November 8, 2025 • 46 mins
You might want to think of this totally gonzo episode as the 3WHH-Squared, as it was taped live during happy hour Friday night in a very noisy Washington Hilton Hotel at the annual conference of the Federalist Society, where John and I are present and making a general nuisance of ourselves. Lucretia was supposed to be in Hawaii this week on some kind of junket or super-secret mission, but the government shutdown interposed itself.)
As we did last year, we simply invited a handful of legal luminaries to drop by our not-so-quiet corner, with cocktails in hand, to kick around whatever is on our mind. We were delighted to have Judge William Pryor of the 11th Circuit Court of Appeals drop by briefly before having to run off to host a dinner for his clerks; Roger Pilon, long-time director of constitutional studies at the Cato Institute, hung around to heckle everyone; Ilan Wurman, one of the rising young stars of the conservative legal academy, fell into our snare as well, and Hadley Arkes, who needs no introduction here. (Would any such gathering be complete without Hadley dropping by? To ask the question is to answer it, of course, as any disquisition on necessary truths from Aristotle to Kant would know.)
The highlight of this gaggle was Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University (and one of John's principal mentors at Yale Law way back when, which may explain a few things), to talk about his brand new and highly readable book, Born Equal: Remaking America's Constitution, 1840-1920.
Since we were recording out in the open at the Washington Hilton, this episode is a bit . . . authentic, to so speak. We ask the indulgence of listeners to its many irregularities.
As we did last year, we simply invited a handful of legal luminaries to drop by our not-so-quiet corner, with cocktails in hand, to kick around whatever is on our mind. We were delighted to have Judge William Pryor of the 11th Circuit Court of Appeals drop by briefly before having to run off to host a dinner for his clerks; Roger Pilon, long-time director of constitutional studies at the Cato Institute, hung around to heckle everyone; Ilan Wurman, one of the rising young stars of the conservative legal academy, fell into our snare as well, and Hadley Arkes, who needs no introduction here. (Would any such gathering be complete without Hadley dropping by? To ask the question is to answer it, of course, as any disquisition on necessary truths from Aristotle to Kant would know.)
The highlight of this gaggle was Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University (and one of John's principal mentors at Yale Law way back when, which may explain a few things), to talk about his brand new and highly readable book, Born Equal: Remaking America's Constitution, 1840-1920.
Since we were recording out in the open at the Washington Hilton, this episode is a bit . . . authentic, to so speak. We ask the indulgence of listeners to its many irregularities.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Well with they come and take my pain, the moneys,
my rain, Oh whiskey.
Speaker 2 (00:10):
Why think alone when you can drink it all? In
with Ricochet's Three Whiskey Happy Hour, join your bartenders, Steve Hayward,
John U and the International Woman of Mystery, Lucretia, where.
Speaker 3 (00:25):
The slap happen David hain't easy on the should tap,
got a giving and let that whiskey.
Speaker 2 (00:32):
Flo So settle in everyone for what may be the
most gonzo episode ever of the Three Whiskey Happy Hour.
In fact, you might want to call it the Three
Whiskey Happy Hour squared because it was taped live during
a happy hour at the Washington Hilton at the annual
meeting of the Federal Society, where John, You and I
are present and annoying everyone in sight.
Speaker 4 (00:53):
We did this last year.
Speaker 2 (00:54):
What we did was just wrangle up whoever happened to
be wandering by the most quiet spot we could find
in the Hilton, which wasn't that quiet. And this year
we are pleased to highlight several luminaries from the legal world.
Speaker 4 (01:09):
In particular, we are joined by Akil.
Speaker 2 (01:11):
Almar of Yale Law School and Yale University to talk
about his brand new book Born Equal, remaking America's Constitution
from eighteen forty to nineteen twenty. But along the way
we're joined by Roger Palan, the longtime director of Constitutional
Studies at the Cato Institute. Judge William Pryor, the Chief
Judge of the Seventh Circuit Court of Appeals, drops by
(01:33):
briefly to say a couple of things. Elan Worman, one
of the rising young stars of the Conservative Legal Academy
from the University of Minnesota, wanders by and treats us
to a delightful discussion of the issue of birthright citizenship.
Speaker 4 (01:47):
And then of.
Speaker 2 (01:47):
Course our old pal Hadley Arcis drops by. Hadley of
course needs no introduction. John Yu floats in and out,
of course, doing his usual loitering and quips.
Speaker 4 (01:59):
Ingests and so forth.
Speaker 2 (02:01):
But I'm going to pick up with our discussion with
a ki La mar about his book.
Speaker 4 (02:08):
And unfortunately we had to let a number of people.
Speaker 2 (02:10):
Who wandered by the law fall to the cutting room floor,
just because we don't have enough time for that long
an episode.
Speaker 4 (02:16):
And you'll just have to bear with the rough.
Speaker 2 (02:18):
And raw and authentic I'll call it a character of
the sound and some of the abrupt transitions, but without
further ado, let's get started right away with the ki
lamr so.
Speaker 4 (02:31):
So kil I can't.
Speaker 2 (02:33):
I only had your book Born Equal for two hours.
I have flipped through a few pages to realize that, oh,
this is a rival to maybe Gary Wills about the
centrality of the Gettysburg address really and also to my
teacher controversial with many of Harry Jaffa, who was always
trying to work up who.
Speaker 4 (02:51):
Would never got to the Gettysburg address.
Speaker 2 (02:52):
But right he has all the teachings about equality and
so forth. And I also was expecting I'm not sure
why I was expecting this.
Speaker 4 (03:01):
I thought, oh, it's going to be one of those
legal now, so go through the cases and all the
rest of that.
Speaker 5 (03:05):
It's not.
Speaker 4 (03:06):
There's a narrative here. Sorry, I'm being too long.
Speaker 2 (03:08):
You want to give us a you know, the abstract,
the summary of what you're doing in this book, and
maybe two or three key takeaways.
Speaker 6 (03:18):
What you said was brilliant. You've looked at it, and
you've got me just right. If you ask me which
ten or fifteen books were most influential for me, which
I was most trying to be Like Gary Willis's Lincoln
at Gettysburg would have been on that list, and Harry
Jaffers Crisis of the House Divided would have been on
(03:39):
that list. Harry Jaffer wrote the best book about the
Lincoln Douglas Debates. I say in the PostScript, I've written
the best single chapter, so you don't have to read.
Speaker 7 (03:49):
The whole Harry Jaffer book.
Speaker 6 (03:52):
You know, one stop shopping for the Lincoln Douglas Debates.
And in a nutshell, I'm trying to tell the story
of eighty years of American history from eighteen forty to
nineteen twenty, and the big idea is birth equality. We
begin in eighteen forty with millions of Americans enslaved, and
(04:15):
we experience a civil war and four Linconian amendments that
affirm this idea that we're all created equal, we're all
born equal, we're born equally free. That's the thirteenth Amendment.
No one's born a slave, no one's born a slave master.
People in America under the American flag, born on American soil,
(04:38):
are born equal citizens with civil rights, whether they're black
or white.
Speaker 7 (04:43):
Male or female.
Speaker 6 (04:45):
A fifteenth Amendment comes along and says, whether you're black
or white, you have equal voting rights, political rights, and
eventually by nineteen twenty a fourth amendment. It's often people
often talk about the three Reconstruction Amendments.
Speaker 7 (04:59):
This is a four fifty years later also.
Speaker 6 (05:01):
Linconian saying, whether you're born male or female, you have.
Speaker 7 (05:05):
Equal voting rights, equal political rights.
Speaker 6 (05:07):
And I try to tell the story of what these
amendments mean and how they happen.
Speaker 8 (05:13):
Let me break in.
Speaker 3 (05:14):
So this is John you co host with Steve and
Akill was my teacher at Yale. I have to say
this is the only book of Acquelles I haven't read yet,
because I've read all the other ones, but this one's
hot off the press. And rogers, do you want sticking
around to be a participant slash heckler? And so I
(05:34):
know you go full more agreeing with Lincoln. Yes, also
agree with him that fundamental equality and nation had started
not in seventeen eighty seven or eighty nine, or even
really eighteen sixty eight, but in seventeen seventy six.
Speaker 6 (05:49):
So the first words of the book are from his
Gettysburg address.
Speaker 7 (05:55):
And.
Speaker 6 (05:57):
He says that the union precedes the Constitution. He may
be right, it's not an indivisible union in my view
until the Constitution. But he begins very famously in eighteen
sixty three saying, eighty seven years earlier, four scorn seven
(06:19):
years ago, our father's brought forth upon this continent a
new nation. So he's saying it is seventeen seventy six,
no conceived in liberty, not slavery. Roger and his friends
emphasize right before government. It's conceived in liberty and dedicated
to the proposition that all men are created equals. So
(06:41):
that's Lincoln's idea. It's a contested idea.
Speaker 4 (06:44):
You're right.
Speaker 3 (06:45):
So this is the question. I want to press you
on a quiel and forgive me. I've got my Glenn
Buran g ten year Steve is drinking martini, so he's
not actually having whiskey. Roger's red wine a kiel as
always is sober so also, but I want to know
it kills what you think I'm When did the nation start?
Speaker 4 (07:04):
When did the American keep?
Speaker 7 (07:05):
Okay, I think the.
Speaker 6 (07:08):
Idea of an America, the United States of America is
seventeen seventy six. But they're free and equal states. They're
free and independent states. They're independent even of each other
until the Constitution.
Speaker 7 (07:24):
They could choose to leave.
Speaker 6 (07:26):
To brexit. It's merely a confederation. Each state is sovereign
under the articles. So the Constitution takes USA one point zero,
which begins in seventeen seventy six, and makes it two
point zho. It's like a corporate merger, a union that's indivisible.
Speaker 3 (07:42):
And they're one American people with all equal rights before
the Constitution.
Speaker 7 (07:48):
This is real.
Speaker 3 (07:49):
This is what's confronting the Supreme Court in several issues.
Speaker 9 (07:52):
Now.
Speaker 6 (07:52):
See so I go through in my chapter on the
Lincoln Douglas debates and give you the reader no fewer
than ten different ways in which these five words all
men are created equal could be read and were read
in the middle of the nineteenth century. And Lincoln himself
evolves along this radiant He initially says, all men are
(08:17):
born or created equally free, They're equal in life, liberty,
and the pursuit of happiness. And he says, I Abraham Lincoln.
He says this in eighteen fifty eight in Lincoln Negalice space.
I'm not in favor of Negro citizenship. But he evolves yes, yes,
and then by the end of his life he's going
to be in favor of equal citizenship, equal voting rights.
(08:40):
So these amendments thirteen, fourteen, fifteen are going to track
Lincoln's own evolution in a way. If you're if you're
inclined to the biological we say ontogeny recapitulates phylogical aid,
you know, but the thirteenth, fourteenth, and fifteenth recapitulate Abe's
own evolution on equal quality, and you the reader will
(09:01):
be able to trace how he moves from equally free,
to equally citizens to equal voters black and white, and
eventually even though he's dead, you know, I think he
would have embraced the idea of equal voting male and female.
Speaker 8 (09:15):
So Steve, can I jump in here?
Speaker 2 (09:18):
No, wait a minute, Hold on a second, because there's
something he said.
Speaker 4 (09:20):
I'm very kind of particular about it. Just quick digression.
Speaker 2 (09:24):
Maybe it's in your book that if maybe I expect
you know it. Even if it's not there, there's an
equivocation about Lincoln that I think is significant. You mentioned it,
So I'm not for negro equality. The way you actually
put it is very only if you're paying attention. Do
we notice that he would say I'm not now, nor
have I ever been.
Speaker 4 (09:43):
He didn't say what he would.
