CSPAN3 — Melissa Murray The U.S. Constitution

20260822 17:57 UTC · 01:08:00 · 1219 transcript segments · GDELT Visual Explorer · plain-text transcript · Event Map

Former Attorney General Eric Holder interviewed law professor and podcast host Melissa Murray about her guide for how to read and understand the U.S. Constitution. This event took place at Politics & Prose Bookstore in Washington, D.C.<br /><br />Sponsor: Politics and Prose Bookstore

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Transcript

Original Broadcaster Captioning (Enhanced). Treat it as a searchable index of what was broadcast, not a quotation record.

00:00:00REALLY COULD GO TO.
00:00:02SO I THINK SHE READ TO TO
00:00:04TRAVEL, WHICH WE'RE GOING TO
00:00:07TALK WITH SHANNON GARVEY LATER. AND IF YOU WANT TO GO TO BLOCK
00:00:10ISLAND, YOU SHOULD READ HER BOOK. WHEN YOU GET HOME TONIGHT.
00:00:13AND THEN MY GRANDMOTHER,
00:00:15BARBARA, TRAVELED ALL OVER THE WORLD.
00:00:18HER SHE LIVED IN CHINA. YOU KNOW, SHE TRAVELED A LOT FOR
00:00:23WORK. SHE TRAVELED WITH US, BUT SHE
00:00:25MOVED AWAY FROM HER FAMILY ON
00:00:27THE EAST COAST TO MIDLAND, TEXAS, AS WELL.
00:00:31AND WAS LONELY. AND SHE LOST A BABY WHEN SHE WAS
00:00:34A CHILD. WHEN HER CHILD WAS THREE, SHE
00:00:39COULDN'T TRAVEL BACK. WHEN HER MOTHER GOT INTO A CAR ACCIDENT BECAUSE SHE WAS
00:00:42PREGNANT WITH ANOTHER CHILD. AND SHE WROTE ABOUT DEPRESSION
00:00:46THAT SHE FACED. AND SO I THINK SHE READ BECAUSE
00:00:49SHE ALSO TALKED ABOUT SOME OF THE CHARACTERS, LIKE THEY WERE
00:00:53FRIENDS FOR COMPANIONSHIP. AND SO YEAH, I MEAN, WHEN THAT
00:00:57TO YOUR NAME DOCTOR AND YOUR
00:00:59TWINS SISTER IS NAMED AFTER THEN OF COURSE LIKE TO START A BOOK
00:01:03CLUB IS THE LEAST I COULD DO. YOU CAN WATCH THE REST OF THIS
00:01:07PROGRAM AND ALL OF OUR BOOK PROGRAMS ANY TIME ONLINE AT BOOK
00:01:10TV DOT ORG HAVE EVERY SUNDAY ON
00:01:15C-SPAN TWO. IT'S BOOK TV TELEVISION FOR SERIOUS READERS, CHECK YOUR
00:01:19PROGRAM GUIDE OR VISIT BOOK TV WARD FOR A FULL SCHEDULE OF
00:01:23AUTHOR EVENTS.
00:01:25MELISSA MURRAY IS THE STOKES PROFESSOR OF LAW AT NEW YORK
00:01:29UNIVERSITY SCHOOL OF LAW. SHE'S THE COAUTHOR OF THE NUMBER ONE NEW YORK TIMES BESTSELLER,
00:01:33THE TRUMP INDICTMENTS THE HISTORIC CHARGING DOCUMENTS WITH COMMENTARY, CO-HOST OF A TOP
00:01:36RANGE PODCAST, STRICT SCRUTINY, WHICH IS ABOUT THE SUPREME COURT
00:01:40AND THE LEGAL CULTURE THAT SURROUNDS IT. AND A REGULAR COMMENTATOR ON ME NOW.
00:01:44SHE IS FREQUENTLY CALLED UPON BY NATIONAL MEDIA OUTLETS SUCH AS
00:01:48AND PR AND PBS TO OFFER EXPERT
00:01:51YET ACCESSIBLE COMMENTARY ON THE SUPREME COURT'S DECISIONS AND
00:01:53OTHER PRESSING LEGAL MATTERS OF NATIONAL IMPORTANCE. MURRAY IS A MEMBER OF THE NEW
00:01:57YORK BAR AND LIVES IN NEW YORK CITY WITH HER FAMILY.
00:01:59SHE'LL BE IN CONVERSATION WITH ERIC HOLDER, A CIVIL RIGHTS
00:02:04LEADER WHO IS CHAIRMAN OF THE NATIONAL DEMOCRATIC
00:02:06REDISTRICTING COMMITTEE. HE SERVED AS THE 82ND ATTORNEY
00:02:10GENERAL OF THE UNITED STATES UNDER PRESIDENT BARACK OBAMA,
00:02:13THE FIRST AFRICAN-AMERICAN TO HOLD THAT OFFICE.
00:02:16NOW, A SENIOR COUNSEL AT COVINGTON AND BURLING. HE LIVES IN WASHINGTON, D.C.,
00:02:20WITH HIS WIFE, DR. SHARON MALONE. AND THEY HAVE THREE CHILDREN. HE IS THE AUTHOR OF OUR
00:02:24UNFINISHED MARCH THE VIOLENT PAST AND IMPERILED FUTURE OF THE VOTE.
00:02:28A HISTORY, A CRISIS, A PLAN.
00:02:30NOW, PLEASE JOIN ME IN WELCOMING
00:02:32MELISSA MURRAY AND ERIC HOLDER.
00:02:50HEY, EVERYBODY.
00:02:54HEY. ALL RIGHT, LET'S BE HAPPY.
00:02:56LET'S HAVE SOME FUN. WE HAVE GOT A GREAT BOOK HERE
00:03:02THAT DEBUTED WHERE NUMBER THREE ON THE NEW YORK TIMES BESTSELLER
00:03:09LOVE. WE WERE BACKSTAGE AND TALKING ABOUT THIS AND MELISSA SAID,
00:03:13WHAT DO YOU THINK? HOW DO YOU THINK JIMMY MADISON WOULD FEEL ABOUT THE FACT THAT,
00:03:16YOU KNOW, I'VE WRITTEN THIS BOOK AND IT'S SO WHAT DO YOU THINK
00:03:19OLD JAMES MADISON WOULD SAY? I THINK HE'D FIRST WANT TO KNOW
00:03:22WHO TAUGHT HER TO READ THE FIRST QUESTION.
00:03:27HE WAS A MAN OF HIS TIME, A GENIUS.
00:03:29BUT THEY'RE IMPERFECT IN THEIR WAYS. ALL RIGHT.
00:03:32WELL, IT'S GOOD THAT YOU ALL CAME. THANK YOU SO MUCH. I WANT TO THANK POLITICS AND
00:03:35PROSE FOR HOSTING THIS EVENT.
00:03:37THIS IS A SPECIAL BOOK.
00:03:39THIS IS A SPECIAL WOMAN WHO I'VE
00:03:42HAD THE PRIVILEGE OF KNOWING FOR A GOOD NUMBER OF YEARS. NOT THAT MANY, BUT A NUMBER OF
00:03:46YEARS. 2013, 2013. THAT'S SORT OF JUST SHELBY
00:03:49COUNTY VERSUS HOLDER, YOU KNOW? BUT YOU KNOW WHAT'S NOT TO.
00:03:53THAT'S ON MY MIND NOW. BUT SO LET ME LET'S LET'S GET
00:03:57RIGHT TO IT. SOME OF YOU, THE CONSTITUTION AS
00:04:01KIND OF A FIXED DOCUMENT, YOU
00:04:03KNOW, THIS NOTION OF ORIGINALISM
00:04:05AND IT'S KIND OF STATIC, LIKE, WHAT DO YOU THINK ABOUT THAT?
00:04:08I MEAN, DO YOU THINK THAT THESE FOLKS WHO DIDN'T KNOW ANYTHING
00:04:12ABOUT AIRPLANES OR THE INTERNET
00:04:16OR SOCIAL MEDIA, ANYTHING LIKE THAT, OR HELP FREE PEOPLE, YOU
00:04:20KNOW, WHAT DO YOU THINK? WHAT DO YOU THINK ABOUT IT? HOW DO YOU VIEW IT?
00:04:23SO I THINK ORIGINALISM IS A
00:04:26THEORY OF CONSTITUTIONAL INTERPRETATION THAT WAS COOKED
00:04:30UP IN A METH LAB OF CONSERVATIVE GRIEVANCE IN THE 1980S.
00:04:36THIS IS WHAT I LOVE ABOUT HER STAIRS DOESN'T HOLD BACK, YOU
00:04:38KNOW, IT DOESN'T. THIS IS WHAT THIS IS. THIS IS THE KIND OF EVENT WE'RE
00:04:42GOING TO HAVE HERE. OKAY. A METH LAB OF WHAT? CONSERVATIVE GRIEVANCE. THERE WE GO.
00:04:48ORIGINALISM, I THINK, IS MEANT TO BE REGRESSIVE. IT'S PURPOSEFULLY REGRESSIVE.
00:04:51IF YOU ARE INTERPRETING THE CONSTITUTION IN THE WAY THAT THE
00:04:54FRAMERS AND IT'S ALWAYS THE FRAMERS, EVEN THOUGH THERE ARE DIFFERENT POINTS OF ORIGINAL
00:04:58MEANING IN CONSTITUTIONAL LAW, BUT IT'S ALWAYS THE FRAMERS AND
00:05:011787 THAT'S THE THE REFERENT AND TIME ONE.
00:05:04BUT IF YOU ARE DOING THAT, YOU'RE NECESSARILY WEEDING
00:05:08CERTAIN PEOPLE OUT. RIGHT?
00:05:10SO IN 1787, THEY WERE NOT THINKING ABOUT WOMEN.
