.439 is pretty unusual. We've never done an episode together in 17 00:01:03.479 --> 00:01:06.400 person before live audience, and we're grateful for the hospitality 18 00:01:06.400 --> 00:01:07.599 of the University of Tulsa. 19 00:01:08.040 --> 00:01:10.400 We're gonna skip usual banter about whiskys. 20 00:01:10.560 --> 00:01:13.439 I was not expecting to be supplied with some High 21 00:01:13.519 --> 00:01:18.159 West double rye and as it is really good, and 22 00:01:18.200 --> 00:01:20.239 I'm normally not a fan of American bourbon. 23 00:01:20.000 --> 00:01:22.200 Whiskies, but this is really You're barely a fan of 24 00:01:22.239 --> 00:01:23.159 America as it is. 25 00:01:24.920 --> 00:01:27.120 See, let the mud slinging begin. 26 00:01:28.879 --> 00:01:30.519 We're going to get right into our topic of the 27 00:01:30.519 --> 00:01:33.599 Declaration of Independence today, and I'm going to set it 28 00:01:33.680 --> 00:01:36.000 up this way. I want to give to all of 29 00:01:36.000 --> 00:01:39.799 you in my co panelists two quotations from British sources 30 00:01:39.840 --> 00:01:42.359 and then two from American sources, and then pitch the 31 00:01:42.359 --> 00:01:48.719 first question to Lucretia first in seventeen seventy six, just 32 00:01:48.719 --> 00:01:52.400 a few weeks after the declaration was finished, and it 33 00:01:52.439 --> 00:01:54.799 was controversial from the beginning, and it remain so today. 34 00:01:54.840 --> 00:01:59.879 Of course, Jeremy Bentham, the famous utilitarian philosopher and John 35 00:02:00.079 --> 00:02:03.400 Use favored philosopher, had the following to say about the 36 00:02:03.400 --> 00:02:05.719 declaration of the preamble. 37 00:02:05.760 --> 00:02:08.439 I have taken little or no notice. The truth is 38 00:02:08.560 --> 00:02:09.240 little or none. 39 00:02:09.319 --> 00:02:13.039 Does it deserve the opinions of the modern Americans on government, 40 00:02:13.199 --> 00:02:16.199 like those of their good ancestors on witchcraft, would be 41 00:02:16.280 --> 00:02:19.800 too ridiculous to deserve any notice, if, like them, too 42 00:02:20.080 --> 00:02:23.439 contemptible and extravagant as they be, they had not led 43 00:02:23.479 --> 00:02:28.439 to the most serious evils. He also said, or also 44 00:02:28.479 --> 00:02:31.199 disparaged that second paragraph by what he labeled the so 45 00:02:31.439 --> 00:02:35.000 called self evident truths. Now fast forward to just two 46 00:02:35.039 --> 00:02:39.680 weeks ago where Rory Sutherland, a columnist for the Spectator 47 00:02:39.680 --> 00:02:44.240 of London magazine, did say the Declaration was genius marketing. 48 00:02:44.800 --> 00:02:47.960 But they went on to say this seventeen seventy six, 49 00:02:48.039 --> 00:02:51.639 so one of the whiniest publications in history, a tedious 50 00:02:51.680 --> 00:02:54.840 SOB story called the Declaration of Independence, in which a 51 00:02:54.879 --> 00:02:59.240 collection of colonial real estate speculators confected a litany of 52 00:02:59.360 --> 00:03:02.879 spurious Rievens's they claim to have suffered at the hands 53 00:03:02.879 --> 00:03:06.159 of the British Crown, largely to advance their own narrow 54 00:03:06.199 --> 00:03:07.639 financial ambitions. 55 00:03:08.199 --> 00:03:10.439 So some thing's never changed. And by the way, let's 56 00:03:10.479 --> 00:03:11.120 not let. 57 00:03:11.000 --> 00:03:13.439 President Trump hear about that, or he'll want to restart 58 00:03:13.439 --> 00:03:14.360 the War of eighteen twelve. 59 00:03:15.599 --> 00:03:16.280 Just the thought. 60 00:03:17.080 --> 00:03:19.879 But then coming over to our country, there's Woodrow Wilson, 61 00:03:20.199 --> 00:03:23.159 our only pH d President, and I hope we never 62 00:03:23.199 --> 00:03:26.560 have another one, he said the follower. 63 00:03:26.560 --> 00:03:27.599 He didn't like the declaration. 64 00:03:27.759 --> 00:03:30.240 He said, if you want to understand the declaration, the 65 00:03:30.240 --> 00:03:31.599 real declaration. 