Speaker 7 (09:45):
Be exactly okay, and he does. He grows, he's a ratchet.
Speaker 6 (09:50):
He never actually regresses political opportunities open up. I think
he wants to move in certain directions. He's never the
most forward leaning politician at any moment in his life,
but at every moment I think he's the most forward
leaning who has the chance of getting elected.
Speaker 2 (10:10):
Yeah, okay, right now we're in we're in complete agreem
about let me do once more more sequel. I just
want to get your opinion. I'd mentioned, you know, Jeffung,
Gary Wills. I think the John Burke Burt book Lincoln's
Tragic Pragmatism.
Speaker 7 (10:23):
Which I don't know.
Speaker 4 (10:24):
Oh, it's worth reading. I'll just say it's a magnificent book.
Speaker 3 (10:27):
Steve enough talking about what you read a new guests
along with a killed Judge William Pryor, who is I
think in many ways responsible oh for originalism.
Speaker 4 (10:37):
So, by the way, Judge Pryor, you you were this sorry,
sorry you, no, no no, I did want to get
back to the literary.
Speaker 6 (10:43):
But my friend Judge Pryor has actually started reading the book,
so he's.
Speaker 4 (10:48):
In your pagent. It's awesome.
Speaker 2 (10:50):
Well, thank you so, Judge pryor when I think you
were just like this is twenty eight years ago, when
you were just a lawyer prior or something.
Speaker 4 (10:56):
Was attorney general. Attorney General. A fabulous review of my
the first volume.
Speaker 2 (11:01):
My Reagan did two volumes. It was I was bowled
over by how nice it was. He finally great to
meet you in person, Thank you, et cetera.
Speaker 4 (11:12):
As well. I enjoyed.
Speaker 10 (11:13):
I enjoyed the sequel as well.
Speaker 4 (11:15):
Thank you.
Speaker 2 (11:16):
Right, well, let me do one last question for you.
Maybe not last question, but and then Roger wants to
get in.
Speaker 4 (11:22):
But I would like to ask a.
Speaker 2 (11:23):
Literary question, which is because having written some long narratives myself,
are there any discoveries along the way?
Speaker 4 (11:31):
Did does something surprise you?
Speaker 2 (11:33):
Is it something jump out as something you hadn't expected
or you thought is more important?
Speaker 4 (11:37):
It needed to be brought out.
Speaker 6 (11:38):
So many things I try to categalog category catalog them
in the PostScript.
Speaker 7 (11:46):
Well, let me mention two or three.
Speaker 6 (11:49):
One, since we talked about literary interests, I introduced the
reader to America's first female superstar. Everyone's talking about her,
and she's fallen out of the can and the conversation
Harriet Beecher Stowe is huge, and she's a literary figure.
(12:11):
She writes a book it sells more copies than any
other book by an American of the century, and we've
forgotten about her. So before Taylor Swift or Beyonce or
Hillary Clinton or Kamala Harris or even eleanor Roosevelt, there
is Harriet Beecher Stowe, and no woman at the founding
is the center of political discourse.
Speaker 7 (12:32):
Abigail is off stage.
Speaker 6 (12:33):
So that's the women in the in who read the
book are gonna really love getting to know Harriet Beecher
Stowe and Elizabeth Katy Stanton, who's amazing. The second big
thing that I think is really important to emphasize is
there is an abolition project in the North that begins
(12:56):
as early as seventeen seventy six. The ancient world has slavery,
it has the idea of freeing individual slaves. Sixteen nineteen,
in my view, is not that significant to date because
there was slavery in the New World and the old
world before sixteen nineteen. Here's the new thing in the world,
not freeing slaves, but ending slavery, and that's an American idea.
(13:19):
It begins in Philadelphia, in seventeen seventy five and seventeen
seventy six, and by seventeen seventy six, northern state constitutions
are committing themselves in Pennsylvania and three years later, four
years later in Massachusetts to this concept that all men
are born free and born equally free and independent, and
(13:42):
that is going to lead to not freeing slaves, but
abolishing slavery in Pennsylvania in Massachusetts very early on. And
most Americans don't know about that abolition project, which is
an American project, which is, of course, since I'm in
the presence of Roger Pielant, a libertarian project. It's about
liberty and and Abe Lincoln channels all that when he
(14:06):
goes back and says, yes, they didn't eliminate slavery, and
they said all men are created equal, but they committed
themselves in effect to an abolitionist project. Say here is
true North, this is the North Star. And people like
Harry Jaffa understand that. So Jaffa is important for me.
(14:27):
Now I'm told I'm told he was a cantankerous Fellows
and I never met him in the flesh, and I'm
told that Bill Buckley once said, you think disagreeing with
Harry Jaff is hard.
Speaker 7 (14:38):
Try agreeing with that.
Speaker 6 (14:41):
But he did influence me, and so did Gary Wills,
so did Gordon Wood, so did Ed Larson, and so
did the great Jim Oaks.
Speaker 2 (14:51):
Quick factual question is the famous story of Lincoln saying
to HARRYT.
Speaker 1 (14:56):
Beecher Stowe, so you're the little lady who causes great
big war?
Speaker 4 (14:59):
Is that true?
Speaker 7 (15:00):
It is? And some people have said it's not.
Speaker 6 (15:02):
And actually there's a fellow whom you know, I believe,
Roger Tim Sandefern, who writes a review saying that I
got that wrong. And I'm telling your audience here now
I'm doubling down on that. Since that review came out,
I quadruple checked all my sources, and he cites something
(15:23):
that actually misses a lot that actually I believe happened.
And here's some of my evidence for it. Because I
am always interested in trying to find primary sources and
contemporaneous sources to confirm the legends. So I have contemporaneous
(15:43):
sources saying Harry Beecherstowe was there that week, and it's
the newspapers. She clearly was there, and the first published
reports that this is what she said came out within
weeks of her own death in the Atlanta magazine, when
her children were still alive. And if this reporter is
(16:06):
making all that up, her children are immediately going to say, no.
Speaker 7 (16:09):
You made that up.
Speaker 6 (16:09):
So I have every reason to think that actually she
said that the canonical accounts of this famous exchange come
from her own children, saying that we got this from
our mom.
Speaker 7 (16:26):
And I don't think she was a liar, right.
Speaker 2 (16:28):
It's always seemed metaphysically right to me. And I know
Tim Sanderfer. He's a stubborn guy, so I get it.
Speaker 6 (16:34):
And it sounds like Lincoln, see, because little Lady is
the kind of formulation that he used.
Speaker 7 (16:41):
He you know, he called you know, his wife Lila.
Speaker 6 (16:44):
And Harriet might not know that, but but I know
that from diary entries and letters and and all the rest.
Speaker 7 (16:50):
She comments on a certain phrase that he uses.
Speaker 6 (16:53):
I like to fight like I like to have a
fire at home to home rather than at hom she has.
There are all these little extraneous details that have nothing
to do with the famous quote that to me give it.
Speaker 7 (17:07):
Absolutely the feel of.
Speaker 6 (17:10):
Very simility, in a very similitude accuracy.
Speaker 7 (17:16):
Do I have a tape recording.
Speaker 6 (17:17):
No, but I do believe that this is far more
likely than not. And again those who disagree have to
call someone a liar, the first journalist, or the daughter
and the son or Harriet herself. At least one of
those four has to be a liar for this conventional
(17:39):
view to be false.
Speaker 4 (17:41):
All right, I have to let you go, but Roger
gets give him your best shot.
Speaker 9 (17:44):
Oh well, after listening to Akiel a patiate on this
and Sundry, I was going to conclude with the quote
of Buckley. If you think it's difficult I agree with
or disagreeing with Harry, try agreeing with them.
Speaker 7 (18:04):
We academics can be order.
Speaker 8 (18:06):
Oh I know it, I know it.
Speaker 5 (18:07):
But judge the the the point, the point that John
you made about when the question he raised when did
America begin?
Speaker 9 (18:20):
I think I'm with a Kiel on that. With the
declaration of independence, but let's remember they saw it as
a league of friends under the articles.
Speaker 8 (18:30):
Not exactly.
Speaker 6 (18:31):
Yes, each state is sovereign, it's a mere treaty, it's
a confederation, and then when you switch to a constitution,
it's going to be a different But.
Speaker 10 (18:40):
One of the things that the professor explains is when
they get to the Constitutional Convention and they're making these compromises,
this backdrop of northern abolition is already ongoing. Yes, and
this is why they think that this is, in its
natural course, going to lead to total abolition. And what
(19:02):
they did not anticipate was what would happen in the South.
Speaker 7 (19:07):
And especially after the cotton project.
Speaker 10 (19:10):
That's right, particularly South Carolina.
Speaker 7 (19:12):
Yes, and South Carolina.
Speaker 9 (19:14):
And Omar has Akil has raised the issue of women.
Let's not forget John adams wife.
Speaker 7 (19:24):
Abigail, is amazed.
Speaker 8 (19:26):
She was opposed to slavery.
Speaker 6 (19:30):
She was the most anti slavery from the McCulloch book on.
Speaker 4 (19:34):
John, she's in the book.
Speaker 10 (19:35):
Everybody, Yeah, thank you, thank you so.
Speaker 2 (19:40):
But this morning, on the immigration panel you were on,
I was very glad you brought up the importance of the.
Speaker 4 (19:46):
Omission of the word expressly.
Speaker 2 (19:49):
And that was beaten into me by my teacher of
cost social history was Leonard Levy.
Speaker 4 (19:55):
Was absolutely fabulous.
Speaker 6 (19:57):
So here's what's really interesting. I don't think I have
met him. I did blurb a book that he wrote
about the Bill of I blurbed a book that he
wrote about the Bill of Rights. But in the last
fifty years. I believe there are really only two scholars
(20:21):
who tried to write about each amendment of the first ten,
and the only two that I could find that really
had done kind of original and deep thought about each amendment,
where Leonard Levy and yours truly And because we have
First Amendment experts, although many of them are only religion
(20:42):
folks or only speech and press folks, we got Second
Amendment folks, we got Fourth Amendment folks. We have some
criminal procedure folks. Levy tried to actually write about everything
in the Bill of Rights, and I've tried to do
the same thing. And what I said even earlier today
is if you really want to be an originalist, you
have to do originalism across a wide range of issues,
(21:06):
rights and structure, criminal and civil, just to get a
proper sense of what kind of evidence you know is
good enough to be confident, just like, how much evidence
do I need in order to say I think actually
that Lincoln said that to Elizabeth Caston, You're going to
be much better at answering that if you try to
(21:27):
ask questions like that in eighty other situations.
Speaker 8 (21:30):
Aequille, we even have ninth Amendment.
Speaker 7 (21:34):
Yes, we do, absolutely farmer, Rogers.
Speaker 9 (21:40):
After all, if you're a textualist, you cannot ignore.
Speaker 8 (21:44):
I agree, And we know why it's there.
Speaker 7 (21:47):
Don't there's so many reasons over determined.
Speaker 8 (21:51):
Of course, we know exactly why it's there.
Speaker 11 (21:54):
It's because, okay, sorry, it's it's because they understood that
once you start enumerting members of a class, the failure
to enumerate all.
Speaker 9 (22:08):
Such members will be construed by ordinary principles of legal
construction as meaning only those that are enumerated are meant
to be protected, in contradistinction from those that are not.
So to make that crystal clear, they wrote, the enumeration
in the Constitution of certain rights shall not be construed
(22:29):
to deny or disparage others retained by the people.
Speaker 8 (22:34):
You can't retain what you don't first have to be retained.
Speaker 9 (22:40):
I don't know how you can state it anymore simply,
more clearly than.
Speaker 1 (22:45):
That, Roger.