00:05:13ABIGAIL ADAMS WRITES TO HER HUSBAND, JOHN WHEN THEY ARE
00:05:17WRITING THE DECLARATION OF INDEPENDENCE AND SAYS, YOU KNOW, REMEMBER THE LADIES? BECAUSE ALL HUSBANDS WOULD BE
00:05:21TYRANTS IF THEY COULD. AND THEY'RE NOT REMEMBERING THE LADIES.
00:05:25THEY'RE ONLY THINKING ABOUT BLACK PEOPLE IN SO FAR AS THEY CAN THINK ABOUT HOW TO PRESERVE
00:05:29THEIR RIGHTS OF PROPERTY IN THEM. SO, YOU KNOW, IF YOU'RE STARTING
00:05:34FROM TIME ONE 1787, YOU'RE
00:05:37NECESSARY DOING CERTAIN KINDS OF WORK RIGHT?
00:05:40I THINK PART OF ORIGINALISM AND I THINK IT'S A VALID PART SAYS
00:05:44AND SUGGESTS THAT CONSTITUTIONAL
00:05:46CHANGE SHOULD ONLY HAPPEN THROUGH THE FORMAL AMENDMENT
00:05:50PROCESS AND THAT THAT IS ONE WAY TO THINK ABOUT IT.
00:05:53I THINK THAT'S RIGHT. WE ALSO HAVE JUDICIAL
00:05:57INTERPRETATION AND THIS WAS REALLY THE THING THAT ORIGINALISM IS RESPONDING TO.
00:06:01ORIGINALISM WANTS TO TAKE THE
00:06:03JUDGMENT AND DISCRETION THAT IS INHERENT IN JUDICIAL
00:06:07INTERPRETATION AND JUDICIAL REVIEW OUT OF THE HANDS OF
00:06:10JUDGES, AND INSTEAD PUT IT IN THE HANDS OF MORE CONSERVATIVE
00:06:14JUDGES WHO WILL INTERPRET THE CONSTITUTION IN A DIFFERENT WAY.
00:06:18I THINK THERE ARE LOTS OF POINTS IN THE CONSTITUTION WHERE THE
00:06:20FRAMERS WISELY ACKNOWLEDGE THAT
00:06:23THEY DON'T HAVE A MONOPOLY ON WISDOM, AND THEY THINK THAT THIS
00:06:27DOCUMENT WILL CHANGE. PART OF THAT IS THE ARTICLE FIVE AMENDMENT PROCESS.
00:06:30BUT ALSO PART OF IT IS SORT OF THE FACT THAT THE TERMS ARE
00:06:33BROAD AND OPEN TEXTURE. THERE IS A NINTH AMENDMENT THAT
00:06:35SAYS EXPLICIT, ATLEE, THAT WE SHOULD NOT CONSTRUE THE FACT OF
00:06:39THE ENUMERATION OF CERTAIN RIGHTS AS EVIDENCE THAT OTHER
00:06:44RIGHTS ARE NOT ACKNOWLEDGED OR PROTECTED, LIKE THERE WILL BE THINGS THAT ARE IMPLIED AND LOOK
00:06:48AT ARTICLE TWO. THE EXECUTIVE. THERE'S SO MUCH THAT'S NOT
00:06:53SPECIFICALLY ENUMERATED THAT WE TAKE AS AN ARTICLE OF FAITH.
00:06:57NOW CONSTITUTION SAYS NOTHING
00:06:59ABOUT PRESIDENTIAL IMMUNITY. AND YET.
00:07:01ALL RIGHT, SO I MEAN, THERE ARE
00:07:04LOTS OF PLACES WHERE LAB OF CONSERVATISM, BECAUSE THAT'S
00:07:08WHERE THAT CAME FROM. OKAY. GO AHEAD. WHAT A BODY PART.
00:07:11BUT LOOK IT. SO, AGAIN, THAT'S ONE BEEF I
00:07:16HAVE WITH ORIGINALISM. I THINK IT'S RESULTS ORIENTED AND I THINK IT'S INTENDED TO BE
00:07:21RESULTS ORIENTED. THE OTHER THING IS, IF YOU WANT TO DO ORIGINALISM, THEN BE
00:07:25FAITHFUL ABOUT IT.
00:07:25ORIGINALISM DEPENDS ON READING,
00:07:31READING AND DOING HISTORY IN A PARTICULAR WAY, AND YOU CAN'T BE
00:07:35ITINERANT OR SELECTIVE ABOUT THE HISTORY THAT YOU USE AND
00:07:38PROFESSED ORIGINALIST SITES ON
00:07:41THIS COURT ARE CONSTANTLY
00:07:43SELECTIVE AND CHERRY PICKED THE HISTORY. YOU KNOW, JUSTICE THOMAS, FOR
00:07:47EXAMPLE, LOVES TO TALK ABOUT THE HISTORY OF THE RECONSTRUCTION AMENDMENTS.
00:07:51FOR EXAMPLE, AND LEAVES OUT BROAD SWATHS OF IT IN HIS ZEAL
00:07:54TO GET TO A PARTICULAR INTERPRETATION OF THE
00:07:58RECONSTRUCTION AMENDMENT. SO I GUESS IF YOU WANT TO DO ORIGINALISM, THAT IS A CHOICE.
00:08:02THAT IS SOMETHING YOU CAN DO. BUT THERE IS A MORE FAITHFUL WAY TO DO IT.
00:08:06I THINK JUSTICE JACKSON, FOR EXAMPLE, IS AN ORIGINALIST
00:08:10HERSELF, BUT SHE IS NOT STARTING AT 1787.
00:08:13SHE ACKNOWLEDGES THAT THERE ARE OTHER MOMENTS OF CONSTITUTIONAL
00:08:17MEANING THAT ARE ORIGINAL, LIKE THE FRAMING OF THE RECONSTRUCTION AMENDMENTS.
00:08:20AND I THINK SHE IS MORE ECUMENICAL AND CONSIDERED ABOUT
00:08:26ALL OF THE HISTORY THAT SHE MARSHALS IN COMING OUT THAT.
00:08:29AND, YOU KNOW, I THINK SHE MAKES VERY GOOD POINTS IN HER
00:08:32ARGUMENTS BECAUSE EFFECTIVELY SHE'S FORCING THE OTHER SIDE TO
00:08:38RECKON WITH THE HOLES IN THEIR METHODOLOGY BY PLUGGING THEM
00:08:42HERSELF. OKAY. NOW THE US CONSTITUTION
00:08:46COMPREHENDS HAVE AN ANNOTATED GUIDE FOR THE MODERN READER.
00:08:49THIS IS NOT SOMETHING THAT I
00:08:51WOULD JUST ASSUME WOULD BE, YOU KNOW, GOING TO BE A REAL PAGE
00:08:55TURNER, SOMETHING THAT'S GOING TO BE UNBELIEVABLY POPULAR.
00:08:57I'M JUST BEING HONEST HERE. JUST BEING HONEST.
00:09:01AND BUT IT IS. BUT IT IS. WHAT IS IT THAT MADE YOU AT THIS
00:09:05MOMENT DECIDE, I'M GOING TO DO A
00:09:08GUIDE FOR THE MODERN READER WITH
00:09:11REGARD TO THE US CONSTITUTION AND WHY NOW?
00:09:13FIRST OF ALL, I'M HURT
00:09:18GENUINELY. I DIDN'T TAKE ANY OF YOUR CLASSES, BUT I MEAN, I JUST KIND
00:09:21OF, YOU KNOW, THAT WAS YOUR
00:09:26LOSS. AND THERE'S NO QUESTION YOUR CRIMINOLOGY THERE BACK FOR MORE
00:09:29OF SOME OF MY STUDENTS ARE HERE.
00:09:31SO I SHOULD SAY, FIRST OF ALL, I
00:09:33LIVE IN NEW YORK CITY, BUT I'M A GIRL FROM FLORIDA. RIGHT.
00:09:36AND I GREW UP IN THE 1990S IN FLORIDA. AND TO LIVE CREW WAS HUGE IN
00:09:42FLORIDA. MY PARENTS WERE JAMAICAN IMMIGRANTS, SO I WASN'T ALLOWED TO LISTEN TO THEM, WHICH MEANT
00:09:45THAT I LISTENED TO HOOCHIE MAMA ALL THE TIME.
00:09:49YES.
00:09:51SO BACK IN MAYBE LIKE 2021, I
00:09:54WAS IN THE TWITTER STREETS ALL THE TIME.
00:09:57THIS IS WHEN TWITTER WAS REALLY FUN.
00:10:00AND ONE DAY I SAW THAT LUTHER
00:10:03CAMPBELL, UNCLE LUKE FROM TWO LIVE CREW WAS IN THESE TWITTER
00:10:06STREETS AND HE HAD A LOT TO SAY
00:10:08ABOUT WHAT JOE BIDEN, THEN THE PRESIDENT SHOULD BE DOING.
00:10:11SO, YOU KNOW, JOE BIDEN SHOULD DO THIS. JOE BIDEN SHOULD DO THAT, JOE. BUT I WAS JUST READING THIS LIST
00:10:15AND I WAS LIKE, JOE BIDEN CAN'T DO ANY OF THESE THINGS.
00:10:18LIKE NO PRESIDENT CAN DO ANY OF THESE THINGS. AND IT OCCURRED TO ME, UNCLE
00:10:21LUKE HASN'T READ THE
00:10:23CONSTITUTION IN YOU'RE LAUGHING,
00:10:26BUT UNCLE LUKE IS RUNNING FOR CONGRESS RIGHT NOW.
00:10:29SO I REALLY NEED FOR HIM TO READ THE CONSTITUTION.
00:10:33SO IT IT OCCURRED TO ME THAT IF HE HADN'T READ IT, THERE
00:10:36PROBABLY A LOT OF OTHER PEOPLE WHO HAVEN'T READ THE CONSTITUTION EITHER.