66 00:03:31.240 --> 00:03:32.599 Do not repeat the preface. 67 00:03:32.639 --> 00:03:35.159 And by that he met the second paragraph about inable 68 00:03:35.280 --> 00:03:39.719 rights and natural law. In fact, he said that Jefferson's 69 00:03:39.800 --> 00:03:44.120 championing of as quote, abstract political truths was an American. 70 00:03:45.919 --> 00:03:47.000 That's why you think I don't like it. 71 00:03:48.120 --> 00:03:51.319 And at this point I think we refer to another 72 00:03:51.439 --> 00:03:54.199 American president, and that would be Lincoln, for whom the 73 00:03:54.240 --> 00:03:57.439 abstract truth of the declaration was its strongest point. And 74 00:03:57.479 --> 00:04:00.520 so Lucretia finished the Lincoln quote for us, because I 75 00:04:00.560 --> 00:04:01.280 didn't write it down. 76 00:04:01.360 --> 00:04:03.199 And who's got the better argument, Well, of. 77 00:04:03.120 --> 00:04:03.919 Course it's Lincoln. 78 00:04:04.479 --> 00:04:10.479 But there's so many quotes that, from different angles express 79 00:04:10.639 --> 00:04:13.919 the exact right idea that we should today even be 80 00:04:14.000 --> 00:04:17.000 thinking about the Declaration. But I will leave it to 81 00:04:17.160 --> 00:04:21.040 just one, I think, with a little bit of extra 82 00:04:21.560 --> 00:04:25.480 All honored to Jefferson, Lincoln said, all honored to Jefferson, 83 00:04:25.519 --> 00:04:28.040 to the man who, in the concrete pressure of a 84 00:04:28.079 --> 00:04:33.120 struggle for national independence by a single people, had the 85 00:04:33.120 --> 00:04:38.959 coolness forecasting capacity to introduce into a merely revolutionary document 86 00:04:39.600 --> 00:04:45.560 an abstract truth applicable to all men and all times. 87 00:04:45.680 --> 00:04:48.279 And so to embalm it there that today and in 88 00:04:48.439 --> 00:04:50.800 all coming days, it shall be a rebuke and a 89 00:04:50.839 --> 00:04:57.360 stumbling block to the very harbingers of reappearing tyranny and oppression. 90 00:04:57.959 --> 00:04:59.879 Now let me just go on for a moment Steve 91 00:05:00.000 --> 00:05:04.680 and say that it's very interesting how many different people 92 00:05:06.199 --> 00:05:09.680 since that time, since Lincoln's time, all the way up 93 00:05:09.680 --> 00:05:14.079 through today, argue that the Declaration of Independence, in part 94 00:05:14.120 --> 00:05:18.199 because it said all men are created equal, didn't include women, 95 00:05:18.439 --> 00:05:21.920 didn't include slaves, didn't include people of this color, of 96 00:05:21.959 --> 00:05:26.879 that color, and it just was designed as what was 97 00:05:26.920 --> 00:05:30.240 his name again, that dun Britt who said something about 98 00:05:30.560 --> 00:05:33.120 what you're both I know, but what right does he 99 00:05:33.120 --> 00:05:35.519 have to even to speak about our declaration? Fix your 100 00:05:35.519 --> 00:05:38.759 own damn country anyway? 101 00:05:38.800 --> 00:05:41.639 So Lincoln's very clear about it, you know it. 102 00:05:42.959 --> 00:05:47.040 It was impossible for our founding fathers in seventeen seventy 103 00:05:47.079 --> 00:05:50.399 six or seventeen eighty seven, any time in between, to 104 00:05:50.480 --> 00:05:53.839 have sort of immediately placed all human. 105 00:05:53.600 --> 00:05:56.839 Beings on a level of equality with one another. 106 00:05:56.920 --> 00:06:00.279 He says, in response to the dread Scott decision, that 107 00:06:00.319 --> 00:06:03.399 I know you have all heard of that this grave 108 00:06:03.600 --> 00:06:06.439 argument that you know, the declaration only applied to white 109 00:06:06.480 --> 00:06:11.279 people because only white people men were given equality. He says, 110 00:06:11.279 --> 00:06:13.079 it comes to nothing at all by the other fact, 111 00:06:13.079 --> 00:06:15.800 they did not even want at once or ever afterwards, 112 00:06:16.000 --> 00:06:19.560 place all white people on an equality with one another. 