Speaker 2 (22:46):
I'm going to declare culture on your filibuster for a moment, because.
Speaker 8 (22:50):
Well it's a filibuster with a point, I know.
Speaker 7 (22:53):
And a good point.
Speaker 2 (22:53):
But let me let me bring it back to a
Kiel's book. As I'd read read a books, I'm this
one just briefly.
Speaker 4 (23:02):
So Roger and I are a little unusual.
Speaker 2 (23:04):
Maybe not unusual, but I miss some of those mid
century constitutionalists.
Speaker 4 (23:09):
Like Charles Howard mcilwaine.
Speaker 3 (23:11):
He's still talking about last book he read.
Speaker 7 (23:16):
University of Minnesota.
Speaker 2 (23:18):
I'm just gonna say you, I'm going to throwback of
people like Levy, like Charles Howard mcelwayne.
Speaker 4 (23:22):
Yes, people that he has total contempt for.
Speaker 7 (23:25):
Because okay, thank you so much, thank you very much.
Speaker 1 (23:30):
Okay, Roger, I need your microphone back from your panel.
I do wish you guys had had two hours. Oh yes,
absolutely this morning, because like that's too much. Where's John?
I thought I was gonna he'll come back with are
we talking tout? So he's he's literally ambushing us and
saying come come.
Speaker 2 (23:49):
Yeah, it's I'm glad you've wandered by this sort of
gonzo uh format we do every year at the Federal
Society for the three Whiskey Happy Hour podcast. Roger polanist
with us because he likes to hackle everybody.
Speaker 1 (24:02):
Oh indeed, he just likes whiskey. He's on his second.
Speaker 4 (24:04):
Found treating read. We've done a red.
Speaker 2 (24:07):
Wine episode or two. But so elon, I'm blanking on
your books. I have them on my shelf. I read
them that there was some originalism art I had recently
I thought was quite good.
Speaker 4 (24:17):
Well man, what are your sort of leading things you're doing?
The first of all, give us just a very like
thirty second bio.
Speaker 1 (24:23):
So I taught at Arizona State for six years. Now
I'm at the University of Minnesota, very happy to be there.
I write on separation of powers, federalism, administrative law, constitucialism.
My first book was A Debt against the Living, an
introduction to originalism. That's the book, not, just to be clear,
not the Debt against the Living, although it's not a
zombie flick, although some people have suggested it could have
(24:43):
been titled The Dead Versus the Living, But it's actually
a Debt against Living, which comes from Madison's response to
Thomas Jefferson's Dead Hand of the Past letter. I have
a book on the Fourteenth Amendment called The Second Founding,
and right now I am causing some controversy on topics
like borthward citizenship. I've been out there somewhat defending the
Innistration's position from a constitutional perspective, and I knew a
little bit about the removal power and Humphrey's Executor, and
(25:05):
so happy to you know, throw some grenades and a
conversation if you'd like.
Speaker 4 (25:10):
Well, now John You has run away again because he
knows that.
Speaker 2 (25:13):
The funny thing is he always likes to assemble people who,
as I do, disagree with him on these things. So
I think if I do a checkboxes, I think I'm
probably in agreement with you on birthright citizenship, on Humphrey's Executor.
Speaker 4 (25:24):
But take those briefly from the top.
Speaker 1 (25:25):
And so John You, interestingly, since you gave me the
bait here, he's famously defended sort of a broader conception
of birthrad citizenship, but he was also responding to a
John Eastman and argument in Rogers Smith and Peter Truck
that sort of reject the common law. I don't reject
the common law. I think the question rather is what
(25:46):
is the scope of the common law rule of birthright
citizenship to begin with? And actually I don't think the
common law rule itself would have extended to unlawfully present aliens.
Harder question for temporary visitors. And if you want to give, like,
if I may just take a minute to this out,
because everybody thinks that the test is mere birth alone,
mere birth on soil. But what do you do with
children born of ambassadors or to the soldiers of invading armies.
(26:08):
And they come up with all sort of well, just
an exception and maybe an exception for this that reason.
Well what did they say? What do they say? If
you look at Calvin's case, if you look at Blackstone,
Well it turns out that the rule itself was born
on the soil of the sovereign, under the protection of
the sovereign. Someone born to an invading armies not under
the protection of the sovereign. Someone born to an ambassador
is born under the protection of and within the allegiance
(26:29):
of a foreign sovereign. Well, what if I told you
that a common law you needed a safe conduct from
the king, a formal legal document giving you permission to
enter the realm, which document extended the king's protection to
that alien. Eventually, these safe conducts came into disuse when
statutes like Magna Carta cardon Mergatoria and a statute from
fifteen thirteen fifty three in the reign of Edward the
(26:51):
Third said generally opened up trade and said merchants strangers
may safely and securely and under our protection, come and
dwell in our set real So why did Cook and
Blackstone presume that children born to aliens friendly aliens were
birthright subjects well because their parents were there legally under
the king's protection according to the statutes. What does that
(27:13):
mean for a world today where there are immigration prohibitions
which they have been under the protection of the sovereign?
I argue not that. What does that have to do
with the fourtieth Amendment and subject to the jurisdiction. How
much time do you have? Probably not enough, Roger You.
Speaker 9 (27:26):
Well, I'm struck by this idea of under the protection
of the sovereign, which would not apply, if I understand
you correctly, to the children of invading armies. Well, suppose
children of those invading armies were subject to towards various kinds,
then would that child be subject to the protection of
(27:47):
the sovereign?
Speaker 1 (27:49):
No, and oh you mean you can do whatever you Well,
we've got another scholar coming. You can come, come, come,
come on, Professor Ailey Arcis is joining us. We're on
on a podcast. But no, hardy us. Come on. Here's
the difference with you, Yes, here's here's here's the difference.
(28:11):
So discussion on birthright citizenship, and I'm wondering what your
take on it is, since I'm defending under the common
lawson asked your question.
Speaker 9 (28:20):
Okay, argued that can I stay the the children of
invading armies would not be under the protection of the sovereign. Well,
suppose one of those children were the victim of a
tour of various kinds, including an attentional tour by the
residents or even members of the invading Would that child.
Speaker 8 (28:45):
Not be under the protection of the sovereign?
Speaker 4 (28:48):
Or can one do anything one wants to.
Speaker 1 (28:51):
That child, the child of the invader.
Speaker 12 (28:54):
The protection under the protection of the law, that would
make him. That would not make him a citizen.
Speaker 1 (28:58):
No, that's right, but it would at least give him
the coadly doesn't even know. Professor Arkis doesn't even know
what I said to begin with, since she walked in later.
But he gave a great answer. Actually what they answer,
You are right?
Speaker 4 (29:11):
Well, I don't want to get away off of that.
Speaker 1 (29:13):
I mean subject this is this is an interesting question.
So let me just if you if I may say
one thing about this right the reason lawfully present aliens
were subject to treason prosecutions is because they were under
the protection and within the allegiance of the sovereign, and
they violated their allegiance by engaging an active treason, and
so they were subject to the municipal law of treason,
(29:33):
including the protections of the common law for treason prosecutions.
If you came in contrary, if you were an enemy alien,
if you were an invader, or someone who came contrary
to the King's protection, you could not actually be prosecuted
for treason. You were subject to martial law, to the
law of nations, to the military law. So of course
we could exercise power over you. You the king could
subject them to his military court, to the power of
(29:55):
his armies, but they were not subject to the protection
of the ordinary legal rules. Lawfully present aliens were subject to,
or alien friends were subject to. All sorts of questions
emerged from this. Please, No, that's right.
Speaker 4 (30:06):
I just want to know this is you.
Speaker 1 (30:08):
Had no idea what he was getting into his question?
Speaker 4 (30:12):
What No, Roger, No, sorry.
Speaker 12 (30:14):
I'm just I was just looking for Costco and I said.
Speaker 4 (30:19):
I just wait. No, no, Roger, no, no, nope, we're
not I know.
Speaker 1 (30:23):
What let's do you came to a Wendy's instead.
Speaker 4 (30:27):
I am I am on Nylon's sign on. Yeah, okay,
well so let's uh let me do it this way.
Speaker 2 (30:34):
Let's do you know, thirty seconds is way too ambitious
about Humphrey's executor. I always wish Humphrey's executor applied to
Hubert Humphrey.
Speaker 4 (30:42):
But I know the other.
Speaker 2 (30:43):
Famous story about uh stant Avage is telling Hubert Humphrey
he fought in the war. He was captured by the Germans.
They have him in the interrogation room. They come in
and say, you are Hubert Humphrey. We have vays of
making you not talk.
Speaker 4 (31:01):
You're too young for that.
Speaker 8 (31:05):
One thing.
Speaker 9 (31:05):
It's one thing to say that this child would not
be protected by the sovereign. It's quite a different question
whether this child.
Speaker 8 (31:15):
Being born in.
Speaker 9 (31:17):
The domain of the sovereign is a citizens.
Speaker 1 (31:23):
I agree with that.
Speaker 2 (31:24):
Okay, all right, moving on for listeners who don't know
Humphrey's executors. Is the New Deal air case that said
Franklin Roosevelt could not fire.
Speaker 4 (31:32):
I think it was the Chairman of the Federal Trade Commission.
Speaker 2 (31:35):
By the way, I have great fun with my lefty
friends saying, you know, Trump was just wants to do
what Franklin Roosevelt want to do.
Speaker 4 (31:40):
What's the problem.
Speaker 1 (31:41):
So Robin's Humphrey's Executor was a nine zero opinion, because
you've got because of all the four horsemen of the Arch,
Conservatives wanted to stop Franklin Roosevelt's New Deal policy, so
they voted a lot with the Liberals to rewrite the Constitution.
Speaker 4 (31:56):
I missed that little detail of that significant.
Speaker 2 (31:58):
So look, I mean, just give our verdict without going
through the lines here, and then I'm gonna bring Hadley
in the new.
Speaker 12 (32:04):
Vectory because my friend George who wrote that opinion, and.
Speaker 7 (32:10):
Yes, okay, we didn't even get to the real of.
Speaker 4 (32:13):
Course we didn't. But you know, well there'll be more
we didn't.
Speaker 12 (32:16):
Oh, come on, we're gonna don't Roger and I made
Roger to me to do that.
Speaker 8 (32:21):
We're both natural wrong, yeah, rights men.
Speaker 4 (32:24):
But yeah, so it's eon.
Speaker 8 (32:27):
Is more of a natural right.
Speaker 12 (32:29):
But but Richard but Epstein did a fine piece on this, Richard, Okay, Richard,
Richardstein did a fine piece on right. See I will no,
I would do Okay, I love what you did today.
Speaker 4 (32:46):
Can get a text of that.
Speaker 1 (32:48):
Maybe I don't check my phone okay, okay, oh.
Speaker 2 (32:51):
Yeah, good idea to leave me that John you walked
out earlier.
Speaker 4 (32:55):
He's gonna get all kinds of crowd noise.
Speaker 1 (32:57):
That's gonna be a night when we start, Humphreys.
Speaker 4 (32:59):
Since I'll do that, I'll do that.
Speaker 12 (33:01):
So I have to go back and read my book
on George Southland, right exactly, So.
Speaker 2 (33:07):
Wait, no, stop having I want I don't want to
leave this in the green room. But Elon's right one,
who's orderly? All right, So let's resume our discussion, uh
wherever it left off on Humphrey's executor. I mean, just
briefly that this is a case about can the executive
remove someone? And what the court ruled in some strange
way that well, the Federal Craik Commission it's not really executive,
it's not really it's sort of halfway between.
Speaker 4 (33:28):
And I don't.
Speaker 2 (33:28):
Nobody buys that logic today, I don't think right.