00:10:40AND, YOU KNOW, AT THIS POINT IN TIME, I HAD TWO KIDS IN PUBLIC
00:10:44SCHOOL IN NEW YORK CITY, AND I WAS GOING TO THEIR SCHOOLS TO TEACH ABOUT THE CONSTITUTION
00:10:47BECAUSE THERE WASN'T A CIVICS EDUCATION CURRICULUM IN THE PUBLIC SCHOOLS.
00:10:51AND SO, LIKE, IF LIKE IF I WASN'T DOING THIS, WHO WOULD BE DOING IT?
00:10:55NO ONE WOULD BE DOING IT. WE NEED TO HAVE AN INFORMED AND
00:10:58ENGAGED CITIZENRY. THIS IS WHAT DEMOCRACY DEPENDS ON.
00:11:02IF YOU READ THIS BOOK, YOU WILL SEE QUITE CLEARLY THAT THE
00:11:05FRAMERS ARE GOING THROUGH TRAUMA
00:11:07WHEN THEY SIT DOWN IN 1787 TO WRITE THE CONSTITUTION LIKE THEY
00:11:11HAVE THE TRAUMA OF THE COLONIAL PERIOD WHERE THE BRITISH CROWN
00:11:14AND THE BRITISH PARLIAMENT ARE LITERALLY ON THEIR NECKS.
00:11:17ALL OF THE TIME. AND THEN THEY HAVE THE TRAUMA OF
00:11:20TRYING TO FIGHT A REVOLUTION AGAINST THE GREATEST GLOBAL SUPERPOWER THE WORLD HAS EVER
00:11:24SEEN. AND THEY'RE DOING IT WITH A GOVERNMENT THAT IS HELD TOGETHER
00:11:27BY GUM AND FRIENDSHIP BRACELETS
00:11:31AND THEY REALIZE IN THAT MOMENT
00:11:33IN 1787, THEY HAVE TO MAKE A
00:11:35GOVERNMENT THAT IS POWERFUL ENOUGH TO WORK, BUT NOT SO
00:11:39POWERFUL THAT IT RUNS ROUGHSHOD OVER THE RIGHTS OF THE PEOPLE.
00:11:43AND SO THEY DO THIS STRUCTURALLY
00:11:44BY DIVIDING GOVERNMENT POWER BETWEEN THE STATES AND THE FEDERAL GOVERNMENT.
00:11:49AND THEN DIVIDING FEDERAL POWER BETWEEN THE THREE COORDINATE
00:11:51BRANCHES, LIMITED GOVERNMENT, AND THEN THEY REALIZE, OKAY,
00:11:54THAT'S NOT ENOUGH. WE MAY NEED TO ACTUALLY
00:11:58ENUMERATE RIGHTS. AND SO WE HAVE THE BILL OF RIGHTS THAT ARE PASSED IN 1791,
00:12:01SHORTLY AFTER THE CONSTITUTION THAT PROTECTS CERTAIN
00:12:04FUNDAMENTAL FREEDOMS FROM GOVERNMENT ENCROACHMENT. AND THEN THAT BEGS THE QUESTION,
00:12:08WHAT'S THE GOOD OF RIGHTS IF YOU
00:12:10HAVE PEOPLE WHO ACT MORE LIKE
00:12:14SUBJECTS THAN LIKE CITIZENS SO THEY RECOGNIZE EARLY ON THAT
00:12:17THEY HAVE CREATED A NEW MODEL OF
00:12:19GOVERNMENT, BUT THEY ALSO NEED A
00:12:21NEW MODEL FOR THE GOVERNED. AND THAT REQUIRES THE PEOPLE TO
00:12:25BE ABLE TO READ AND DEBATE THE
00:12:29DOCUMENT TO ENFORCE ITS TERMS TO POLICE ITS BOUNDARIES.
00:12:32AND IF NECESSARY, TO CALL OUT
00:12:35THE GOVERNMENT WHEN IT GOES TOO FAR.
00:12:37AND SO THAT'S WHAT WE ARE IN A MOMENT NOW, WHERE I THINK WE
00:12:41NEED AN ENGAGED, ENERGIZED
00:12:45CITIZENRY THAT IS EQUIPPED AND
00:12:47EMPOWERED AND PREPARED TO CALL THE GOVERNMENT OUT WHEN IT GOES TOO FAR.
00:12:51DO YOU.
00:12:54DO YOU THINK THAT THE AMERICAN PEOPLE REALIZE THE POWER THAT
00:12:57THEY ACTUALLY HAVE?
00:12:59I'M NOT SURE THAT WE DO.
00:13:01I THINK RIGHT NOW THE EXCESSES
00:13:04SEEM SO BROAD AND EXCESSIVE THAT
00:13:08THEY ARE OVERWHELMING. I THINK IF YOU READ THE BOOK,
00:13:10THOUGH, YOU WILL SEE THAT THERE ARE EXAMPLES OF PEOPLE
00:13:14THROUGHOUT OUR HISTORY, ORDINARY
00:13:16PEOPLE, DECIDING THAT THEY'RE DONE WITH IT. RIGHT.
00:13:19SO, YOU KNOW, WE'VE TALKED ABOUT THE FOUNDING AND THE FRAMING.
00:13:23IN 1787, WE TALKED ABOUT THE RECONSTRUCTION AMENDMENTS.
00:13:25THERE ARE SERIES OF AMENDMENTS FROM THE LATE 19TH AND EARLY 20TH CENTURY.
00:13:29I CALL THEM THE POPULIST AMENDMENTS AND THEY ARE
00:13:32LITERALLY BORN FROM THE PEOPLE
00:13:35WHOSE DISTASTE FOR THE GILDED
00:13:37AGE AND THE RISE OF OLIGARCHY AND THE CONSOLIDATION OF WEALTH
00:13:41IN THE HANDS OF A FEW. THEY ARE ANGRY THAT THE FEDERAL
00:13:45GOVERNMENTS PRINCIPAL MEANS OF REVENUE GENERATION IS TO IMPOSE
00:13:47TARIFFS ON THE GOODS THAT THEY USE.
00:13:50DOESN'T THIS ALL SOUND REALLY FAMILIAR? I MEAN, JUST THINK ABOUT THAT LAST PARAGRAPH.
00:13:54WE ALSO FAMILIAR NOT SOME, BUT THEY GET IT LIKE A TARIFF IS A
00:13:57REGRESSIVE TAX AND IT IS BORNE
00:13:59DISPROPORTIONATELY ON THE WORKING CLASS BECAUSE THE RICH
00:14:02IT DOESN'T MATTER. THEY CAN AFFORD MORE THINGS. SO WHAT THEY WANT IS A
00:14:06PROGRESSIVE INCOME TAX THAT WILL
00:14:08FORCE THE RICH TO PAY THEIR FAIR SHARE. THE PROBLEM IS THAT ARTICLE ONE
00:14:12OF THE CONSTITUTION PREVENTS CONGRESS FROM IMPOSING A DIRECT TAX.
00:14:16SO THEY GET TO WORK. THEY LOBBY, THEY ORGANIZE, AND
00:14:20THEY GET A CONSTITUTIONAL AMENDMENT THAT AMENDS ARTICLE
00:14:24ONE TO ALLOW CONGRESS TO IMPOSE AN INCOME TAX, AND THAT IS THE
00:14:27INCOME TAX THAT WE LIVE WITH NOW. AND THEN WHEN THEY'RE DONE WITH
00:14:31THAT, THEY LOOK AROUND AND THEY'RE LIKE, WHY IS IT ONLY THE
00:14:32HOUSE OF REPRESENTATIVES THAT'S POPULARLY ELECTED?
00:14:35WHY DO YOU STATE LEGISLATURES ELECT SENATORS?
00:14:39AND AT THIS POINT IN TIME, STATE LEGISLATURES ARE SO CORRUPT,
00:14:42DOES THAT ALSO SOUND FAMILIAR? YES.
00:14:45THEY'RE SO CORRUPT, THEY
00:14:47BASICALLY INSTALL THE PEOPLE FROM THE VARIOUS INDUSTRIES THAT
00:14:50THEY WANT TO GET THROUGH IN WASHINGTON. THEY INSTALL THEM IN THE SENATE. THE PEOPLE AREN'T HAVING IT.
00:14:55THEY GET THE 17TH AMENDMENT PASSED.
00:14:57AND NOW SENATORS ARE POPULARLY ELECTED.
00:15:00THEY HAVE A LITTLE WOBBLE WITH PROHIBITION.
00:15:02EVERYONE MESSES UP.
00:15:04SOMETIMES THE 19TH AMENDMENT,
00:15:06THOUGH WOMEN ARE TIRED OF LITERALLY BEING LEFT OUT OF
00:15:10BEING VIRTUALLY REPRESENTED BY THEIR HUSBANDS AND FATHERS AT
00:15:13THE BALLOT BOX. THIS IS ALSO SOMETHING THEY'RE
00:15:16TRYING TO BRING BACK OF WHY I. BUT ALL OF THESE WOMEN, IT TAKES
00:15:20THEM YEARS TO ORGANIZE AND DO THIS, BUT THEY ULTIMATELY
00:15:23SUCCEED IN GETTING THE 19TH AMENDMENT PASSED IN 1920.
00:15:26AND WHEN THEY DO SO, THEY MORE
00:15:28THAN DOUBLE THE SIZE OF THE AMERICAN ELECTORATE.
00:15:31IT IS THE BIGGEST EXPANSION OF THE VOTING PUBLIC IN THE HISTORY
00:15:34OF THIS COUNTRY, AND IT'S ALL DRIVEN FROM THE GRASSROOTS LEVEL.