113 00:06:20.240 --> 00:06:20.360 They. 114 00:06:20.800 --> 00:06:25.000 He says, it's really unmistakable, very simple language, intended to 115 00:06:25.079 --> 00:06:29.360 include all human beings, regardless of color, size, intellect, and 116 00:06:29.399 --> 00:06:32.959 so on. He says they defined what they were equal in, 117 00:06:33.079 --> 00:06:34.279 which is natural rights. 118 00:06:34.600 --> 00:06:37.560 Lincoln says things like that over and over again. 119 00:06:38.120 --> 00:06:43.199 Who disagrees with Lincoln, The Confederates, the Southern. 120 00:06:42.920 --> 00:06:46.519 Slave owners, Justice Tawny. 121 00:06:47.240 --> 00:06:51.480 Mister Rory, whatever his name is, and lots of people 122 00:06:51.600 --> 00:06:53.920 on both the left and the right today argue that 123 00:06:54.000 --> 00:06:58.639 the declaration's self evident truth of the equality of human 124 00:06:58.680 --> 00:07:01.959 beings is either a myth, a lie, or just a 125 00:07:03.160 --> 00:07:06.959 hypocrisy by our founding fathers. One last word and I 126 00:07:07.000 --> 00:07:09.480 will be quiet. I used to tell my students all 127 00:07:09.519 --> 00:07:14.279 of the time. Okay, called Jefferson a hypocrite. He was 128 00:07:14.319 --> 00:07:16.639 a hypocrite from the you know, our way of looking 129 00:07:16.720 --> 00:07:19.560 at it. He owned slaves. The guy who said it's 130 00:07:19.560 --> 00:07:21.920 a self evident truth that all human beings are created 131 00:07:21.959 --> 00:07:28.000 equal own slaves. Definition of hypocrisy. Thank God for every 132 00:07:28.000 --> 00:07:30.480 one of us sitting here that Jefferson was willing to 133 00:07:30.519 --> 00:07:34.759 be a hypocrite because what he could have said, well, 134 00:07:34.800 --> 00:07:37.480 I look around and I see that white men with 135 00:07:37.600 --> 00:07:42.040 property are in much a superior position in our society 136 00:07:42.079 --> 00:07:44.319 to everyone else. So the only people who are truly 137 00:07:44.360 --> 00:07:48.800 equal are white men who own property. Where would we 138 00:07:48.879 --> 00:07:53.279 be today, I'm dun Steve, No, you're not, but for 139 00:07:53.360 --> 00:07:53.800 the moment. 140 00:07:53.839 --> 00:07:57.800 Okay, So John, let's let's actually go start going through 141 00:07:57.800 --> 00:08:00.160 some of the clauses in a little more detail, and 142 00:08:00.240 --> 00:08:03.040 we'll start with that famous first sentence of the second paragraph. 143 00:08:03.120 --> 00:08:05.480 We hold these truths to be self evident, that all 144 00:08:05.519 --> 00:08:09.240 men are created equals. So first, what is a self 145 00:08:09.279 --> 00:08:12.959 evident truth? And second, how does it connect to or 146 00:08:13.000 --> 00:08:14.959 inform what the term equal means? 147 00:08:15.120 --> 00:08:15.959 And don't blow it. 148 00:08:16.639 --> 00:08:17.439 I have no idea. 149 00:08:17.480 --> 00:08:22.000 That's what you guys are here, your political philosophers who 150 00:08:22.199 --> 00:08:24.720 first time, I say thank you to Justice for inviting 151 00:08:24.800 --> 00:08:28.839 us to come and visit with you and also taking 152 00:08:28.920 --> 00:08:32.399 a chance on this different kind of format for a 153 00:08:32.440 --> 00:08:34.840 speech which is supposed to be is in your honor, 154 00:08:35.000 --> 00:08:37.000 and so I hope that at the end of it 155 00:08:37.080 --> 00:08:39.679 you still think this was all honoring you, which it's 156 00:08:39.720 --> 00:08:42.159 intended to be, even though I spend most of the 157 00:08:42.200 --> 00:08:46.159 podcasts insulting the other two panelists for not being lawyers 158 00:08:46.200 --> 00:08:49.399 and not understanding and part of that's The root of 159 00:08:49.440 --> 00:08:55.039 my remarks is on this question is I think it's 160 00:08:55.240 --> 00:08:58.960 very difficult to treat the part of the Declaration that 161 00:08:59.000 --> 00:09:04.720 we all know by heart as legal, as law that 162 00:09:04.879 --> 00:09:07.519 has to be implemented by courts. And I think the 163 00:09:07.600 --> 00:09:10.039 level of which we're discussing it, it's a philosophy. 