Speaker 1 (33:31):
So Humphy's executor is obviously wrong on its reasoning. They said, well,
the Federal Trade Commission exercises what we call quasi legislative
quasi judicial power. There's no such power under the Constitution.
If it's legislative power, Congress has to do it. The
commission was in Congress. If it's judicial power, the courts
have to do it. The commission wasn't a court. The
question is, if it's executive power, which it was, what
is the president's relationship to the principal officers running the agency?
(33:54):
And the court upheld in Hemprey's executor what we call
independent agencies. What makes them independence, we think is that
they're insulated from the president's at will removal. In other words,
the president must have cause to remove them, and mere
policy disagreements are insufficient to remove them. So the question
really now is okay, putting aside quasi nonsense, the CAUSI
powers nonsense? What is the answer? What is the answer?
(34:17):
And in my view I have quite a quirky idiosyncretic view.
I think the president has an unfettered constitutional right to
remove principal officers. It doesn't follow he has the constitutional
right to direct and control them in the exercise of
their discussion. Now, he can always fire them, but firing
them comes at a higher political cost, which cost goes
up even more to the degree we think it is
(34:38):
impermissible to interfere in the duties, which maybe is why
President Trump hasn't actually fired drum Powell. Maybe there isn't
a FED exception. It's just we understand that it would
be untoward or impermissible or contrary to Congress's intent to
do this, and there's no constitutional right to interfere with
the Fed's duties. So there's a real payoff between this distinction.
But most foremost think I'm crazy.
Speaker 2 (34:59):
Well, I long thought that the proper term in the
Constitution has not been carefully thought about.
Speaker 4 (35:07):
Necessary and proper. Okay, that's a subject for another day.
Speaker 1 (35:11):
I mean it is related to this question, sure, sure, right,
though in this case it kind of begs the question,
because if the president has the power to remove then
it isn't necessary and proper to derogate from that power, right,
So it's kind of question begging.
Speaker 2 (35:23):
It also occurs to me, I have to think about this,
But you're saying that he might not be able to
direct the people of points.
Speaker 4 (35:30):
It sounds to me a little bit like cabinet government.
Speaker 2 (35:32):
Parliamentary democracies have to think about that, which is okay.
That may bring Hadley in at this point, and I
think you will have interesting things to say about this.
Speaker 4 (35:40):
So Hadley this morning, Oh, let me preface it this.
Speaker 12 (35:45):
Way, or are we are we leaving this subject?
Speaker 1 (35:47):
No?
Speaker 4 (35:51):
No, I think it's just no.
Speaker 1 (35:53):
Elion is right.
Speaker 7 (35:54):
No.
Speaker 12 (35:54):
I think I think right now we look, it comes
back to uh Scalia and Morrison versus LS. You know,
he's the only one who took the line for the
for the the complete complete executive power. I think uh
suddenly just recognized this was the statute. And I think
I think say in Morrison versus I think Renquist regardless
(36:18):
as a political problem, that the that the the the
the the the president did not have to acquiescens The
president signed onto this, He signed onto this legislation. So
if you want this fixed, Congress has to And of
course it was fixed politically as soon as the Independent
Council statue was applied.
Speaker 4 (36:36):
To Clinton, to Democrats and they and they lost her.
Speaker 12 (36:39):
They lost their passion for this thing. But you know,
going back to that first book of mine, of the
Marshall Plan, as George Will said, a book that has
sold dozens. Okay that I'm out of my dissertation. Here
here they're trying trying to get the Marshall Plan outside
the State Department to make more sensitive to the interests
(37:00):
of agriculture and business and so on.
Speaker 7 (37:04):
This is ever the move to take.
Speaker 12 (37:08):
Agencies out of the executive to make them more responsive
to different kinds of constituencies. And the value of having
it all in is that it forces the person to
make a judgment just what is important?
Speaker 4 (37:21):
What?
Speaker 12 (37:21):
What is my stand in relation to taking all export
controls away from the state Department?
Speaker 3 (37:28):
What?
Speaker 4 (37:29):
How much?
Speaker 12 (37:30):
What is worth to me here?
Speaker 4 (37:32):
What?
Speaker 7 (37:32):
What is what's the rank of my own judgments here?
Speaker 4 (37:35):
But what is important to me?
Speaker 12 (37:37):
But by bringing everything under the control of the executive,
you force them to you force them to face that
kind of question.
Speaker 2 (37:44):
Yeah, all right, but I want to change subjects. Okay, great, Uh,
there's frame set up this way. So there's a we're
talking Friday night. There's a panel tomorrow on the question
of should parents have a right to control or know
about and make decisions about the gender choices of their children?
Speaker 4 (38:04):
And that's not quite the question.
Speaker 1 (38:05):
The question is there a constitutional right?
Speaker 2 (38:08):
Okay, well to know, Okay, that doesn't actually change the
the way I'm.
Speaker 4 (38:12):
Going to make it to a question. That's the question.
That's the question.
Speaker 2 (38:15):
Okay, Okay, So I was imprecise, that's fine, But There's
been some criticism of it, saying, wait a minute, why
are we debating whether there's a legal right to do
that when we ought to be four square debating Why
are we talking about this question in the first place,
because what are we taught?
Speaker 4 (38:32):
We're talking about something radical and insane.
Speaker 2 (38:36):
And this gets back to what you and Jerry Bradley
were saying this morning at breakfast, Hadley, which.
Speaker 4 (38:40):
Is, uh, you know, we're well, you know, there's a
legal reason, all the rest.
Speaker 2 (38:44):
Of that, but we're abandoning the moral ground of human
nature and saying, wait a minute, this is so far
out of bounds that why is this a problem at all?
Speaker 12 (38:52):
He's going back to the argument we had over this
umatic grammatic case about the.
Speaker 2 (38:58):
Maybe you disagree with you guys go you guys go,
Sorry I interrupted.
Speaker 12 (39:02):
No, no, no, you set it up here with this
chromatic case about a year ago. We're arguing over this
that just Sutton for the Sixth Circuit or a fine
opinion sustaining the law in tendency even though it barred
those surgeries, even though the surgeries were ordered up. Five
parents who were responding to what they thought the felt
needs of their kids work and some of us took
(39:25):
the line that, Okay, you want to argue on the
base of the legislature making adjustment and kinds of the
harms you think may arise from these disfiguring surgeries. But
there's a there's a deeper reason here that is that
the whole scheme is predicated on falsehoods. There's no way
search you can convert males and the females.
Speaker 4 (39:42):
It feels meant to male.
Speaker 12 (39:44):
These are cosmetic surgeries with vast disfiguring and permanent effects.
And so the question what if we're simply casting this
as a judgment of the legislature, then the question we're
posing this, can we do no better than an opinion?
There will be the equivalent of a concurring opinion in
(40:04):
BUCKFERSUS Bill on compulsory sterilization of thought. Look, this hoses line.
This lawless passed by a legislature composed of literate lawyers
working with a sense of what's been accomplished by medicine
and our time with it advanced sense of ugenics. I
(40:25):
completely the problem say arguments, Yeah, you could why not
take why not look for the most compelling ground of
the argument. Now, to our surprise, we heard from Scremtti
later saying, you know, we think you're right that we should,
but we were We didn't think that court, the judges
could handle that, so now they wanted maybe we should
(40:47):
have gone back to the web. Is to appeal to
an inescapable objective truth about the way we're I was
just recalling the Congregation of the Doctor of Faith with
Ratzingers saying, there's not always been an italy or hungry,
but as long as there are are human beings, there
must be males and fem males. That's how we must speak.
(41:07):
So because why not appeal to an a This gets
to to Stay's point before I argue about the rights
of parents, what about this thing that you're asking them
to agree to?
Speaker 4 (41:18):
Show's over.
Speaker 2 (41:19):
No John has returned to the chat.
Speaker 4 (41:25):
We've been getting so many speakers. I'm exhausted.
Speaker 2 (41:28):
Okay, Hadley is winding up and never again rebuttal, I
just want to I want to hear.
Speaker 3 (41:35):
I want to just hear Hadley tell some good ethnic
jokes to close out the friendly podcast.
Speaker 4 (41:43):
And he's got all kinds. He's the funniest damn ones
I ever heard of my life.
Speaker 1 (41:46):
So can I impose a question to you.
Speaker 4 (41:48):
Don't go away.
Speaker 1 (41:50):
So in Somerset's case, and which was cited by numerous
others in the founding and is understood to be correct,
they said, slavery is so odious a contrary to the
next law, that it could only be supported by unmistakable
positive law. We have unmistakable positive law in various states
permitting the genetic mutilation of children, which is absolutely insane,
(42:13):
contrary to the natural law. And I have all sorts
of things I can say about for that, forbidding, for permitting,
for admitting. Yeah, And the question tomorrow is whether there's
a constitutional right to be for parents notwithstanding such laws
that So it's actually two things. Have you presume that
(42:33):
you have the laws that allow this, and then that
the parents don't get told, both of which seem to
be quite contrary to the natural law, because of course
parents have a right to know everything about their children,
if you, I think, just think about it, right, resort
to natural reason, natural law, or what have you. But
just as slavery could be supported by unmistakable positive law,
because it was, there was no clause prohibiting it until
(42:55):
the thirteenth Amendment. Where's the clause that prohibits this. You
must rely on notions of substantive process things that are
deeply rooted in our history and tradition, and maybe parental
knowledge of these sorts of things is deeply rooted. I
don't know. But also there's a whole originalist strain that
argues there is no substantive due process at all in
the Constitution, that it's an oxymoron, that's a misconstruction, and
(43:16):
so it is. All I want to say is it's
going to be a much more interesting debate tomorrow on
the constitutional question. As Scalia used to say, stupid but constitutional.
This might be one of those examples. Right, if you
just resort to the natural reasoning I think Hadley, then
you think Scaley was wrong about that, which I think
you do think Skeey was wrong about that.
Speaker 4 (43:35):
Look, there was a letter.
Speaker 1 (43:38):
By the way, I'm not taking out a position. I'm
playing devil's advocate.
Speaker 10 (43:41):
You.
Speaker 4 (43:41):
No, of course that's what we want.
Speaker 1 (43:43):
I might be I might think these things too, but
you know, I'll keep that ambiguous.
Speaker 2 (43:46):
But I could be wrong, as Dennis Miller used to say,
that great jurist anyway.
Speaker 4 (43:50):
No, there was last word.
Speaker 12 (43:53):
Goodbye to the Queen. No there was a letter to
the Wall Street Journal wi Back for a father saying
that he's been threatened with withdrawal of custody because he's
seeking console for child in California, seeking couse for childs
(44:13):
on the going this confusion about sexuality and gender. I
never thought. I never thought I'd be living in a
regime which was now. People say, are are they not
those rights?
Speaker 4 (44:25):
Oh?
Speaker 12 (44:26):
Schoolly would say, oh, those are substance of due process.
We simply brought them in in the nineteen twenties, right,
and those there's something deficient about those rights now. Thomas Cooley,
the great Commas Cooley was the due process clause is
that is that device which the judges can bring in
(44:46):
those part times of natural law that we never thought
we'd have to special who never thought we'd have to
specify the right of parents to.
Speaker 4 (44:54):
Be informed about what is done.
Speaker 12 (44:57):
But at the same time found this also inder stood
for every liberty, there's a form of license, the fact
that parents may have liberty to do things with their children.
Not think they would have a right to do anything
with their children.
Speaker 1 (45:11):
I'll just end by saying, if we're crazy enough to
have laws that allow this, then the judges can't save us.
Aren't we too far in that respect? We need another
whiskey for this conversation.
Speaker 2 (45:22):
Yeah, so you know, but this is like having Lucretia here.
