Saturday Bonus Podcast - Antonin Scalia & American Exceptionalism

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Episode Transcript

Speaker 1 (00:00):
The Michael Berry Show when President Trump stated on the
campaign trail, We're just going to keep winning and winning
and winning, and you're going to get tired of winning.
You know, he said that tongue in cheek, But I
will tell you I'm a competitive person, and winners are
competitive in winning and losing matters. If you don't think

(00:24):
winning and losing matters, then you've been fortunate to live
in a country that has won the world wars. Otherwise
your life would be subjugation in hell, understanding that everything
is winning and losing. People who will tell you that, oh,
you shouldn't be so competitive are people who are not

(00:46):
any good at what they do. And that's a fact.
You don't think winning and losing matters. Won't you watch
a football game this weekend and watch your team, your
alma mater, or your city's team, or whatever team you love,
and decide that you don't care if y'all win. In fact,
you hope the other team wins, because winning doesn't matter. Right,

(01:07):
The whole point of watching the game is your team winning.
That's the beauty of competition, both sides competing passionately to win.
If you're a salesman and you know the company's looking
at three different bids. You don't go, here's my bid.

(01:28):
Choose whichever one you want, and if it's me, let
me know. Otherwise it's fine. I don't need to eat. No,
you want to win. If you're dating a girl, you
all break up. She'd start stating a new guy and
they're kind of getting serious and you go. But you

(01:50):
come to your senses and realize this is the one
for me. So now you've got a competition. You don't say, hey,
you can go with him, or you can come with me.
Not if you know that's one for you. You want
to win her love, You want her commitment to you. Right,
Everything we do is competition. Everything we do is competition.

(02:14):
Exceptionalism is being the best. If you don't keep scoring,
the game's not any fun. Any football player to tell
you scrimmages didn't matter. You could have put on your uniform.
Scrimmages don't matter. And when they don't matter, oh hell
you know. There was a Jeopardy episode a little while back,

(02:36):
the Tournament of Champions, and they brought three different I
Love Jeopardy. They brought three of the greatest winners, and
they were going to give them a buye into the
next round. They didn't have to win the first round
to get they had earned it because they had won
so much money each of them, and so they had
a competition between three of them, and rather than let

(02:57):
them keep the winnings, they had a competition where it
didn't matter, like you didn't get to keep your winnings.
You just played, and it was to get them back
into shape. So the whole game was awful, and I
think Ken Jennings recognized it, and they recognized it, and
there were constant comments about I guess I'll risk it all.
It doesn't matter anyway, and so everything about the competition

(03:17):
of Jeopardy was lost. And that was when you realized
this isn't just a game of let's test your knowledge.
It's the desire to win winning, and that the pursuit
of it makes us better. Competition is everything in every aspect.

(03:41):
So when we talk about exceptionalism, how will we measure
exceptionalism relative to the rest of the world. You know,
there are people that have lived in history on an
island where they never interacted with anyone else. So when
they find out someone shows up and they've got some
device or weapon or whatever, they Wow, we didn't know

(04:03):
that was even possible. If they had known, they would
have worked harder. If you look at how many advancements
are made during war because you got to keep up,
because you got to win the war. Armaments in the
past were going to make a big difference, whether that
was the spitfire versus the Luftwaff, whether that was the
pans Er versus the Soviet I forget what it was called.

(04:27):
Some number. I mean these sorts of things, that level
of competition. You think of the space wars, you think
of the computer wars. All of these things matter. And
American exceptionalism is the idea that we are winners, and
we haven't had leadership elected leadership who valued winning. We

(04:54):
want to win, but our leadership wanted to lose. They
wanted everybody to be happy, everybody to get a trophy.
Antonin Scalia is my favorite all time Supreme Court justice.
I had the opportunity to smoke ciguards with him and
had the opportunity to go to his chambers. My wife
came along when he took photos, had the opportunity to
get to know him. Yeah, he was there. Yes, Please

(05:16):
don't interrupt my story and I admire him deeply. I
think he was one of the most influential Supreme Court
justices in American history. He was appointed by President Reagan
in eighty six. He was known for his wit, his
powerful descents. So in many times he was in the

(05:38):
minority of the vote, but his dissent, which will be published,
would be so powerful that there were members of the
majority that regretted their vote. He was steadfastly committed to
concepts like textualism and originalism. Spend some time reading on

(06:01):
those things. If what you hear of Scalia interests you.
I love the fact that he was a majority of one.
He didn't need to go with the crowd. He didn't
need to keep up with the modern theories. We've played
this some time ago, but we will have listeners who

(06:24):
will ask us for this and they can't find it,
and so we had marked it. We may play this
once every two years. That's probably enough time in between,
because we're always getting new folks coming in. It's it's
one of my favorites from antonin Scalia. And if this
sparks in you an interest in learning more about American jurisprudence,

(06:46):
don't say to yourself, well, I can go to law school.
I don't know any that. I'm not a lawyer. You
don't need to be, just like you've learned about a
lot of other things.

Speaker 2 (06:54):
You know.