00:15:37WE CAN DO THIS. YEAH, AND I THINK THAT'S A REALLY IMPORTANT POINT GIVEN THE
00:15:42TIME IN WHICH WE FIND OURSELVES AND MELISSA'S POINT THERE, I
00:15:45THINK IS UNBELIEVABLE BECAUSE
00:15:49IT'S SOMETHING THAT WE SHOULD KEEP IN MIND. THIS NOTION THAT WE ARE SOMEHOW
00:15:51TRAPPED, THAT WE ARE POWERLESS,
00:15:53IS INCONSISTENT WITH THE HISTORY THAT SHE TALKS ABOUT.
00:15:57AND WE FIND HERE IN THE BOOK.
00:15:59AND SHE'D GIVE US HOPE, BUT ALSO SHOULD GIVE US THE SENSE OF
00:16:03RESPONSIBLE LIBERTY THAT I THINK WE HAVE TO PROTECT OUR DEMOCRACY
00:16:06AND TO MAKE IT BETTER. ONE OF THE THINGS I THINK ABOUT
00:16:09THIS INTERESTING, I ALWAYS LOOK AT BOOKS AND SEE WHO THEY'RE
00:16:12DEDICATED TO. THIS WHEN YOU DEDICATE TO YOUR PARENTS AND TO YOUR KIDS, WHY?
00:16:18WHY, WHY THEM? I MEAN, THOSE ARE PERFECTLY WONDERFUL CHOICES.
00:16:22BUT I'M NOT THROWING SHADE THERE. I MEAN, ARE YOU SET FOR BY MY
00:16:26HUSBAND BECAUSE HE HAS QUESTIONS? WELL, I. I JUST WANT TO SAY THAT I
00:16:31MARRIED TO A NEW YORK TIMES BESTSELLING AUTHOR, AND HER BOOK
00:16:33AIN'T DEDICATED TO ME EITHER. SO I KNOW, BUT Y Y YOU'RE
00:16:37WONDERFUL KIDS AND YOU WONDERFUL PARENTS.
00:16:41SO MY PARENTS WERE JAMAICAN IMMIGRANTS WHO CAME TO THIS
00:16:44COUNTRY BECAUSE OF THE SECOND BEST ISLAND IN THE CARIBBEAN.
00:16:46MY FOLKS ARE FROM BARBADOS. OKAY?
00:16:48THERE WE WE'VE TALKED ABOUT THIS BEFORE.
00:16:52ANY AGENCY. THANK YOU. JAMAICANS.
00:16:55I J OKAY. YEAH, I'M ON. SO.
00:16:59SO MY PARENTS CAME HERE. MY FATHER CAME IN THE 1950S
00:17:03WHILE WASHINGTON, D.C. WAS STILL SEGREGATED TO ATTEND HOWARD
00:17:07UNIVERSITY. EDDIE MY MOM CAME IN THE 1960S AS PART OF A VISA PROGRAM TO
00:17:11FILL A SHORTAGE OF NURSES IN NEW
00:17:13YORK AREA HOSPITALS AND I
00:17:17DEDICATED IT TO THEM BECAUSE THEY WERE IMMIGRANTS.
00:17:20AND RIGHT NOW IT FEELS LIKE IT'S REALLY HARD TO BE AN IMMIGRANT IN THIS COUNTRY AND JUST
00:17:25WATCHING MY PARENTS OPERATE, IT JUST OCCURRED TO ME GROWING UP
00:17:29THAT THERE IS NO MORE FERVENT
00:17:32PROSELYTIZER THAN THE CONVERTED. LIKE THERE'S NO ONE WHO BELIEVES
00:17:36MORE FERVENTLY IN THE PROMISE OF THIS COUNTRY THAN PEOPLE WHO
00:17:40COME HERE SEEKING SOMETHING ELSE.
00:17:42AND INSTEAD OF DENIGRATING AND
00:17:45VILIFYING AND SUBJECTING
00:17:48IMMIGRANTS TO SUSPICION, WE OUGHT TO RECOGNIZE THAT THESE
00:17:52ARE PEOPLE WHO CAME HERE WITH VERY LITTLE AND HAVE CONTRIBUTED SO MUCH AND HAVE MADE OUR
00:17:56COUNTRY WHAT IT IS. I DEDICATED IT TO MY KIDS AND I
00:18:00SAY SPECIFICALLY TO MY CHILDREN, THIS LAND IS YOUR LAND.
00:18:02AND PARTLY THAT IS BECAUSE MY CHILDREN ARE THE GRANDCHILDREN
00:18:05OF IMMIGRANTS, BUT THEY ARE ALSO THE GREAT, GREAT, GREAT GRANDCHILDREN OF ENSLAVED
00:18:09PEOPLE. AND THAT'S IMPORTANT TO
00:18:11REMEMBER, TOO, BECAUSE MAYBE THEY COME FOR THE IMMIGRANTS FIRST, BUT THEY'RE COMING FOR
00:18:15THE REST OF US SOON ENOUGH. AND THIS IS OUR LAND, TOO.
00:18:18THIS IS THEIR LAND AS MUCH AS IT IS ANYONE ELSE'S.
00:18:22I DON'T KNOW WHO THE HERITAGE AMERICANS ARE, BUT WE ARE ALL
00:18:26HERITAGE AMERICANS, AS FAR AS I'M CONCERNED.
00:18:28YEAH, I THINK I MEAN, UNLESS YOU
00:18:32ARE DESCENDED FROM THE INDIGENOUS PEOPLE, YOU KNOW,
00:18:36NATIVE AMERICANS, WE'RE ALL OF IMMIGRANTS. NOW. THE ONLY QUESTION IS WHEN DID
00:18:40YOUR PEOPLE GET HERE? AND THEN HOW DID THEY GET AND HOW FORCIBLY?
00:18:43YEAH, FORCIBLY. EXACTLY. MM HMM.
00:18:47I SHOULD SAY THERE'S GOING TO BE TIME AT THE CONCLUSION OF THIS
00:18:49FOR THE AUDIENCE TO ASK QUESTIONS. SO WE'RE GOING TO GET YOU ALL
00:18:53INVOLVED IN THIS AS WELL.
00:18:56YOU KNOW, NOT A LOT OF PEOPLE I SUSPECT, HAVE ACTUALLY READ THE
00:18:59UNITED STATES CONSTITUTION. I JUST JUST I GUESS I DON'T KNOW. I MEAN, WE DID A SURVEY, A POLL
00:19:03OR SOMETHING LIKE THAT. WHAT DO YOU THINK?
00:19:06LET'S ASSUME THAT THAT'S TRUE OR EVEN, YOU KNOW, FOR THOSE WHO HAVE READ IT, WHAT DO YOU THINK
00:19:10IS THE BIGGEST MISCONCEPTION THAT THE AMERICAN PEOPLE HAVE
00:19:13ABOUT THE CONSTITUTION? I SEE YOUR FACE. THIS IS INTERESTING. OKAY.
00:19:19SO AGAIN, TWITTER, LAW SCHOOL IS
00:19:21A REALLY INTERESTING PLACE TO
00:19:26BE. I WAS ALWAYS REALLY SURPRISED. I DON'T KNOW WHY I WAS
00:19:30SURPRISED, BUT I WAS ALWAYS REALLY SURPRISED WHEN I WOULD BE
00:19:32ON TWITTER AND PEOPLE WOULD JUST
00:19:34TALK ABOUT HOW SO-AND-SO WAS VIOLATING MY FIRST AMENDMENT
00:19:37RIGHTS, LIKE JOHN VIOLATED MY FIRST AMENDMENT TO TWITTER IS VIOLATING MY FIRST AMENDMENT
00:19:41RIGHTS BY, YOU KNOW, PREVENTING ME OR FROM SPEAKING OR, YOU
00:19:45KNOW, YOU KNOW, PUTTING SOMETHING IN TWITTER JAIL OR WHATEVER.
00:19:48AND IT WAS ALWAYS SURPRISING TO ME BECAUSE IT'S WHEN YOU READ
00:19:51THE CONSTITUTION AND YOU READ THE BILL OF RIGHTS AND THE FIRST AMENDMENT, IT'S ABOUT
00:19:56RESTRAINING GOVERNMENT. THERE ARE VERY FEW PLACES IN THE CONSTITUTION THAT ACTUALLY
00:20:01OPERATE TO RESTRAIN PRIVATE INDIVIDUALS. I'M ONE OF THEM IS THE 13TH AMENDMENT.
00:20:04HELLO, PRIVATE PEOPLE. YOU CANNOT KEEP OTHER PRIVATE PEOPLE AS YOUR PROPERTY.
00:20:08YOU CAN'T DO THAT. BUT FOR THE MOST PART, THE
00:20:11CONSTITUTION AND THE AMENDMENT ARE ABOUT RESTRAINING GOVERNMENT.
00:20:14AND IT'S REALLY IMPORTANT TO REMEMBER THAT IT'S ABOUT
00:20:17DESIGNING LIMITS ON THE
00:20:19GOVERNMENT AS MUCH AS IT IS
00:20:22ABOUT ARTICULATING RIGHTS LIKE, YOU KNOW, THE RIGHTS IN THE
00:20:24CONSTITUTION ARE LARGELY NEGATIVE. THEY'RE ABOUT PROHIBITING THE FEDERAL GOVERNMENT AND THE
00:20:29STATES AND THE STATES IS ONLY A QUITE RECENT DEVELOPMENT FROM
00:20:33INTRUDING UPON THESE RIGHTS. THEY'RE NOT AFFIRMATIVE RIGHTS, THEY'RE NOT ENTITLEMENTS.
00:20:36AND KNOW THAT IS, I THINK, A FAILING OF OUR CONSTITUTION AND
00:20:40A PLACE WHERE OTHER CONSTITUTIONS THAT HAVE BEEN WRITTEN LATER DO A MUCH BETTER
00:20:44JOB. BUT, YOU KNOW, THE FACT THAT WE DON'T HAVE POSITIVE AFFIRMATIVE
00:20:47ENTITLEMENTS AND THAT LARGELY THE CONSTITUTION IS ABOUT
00:20:50LIMITING AND PROHIBITING GOVERNMENT FROM DOING CERTAIN THINGS, I THINK THAT'S LOST ON A
00:20:54LOT OF PEOPLE. AND WE NEED TO REMEMBER THAT, TOO.