We've gone really long, and so John, will you.
Speaker 4 (45:29):
Wrap us up with the usual?
Speaker 3 (45:31):
Great great that Elon and Hadley wrap this up? And Lucretia,
where are you? Are you out there polishing your guns
alone in the dark and the basement and looking at
pictures of the bushes and the Romsfelds, Reagans and Chenese.
Speaker 4 (45:48):
Anyway, we miss you and.
Speaker 3 (45:51):
This out always drink your whiskey, meat, buy more books.
And Steve, what bizarre AI think do you have for
us today?
Speaker 4 (45:57):
I got nothing for that? But who needs it? You're
the chaos of the federal society?
Speaker 1 (46:02):
Anyone needs? Oh?
Speaker 4 (46:03):
Are you right?
Speaker 3 (46:04):
Is a chaos of curs, a break in rocks and
the Madson about.
Speaker 2 (46:13):
The lone lo On about the line of the love.
Speaker 6 (46:24):
I needed money because in loan about the line loves about.
Speaker 1 (46:32):
The line loves.
Speaker 2 (46:40):
I love loving, I guess.
Speaker 4 (46:44):
My Ricochet
Speaker 8 (46:49):
Join the conversation.
Well with they come and take my pain, the moneys,
my rain, Oh whiskey.
Speaker 2 (00:10):
Why think alone when you can drink it all? In
with Ricochet's Three Whiskey Happy Hour, join your bartenders, Steve Hayward,
John U and the International Woman of Mystery, Lucretia, where.
Speaker 3 (00:25):
The slap happen David hain't easy on the should tap,
got a giving and let that whiskey.
Speaker 2 (00:32):
Flo So settle in everyone for what may be the
most gonzo episode ever of the Three Whiskey Happy Hour.
In fact, you might want to call it the Three
Whiskey Happy Hour squared because it was taped live during
a happy hour at the Washington Hilton at the annual
meeting of the Federal Society, where John, You and I
are present and annoying everyone in sight.
Speaker 4 (00:53):
We did this last year.
Speaker 2 (00:54):
What we did was just wrangle up whoever happened to
be wandering by the most quiet spot we could find
in the Hilton, which wasn't that quiet. And this year
we are pleased to highlight several luminaries from the legal world.
Speaker 4 (01:09):
In particular, we are joined by Akil.
Speaker 2 (01:11):
Almar of Yale Law School and Yale University to talk
about his brand new book Born Equal, remaking America's Constitution
from eighteen forty to nineteen twenty. But along the way
we're joined by Roger Palan, the longtime director of Constitutional
Studies at the Cato Institute. Judge William Pryor, the Chief
Judge of the Seventh Circuit Court of Appeals, drops by
(01:33):
briefly to say a couple of things. Elan Worman, one
of the rising young stars of the Conservative Legal Academy
from the University of Minnesota, wanders by and treats us
to a delightful discussion of the issue of birthright citizenship.
Speaker 4 (01:47):
And then of.
Speaker 2 (01:47):
Course our old pal Hadley Arcis drops by. Hadley of
course needs no introduction. John Yu floats in and out,
of course, doing his usual loitering and quips.
Speaker 4 (01:59):
Ingests and so forth.
Speaker 2 (02:01):
But I'm going to pick up with our discussion with
a ki La mar about his book.
Speaker 4 (02:08):
And unfortunately we had to let a number of people.
Speaker 2 (02:10):
Who wandered by the law fall to the cutting room floor,
just because we don't have enough time for that long
an episode.
Speaker 4 (02:16):
And you'll just have to bear with the rough.
Speaker 2 (02:18):
And raw and authentic I'll call it a character of
the sound and some of the abrupt transitions, but without
further ado, let's get started right away with the ki
lamr so.
Speaker 4 (02:31):
So kil I can't.
Speaker 2 (02:33):
I only had your book Born Equal for two hours.
I have flipped through a few pages to realize that, oh,
this is a rival to maybe Gary Wills about the
centrality of the Gettysburg address really and also to my
teacher controversial with many of Harry Jaffa, who was always
trying to work up who.
Speaker 4 (02:51):
Would never got to the Gettysburg address.
Speaker 2 (02:52):
But right he has all the teachings about equality and
so forth. And I also was expecting I'm not sure
why I was expecting this.
Speaker 4 (03:01):
I thought, oh, it's going to be one of those
legal now, so go through the cases and all the
rest of that.
Speaker 5 (03:05):
It's not.
Speaker 4 (03:06):
There's a narrative here. Sorry, I'm being too long.
Speaker 2 (03:08):
You want to give us a you know, the abstract,
the summary of what you're doing in this book, and
maybe two or three key takeaways.
Speaker 6 (03:18):
What you said was brilliant. You've looked at it, and
you've got me just right. If you ask me which
ten or fifteen books were most influential for me, which
I was most trying to be Like Gary Willis's Lincoln
at Gettysburg would have been on that list, and Harry
Jaffers Crisis of the House Divided would have been on
(03:39):
that list. Harry Jaffer wrote the best book about the
Lincoln Douglas Debates. I say in the PostScript, I've written
the best single chapter, so you don't have to read.
Speaker 7 (03:49):
The whole Harry Jaffer book.
Speaker 6 (03:52):
You know, one stop shopping for the Lincoln Douglas Debates.
And in a nutshell, I'm trying to tell the story
of eighty years of American history from eighteen forty to
nineteen twenty, and the big idea is birth equality. We
begin in eighteen forty with millions of Americans enslaved, and
(04:15):
we experience a civil war and four Linconian amendments that
affirm this idea that we're all created equal, we're all
born equal, we're born equally free. That's the thirteenth Amendment.
No one's born a slave, no one's born a slave master.
People in America under the American flag, born on American soil,
(04:38):
are born equal citizens with civil rights, whether they're black
or white.
Speaker 7 (04:43):
Male or female.
Speaker 6 (04:45):
A fifteenth Amendment comes along and says, whether you're black
or white, you have equal voting rights, political rights, and
eventually by nineteen twenty a fourth amendment. It's often people
often talk about the three Reconstruction Amendments.
Speaker 7 (04:59):
This is a four fifty years later also.
Speaker 6 (05:01):
Linconian saying, whether you're born male or female, you have.
Speaker 7 (05:05):
Equal voting rights, equal political rights.
Speaker 6 (05:07):
And I try to tell the story of what these
amendments mean and how they happen.
Speaker 8 (05:13):
Let me break in.
Speaker 3 (05:14):
So this is John you co host with Steve and
Akill was my teacher at Yale. I have to say
this is the only book of Acquelles I haven't read yet,
because I've read all the other ones, but this one's
hot off the press. And rogers, do you want sticking
around to be a participant slash heckler? And so I
(05:34):
know you go full more agreeing with Lincoln. Yes, also
agree with him that fundamental equality and nation had started
not in seventeen eighty seven or eighty nine, or even
really eighteen sixty eight, but in seventeen seventy six.
Speaker 6 (05:49):
So the first words of the book are from his
Gettysburg address.
Speaker 7 (05:55):
And.
Speaker 6 (05:57):
He says that the union precedes the Constitution. He may
be right, it's not an indivisible union in my view
until the Constitution. But he begins very famously in eighteen
sixty three saying, eighty seven years earlier, four scorn seven
(06:19):
years ago, our father's brought forth upon this continent a
new nation. So he's saying it is seventeen seventy six,
no conceived in liberty, not slavery. Roger and his friends
emphasize right before government. It's conceived in liberty and dedicated
to the proposition that all men are created equals. So
(06:41):
that's Lincoln's idea. It's a contested idea.
Speaker 4 (06:44):
You're right.
Speaker 3 (06:45):
So this is the question. I want to press you
on a quiel and forgive me. I've got my Glenn
Buran g ten year Steve is drinking martini, so he's
not actually having whiskey. Roger's red wine a kiel as
always is sober so also, but I want to know
it kills what you think I'm When did the nation start?
Speaker 4 (07:04):
When did the American keep?
Speaker 7 (07:05):
Okay, I think the.
Speaker 6 (07:08):
Idea of an America, the United States of America is
seventeen seventy six. But they're free and equal states. They're
free and independent states. They're independent even of each other
until the Constitution.
Speaker 7 (07:24):
They could choose to leave.
Speaker 6 (07:26):
To brexit. It's merely a confederation. Each state is sovereign
under the articles. So the Constitution takes USA one point zero,
which begins in seventeen seventy six, and makes it two
point zho. It's like a corporate merger, a union that's indivisible.
Speaker 3 (07:42):
And they're one American people with all equal rights before
the Constitution.
Speaker 7 (07:48):
This is real.
Speaker 3 (07:49):
This is what's confronting the Supreme Court in several issues.
Speaker 9 (07:52):
Now.
Speaker 6 (07:52):
See so I go through in my chapter on the
Lincoln Douglas debates and give you the reader no fewer
than ten different ways in which these five words all
men are created equal could be read and were read
in the middle of the nineteenth century. And Lincoln himself
evolves along this radiant He initially says, all men are
(08:17):
born or created equally free, They're equal in life, liberty,
and the pursuit of happiness. And he says, I Abraham Lincoln.
He says this in eighteen fifty eight in Lincoln Negalice space.
I'm not in favor of Negro citizenship. But he evolves yes, yes,
and then by the end of his life he's going
to be in favor of equal citizenship, equal voting rights.
(08:40):
So these amendments thirteen, fourteen, fifteen are going to track
Lincoln's own evolution in a way. If you're if you're
inclined to the biological we say ontogeny recapitulates phylogical aid,
you know, but the thirteenth, fourteenth, and fifteenth recapitulate Abe's
own evolution on equal quality, and you the reader will
(09:01):
be able to trace how he moves from equally free,
to equally citizens to equal voters black and white, and
eventually even though he's dead, you know, I think he
would have embraced the idea of equal voting male and female.
Speaker 8 (09:15):
So Steve, can I jump in here?
Speaker 2 (09:18):
No, wait a minute, Hold on a second, because there's
something he said.
Speaker 4 (09:20):
I'm very kind of particular about it. Just quick digression.
Speaker 2 (09:24):
Maybe it's in your book that if maybe I expect
you know it. Even if it's not there, there's an
equivocation about Lincoln that I think is significant. You mentioned it,
So I'm not for negro equality. The way you actually
put it is very only if you're paying attention. Do
we notice that he would say I'm not now, nor
have I ever been.
Speaker 4 (09:43):
He didn't say what he would.
Speaker 7 (09:45):
Be exactly okay, and he does. He grows, he's a ratchet.
Speaker 6 (09:50):
He never actually regresses political opportunities open up. I think
he wants to move in certain directions. He's never the
most forward leaning politician at any moment in his life,
but at every moment I think he's the most forward
leaning who has the chance of getting elected.
Speaker 2 (10:10):
Yeah, okay, right now we're in we're in complete agreem
about let me do once more more sequel. I just
want to get your opinion. I'd mentioned, you know, Jeffung,
Gary Wills. I think the John Burke Burt book Lincoln's
Tragic Pragmatism.
Speaker 7 (10:23):
Which I don't know.
Speaker 4 (10:24):
Oh, it's worth reading. I'll just say it's a magnificent book.
Speaker 3 (10:27):
Steve enough talking about what you read a new guests
along with a killed Judge William Pryor, who is I
think in many ways responsible oh for originalism.
Speaker 4 (10:37):
So, by the way, Judge Pryor, you you were this sorry,
sorry you, no, no no, I did want to get
back to the literary.
Speaker 6 (10:43):
But my friend Judge Pryor has actually started reading the book,
so he's.
Speaker 4 (10:48):
In your pagent. It's awesome.