164 00:09:10.559 --> 00:09:12.480 It's a moral worldview. 165 00:09:13.840 --> 00:09:17.960 I don't think, for example, if the government, even though 166 00:09:17.960 --> 00:09:21.000 I would oppose it, if the government did something today 167 00:09:21.480 --> 00:09:24.519 that violated whatever we think the pursuit of happiness is, 168 00:09:25.120 --> 00:09:29.440 that it would be acting illegally or unconstitutionally, because this 169 00:09:29.559 --> 00:09:32.600 is the moral view of the founders, but it's not binding, 170 00:09:32.720 --> 00:09:36.120 I would say on us in any kind of legal sense. 171 00:09:36.480 --> 00:09:39.759 It is to me aspirational. I think it's you know, 172 00:09:40.399 --> 00:09:43.399 these are inaliable truths. I might believe they are, and 173 00:09:43.440 --> 00:09:45.360 I bet most people in the room think they are, 174 00:09:46.240 --> 00:09:48.679 but I don't think they can that we can compel 175 00:09:48.759 --> 00:09:52.159 that moral view on people. And my impression is, and 176 00:09:52.159 --> 00:09:53.919 you guys, that's why I saying, you guys, tell me 177 00:09:53.960 --> 00:09:58.960 why this is wrong. Most philosophers today think the natural 178 00:09:59.039 --> 00:10:02.360 law world where this ca came out of is they 179 00:10:02.399 --> 00:10:06.799 were the famous phrase, it's nonsense on stilts that it's ahistorical. 180 00:10:07.000 --> 00:10:10.399 There was never any state of nature. There was never 181 00:10:10.480 --> 00:10:13.720 any social contract where we got together and made a 182 00:10:13.759 --> 00:10:17.440 deal to enter society. And that, you know, Lacke is nice, 183 00:10:17.519 --> 00:10:21.159 but the idea on which he built the philosophy, that 184 00:10:21.159 --> 00:10:24.240 influence of famers was built on this sort of ahistorical, 185 00:10:24.360 --> 00:10:27.720 flawed experiment, not a true state of nature. So I 186 00:10:27.759 --> 00:10:29.840 wrote a piece where I think the actual parts of 187 00:10:29.879 --> 00:10:33.080 the declaration that are very interesting are all for a lawyer, 188 00:10:33.799 --> 00:10:36.080 is all the rest of it that we don't talk 189 00:10:36.120 --> 00:10:38.519 about that much in school. The rest of the Declaration 190 00:10:39.039 --> 00:10:42.720 I think has a lot of interesting precursors to our constitution. 191 00:10:42.879 --> 00:10:44.639 And it's not just a list of. 192 00:10:44.799 --> 00:10:48.360 Grievances like the British commentary made it sound like, oh, 193 00:10:48.360 --> 00:10:51.000 it's just made up stuff that we came up with 194 00:10:51.279 --> 00:10:53.559 because we wanted to break away from England and make 195 00:10:53.600 --> 00:10:56.799 a lot of money, although anyone who broke away from 196 00:10:56.799 --> 00:10:58.759 England these days would make a lot of money just 197 00:10:58.799 --> 00:11:03.559 by not being in England. Right, But but you know 198 00:11:03.600 --> 00:11:05.919 that that there if you that the are the are 199 00:11:05.960 --> 00:11:09.480 the Americans of the eighteenth century have real, honest to 200 00:11:09.519 --> 00:11:13.240 goodness political grievances. This is not just some kind of 201 00:11:13.279 --> 00:11:17.279 Marxist excuse to just try to increase wealth. And so 202 00:11:17.320 --> 00:11:18.919 if you look at it, there's a lot of complaints 203 00:11:18.919 --> 00:11:21.799 about the role of the judiciary, the British undermining the 204 00:11:21.799 --> 00:11:24.919 independent judiciary, the British taking away the right of juries, 205 00:11:25.399 --> 00:11:29.879 the if you think about canceling the decisions of legislatures, 206 00:11:29.919 --> 00:11:33.919 sending if you might think about independent councils to the 207 00:11:33.960 --> 00:11:37.240 colonies who could not be controlled by the elected representatives, 208 00:11:37.240 --> 00:11:39.960 by the governors, if you want to see it's like 209 00:11:40.039 --> 00:11:43.600 as if uh, right, there's lots of jack Smith's being 210 00:11:43.639 --> 00:11:46.440 sent by the British monarch out to the colonies to 211 00:11:46.559 --> 00:11:49.799 run the to run everything, who could not be removed, right, 212 00:11:49.799 --> 00:11:51.159 who had ultimate power. 