00:20:57IS THERE ANYTHING THAT WE SHOULD READ INTO THE FACT THAT ARTICLE
00:21:01ONE IS THE LEGISLATIVE BRANCH OR TO THE PRESIDENCY?
00:21:05ARTICLE THREE IS THE JUDICIARY IS THAT DOES THAT GIVE YOU ANY
00:21:07SENSE OF HOW THE FOUNDERS WANTED TO CONSTRUCT THIS?
00:21:10AND THE POWER ALLOCATIONS THAT THEY HAD IN MIND?
00:21:14I THINK SO. AGAIN, WHEN I THOUGHT THEY WERE GOING THROUGH IT, THEY WERE
00:21:18GOING THROUGH TRAUMA. A LOT OF THAT TRAUMA WAS LARGELY
00:21:20AT THE HANDS OF THE BRITISH PARLIAMENT, WHICH FOR YEARS HAD
00:21:24BEEN PASSING LAWS ON THE ITEMS
00:21:26THAT THEY USE TEA, COFFEE HAD
00:21:29BEEN MAKING IT DIFFICULT FOR
00:21:31THEM TO EXPRESS THEIR DISCONTENT AT THE BRITISH GOVERNMENT.
00:21:33THEY HAVE TAXED PAPER AND INK, MAKING IT HARD TO OPERATE,
00:21:37PRESSES AND TO PRINT NEWSPAPERS.
00:21:39PARLIAMENT, IN THEIR VIEW, WAS A
00:21:42TYRANNICAL FORCE AND IT'S NOT
00:21:44SURPRISING THAT ARTICLE ONE IS FIRST. IT'S NOT SURPRISING THAT ARTICLE
00:21:47ONE IS THE MOST LENGTHY ARTICLE
00:21:50AND THAT THEY SPECIFICALLY AND
00:21:54PAINSTAKINGLY ENUMERATE THE POWERS OF A FEDERAL LEGISLATURE BECAUSE THEY DON'T WANT A
00:21:58PARLIAMENT, THEY DON'T WANT WHAT THEY HAD IN THE COLONIAL PERIOD.
00:22:01THEY ALSO RECOGNIZE THAT THE KING IS NOT GREAT EITHER.
00:22:05ARTICLE TO ADDRESSES THE
00:22:07EXECUTIVE AND THEIR BIG THING HERE IS LIKE, WE JUST DON'T WE DON'T WANT A KING.
00:22:10AND THIS IS A DEBATE THAT THEY HAVE BECAUSE ALEXANDER HAMILTON IS LIKE, IS A KING SO BAD?
00:22:14AND YES, DUDE IS BAD. AND LIKE THEY'RE GOING BACK AND
00:22:18FORTH ABOUT IT, THEY'RE MUCH
00:22:20LESS, I THINK, SPECIFIC.
00:22:22AND TO OUR DETRIMENT TODAY ABOUT
00:22:26WHAT THE PRESIDENT MAY OR MAY NOT DO. LIKE, FOR EXAMPLE, THEY'RE VERY SPECIFIC.
00:22:30THE PRESIDENT HAS THE AUTHORITY
00:22:31TO APPOINT FEDERAL OFFICIALS IN WHAT BECOMES ADMINISTRATIVE
00:22:36AGENCIES. THEY DON'T REALLY SAY A LOT ABOUT THE REMOVAL POWER.
00:22:39AND A LOT OF THAT, I THINK, IS WHERE WE'RE HAVING A LOT OF
00:22:41FIGHTS RIGHT NOW ABOUT THE AUTHORITY OF THE EXECUTIVE.
00:22:45THEY'RE MOSTLY CONCERNED WITH JUST KIND OF ALLOWING THE
00:22:49PRESIDENT ENOUGH ROOM TO BE NIMBLE AND TO BE A REPRESENTATIVE FOR THE
00:22:54GOVERNMENT AND FOREIGN AFFAIRS. BUT THERE REALLY PRINCIPALLY
00:22:57CONCERNED WITH CONGRESS. AND THE BEST PART IS THEY DON'T
00:23:00THINK ABOUT THE COURTS THAT MUCH AT ALL. LIKE, I MEAN, ALEXANDER HAMILTON
00:23:04SAYS IN THE FEDERALIST PAPERS, YOU KNOW, THE JUDICIARY IS THE
00:23:07LEAST DANGEROUS BRANCH SIR, LIKE
00:23:10TALK ABOUT MISSING THE MOMENT
00:23:15AND I THINK, YOU KNOW, IT TURNS OUT THAT JOHN MARSHALL IN
00:23:17MARBURY VERSUS MADISON FIGURES
00:23:19OUT A WAY TO WREST FOR THE
00:23:22JUDICIARY THE AWESOME POWER TO
00:23:24NOT JUST CHECK THE OTHER
00:23:26BRANCHES, BUT TO BRING THEM TO HEEL IN A LOT OF WAYS.
00:23:29AND, YOU KNOW, I JOKE WHEN I TEACH CONSTITUTIONAL LAW AND WE
00:23:32TEACH MARBURY VERSUS MADISON THAT AFTER WRITING THE DECISION
00:23:35IN MARBURY VERSUS MADISON, WHERE HE ARTICULATES THIS POWER OF THE
00:23:39JUDICIARY TO SAY WHAT THE LAW IS, JOHN MARSHALL PROBABLY GOES
00:23:41BACK TO HIS OFFICE AND STROKES A HAIRLESS CAT FOR AN HOUR AND A HALF.
00:23:45I MEAN, LIKE THIS IS THE BIGGEST POWER GRAB IN AMERICAN
00:23:49CONSTITUTIONAL HISTORY. AND IT'S MASSIVE BECAUSE THE
00:23:52FRAMERS DID NOT SEE THAT ONE COMING. SO DO YOU THINK MARBURY VERSUS
00:23:55MADISON WAS WRONGLY DECIDED?
00:24:00I. I THINK THERE ARE A LOT OF GOOD ARGUMENTS TO SUGGEST THAT
00:24:04MARBURY VERSUS MADISON WAS NOT
00:24:06EXPECTED, ALTHOUGH I THINK MARSHALL MAKES AND MARSHALL'S
00:24:09SOME VERY GOOD ARGUMENTS LIKE WHAT IS THE POINT OF A WRITTEN CONSTITUTION?
00:24:13REMEMBER, THIS IS THE FIRST WRITTEN CONSTITUTION THAT HAS
00:24:16ENDURED IN THE HISTORY OF THE WORLD. SO WHY ARE WE WRITING THINGS
00:24:20DOWN IF NO ONE'S GOING TO READ IT, IF NO ONE'S GOING TO FIGURE OUT IF PEOPLE ARE GOING TOO FAR
00:24:23OR WHETHER THEY'RE STAYING WITHIN THE BOUNDS, THAT'S A PRETTY REASONABLE ARGUMENT FOR
00:24:27JUDICIAL REVIEW. AND IT SEEMS RIGHT THAT IT WOULD
00:24:29BE THE COURTS AS OPPOSED TO THE
00:24:31POLITICAL BRANCHES WHO WOULD DO THAT POLICING. ALL RIGHT.
00:24:35LET'S ASSUME THAT CONSTITUTION'S IN THE PROCESS OF BEING CONSTRUCTED AND YOU'RE IN THE
00:24:39ROOM AND, YOU KNOW, EVERYBODY'S TRYING TO FIGURE OUT WHY IS THIS HERE? IT WAS A SOLUTION.
00:24:43WHY IS THIS YOUNG BLACK WOMAN HERE? I MEAN, LIKE WHAT BRING THE FOOD AND SHE APPARENTLY CAN READ
00:24:48WHAT'S WHAT'S SO WHAT IS IF YOU
00:24:50HAVE THE ABILITY, WHAT WOULD YOU BE SAYING? HEY, HEY, HEY, HEY.
00:24:53LET'S LET'S LET'S MAYBE NOT DO THAT. LET'S MAYBE.
00:24:56WHY DON'T YOU ADD THIS? WHAT ARE THE KIND OF COUPLE OF THINGS YOU'D WANT TO BRING TO
00:24:59THE ATTENTION OF THE FRAMERS?
00:25:02SO SO, YOU KNOW, ONE THING IS JUST THE ELITE ISM OF THE
00:25:05ORIGINAL CONSTITUTION HAS TO BE RECKONED WITH.
00:25:08WE TALKED ABOUT THE ELECTION OF SENATORS ORIGINALLY.
00:25:11SENATORS WERE SELECTED BY STATE LEGISLATURES. THAT IS BECAUSE THEY DON'T TRUST
00:25:15THE PEOPLE. THEY DON'T TRUST THE PEOPLE TO ELECT THE SENATORS.
00:25:19THEY BELIEVE THAT THE SENATE, WHICH WILL SERVE FOR SIX YEAR TERMS, THERE ONLY BE TWO
00:25:22SENATORS PER STATE. IT HAS TO BE OCCUPIED BY A
00:25:26BETTER CLASS OF PEOPLE THAN WHAT THE PEOPLE MIGHT SELECT. AND THEY'RE FINE WITH THE HOUSE
00:25:30OF REPRESENTATIVES. THEY CAN BE SUBJECT TO THE WHIMS OF THE PEOPLE EVERY TWO YEARS.
00:25:34THEY'RE MORE OF THEM AND THEY CYCLE THROUGH MORE QUICKLY. BUT THE SENATORS, YOU KNOW, THE
00:25:39STATE LEGISLATURES, WE'RE GOING TO GET A BETTER CLASS OF LEGISLATURE THAT WAY.