Speaker 2 (10:50):
Well, thank you so, Judge pryor when I think you
were just like this is twenty eight years ago, when
you were just a lawyer prior or something.
Speaker 4 (10:56):
Was attorney general. Attorney General. A fabulous review of my
the first volume.
Speaker 2 (11:01):
My Reagan did two volumes. It was I was bowled
over by how nice it was. He finally great to
meet you in person, Thank you, et cetera.
Speaker 4 (11:12):
As well. I enjoyed.
Speaker 10 (11:13):
I enjoyed the sequel as well.
Speaker 4 (11:15):
Thank you.
Speaker 2 (11:16):
Right, well, let me do one last question for you.
Maybe not last question, but and then Roger wants to
get in.
Speaker 4 (11:22):
But I would like to ask a.
Speaker 2 (11:23):
Literary question, which is because having written some long narratives myself,
are there any discoveries along the way?
Speaker 4 (11:31):
Did does something surprise you?
Speaker 2 (11:33):
Is it something jump out as something you hadn't expected
or you thought is more important?
Speaker 4 (11:37):
It needed to be brought out.
Speaker 6 (11:38):
So many things I try to categalog category catalog them
in the PostScript.
Speaker 7 (11:46):
Well, let me mention two or three.
Speaker 6 (11:49):
One, since we talked about literary interests, I introduced the
reader to America's first female superstar. Everyone's talking about her,
and she's fallen out of the can and the conversation
Harriet Beecher Stowe is huge, and she's a literary figure.
(12:11):
She writes a book it sells more copies than any
other book by an American of the century, and we've
forgotten about her. So before Taylor Swift or Beyonce or
Hillary Clinton or Kamala Harris or even eleanor Roosevelt, there
is Harriet Beecher Stowe, and no woman at the founding
is the center of political discourse.
Speaker 7 (12:32):
Abigail is off stage.
Speaker 6 (12:33):
So that's the women in the in who read the
book are gonna really love getting to know Harriet Beecher
Stowe and Elizabeth Katy Stanton, who's amazing. The second big
thing that I think is really important to emphasize is
there is an abolition project in the North that begins
(12:56):
as early as seventeen seventy six. The ancient world has slavery,
it has the idea of freeing individual slaves. Sixteen nineteen,
in my view, is not that significant to date because
there was slavery in the New World and the old
world before sixteen nineteen. Here's the new thing in the world,
not freeing slaves, but ending slavery, and that's an American idea.
(13:19):
It begins in Philadelphia, in seventeen seventy five and seventeen
seventy six, and by seventeen seventy six, northern state constitutions
are committing themselves in Pennsylvania and three years later, four
years later in Massachusetts to this concept that all men
are born free and born equally free and independent, and
(13:42):
that is going to lead to not freeing slaves, but
abolishing slavery in Pennsylvania in Massachusetts very early on. And
most Americans don't know about that abolition project, which is
an American project, which is, of course, since I'm in
the presence of Roger Pielant, a libertarian project. It's about
liberty and and Abe Lincoln channels all that when he
(14:06):
goes back and says, yes, they didn't eliminate slavery, and
they said all men are created equal, but they committed
themselves in effect to an abolitionist project. Say here is
true North, this is the North Star. And people like
Harry Jaffa understand that. So Jaffa is important for me.
(14:27):
Now I'm told I'm told he was a cantankerous Fellows
and I never met him in the flesh, and I'm
told that Bill Buckley once said, you think disagreeing with
Harry Jaff is hard.
Speaker 7 (14:38):
Try agreeing with that.
Speaker 6 (14:41):
But he did influence me, and so did Gary Wills,
so did Gordon Wood, so did Ed Larson, and so
did the great Jim Oaks.
Speaker 2 (14:51):
Quick factual question is the famous story of Lincoln saying
to HARRYT.
Speaker 1 (14:56):
Beecher Stowe, so you're the little lady who causes great
big war?
Speaker 4 (14:59):
Is that true?
Speaker 7 (15:00):
It is? And some people have said it's not.
Speaker 6 (15:02):
And actually there's a fellow whom you know, I believe,
Roger Tim Sandefern, who writes a review saying that I
got that wrong. And I'm telling your audience here now
I'm doubling down on that. Since that review came out,
I quadruple checked all my sources, and he cites something
(15:23):
that actually misses a lot that actually I believe happened.
And here's some of my evidence for it. Because I
am always interested in trying to find primary sources and
contemporaneous sources to confirm the legends. So I have contemporaneous
(15:43):
sources saying Harry Beecherstowe was there that week, and it's
the newspapers. She clearly was there, and the first published
reports that this is what she said came out within
weeks of her own death in the Atlanta magazine, when
her children were still alive. And if this reporter is
(16:06):
making all that up, her children are immediately going to say, no.
Speaker 7 (16:09):
You made that up.
Speaker 6 (16:09):
So I have every reason to think that actually she
said that the canonical accounts of this famous exchange come
from her own children, saying that we got this from
our mom.
Speaker 7 (16:26):
And I don't think she was a liar, right.
Speaker 2 (16:28):
It's always seemed metaphysically right to me. And I know
Tim Sanderfer. He's a stubborn guy, so I get it.
Speaker 6 (16:34):
And it sounds like Lincoln, see, because little Lady is
the kind of formulation that he used.
Speaker 7 (16:41):
He you know, he called you know, his wife Lila.
Speaker 6 (16:44):
And Harriet might not know that, but but I know
that from diary entries and letters and and all the rest.
Speaker 7 (16:50):
She comments on a certain phrase that he uses.
Speaker 6 (16:53):
I like to fight like I like to have a
fire at home to home rather than at hom she has.
There are all these little extraneous details that have nothing
to do with the famous quote that to me give it.
Speaker 7 (17:07):
Absolutely the feel of.
Speaker 6 (17:10):
Very simility, in a very similitude accuracy.
Speaker 7 (17:16):
Do I have a tape recording.
Speaker 6 (17:17):
No, but I do believe that this is far more
likely than not. And again those who disagree have to
call someone a liar, the first journalist, or the daughter
and the son or Harriet herself. At least one of
those four has to be a liar for this conventional
(17:39):
view to be false.
Speaker 4 (17:41):
All right, I have to let you go, but Roger
gets give him your best shot.
Speaker 9 (17:44):
Oh well, after listening to Akiel a patiate on this
and Sundry, I was going to conclude with the quote
of Buckley. If you think it's difficult I agree with
or disagreeing with Harry, try agreeing with them.
Speaker 7 (18:04):
We academics can be order.
Speaker 8 (18:06):
Oh I know it, I know it.
Speaker 5 (18:07):
But judge the the the point, the point that John
you made about when the question he raised when did
America begin?
Speaker 9 (18:20):
I think I'm with a Kiel on that. With the
declaration of independence, but let's remember they saw it as
a league of friends under the articles.
Speaker 8 (18:30):
Not exactly.
Speaker 6 (18:31):
Yes, each state is sovereign, it's a mere treaty, it's
a confederation, and then when you switch to a constitution,
it's going to be a different But.
Speaker 10 (18:40):
One of the things that the professor explains is when
they get to the Constitutional Convention and they're making these compromises,
this backdrop of northern abolition is already ongoing. Yes, and
this is why they think that this is, in its
natural course, going to lead to total abolition. And what
(19:02):
they did not anticipate was what would happen in the South.
Speaker 7 (19:07):
And especially after the cotton project.
Speaker 10 (19:10):
That's right, particularly South Carolina.
Speaker 7 (19:12):
Yes, and South Carolina.
Speaker 9 (19:14):
And Omar has Akil has raised the issue of women.
Let's not forget John adams wife.
Speaker 7 (19:24):
Abigail, is amazed.
Speaker 8 (19:26):
She was opposed to slavery.
Speaker 6 (19:30):
She was the most anti slavery from the McCulloch book on.
Speaker 4 (19:34):
John, she's in the book.
Speaker 10 (19:35):
Everybody, Yeah, thank you, thank you so.
Speaker 2 (19:40):
But this morning, on the immigration panel you were on,
I was very glad you brought up the importance of the.
Speaker 4 (19:46):
Omission of the word expressly.
Speaker 2 (19:49):
And that was beaten into me by my teacher of
cost social history was Leonard Levy.
Speaker 4 (19:55):
Was absolutely fabulous.
Speaker 6 (19:57):
So here's what's really interesting. I don't think I have
met him. I did blurb a book that he wrote
about the Bill of I blurbed a book that he
wrote about the Bill of Rights. But in the last
fifty years. I believe there are really only two scholars
(20:21):
who tried to write about each amendment of the first ten,
and the only two that I could find that really
had done kind of original and deep thought about each amendment,
where Leonard Levy and yours truly And because we have
First Amendment experts, although many of them are only religion
(20:42):
folks or only speech and press folks, we got Second
Amendment folks, we got Fourth Amendment folks. We have some
criminal procedure folks. Levy tried to actually write about everything
in the Bill of Rights, and I've tried to do
the same thing. And what I said even earlier today
is if you really want to be an originalist, you
have to do originalism across a wide range of issues,
(21:06):
rights and structure, criminal and civil, just to get a
proper sense of what kind of evidence you know is
good enough to be confident, just like, how much evidence
do I need in order to say I think actually
that Lincoln said that to Elizabeth Caston, You're going to
be much better at answering that if you try to
(21:27):
ask questions like that in eighty other situations.
Speaker 8 (21:30):
Aequille, we even have ninth Amendment.
Speaker 7 (21:34):
Yes, we do, absolutely farmer, Rogers.
Speaker 9 (21:40):
After all, if you're a textualist, you cannot ignore.
Speaker 8 (21:44):
I agree, And we know why it's there.
Speaker 7 (21:47):
Don't there's so many reasons over determined.
Speaker 8 (21:51):
Of course, we know exactly why it's there.
Speaker 11 (21:54):
It's because, okay, sorry, it's it's because they understood that
once you start enumerting members of a class, the failure
to enumerate all.
Speaker 9 (22:08):
Such members will be construed by ordinary principles of legal
construction as meaning only those that are enumerated are meant
to be protected, in contradistinction from those that are not.
So to make that crystal clear, they wrote, the enumeration
in the Constitution of certain rights shall not be construed
(22:29):
to deny or disparage others retained by the people.
Speaker 8 (22:34):
You can't retain what you don't first have to be retained.
Speaker 9 (22:40):
I don't know how you can state it anymore simply,
more clearly than.
Speaker 1 (22:45):
That, Roger.
Speaker 2 (22:46):
I'm going to declare culture on your filibuster for a moment, because.
Speaker 8 (22:50):
Well it's a filibuster with a point, I know.
Speaker 7 (22:53):
And a good point.
Speaker 2 (22:53):
But let me let me bring it back to a
Kiel's book. As I'd read read a books, I'm this
one just briefly.
Speaker 4 (23:02):
So Roger and I are a little unusual.
Speaker 2 (23:04):
Maybe not unusual, but I miss some of those mid
century constitutionalists.
Speaker 4 (23:09):
Like Charles Howard mcilwaine.
Speaker 3 (23:11):
He's still talking about last book he read.
Speaker 7 (23:16):
University of Minnesota.
Speaker 2 (23:18):
I'm just gonna say you, I'm going to throwback of
people like Levy, like Charles Howard mcelwayne.
Speaker 4 (23:22):
Yes, people that he has total contempt for.
Speaker 7 (23:25):
Because okay, thank you so much, thank you very much.
Speaker 1 (23:30):
Okay, Roger, I need your microphone back from your panel.
I do wish you guys had had two hours. Oh yes,
absolutely this morning, because like that's too much. Where's John?