213 00:11:51.759 --> 00:11:53.360 They're describing special. 214 00:11:52.960 --> 00:11:56.919 Councils in the Declaration of Independence. So, actually, I think 215 00:11:56.960 --> 00:12:00.600 because we're so far stop, we were so focused on 216 00:12:00.759 --> 00:12:05.480 the beautiful language of Jefferson at the beginning and one 217 00:12:05.480 --> 00:12:07.919 of the greatest pieces of rhetoric and English political rhetoric 218 00:12:08.000 --> 00:12:12.279 and English language, we actually understudy the rest of the document, 219 00:12:12.320 --> 00:12:15.840 which I think could actually be very useful for constitutional interpretation. 220 00:12:16.120 --> 00:12:18.240 Are you going to sit still for that, Lucretia. 221 00:12:18.480 --> 00:12:20.799 I'm gonna I'm gonna do what John often does, which 222 00:12:20.840 --> 00:12:25.279 is answer the question that wasn't asked. 223 00:12:25.039 --> 00:12:26.480 Did you asked you a question at all? 224 00:12:26.600 --> 00:12:29.240 I did, Yes, ye who cares? 225 00:12:31.000 --> 00:12:33.720 So what I would What I would ask John is 226 00:12:34.519 --> 00:12:37.480 where would this notion of law come from? 227 00:12:37.559 --> 00:12:39.840 You say that you know, I might. You don't like 228 00:12:39.960 --> 00:12:40.559 Jack Smith. 229 00:12:40.639 --> 00:12:45.120 You don't like the kinds of government policies that might 230 00:12:45.200 --> 00:12:47.519 take away the rights of individuals. But you don't think 231 00:12:47.519 --> 00:12:49.919 that the Declaration has anything to teach us about why 232 00:12:49.960 --> 00:12:52.799 that might be the case. So you might argue that 233 00:12:52.879 --> 00:12:58.159 law that our American legal system has its entire basis 234 00:12:58.159 --> 00:13:02.360 and foundation in common law. I do not believe that. 235 00:13:02.399 --> 00:13:04.279 But let's even go one step further. Where does that 236 00:13:04.320 --> 00:13:10.639 come from? And if it's merely an historical put it 237 00:13:11.000 --> 00:13:15.159 an historical set of decisions and so forth that got 238 00:13:15.240 --> 00:13:17.360 us to where we are today? Why do we care? 239 00:13:17.679 --> 00:13:20.679 Why would we care? Is there any logic to the 240 00:13:20.720 --> 00:13:22.879 common law? And where does that logic. 241 00:13:22.600 --> 00:13:23.600 Find its basis? 242 00:13:24.039 --> 00:13:28.639 My argument about the Declaration, the relationship between those first 243 00:13:28.679 --> 00:13:32.039 two paragraphs and the rest of it, is that those 244 00:13:32.360 --> 00:13:36.600 complaints against King George of Great Britain can only be 245 00:13:36.799 --> 00:13:41.559 complaints if you understand the import of those first two 246 00:13:41.600 --> 00:13:45.159 paragraphs if you understand the idea that all human beings 247 00:13:45.200 --> 00:13:48.960 have rights, that government exists for one purpose and one 248 00:13:48.960 --> 00:13:52.000 purpose only, and that is to secure those rights that 249 00:13:52.039 --> 00:13:56.879 are insecure by nature. That God has not created man 250 00:13:57.159 --> 00:14:02.080 human beings with rulers, does designated by him by God 251 00:14:02.440 --> 00:14:05.240 and ruled. And that means that each one of us 252 00:14:05.360 --> 00:14:09.320 has rights and the right to what we would today 253 00:14:09.399 --> 00:14:13.559 call sorry self determination. That's what makes all of those 254 00:14:13.720 --> 00:14:16.480 problems that John talks about, that he says can lead 255 00:14:16.600 --> 00:14:22.279 us into understanding our government today perhaps and what might 256 00:14:22.279 --> 00:14:25.399 be wrong with it. It only makes sense in the 257 00:14:25.440 --> 00:14:29.440 context of understanding human equality, natural rights, and the purpose 258 00:14:29.480 --> 00:14:34.440 of government. And if you remove that, it's mere his history, 259 00:14:34.480 --> 00:14:37.320 which next time, you know, we should have moved on. 260 00:14:37.399 --> 00:14:40.360 If it's just history, I guess no. 261 00:14:40.200 --> 00:14:40.679 No, that's all right. 