00:25:43AND I THINK YOU SEE THAT SAME KIND OF IMPULSE, THAT SORT OF
00:25:45FEAR OF THE POPULACE, THE FEAR
00:25:48OF WHAT THEY CALLED MOB OCRACY IN THE ELECTORAL COLLEGE.
00:25:51LIKE WE DON'T HAVE A PRESIDENCY THAT IS POPULARLY SELECTED.
00:25:55INSTEAD, WE HAVE ELECTORS AT THE
00:25:58STATE LEVEL THAT GET TO CHOOSE FOR US.
00:26:00LIKE NOW, OF COURSE, THE SYSTEM IS SUCH THAT, YOU KNOW,
00:26:04DEPENDING ON HOW A STATE GOES, THE ELECTORS WILL VOTE THE WAY
00:26:07THE STATES PREFERENCE. ALTHOUGH, YOU KNOW, THERE ARE
00:26:10LOTS OF PROPOSALS NOW TO ADDRESS THE FACT THAT STATES ARE
00:26:13ACTUALLY MAYBE CLEANLY DIVIDED AND THAT MIGHT NOT BE THE BEST PATH FORWARD.
00:26:17BUT THAT IS CLEAR EVIDENCE OF THE FRAMERS.
00:26:19JUST TRUST OF ORDINARY PEOPLE
00:26:21LIKE THEY WERE ALL LEARNED MEN
00:26:25LIKE LIKE TRULY EDUCATED,
00:26:27CLASSICALLY EDUCATED AND THEY FEARED THE MAJORITY OF THE
00:26:32PEOPLE WHO LACKED THAT KIND OF EDUCATION. AND, YOU KNOW, I THINK WE LIVE
00:26:35WITH THAT RESIDUE. THE OTHER THING I WOULD POINT
00:26:38OUT TO THEM IS EVERY SINGLE TIME YOU GUYS TALK ABOUT 1808 AND
00:26:42THERE ARE A LOT OF REFERENCES IN THE ORIGINAL CONSTITUTION TO
00:26:461808, YOU'RE BASICALLY TALKING ABOUT KEEPING SLAVERY,
00:26:49PERPETUATING SLAVERY. SO IN ARTICLE ONE, THERE IS A WHOLE PROVISION THAT SAYS THAT
00:26:53CONGRESS BASICALLY CANNOT MAKE
00:26:55ANY LAW THAT WOULD OUTLAW THE
00:26:57INTERNATIONAL SLAVE TRADE BEFORE 1808. THIS IS A COMPROMISE THAT IS
00:27:01STRUCK BETWEEN THE NORTHERN AND SOUTHERN STATES. THE NORTHERN STATES THINK, OKAY,
00:27:04WE'LL GIVE THEM 20 YEARS TO WEAN THEMSELVES OFF OF SLAVERY AND
00:27:08THEN WE'LL ABOLISH THE TRANS ATLANTIC SLAVE TRADE.
00:27:12JOKE'S ON THEM. 20 YEARS LATER, IN 1808, WHEN THEY DO PASS A LAW TO LIMIT THE
00:27:16TRANSATLANTIC SLAVE TRADE, THE SOUTH IS JUST LIKE WE HAVE A BETTER IDEA.
00:27:20LET'S JUST HAVE A SELF REPRODUCING SLAVE POPULATE IT, AND THEY JUST SORT OF SHIFT.
00:27:24BUT THROUGHOUT THE ORIGINAL CONSTITUTION OR ALL OF THESE
00:27:28COMPROMISES AROUND SLAVERY, WHERE YOU SEE SLAVERY FACTORING
00:27:32INTO THE ARITHMETIC OF REPRESENTATION, LIKE LIKE THE
00:27:35VERY WAY WE SORT OF CONSTITUTED OUR GOVERNMENT, THE RESIDUE AND
00:27:39THE INFLUENCE OF SLAVERY, IT'S JUST PALPABLE.
00:27:43ALL RIGHT. I'VE PUT YOU IN THE ROOM AND I'M ASKING YOU, WHAT WOULD YOU
00:27:46CHANGE AT THE TIME? NOW IT'S 2026. YOU'RE LOOKING BACK.
00:27:50WHAT WOULD YOU AMEND IF YOU
00:27:53KNOW, I'M GIVING YOU ABSOLUTE POWER FOR THE NEXT 24 HOURS?
00:27:56TOTAL POWER.
00:28:01RIGHT? I GUESS IT.
00:28:03YEAH, I KNOW YOU'RE RIGHT. SIX HOURS I'M GOING TO GIVE YOU.
00:28:07I'M GOING TO GIVE YOU TOTAL, TOTAL POWER TO REDO THIS WHOLE THING IN 24 HOURS.
00:28:10YOU'VE GOT ABSOLUTE POWER. SO WHAT ARE THE KINDS OF THINGS
00:28:13THAT YOU'D WANT TO CHANGE NOW? HAVING THE EXPERIENCE THAT WE'VE
00:28:16HAD WITH THIS THIS DOCUMENT AND
00:28:20SUBSEQUENT AMENDMENTS, I THINK I WOULD FIRST OFF, DEAL WITH THE
00:28:24ELECTORAL COLLEGE. WE SHOULD HAVE POPULAR ELECTION
00:28:26OF THE PRESIDENT. AND AGAIN, THAT COULD GO EITHER WAY SOMETIMES.
00:28:30SO BUT I THINK THAT'S JUST ON PRINCIPLE. AN IMPORTANT CHANGE.
00:28:35I THINK WE SHOULD HAVE AN AMENDMENT THAT SUPERSEDES AND
00:28:40OVERRULES THE DECISION AND TRUMP VERSUS UNITED STATES TO MAKE
00:28:43CLEAR WHAT THE SCOPE AND SUBSTANCE OF PRESIDENTIAL
00:28:45IMMUNITY IS.
00:28:47I THINK WE SHOULD HAVE AN
00:28:50AMENDMENT THAT YOU'LL LIKE. THIS ONE SUPERSEDES ROUSSEAU
00:28:53VERSUS COMMON CAUSE TO MAKE
00:28:55PARTIZAN GERRYMANDERING SOMETHING THAT STATE
00:28:58LEGISLATURES CANNOT ENGAGE IN. I ACTUALLY WOULD ARGUE THAT THE
00:29:02SPIRIT OF THE 17TH AMENDMENT IS AGAINST THE WHOLE IDEA OF STATE
00:29:06LEGISLATURES ESSENTIALLY PICKING THEIR VOTERS AS OPPOSED TO THE OTHER WAY AROUND.
00:29:10DON'T YOU THINK THAT YOU COULD, LOOKING AT THE ELECTIONS CLAUSE OR WHATEVER IT'S CALLED?
00:29:14I MEAN, DON'T YOU THINK THAT CONGRESS COULD ACTUALLY JUST LEGISLATE THAT? I THINK COMMON PARTIZAN
00:29:18GERRYMANDERING, I MEAN, I THINK WHAT IS CONGRESS, THOUGH?
00:29:22DO YOU KNOW WHERE I CAN GET ONE? CAN CAN I FIND THIS ANYTHING
00:29:25LIKE WE'RE CAN I GET A CONGRESS ASSUMING I'M ASSUMING THAT A
00:29:28DEMOCRATIC TRIFECTA. I'M ALSO ASSUMING SOME KIND OF
00:29:33FILIBUSTER THING. AND, YOU KNOW, THERE ARE A LOT OF ASSUMPTIONS. YEAH. YEAH, RIGHT.
00:29:36SO, YES, CONGRESS COULD DO THAT. AND THERE HAS BEEN LEGISLATION
00:29:40PENDING THAT DID NOT GET THROUGH THAT WOULD HAVE ADDRESSED THIS.
00:29:44YOU KNOW, ONE QUESTION I WOULD HAVE ABOUT ANY KIND OF
00:29:47LEGISLATION, RIGHT NOW TODAY IS THAT IT WOULD INVARIABLY BE
00:29:50CHALLENGED. IT WOULD GO TO THE SUPREME COURT. SO THERE'S THAT.
00:29:54I THINK I'D RATHER HAVE CONGRESS
00:29:56ENGAGE IN SOME SPECIES OF COURT
00:29:58REFORM, WHETHER THAT'S TERM LIMITS.
00:30:02AND SOME HAVE ARGUED THAT TERM LIMITS REQUIRE A CONSTITUTIONAL AMENDMENT BECAUSE OF THE
00:30:06PROVISIONS FOR LIFE TENURE, AS OTHER SCHOLARS HAVE ARGUED THAT
00:30:09YOU COULD DO SOMETHING LIKE TERM
00:30:11LIMITS THAT ARE STATUTORILY IMPOSED BECAUSE THEY DON'T
00:30:15REQUIRE JUSTICES TO LEAVE THE BENCH, BUT RATHER JUST ROTATE TO
00:30:17SOME OTHER POST IN THE FEDERAL JUDICIARY.
00:30:20I MEAN, WHAT IS PROFESSOR MURRAY THINK?
00:30:23I ACTUALLY THINK THAT THAT COULD THAT WOULD BE FEASIBLE.
00:30:26AGAIN IT WOULD BE CHALLENGED AND IT WOULD GO UP TO THE SUPREME COURT.
00:30:29BUT THE SUPREME COURT. YES, I DO THINK, THOUGH, BACK TO
00:30:32THE PARTIZAN, GERRYMANDERING, A CONSTITUTIONAL AMENDMENT WOULD
00:30:36MAKE IT CONCRETE THAT THIS IS AN
00:30:38ANTI-DEMOCRATIC PRACTICE.
00:30:40IT IS ABSOLUTELY INCONSISTENT
00:30:43WITH THE IDEA OF GOVERNMENT, OF FORM BY THE PEOPLE.
00:30:46AND WE SHOULD SAY THAT WHAT DO
00:30:51YOU THINK? IT'S TOO HARD TO AMEND OUR CONSTITUTION.