I thought I was gonna he'll come back with are
we talking tout? So he's he's literally ambushing us and
saying come come.
Speaker 2 (23:49):
Yeah, it's I'm glad you've wandered by this sort of
gonzo uh format we do every year at the Federal
Society for the three Whiskey Happy Hour podcast. Roger polanist
with us because he likes to hackle everybody.
Speaker 1 (24:02):
Oh indeed, he just likes whiskey. He's on his second.
Speaker 4 (24:04):
Found treating read. We've done a red.
Speaker 2 (24:07):
Wine episode or two. But so elon, I'm blanking on
your books. I have them on my shelf. I read
them that there was some originalism art I had recently
I thought was quite good.
Speaker 4 (24:17):
Well man, what are your sort of leading things you're doing?
The first of all, give us just a very like
thirty second bio.
Speaker 1 (24:23):
So I taught at Arizona State for six years. Now
I'm at the University of Minnesota, very happy to be there.
I write on separation of powers, federalism, administrative law, constitucialism.
My first book was A Debt against the Living, an
introduction to originalism. That's the book, not, just to be clear,
not the Debt against the Living, although it's not a
zombie flick, although some people have suggested it could have
(24:43):
been titled The Dead Versus the Living, But it's actually
a Debt against Living, which comes from Madison's response to
Thomas Jefferson's Dead Hand of the Past letter. I have
a book on the Fourteenth Amendment called The Second Founding,
and right now I am causing some controversy on topics
like borthward citizenship. I've been out there somewhat defending the
Innistration's position from a constitutional perspective, and I knew a
little bit about the removal power and Humphrey's Executor, and
(25:05):
so happy to you know, throw some grenades and a
conversation if you'd like.
Speaker 4 (25:10):
Well, now John You has run away again because he
knows that.
Speaker 2 (25:13):
The funny thing is he always likes to assemble people who,
as I do, disagree with him on these things. So
I think if I do a checkboxes, I think I'm
probably in agreement with you on birthright citizenship, on Humphrey's Executor.
Speaker 4 (25:24):
But take those briefly from the top.
Speaker 1 (25:25):
And so John You, interestingly, since you gave me the
bait here, he's famously defended sort of a broader conception
of birthrad citizenship, but he was also responding to a
John Eastman and argument in Rogers Smith and Peter Truck
that sort of reject the common law. I don't reject
the common law. I think the question rather is what
(25:46):
is the scope of the common law rule of birthright
citizenship to begin with? And actually I don't think the
common law rule itself would have extended to unlawfully present aliens.
Harder question for temporary visitors. And if you want to give, like,
if I may just take a minute to this out,
because everybody thinks that the test is mere birth alone,
mere birth on soil. But what do you do with
children born of ambassadors or to the soldiers of invading armies.
(26:08):
And they come up with all sort of well, just
an exception and maybe an exception for this that reason.
Well what did they say? What do they say? If
you look at Calvin's case, if you look at Blackstone,
Well it turns out that the rule itself was born
on the soil of the sovereign, under the protection of
the sovereign. Someone born to an invading armies not under
the protection of the sovereign. Someone born to an ambassador
is born under the protection of and within the allegiance
(26:29):
of a foreign sovereign. Well, what if I told you
that a common law you needed a safe conduct from
the king, a formal legal document giving you permission to
enter the realm, which document extended the king's protection to
that alien. Eventually, these safe conducts came into disuse when
statutes like Magna Carta cardon Mergatoria and a statute from
fifteen thirteen fifty three in the reign of Edward the
(26:51):
Third said generally opened up trade and said merchants strangers
may safely and securely and under our protection, come and
dwell in our set real So why did Cook and
Blackstone presume that children born to aliens friendly aliens were
birthright subjects well because their parents were there legally under
the king's protection according to the statutes. What does that
(27:13):
mean for a world today where there are immigration prohibitions
which they have been under the protection of the sovereign?
I argue not that. What does that have to do
with the fourtieth Amendment and subject to the jurisdiction. How
much time do you have? Probably not enough, Roger You.
Speaker 9 (27:26):
Well, I'm struck by this idea of under the protection
of the sovereign, which would not apply, if I understand
you correctly, to the children of invading armies. Well, suppose
children of those invading armies were subject to towards various kinds,
then would that child be subject to the protection of
(27:47):
the sovereign?
Speaker 1 (27:49):
No, and oh you mean you can do whatever you Well,
we've got another scholar coming. You can come, come, come,
come on, Professor Ailey Arcis is joining us. We're on
on a podcast. But no, hardy us. Come on. Here's
the difference with you, Yes, here's here's here's the difference.
(28:11):
So discussion on birthright citizenship, and I'm wondering what your
take on it is, since I'm defending under the common
lawson asked your question.
Speaker 9 (28:20):
Okay, argued that can I stay the the children of
invading armies would not be under the protection of the sovereign. Well,
suppose one of those children were the victim of a
tour of various kinds, including an attentional tour by the
residents or even members of the invading Would that child.
Speaker 8 (28:45):
Not be under the protection of the sovereign?
Speaker 4 (28:48):
Or can one do anything one wants to.
Speaker 1 (28:51):
That child, the child of the invader.
Speaker 12 (28:54):
The protection under the protection of the law, that would
make him. That would not make him a citizen.
Speaker 1 (28:58):
No, that's right, but it would at least give him
the coadly doesn't even know. Professor Arkis doesn't even know
what I said to begin with, since she walked in later.
But he gave a great answer. Actually what they answer,
You are right?
Speaker 4 (29:11):
Well, I don't want to get away off of that.
Speaker 1 (29:13):
I mean subject this is this is an interesting question.
So let me just if you if I may say
one thing about this right the reason lawfully present aliens
were subject to treason prosecutions is because they were under
the protection and within the allegiance of the sovereign, and
they violated their allegiance by engaging an active treason, and
so they were subject to the municipal law of treason,
(29:33):
including the protections of the common law for treason prosecutions.
If you came in contrary, if you were an enemy alien,
if you were an invader, or someone who came contrary
to the King's protection, you could not actually be prosecuted
for treason. You were subject to martial law, to the
law of nations, to the military law. So of course
we could exercise power over you. You the king could
subject them to his military court, to the power of
(29:55):
his armies, but they were not subject to the protection
of the ordinary legal rules. Lawfully present aliens were subject to,
or alien friends were subject to. All sorts of questions
emerged from this. Please, No, that's right.
Speaker 4 (30:06):
I just want to know this is you.
Speaker 1 (30:08):
Had no idea what he was getting into his question?
Speaker 4 (30:12):
What No, Roger, No, sorry.
Speaker 12 (30:14):
I'm just I was just looking for Costco and I said.
Speaker 4 (30:19):
I just wait. No, no, Roger, no, no, nope, we're
not I know.
Speaker 1 (30:23):
What let's do you came to a Wendy's instead.
Speaker 4 (30:27):
I am I am on Nylon's sign on. Yeah, okay,
well so let's uh let me do it this way.
Speaker 2 (30:34):
Let's do you know, thirty seconds is way too ambitious
about Humphrey's executor. I always wish Humphrey's executor applied to
Hubert Humphrey.
Speaker 4 (30:42):
But I know the other.
Speaker 2 (30:43):
Famous story about uh stant Avage is telling Hubert Humphrey
he fought in the war. He was captured by the Germans.
They have him in the interrogation room. They come in
and say, you are Hubert Humphrey. We have vays of
making you not talk.
Speaker 4 (31:01):
You're too young for that.
Speaker 8 (31:05):
One thing.
Speaker 9 (31:05):
It's one thing to say that this child would not
be protected by the sovereign. It's quite a different question
whether this child.
Speaker 8 (31:15):
Being born in.
Speaker 9 (31:17):
The domain of the sovereign is a citizens.
Speaker 1 (31:23):
I agree with that.
Speaker 2 (31:24):
Okay, all right, moving on for listeners who don't know
Humphrey's executors. Is the New Deal air case that said
Franklin Roosevelt could not fire.
Speaker 4 (31:32):
I think it was the Chairman of the Federal Trade Commission.
Speaker 2 (31:35):
By the way, I have great fun with my lefty
friends saying, you know, Trump was just wants to do
what Franklin Roosevelt want to do.
Speaker 4 (31:40):
What's the problem.
Speaker 1 (31:41):
So Robin's Humphrey's Executor was a nine zero opinion, because
you've got because of all the four horsemen of the Arch,
Conservatives wanted to stop Franklin Roosevelt's New Deal policy, so
they voted a lot with the Liberals to rewrite the Constitution.
Speaker 4 (31:56):
I missed that little detail of that significant.
Speaker 2 (31:58):
So look, I mean, just give our verdict without going
through the lines here, and then I'm gonna bring Hadley
in the new.
Speaker 12 (32:04):
Vectory because my friend George who wrote that opinion, and.
Speaker 7 (32:10):
Yes, okay, we didn't even get to the real of.
Speaker 4 (32:13):
Course we didn't. But you know, well there'll be more
we didn't.
Speaker 12 (32:16):
Oh, come on, we're gonna don't Roger and I made
Roger to me to do that.
Speaker 8 (32:21):
We're both natural wrong, yeah, rights men.
Speaker 4 (32:24):
But yeah, so it's eon.
Speaker 8 (32:27):
Is more of a natural right.
Speaker 12 (32:29):
But but Richard but Epstein did a fine piece on this, Richard, Okay, Richard,
Richardstein did a fine piece on right. See I will no,
I would do Okay, I love what you did today.
Speaker 4 (32:46):
Can get a text of that.
Speaker 1 (32:48):
Maybe I don't check my phone okay, okay, oh.
Speaker 2 (32:51):
Yeah, good idea to leave me that John you walked
out earlier.
Speaker 4 (32:55):
He's gonna get all kinds of crowd noise.
Speaker 1 (32:57):
That's gonna be a night when we start, Humphreys.
Speaker 4 (32:59):
Since I'll do that, I'll do that.
Speaker 12 (33:01):
So I have to go back and read my book
on George Southland, right exactly, So.
Speaker 2 (33:07):
Wait, no, stop having I want I don't want to
leave this in the green room. But Elon's right one,
who's orderly? All right, So let's resume our discussion, uh
wherever it left off on Humphrey's executor. I mean, just
briefly that this is a case about can the executive
remove someone? And what the court ruled in some strange
way that well, the Federal Craik Commission it's not really executive,
it's not really it's sort of halfway between.
Speaker 4 (33:28):
And I don't.
Speaker 2 (33:28):
Nobody buys that logic today, I don't think right.
Speaker 1 (33:31):
So Humphy's executor is obviously wrong on its reasoning. They said, well,
the Federal Trade Commission exercises what we call quasi legislative
quasi judicial power. There's no such power under the Constitution.
If it's legislative power, Congress has to do it. The
commission was in Congress. If it's judicial power, the courts
have to do it. The commission wasn't a court. The
question is, if it's executive power, which it was, what
is the president's relationship to the principal officers running the agency?
(33:54):
And the court upheld in Hemprey's executor what we call
independent agencies. What makes them independence, we think is that
they're insulated from the president's at will removal. In other words,
the president must have cause to remove them, and mere
policy disagreements are insufficient to remove them. So the question
really now is okay, putting aside quasi nonsense, the CAUSI
powers nonsense? What is the answer? What is the answer?
(34:17):
And in my view I have quite a quirky idiosyncretic view.
I think the president has an unfettered constitutional right to
remove principal officers. It doesn't follow he has the constitutional
right to direct and control them in the exercise of
their discussion. Now, he can always fire them, but firing
them comes at a higher political cost, which cost goes
up even more to the degree we think it is
(34:38):
impermissible to interfere in the duties, which maybe is why
President Trump hasn't actually fired drum Powell. Maybe there isn't
a FED exception. It's just we understand that it would
be untoward or impermissible or contrary to Congress's intent to
do this, and there's no constitutional right to interfere with
the Fed's duties. So there's a real payoff between this distinction.