262 00:14:40.919 --> 00:14:42.600 You know. The funny thing is, John, is that I 263 00:14:42.639 --> 00:14:45.279 can actually derive reputations what you just said from your 264 00:14:45.279 --> 00:14:46.440 own paper, which I will. 265 00:14:46.279 --> 00:14:47.440 Come back to in a minute. 266 00:14:47.960 --> 00:14:49.279 I look forward to trying. 267 00:14:51.840 --> 00:14:52.240 Go ahead. 268 00:14:53.600 --> 00:14:55.840 I let me be clear, I'm not saying I. 269 00:14:55.840 --> 00:14:59.919 Disagree with the moral views of the Declaration. I think, 270 00:15:00.120 --> 00:15:04.120 like again most Americans do, but it's not law, and 271 00:15:04.159 --> 00:15:06.679 so I think it's a historical document. 272 00:15:06.720 --> 00:15:08.639 I agree with you, it is history. 273 00:15:08.720 --> 00:15:12.679 And so the main document we interpret is the Constitution, right. 274 00:15:12.639 --> 00:15:13.440 That is the law. 275 00:15:14.039 --> 00:15:19.000 The Declaration helps us understand the actually legally applicable document 276 00:15:19.080 --> 00:15:22.279 because it's part of the mindset of the people who 277 00:15:22.320 --> 00:15:26.039 drafted and ratified the Constitution. But I don't think you 278 00:15:26.080 --> 00:15:29.480 could say, I don't think the Declaration gives you the 279 00:15:29.519 --> 00:15:32.799 power of judges here may disagree, but I don't think 280 00:15:32.879 --> 00:15:36.240 judges have the power to say I'm striking that down 281 00:15:36.879 --> 00:15:39.879 because it's inconsistent with the Declaration of Independence. I think 282 00:15:39.879 --> 00:15:42.519 you can say I'm striking that down because inconsistent with 283 00:15:42.639 --> 00:15:45.840 the Constitution of the State of Oklahoma or the Constitution 284 00:15:45.879 --> 00:15:49.399 of the United States. Maybe their phrasesn't the Declaration which 285 00:15:49.399 --> 00:15:52.039 helped me understand what the Fifth Amendment means when it says, 286 00:15:52.440 --> 00:15:54.840 nor can life, liberty, or property be taken away without 287 00:15:54.919 --> 00:15:59.480 due process. But that's because it's that is the legally 288 00:15:59.480 --> 00:16:03.519 applicable text. And you're what it worries me about what 289 00:16:03.559 --> 00:16:06.080 you want to do is you're saying, here's this body 290 00:16:06.120 --> 00:16:06.799 of morality. 291 00:16:06.919 --> 00:16:08.399 I mean, you've talked a law about God. 292 00:16:08.759 --> 00:16:10.720 Here's this body of morality which I think you think 293 00:16:10.759 --> 00:16:14.360 comes from God, which I am allowed to import into 294 00:16:14.480 --> 00:16:19.279 judicial decisions and the law without it going through any 295 00:16:19.360 --> 00:16:23.720 kind of democratically accountable lawmaking process. It's because it's in 296 00:16:23.759 --> 00:16:26.120 the Declaration. That's almost the way you describe it. Almost 297 00:16:26.120 --> 00:16:29.399 sounds like the declarations superior to the Constitute. 