00:30:54I THINK ITS PURPOSE REALLY HARD
00:30:57IN PART BECAUSE YOU DON'T WANT
00:30:59LIKE YOU CAN'T BE SELECTIVE OR ITINERANT ABOUT THESE
00:31:02COMMITMENTS IF YOU BELIEVE THAT THE FIRST AMENDMENT MEANS
00:31:07SOMETHING, YOU CAN'T BE WILLING TO CHANGE IT BECAUSE IT BECOMES INCONVENIENT.
00:31:10AND I THINK THE FRAMERS UNDERSTOOD THAT. SO THEY MAKE IT HARD TO GET AN
00:31:14AMENDMENT PASSED. NOT IMPOSSIBLE, BUT IT IS HARD
00:31:16AND IT'S AGAIN, IT'S A LITTLE BIT LIKE ODYSSEUS TYING HIMSELF
00:31:20TO THE MAST AS HE MAKES HIS WAY PAST THE SIRENS.
00:31:24YOU CAN'T JUST, LIKE GIVE IT UP
00:31:26BECAUSE IT'S NOT EASY TO LIVE WITH IT.
00:31:29RIGHT NOW, THOUGH, I THINK IT'S INCREDIBLY HARD TO GET A
00:31:33CONSTITUTIONAL AMENDMENT PASS, AT LEAST THROUGH THE THE WAY
00:31:36THAT TRADITIONALLY WE HAVE DONE IT. THERE ARE TWO WAYS THAT ARE SPECIFIED IN ARTICLE FIVE.
00:31:40ONE ORIGINATES THROUGH CONGRESS THAT IS REALLY HARD RIGHT NOW
00:31:43JUST BECAUSE OF PARTIZAN POLARIZATION. I DON'T I DON'T THINK WHAT ARE
00:31:47THE STANDARDS YOU GET TO MEET IN TERMS OF CONGRESS AND THE STATES
00:31:51SUPERMAJORITY IN BOTH HOUSES OF CONGRESS AND THEN IT GOES TO THE
00:31:53STATES, THE STATE LEGISLATURE HAS TO BE RATIFIED AND YOU NEED THREE.
00:31:57THREE. YEAH, BASICALLY 38 STATES TO MAKE IT HAPPEN.
00:32:01IT'S GOING TO BE REALLY HARD IN
00:32:01A WORLD OF POLARIZATION IN CONGRESS.
00:32:05AND THEN THE KIND OF GERRYMANDERING THAT YOU SEE IN
00:32:09THE STATE LEGISLATURES THERE IS ANOTHER WAY THAT ARTICLE FIVE
00:32:13PRESCRIBE WAYS THAT ORIGINATES FROM THE STATE LEGISLATURES THEMSELVES, WHERE THEY CALL FOR
00:32:16A CONSTITUTIONAL CONVENTION AT THE STATE LEVEL.
00:32:20AND THEN, YOU KNOW, THAT GOES OFF TO WHATEVER COMES OUT OF THE
00:32:23STATE, RATIFYING OUT OF THE STATE CONSTITUTIONAL CONVENTIONS GOES TO THE LEGISLATURES TO BE
00:32:28RATIFIED. THERE ARE A BUNCH OF CONSERVATIVE STATES THAT HAVE
00:32:31BEEN RECENTLY GERRYMANDERED THAT ARE REALLY EXCITED ABOUT THAT
00:32:34AND ARE REALLY, REALLY JAZZED
00:32:36ABOUT THE PROSPECT OF CALLING A CONSTITUTIONAL CONVENTION WHERE
00:32:40THEY CAN REWRITE THE WHOLE DOCUMENT. SO BE CAREFUL WHAT YOU WISH FOR.
00:32:43IT MAY ACTUALLY WE MAY ACTUALLY SEE THAT IN THE OFFING IN THE
00:32:47NEXT COUPLE OF YEARS, AND IT
00:32:49WILL BE A FUNDAMENTAL REFRAMING OF THE CONSTITUTION BECAUSE
00:32:53THERE'S REALLY NO RESTRICTIONS ON WHAT A CONSTITUTIONAL CONVENTION.
00:32:56IT'S INCREDIBLY IT'S NEVER BEEN DONE BEFORE. SO IT'S UNTESTED.
00:32:59I MEAN, IT'S LARGELY UNCHARTED WATERS.
00:33:02WHERE DO YOU THINK AS YOU LOOK AT THE CONSTITUTION, WHAT IS THE
00:33:05THING THAT YOU THINK THEY REALLY GOT RIGHT? THEY NAILED IT.
00:33:09THIS ONE THAT WAS THAT WAS PERFECT OR CLOSE TO PERFECT.
00:33:11NO NOTES, NO NOTES, I THINK.
00:33:17YEAH, I THINK THE 14TH AMENDMENT IS REALLY A THING OF BEAUTY.
00:33:21I REALLY DO. AND I'M NOT BEING POLLYANNA ISH
00:33:24ABOUT IT. IF YOU THINK ABOUT THE RECONSTRUCTION AMENDMENTS, YOU
00:33:28CAN JUST SORT OF SEE THE THOUGHT PROCESS AS THEY RECKON WITH THE
00:33:31FACT THAT THE SOUTH WILL NOT LET SLAVERY DIE.
00:33:35SO THEY START OFF WITH THE 13TH AMENDMENT.
00:33:37AND THIS IS LARGELY BECAUSE THEY'RE NOT SURE IF THE
00:33:41EMANCIPATION PROCLAMATION, WHICH IS BASICALLY A WARTIME
00:33:43PROCLAMATION, WILL STAND IN PEACETIME.
00:33:46SO WE'RE LIKE, OKAY, WE OUGHT TO TELL THEM WE'RE NOT DOING SLAVERY ANYMORE.
00:33:49SO THEY HAVE THE 13TH AMENDMENT,
00:33:51WHICH FORMALLY ABOLISHES
00:33:55SLAVERY, BUT THEN THEY IMMEDIATELY NOTICE THAT THE
00:33:57SOUTH IS SIMPLY DOING OTHER THINGS.
00:34:00THEY'RE TRYING TO RECREATE SLAVERY UNDER OTHER GUISES.
00:34:04AND SO THIS IS WHEN THEY START THINKING ABOUT HOW DO WE BRING
00:34:07THE FORMERLY ENSLAVED MOVED INTO THE BODY POLITIC AS CITIZENS
00:34:10BECAUSE THE ONLY PEOPLE WE'RE GOING TO BE MORE INVESTED IN
00:34:14PROTECTING THEIR FREEDOMS ARE THESE PEOPLE. SO, YOU KNOW, WE HAVE THE
00:34:17CITIZENSHIP CLAUSE IN ARTICLE
00:34:20ONE OR IN SECTION ONE OF THE 14TH AMENDMENT THAT IS CURRENTLY
00:34:23THE PROVISION THAT IS BEING LITIGATED AT THE SUPREME COURT.
00:34:27PREDICTION IT WILL BE THE DECISION WILL BE ANNOUNCED ON
00:34:30THE VERY LAST DAY OF THE TERM WILL BE THE LAST DECISION.
00:34:33DOES THAT GIVE YOU CONCERN? NO.
00:34:37LOOK, HERE'S MY THING ABOUT SECTION ONE OF THE 14TH AMENDMENT.
00:34:39CAN THE JUSTICES READ IF YOU CAN
00:34:45READ, THEN YOU KNOW THAT THE EXECUTIVE ORDER RESCINDING BIRTHRIGHT CITIZENSHIP IS
00:34:50UNCONSTITUTIONAL. I THINK IT'S VERY STRAIGHTFORWARD.
00:34:53THE ARGUMENTS THAT THE ADMINISTRATION HAS LOFTED HERE,
00:34:57THE IDEA THAT SECTION ONE OF THE 14TH AMENDMENT IS ONLY INTENDED
00:34:59TO REPUDIATE THE COURT'S 1857
00:35:03DECISION IN DRED SCOTT VERSUS SANFORD AND WAS NOT INTENDED TO
00:35:07APPLY TO THE CHILDREN OF IMMIGRANTS. I THINK IT'S A FACILE ARGUMENT.
00:35:10IT IS TRUE THAT SECTION ONE DOES
00:35:13RESPOND AND TO DRED SCOTT, BUT
00:35:15IT'S ALSO EQUALLY TRUE THAT THE FRAMERS OF THE 14TH AMENDMENT
00:35:19AND HERE'S WHERE THE READING OF HISTORY IS CRITICALLY IMPORTANT.
00:35:21THEY ACTIVELY DEBATED WHETHER OR NOT THEY WERE GOING TO INCLUDE
00:35:25THE CHILDREN OF IMMIGRANTS IN
00:35:27THE PROMISE OF BIRTHRIGHT CITIZENSHIP. AND HERE THEY TALK ABOUT THE
00:35:31IRISH LIKE THE GREAT POTATO FAMINE HAS HAPPENED. THERE'S BEEN A HUGE INFLUX OF IRISH IMMIGRANTS.
00:35:34THEY TALK ABOUT THE CHINESE BECAUSE THE GOLD RUSH HAS HAPPENED.
00:35:38THERE'S BEEN A HUGE INFLUX OF CHINESE IMMIGRANTS ON THE WEST COAST, AND THEY'RE JUST VERY
00:35:42CLEAR WHAT WE ARE DOING IN
00:35:44SECTION ONE IS REPUDIATING DRED SCOTT BECAUSE WHAT DRED SCOTT
00:35:48DID WAS REPUDIATE A COMMON LAW
00:35:51RULE THAT HAD BEEN IN PLACE SINCE THE FOUNDING AND THE RULE
00:35:55WAS, IF YOU'RE BORN HERE, YOU'RE A CITIZEN. AND THAT APPLIED TO EVERYBODY.