But most foremost think I'm crazy.
Speaker 2 (34:59):
Well, I long thought that the proper term in the
Constitution has not been carefully thought about.
Speaker 4 (35:07):
Necessary and proper. Okay, that's a subject for another day.
Speaker 1 (35:11):
I mean it is related to this question, sure, sure, right,
though in this case it kind of begs the question,
because if the president has the power to remove then
it isn't necessary and proper to derogate from that power, right,
So it's kind of question begging.
Speaker 2 (35:23):
It also occurs to me, I have to think about this,
But you're saying that he might not be able to
direct the people of points.
Speaker 4 (35:30):
It sounds to me a little bit like cabinet government.
Speaker 2 (35:32):
Parliamentary democracies have to think about that, which is okay.
That may bring Hadley in at this point, and I
think you will have interesting things to say about this.
Speaker 4 (35:40):
So Hadley this morning, Oh, let me preface it this.
Speaker 12 (35:45):
Way, or are we are we leaving this subject?
Speaker 1 (35:47):
No?
Speaker 4 (35:51):
No, I think it's just no.
Speaker 1 (35:53):
Elion is right.
Speaker 7 (35:54):
No.
Speaker 12 (35:54):
I think I think right now we look, it comes
back to uh Scalia and Morrison versus LS. You know,
he's the only one who took the line for the
for the the complete complete executive power. I think uh
suddenly just recognized this was the statute. And I think
I think say in Morrison versus I think Renquist regardless
(36:18):
as a political problem, that the that the the the
the the the president did not have to acquiescens The
president signed onto this, He signed onto this legislation. So
if you want this fixed, Congress has to And of
course it was fixed politically as soon as the Independent
Council statue was applied.
Speaker 4 (36:36):
To Clinton, to Democrats and they and they lost her.
Speaker 12 (36:39):
They lost their passion for this thing. But you know,
going back to that first book of mine, of the
Marshall Plan, as George Will said, a book that has
sold dozens. Okay that I'm out of my dissertation. Here
here they're trying trying to get the Marshall Plan outside
the State Department to make more sensitive to the interests
(37:00):
of agriculture and business and so on.
Speaker 7 (37:04):
This is ever the move to take.
Speaker 12 (37:08):
Agencies out of the executive to make them more responsive
to different kinds of constituencies. And the value of having
it all in is that it forces the person to
make a judgment just what is important?
Speaker 4 (37:21):
What?
Speaker 12 (37:21):
What is my stand in relation to taking all export
controls away from the state Department?
Speaker 3 (37:28):
What?
Speaker 4 (37:29):
How much?
Speaker 12 (37:30):
What is worth to me here?
Speaker 4 (37:32):
What?
Speaker 7 (37:32):
What is what's the rank of my own judgments here?
Speaker 4 (37:35):
But what is important to me?
Speaker 12 (37:37):
But by bringing everything under the control of the executive,
you force them to you force them to face that
kind of question.
Speaker 2 (37:44):
Yeah, all right, but I want to change subjects. Okay, great, Uh,
there's frame set up this way. So there's a we're
talking Friday night. There's a panel tomorrow on the question
of should parents have a right to control or know
about and make decisions about the gender choices of their children?
Speaker 4 (38:04):
And that's not quite the question.
Speaker 1 (38:05):
The question is there a constitutional right?
Speaker 2 (38:08):
Okay, well to know, Okay, that doesn't actually change the
the way I'm.
Speaker 4 (38:12):
Going to make it to a question. That's the question.
That's the question.
Speaker 2 (38:15):
Okay, Okay, So I was imprecise, that's fine, But There's
been some criticism of it, saying, wait a minute, why
are we debating whether there's a legal right to do
that when we ought to be four square debating Why
are we talking about this question in the first place,
because what are we taught?
Speaker 4 (38:32):
We're talking about something radical and insane.
Speaker 2 (38:36):
And this gets back to what you and Jerry Bradley
were saying this morning at breakfast, Hadley, which.
Speaker 4 (38:40):
Is, uh, you know, we're well, you know, there's a
legal reason, all the rest.
Speaker 2 (38:44):
Of that, but we're abandoning the moral ground of human
nature and saying, wait a minute, this is so far
out of bounds that why is this a problem at all?
Speaker 12 (38:52):
He's going back to the argument we had over this
umatic grammatic case about the.
Speaker 2 (38:58):
Maybe you disagree with you guys go you guys go,
Sorry I interrupted.
Speaker 12 (39:02):
No, no, no, you set it up here with this
chromatic case about a year ago. We're arguing over this
that just Sutton for the Sixth Circuit or a fine
opinion sustaining the law in tendency even though it barred
those surgeries, even though the surgeries were ordered up. Five
parents who were responding to what they thought the felt
needs of their kids work and some of us took
(39:25):
the line that, Okay, you want to argue on the
base of the legislature making adjustment and kinds of the
harms you think may arise from these disfiguring surgeries. But
there's a there's a deeper reason here that is that
the whole scheme is predicated on falsehoods. There's no way
search you can convert males and the females.
Speaker 4 (39:42):
It feels meant to male.
Speaker 12 (39:44):
These are cosmetic surgeries with vast disfiguring and permanent effects.
And so the question what if we're simply casting this
as a judgment of the legislature, then the question we're
posing this, can we do no better than an opinion?
There will be the equivalent of a concurring opinion in
(40:04):
BUCKFERSUS Bill on compulsory sterilization of thought. Look, this hoses line.
This lawless passed by a legislature composed of literate lawyers
working with a sense of what's been accomplished by medicine
and our time with it advanced sense of ugenics. I
(40:25):
completely the problem say arguments, Yeah, you could why not
take why not look for the most compelling ground of
the argument. Now, to our surprise, we heard from Scremtti
later saying, you know, we think you're right that we should,
but we were We didn't think that court, the judges
could handle that, so now they wanted maybe we should
(40:47):
have gone back to the web. Is to appeal to
an inescapable objective truth about the way we're I was
just recalling the Congregation of the Doctor of Faith with
Ratzingers saying, there's not always been an italy or hungry,
but as long as there are are human beings, there
must be males and fem males. That's how we must speak.
(41:07):
So because why not appeal to an a This gets
to to Stay's point before I argue about the rights
of parents, what about this thing that you're asking them
to agree to?
Speaker 4 (41:18):
Show's over.
Speaker 2 (41:19):
No John has returned to the chat.
Speaker 4 (41:25):
We've been getting so many speakers. I'm exhausted.
Speaker 2 (41:28):
Okay, Hadley is winding up and never again rebuttal, I
just want to I want to hear.
Speaker 3 (41:35):
I want to just hear Hadley tell some good ethnic
jokes to close out the friendly podcast.
Speaker 4 (41:43):
And he's got all kinds. He's the funniest damn ones
I ever heard of my life.
Speaker 1 (41:46):
So can I impose a question to you.
Speaker 4 (41:48):
Don't go away.
Speaker 1 (41:50):
So in Somerset's case, and which was cited by numerous
others in the founding and is understood to be correct,
they said, slavery is so odious a contrary to the
next law, that it could only be supported by unmistakable
positive law. We have unmistakable positive law in various states
permitting the genetic mutilation of children, which is absolutely insane,
(42:13):
contrary to the natural law. And I have all sorts
of things I can say about for that, forbidding, for permitting,
for admitting. Yeah, And the question tomorrow is whether there's
a constitutional right to be for parents notwithstanding such laws
that So it's actually two things. Have you presume that
(42:33):
you have the laws that allow this, and then that
the parents don't get told, both of which seem to
be quite contrary to the natural law, because of course
parents have a right to know everything about their children,
if you, I think, just think about it, right, resort
to natural reason, natural law, or what have you. But
just as slavery could be supported by unmistakable positive law,
because it was, there was no clause prohibiting it until
(42:55):
the thirteenth Amendment. Where's the clause that prohibits this. You
must rely on notions of substantive process things that are
deeply rooted in our history and tradition, and maybe parental
knowledge of these sorts of things is deeply rooted. I
don't know. But also there's a whole originalist strain that
argues there is no substantive due process at all in
the Constitution, that it's an oxymoron, that's a misconstruction, and
(43:16):
so it is. All I want to say is it's
going to be a much more interesting debate tomorrow on
the constitutional question. As Scalia used to say, stupid but constitutional.
This might be one of those examples. Right, if you
just resort to the natural reasoning I think Hadley, then
you think Scaley was wrong about that, which I think
you do think Skeey was wrong about that.
Speaker 4 (43:35):
Look, there was a letter.
Speaker 1 (43:38):
By the way, I'm not taking out a position. I'm
playing devil's advocate.
Speaker 10 (43:41):
You.
Speaker 4 (43:41):
No, of course that's what we want.
Speaker 1 (43:43):
I might be I might think these things too, but
you know, I'll keep that ambiguous.
Speaker 2 (43:46):
But I could be wrong, as Dennis Miller used to say,
that great jurist anyway.
Speaker 4 (43:50):
No, there was last word.
Speaker 12 (43:53):
Goodbye to the Queen. No there was a letter to
the Wall Street Journal wi Back for a father saying
that he's been threatened with withdrawal of custody because he's
seeking console for child in California, seeking couse for childs
(44:13):
on the going this confusion about sexuality and gender. I
never thought. I never thought I'd be living in a
regime which was now. People say, are are they not
those rights?
Speaker 4 (44:25):
Oh?
Speaker 12 (44:26):
Schoolly would say, oh, those are substance of due process.
We simply brought them in in the nineteen twenties, right,
and those there's something deficient about those rights now. Thomas Cooley,
the great Commas Cooley was the due process clause is
that is that device which the judges can bring in
(44:46):
those part times of natural law that we never thought
we'd have to special who never thought we'd have to
specify the right of parents to.
Speaker 4 (44:54):
Be informed about what is done.
Speaker 12 (44:57):
But at the same time found this also inder stood
for every liberty, there's a form of license, the fact
that parents may have liberty to do things with their children.
Not think they would have a right to do anything
with their children.
Speaker 1 (45:11):
I'll just end by saying, if we're crazy enough to
have laws that allow this, then the judges can't save us.
Aren't we too far in that respect? We need another
whiskey for this conversation.
Speaker 2 (45:22):
Yeah, so you know, but this is like having Lucretia here.
We've gone really long, and so John, will you.
Speaker 4 (45:29):
Wrap us up with the usual?
Speaker 3 (45:31):
Great great that Elon and Hadley wrap this up? And Lucretia,
where are you? Are you out there polishing your guns
alone in the dark and the basement and looking at
pictures of the bushes and the Romsfelds, Reagans and Chenese.
Speaker 4 (45:48):
Anyway, we miss you and.
Speaker 3 (45:51):
This out always drink your whiskey, meat, buy more books.
And Steve, what bizarre AI think do you have for
us today?
Speaker 4 (45:57):
I got nothing for that? But who needs it? You're
the chaos of the federal society?
Speaker 1 (46:02):
Anyone needs? Oh?
Speaker 4 (46:03):
Are you right?
Speaker 3 (46:04):
Is a chaos of curs, a break in rocks and
the Madson about.
Speaker 2 (46:13):
The lone lo On about the line of the love.
Speaker 6 (46:24):
I needed money because in loan about the line loves about.
Speaker 1 (46:32):
The line loves.
Speaker 2 (46:40):
I love loving, I guess.
Speaker 4 (46:44):
My Ricochet
Speaker 8 (46:49):
Join the conversation.
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