298 00:16:29.440 --> 00:16:31.759 Oh well, now hold that thought, because I have a 299 00:16:31.759 --> 00:16:33.960 series of questions to post to both of you about 300 00:16:34.200 --> 00:16:37.279 the relation between the Declaration and the Constitution. It should 301 00:16:37.279 --> 00:16:39.639 just add so people understand what's going on here. It 302 00:16:39.720 --> 00:16:43.159 is true that Lucretian and I studied chiefly political philosophy, 303 00:16:44.000 --> 00:16:45.879 but we also did do a lot of course work 304 00:16:46.919 --> 00:16:50.440 in constitutional history with Leonard Levy, one of the famous 305 00:16:50.759 --> 00:16:53.759 constitutional historians back in the sixties, seventies and eighties, political 306 00:16:53.799 --> 00:16:58.360 prize winner, New Deal Liberal, friend of Felix Frankfurter, and 307 00:16:59.039 --> 00:17:02.120 a big ACLU civil libertarian. He loved us and we 308 00:17:02.159 --> 00:17:04.880 loved him because he was one of the great classroom teachers. 309 00:17:05.640 --> 00:17:07.839 But we combine those two things together, and yeah, I 310 00:17:07.839 --> 00:17:08.680 can't do the case. 311 00:17:08.519 --> 00:17:11.400 Law on the fifth different level of right. 312 00:17:12.279 --> 00:17:13.599 You mean you can't pass the bar. 313 00:17:15.440 --> 00:17:17.319 Well, I seldom do pass the bar if I can 314 00:17:17.359 --> 00:17:17.599 help it. 315 00:17:17.799 --> 00:17:20.240 No, no, no, Steve, you often don't pass by a bar 316 00:17:20.319 --> 00:17:21.000 without stopping. 317 00:17:21.079 --> 00:17:23.119 That's true. 318 00:17:24.640 --> 00:17:26.920 The point is is, well, the counter argument is this, 319 00:17:27.039 --> 00:17:28.559 and I want to go back to I think we 320 00:17:28.799 --> 00:17:30.440 need to do justice of some of those key things 321 00:17:30.440 --> 00:17:32.519 in the second paragraph, which, by the way, you write, 322 00:17:32.759 --> 00:17:35.200 some things that are so close and yet just miss. 323 00:17:35.240 --> 00:17:36.920 I think I'll come to a couple of examples. 324 00:17:36.920 --> 00:17:40.799 But look as that you cannot understand the constitution except 325 00:17:40.799 --> 00:17:43.400 through the lens of the declaration, and your paper says that. 326 00:17:43.759 --> 00:17:46.359 But forthcoming paper, it's the National Affairs this summer, right 327 00:17:47.319 --> 00:17:51.960 at the title itself the Declaration of Independence as a constitution. 328 00:17:52.480 --> 00:17:54.839 I'll ask you specifically what you mean about that. But look, 329 00:17:54.920 --> 00:17:59.279 let's i'll just take things quick and if I fill 330 00:17:59.279 --> 00:18:01.680 in and help here. But self evident truth does not 331 00:18:01.759 --> 00:18:04.319 mean something obvious to every self walking down the street. 332 00:18:04.960 --> 00:18:08.039 It's really the formal proposition. And the person who understood 333 00:18:08.039 --> 00:18:10.799 that best in America was Lincoln, who right, he explained 334 00:18:10.839 --> 00:18:13.759 his understanding of equality because of what he learned about 335 00:18:13.920 --> 00:18:16.599 self evidence and demonstration from Euclid. 336 00:18:17.680 --> 00:18:20.680 Where else do you find that directly discussed that way? 337 00:18:20.759 --> 00:18:23.559 Thomas Aquinas in his Treatise on Law the famous question 338 00:18:23.640 --> 00:18:27.960 ninety four. It's uncanny how close Aquinas's language is there 339 00:18:28.000 --> 00:18:29.519 about what is a self evident truth? 340 00:18:29.839 --> 00:18:31.680 And he says it's not evident. He says, some of 341 00:18:31.720 --> 00:18:32.240 these things. 342 00:18:32.039 --> 00:18:34.440 Are only evident to the wise, which may be problematic, 343 00:18:35.119 --> 00:18:37.880 but it's contained in the principles of the term itself. 344 00:18:38.759 --> 00:18:41.720 You know, man is a rational being. That is the 345 00:18:41.759 --> 00:18:45.000 first proposition that Aquinas makes. It says, he who knows 346 00:18:45.000 --> 00:18:46.960 what a man is will know what a rational being is. 347 00:18:47.000 --> 00:18:49.839 And that being is not God and not a dog 348 00:18:49.920 --> 00:18:52.839 or a horse. There was an intermediate being, right, and 349 00:18:52.880 --> 00:18:57.119 then equal then becomes more. I think confined is not 350 00:18:57.200 --> 00:19:00.119 the right word, but it's in modern times. 351 00:18:59.720 --> 00:19:01.119 It's very simple. 