Speaker 1 (06:54):
People tell me all the time, Oh, I don't know
about that, I'm not smart. Wait a second. You can
tear a fifty seven Chevy apart down to the last
lug nut and put it together again better than it was.
I can't do that. Or a housewife, a homemaker will say, oh,
I'm not smart. I one, Wait a second. You can

(07:18):
cook for five kids every night, get each one of
them homework done in bed on time. One's got to sniffles,
one's got to poops, one's pulling Susie's hair. You can
get them up in the morning and off to school.
You can somehow, some way keep all their schedules organ
I can't do all that. You can do anything that

(07:41):
you decide you want to do. And learning about American
jurisprudence is something that's opening. There's so many websites, so
many places. Don't believe the first thing you read, because
you might read the wrong person, they might have the
wrong opinion. But yes, you too can begin to learn
about America's Supreme Court rulings, how Supreme Court works, all

(08:01):
of the above, all of the above, and it's exciting
and fun, and it's open to you. This is antonin
Scalia on American exceptionalism. I only regret that he did
not live long enough to see twenty twenty five where
we are winning.

Speaker 2 (08:22):
I speak to students, especially law students, but also college
students and even high school students quite frequently about the Constitution,
because I feel that we're not teaching it very well.
I speak to law students from the best law schools,
people presumably especially interested in the law. And I asked him,

(08:45):
how many of you have read the Federalist papers? Well,
a lot of hands will go no, not just number
forty eight and the big ones. How many of you
have read the Federalist papers cover to cover? Never more
than about five percent. And that is very sad, I mean,
especially if you're interested in the Constitution. Here's a document

(09:07):
that says what the framers of it thought they were doing.
It's such a profound exposition of political science that it
is studied in political science courses in Europe. And yet
we have raised a generation of Americans who are not
familiar with it. So when I speak to these groups,

(09:28):
the first point I make, and I think it's even
a little more fundamental than the one that Steven has
just put forward, I ask them, what do you think
is the reason that America is such a free country?
What is it in our constitution that makes us what

(09:51):
we are? And I guarantee you that the response I
will get, and you will get this from almost any American,
including the woman that he was talking to it in
the supermarket, the answer would be freedom of speech, freedom
of the press, no unreasonable searches and seizures, no quartering
of troops in those marvelous provisions of the Bill of Rights.

(10:15):
But then I tell them, if you think that a
bill of rights is what sets us apart, you're crazy.
Every banana republic in the world has a bill of rights.
Every president for life has a bill of rights. The
Bill of Rights of the former evil Empire, the Union
of Soviet Socialist Republics, was much better than ours. I

(10:37):
mean it literally, it was much better. We guarantee freedom
of speech and of the press, big deal. They guaranteed
freedom of the speech, of the press, of street demonstrations
and protests, and anyone who is who is caught trying
to suppress criticism of the government will be called to account.
WHOA That is wonderful stuff, of course, just words on paper,

(11:01):
what our framers would have called a parchment guarantee. And
the reason is that the real constitution of the Soviet Union.
You think of the word constitution, it doesn't mean a bill,
it means structure. Say a person has a sound constitution.
Here's a sound structure, the real constitution of the Soviet Union,

(11:21):
which is what our framers debated that that whole summer
in Philadelphia in seventeen eighty seven. They didn't talk about
the Bill of Rights. That was an afterthought, wasn't it
That constitution of the Soviet Union did not prevent the
centralization of power in one person or in one party,
and when that happens, the game is over. The Bill

(11:44):
of Rights is just what our framers would call a
parchment guarantee. So the real key to the distinctiveness of
America is the structure of our government. One part of it,
of course, is the independence of the judiciary. But there's
a lot more. There are very few countries in the world,

(12:06):
for example, that have a bicameral legislature. Oh England has
a House of Lords for the time being, but the
House of Lords has no substantial power. They can just
make the Commons pass a bill a second time. France
has a Senate. It's honorific. Italy has a Senate. It's honorific.
Very few countries have two separate bodies in the legislature

(12:28):
equally powerful. That's a lot of trouble, as you gentlemen
doubtless know, to get the same language through two different
bodies elected in a different fashion. Very few countries in
the world have a separately elected chief executive. Sometimes I

(12:48):
go to Europe to talk about separation of powers, and
when I get there, I find that all I'm talking
about is independence of the judiciary, because the Europeans even
try to divide the two political powers, the two political branches,
the legislature and the chief executive. In all of the
parliamentary countries, the chief executive is the creature of the legislature.

(13:12):
There's never any disagreement between them and the Prime minister,
as there is sometimes between you and the president. When
there's a disagreement, they just kick them out. They have
a no confidence vote, a new election, and they get
a prime minister who agrees with the legislature. And you know,
the Europeans look at this system and they say, well,

(13:33):
it passes one house, it doesn't pass the other house.
Sometimes the other house is in the control of a
different party. It passes both. And then this president, who
has a veto power, vetos it. And they look at
this and they say it is gridlock. And I hear
Americans saying this nowadays, and there's a lot of it
going around. They talk about a dysfunctional government because there's disagreement,

(13:58):
and they and the Framers would have said, yes, that's
exactly the way we set it up. We wanted this
to be power contradicting power, because the main ill that
beset us, as Hamilton said in The Federalists, when he
talked about a separate Senate, he said, yes, it seems inconvenient,

(14:20):
but inasmuch as the main ill that besets us is
an excess of legislation, it won't be so bad. This
is seventeen eighty seven. He didn't know what an excess
of legislation was. So unless Americans can appreciate that and
learn learn to love the separation of powers, which means
learning to love the gridlock, which the Framers believed would

(14:44):
be the main protection of minorities, the main protection. If
a bill is about to pass that really comes down
hard on some minority, they think it's terribly unfair. It
doesn't take much to throw a monkey wrench into this
complex system. So Americans should should appreciate that, and they
should learn to love the gridlock. Uh, it's it's there

(15:08):
for a reason so that the legislation that gets out
will will be good legislation.

Speaker 1 (15:14):
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(15:35):
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(16:00):
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(16:22):
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