352 00:19:01.319 --> 00:19:03.640 Go ahead that among the human species there are no 353 00:19:03.759 --> 00:19:04.559 natural rulers. 354 00:19:05.000 --> 00:19:06.160 Those are two choices. 355 00:19:06.440 --> 00:19:10.920 There are simply only two choices, either God or nature 356 00:19:11.039 --> 00:19:17.759 or whatever evolution has clearly delineated among the human species 357 00:19:17.839 --> 00:19:20.519 who is to be the ruler and who is to 358 00:19:20.599 --> 00:19:24.279 be the rule or they haven't, which leaves you with 359 00:19:24.400 --> 00:19:27.160 only one conclusion. That each human being is his or 360 00:19:27.200 --> 00:19:30.519 her own natural ruler. You have to start there, and 361 00:19:30.599 --> 00:19:33.240 that if you are your own natural ruler. You have 362 00:19:33.359 --> 00:19:36.359 the right to life. You have the right to do 363 00:19:36.440 --> 00:19:39.319 what you want to with that life. And let me 364 00:19:39.359 --> 00:19:42.400 go back to life for a moment. We like to 365 00:19:42.480 --> 00:19:46.599 turn this concept of rule into something softer. We talk 366 00:19:46.640 --> 00:19:51.519 about leadership and those sorts of things, but rule means 367 00:19:51.519 --> 00:19:53.920 the power of life and death and all lesser powers. 368 00:19:54.440 --> 00:19:56.440 Either you have that right over. 369 00:19:56.279 --> 00:20:02.920 Yourself or somebody by some higher being or whatever I 370 00:20:02.920 --> 00:20:05.119 don't even know what it would be, has designated like 371 00:20:05.599 --> 00:20:09.599 you know, the divine right of kings. The whole concept 372 00:20:10.079 --> 00:20:12.279 behind the divine right of kings is why is. 373 00:20:12.319 --> 00:20:15.279 King George the third King? Because God said so? 374 00:20:16.720 --> 00:20:16.920 Right? 375 00:20:17.279 --> 00:20:20.079 I mean, over simplifying a bit, do you believe that 376 00:20:20.200 --> 00:20:22.720 or don't you? Do you believe that all human beings 377 00:20:22.759 --> 00:20:23.559 are created equal? 378 00:20:23.640 --> 00:20:24.079 Or don't you? 379 00:20:24.160 --> 00:20:29.400 And then so much follows from that. We mess up 380 00:20:29.440 --> 00:20:32.480 the whole thing by saying, but people are smarter, and 381 00:20:32.519 --> 00:20:35.599 people are this, and people are prettier that. Whatever it 382 00:20:35.680 --> 00:20:39.079 might be, there is no argument. And Lincoln was very 383 00:20:39.119 --> 00:20:42.440 good at this too. There is no argument for a 384 00:20:42.480 --> 00:20:45.759 superior quality you can bring forward about one person over 385 00:20:45.799 --> 00:20:49.400 another that you can end up saying, well, that person 386 00:20:49.480 --> 00:20:51.559 deserves to be the absolute ruler. 387 00:20:51.279 --> 00:20:53.680 Over the other person. Of course he applied it to slavery. 388 00:20:53.720 --> 00:20:54.640 But it's important. 389 00:20:55.559 --> 00:20:58.079 What when he you know, he talks about it, Well, 390 00:20:58.079 --> 00:20:59.880 why did you make a slight Why do you think 391 00:21:00.079 --> 00:21:02.240 this group of people should be says, well, their skin's darker. 392 00:21:02.319 --> 00:21:05.359 We'll be careful because when somebody's got darker skin, lighter 393 00:21:05.359 --> 00:21:08.079 skin than you, they can make you your slave. And 394 00:21:08.759 --> 00:21:11.839 so it's a very simple place to begin, which is 395 00:21:12.000 --> 00:21:14.240 what makes it a little bit different from Aquinas. By 396 00:21:14.279 --> 00:21:18.519 the way, it doesn't require wisdom. Jefferson tells us he 397 00:21:18.680 --> 00:21:24.000 was merely expressing the common sense of the subject, that 398 00:21:24.160 --> 00:21:27.640 people understood. They weren't born rulers and ruled some with 399 00:21:27.799 --> 00:21:31.079 saddles on their backs, the favored few, booted and spurred, 400 00:21:31.160 --> 00:21:33.759 ready to ride them legitimately by the grace of God. 401 00:21:34.960 --> 00:21:38.759