00:35:58AND THEY WERE VERY EXPLICIT ABOUT THAT. AND SO I THINK IF YOU CAN READ
00:36:02THE TEXT AND THEN ALSO READ THE HISTORY, THIS IS VERY
00:36:06STRAIGHTFORWARD. IT I DO NOT THINK THIS WILL BE A UNANIMOUS OPINION AND THAT WILL
00:36:09BE THE TRAVESTY YOU ANTICIPATED. MY QUESTION WILL NOT BE A YOU
00:36:12DON'T THINK IT'S A NINE ZIP? IT'S NOT A NINE ZIP. IT'S A CAN I CAN I COOK ON THIS
00:36:16FOR A LITTLE BIT? OKAY.
00:36:19COOK BABY, THIS IS LITERALLY THE
00:36:23ONLY COOKING I'LL BE DOING FOR
00:36:24THE REST OF THE WEEK.
00:36:29YOU THIS COURT WILL GET TO THE RIGHT ANSWER.
00:36:31DO NOT LET THEM OFF THE HOOK FOR
00:36:35READING. THIS COURT COULD HAVE ANSWERED
00:36:37THIS QUESTION ON THE SUBSTANCE
00:36:40OF SECTION ONE A YEAR AGO WHEN IT HAD THE CASE.
00:36:44TRUMP VERSUS CASTLE, WHERE THEY DEALT WITH THE NATIONWIDE INJUNCTION. THEY DECIDED AND THEY DIDN'T
00:36:47HAVE TO. THEY DECIDED TO DEAL ONLY WITH
00:36:49THE JURISTIC TIONAL ASPECT OF THAT, WHETHER THE NATIONWIDE
00:36:53INJUNCTION WAS AN APPROPRIATE REMEDY FOR FEDERAL DISTRICT COURTS TO ISSUE AND THE THREE
00:36:57DEMOCRATIC APPOINTEES ON THE COURT WERE LIKE, MAYBE WE SHOULD
00:37:00ADDRESS THIS OTHER QUESTION THAT SEEMS TO BE OUT THERE IN THE OFFING AND IS REALLY IMPORTANT
00:37:03ARE BABIES BORN TO UNDOCUMENTED
00:37:05PERSONS, CITIZENS OF THE UNITED STATES?
00:37:08THEY LET THIS QUESTION FESTER FOR A YEAR, AND THAT BY ITSELF
00:37:13UNSETTLES IT, LIKE UNSETTLES IT. AND MAKES THE LIVES OF ALL OF THESE PEOPLE.
00:37:17SO MUCH MORE UNCERTAIN AND PRECARIOUS THAN IT HAD TO BE. THEY COULD HAVE ANSWERED THIS
00:37:21QUESTION A YEAR AGO. THEY LET IT SIT HERE. THEY LET IT FESTER.
00:37:24DO NOT LET THEM OFF THE HOOK FOR THAT JUST BECAUSE THEY FINALLY
00:37:28GOT TO THE RIGHT ANSWER GRUDGINGLY.
00:37:35SO YOU'VE GOT ALL OF THESE EXECUTIVE ORDERS KIND OF FLOATING AROUND.
00:37:38I MEAN, YOU KNOW, BETWEEN TWEETS, THERE'S LIKE A BAZILLION
00:37:42OF THOSE. THANK YOU FOR YOUR ATTENTION TO THIS MATTER. YEAH, EXACTLY. DO THAT.
00:37:46EXACTLY. ALL THESE EXECUTIVE ORDERS THAT
00:37:50CONTRAVENE, IT SEEMS TO ME THE
00:37:52CONSTITUTION AND YET WE TREAT
00:37:55THEM AS IF THERE ARE LAWS OR SOMETHING.
00:38:00WHAT'S WHAT'S WHAT'S THAT ALL ABOUT? I MEAN, DO YOU THINK THAT WE AS
00:38:02A SOCIETY AND CONGRESS, AS A
00:38:05BODY HAVE SIMPLY GIVEN A LITTLE
00:38:09TOO MUCH PROMINENCE TO THE TO THE EXECUTIVE BRANCH? YES.
00:38:15SO, FIRST OF ALL, MANY OF THE
00:38:18ACTIONS OF THE EXECUTIVE IMPERMISSIBLY INTRUDE ON THE
00:38:22PREROGATIVES OF CONGRESS, AND CONGRESS CAN SUE. CONGRESS CAN PROTECT ITS
00:38:27PREROGATIVES IF IT WANTED TO. AND, YOU KNOW, I THINK IN SOME WAYS YOU'RE SEEING CONGRESS
00:38:30BEGIN TO SORT OF WAKE UP, YOU KNOW, THE OTHER DAY, FOR
00:38:34EXAMPLE, CONGRESS DECIDED THAT THEY WEREN'T GOING TO ACCEPT
00:38:38THIS SLUSH FUND FOR VICTIMS OF
00:38:41GOVERNMENT WEAPONIZATION AND
00:38:43LARGELY BECAUSE IT WAS STALLING
00:38:45THE APPROPRIATION OF FUNDS FOR ICE AND CUSTOMS AND BORDER
00:38:48PATROL THAT COULD BE USED TO HARASS PEOPLE. SO YOU KNOW, NOW WE'RE NOT
00:38:52HAVING THE SLUSH FUND, ALTHOUGH WE ARE STILL HAVING THE TAX IMMUNITY.
00:38:56YOU SHOULD STILL BE MAD ABOUT THAT. CONGRESS CAN GET IN THE GAME ON
00:38:58SOME OF THIS STUFF AND CONGRESS CAN HAVE HEARINGS. CONGRESS CAN FILE SUITS.
00:39:02THEY CAN DO ALL KINDS OF THINGS. AND THEY HAVEN'T DONE THAT.
00:39:05THE THING THAT'S SORT OF PUZZLING TO ME ABOUT THE
00:39:11EXECUTIVE ORDERS IS IT'S NOT JUST CONGRESS THAT THE EXECUTIVE INTRUDING UPON.
00:39:14IT'S ALSO INTRUDING UPON THE COURT. SO TAKE, FOR EXAMPLE, THE
00:39:19EXECUTIVE ORDERS ADDRESSING THE LAW FIRMS. YOU KNOW, MANY OF THESE
00:39:22EXECUTIVE ORDERS ARGUE THAT THE LAW FIRMS ARE ENGAGED IN WHAT
00:39:26THE ADMINISTRATION TERMS
00:39:27UNLAWFUL DTI, WHICH APPAREL. LEE IS OCCASIONALLY HAVING
00:39:32PROGRAMS FOR YOUR UNDERREPRESENTED WOMEN ASSOCIATES OR, YOU KNOW,
00:39:37RECRUITING FROM HISTORICALLY BLACK COLLEGES AND UNIVERSITIES. SO THERE HAS NOT BEEN A FEDERAL
00:39:42COURT IN THIS COUNTRY THAT HAS DETERMINED THAT A PRIVATE
00:39:45INSTITUTION WITH A HISTORY OF
00:39:48UNDERREPRESENTATION AND MAYBE EVEN CONTINUED UNDERREPRESENTATION IN ITS RANKS
00:39:52IS NOT PERMITTED TO ENGAGE IN REMEDIAL EFFORTS TO ADDRESS THAT
00:39:56KIND OF UNDERREPRESENTATION.
00:39:58THE FACT THAT THE LAW FIRMS HAVE SUCKED IT UP AND SAID THAT THEY
00:40:02ARE CEDING TO THESE SETTLEMENTS
00:40:04EFFECTIVELY CONCRETIZE IS A
00:40:08VISION OF THE LAW THAT SIMPLY DOES NOT EXIST.
00:40:10AND IF WE CREDIT THAT VISION OF
00:40:13THE LAW, WE ARE EFFECTIVELY
00:40:15USURPING THE JUDICIARY'S ROLE TO SAY WHAT THE LAW IS AND WE
00:40:18SHOULD TALK ABOUT IT IN THOSE TERMS. IT'S NOT SIMPLY ABOUT CAVING OR CAPITULATING.
00:40:22IT IS LITERALLY ABOUT LETTING THE EXECUTIVE TELL US WHAT THE
00:40:25LAW IS. AND THE JUDICIARY SHOULDN'T BE DOING THAT.
00:40:29AND I WISH MORE OF THOSE LAW
00:40:31FIRMS HAD SUED TO CHALLENGE THOSE EXECUTIVE ORDERS SO WE
00:40:34COULD LITERALLY GET TO THIS POINT. BUT INSTEAD, WE HAVE AN LIKE AND
00:40:38THAT IS THE POINT OF THE SETTLEMENT. YOU CAN THINK ABOUT THE SETTLEMENTS WITH THE MEDIA
00:40:42COMPANIES WHEN, YOU KNOW, WHEN THE PRESIDENT SUES ABC FOR
00:40:47DEFAMATION AND ABC SETTLES IT, IT'S BASICALLY A WORKAROUND
00:40:49AROUND NEW YORK TIMES VERSUS SULLIVAN, WHICH SAYS THAT THE
00:40:54STANDARD FOR ESTABLISHING DEFAMATION IS REALLY HIGH,
00:40:56ABSOLUTE MALICE. THE PRESIDENT HAS RAILED AGAINST
00:41:00THE STANDARD HE WOULD RATHER HAVE US HAVE A SYSTEM LIKE IN
00:41:02THE UK WHERE IT'S MUCH EASIER TO
00:41:05PROVE LIBEL AND DEFAMATION AGAIN.
00:41:07AND HE'S FAILED TO HAVE THE SUPREME COURT TAKE UP THE CASE.
00:41:11HE'S FAILED TO GET A CASE GRANTED CERT CHALLENGING NEW
00:41:14YORK TIMES VERSUS SULLIVAN. MAYBE NOW IT DOESN'T MATTER
00:41:17BECAUSE IF YOU SETTLE WITH THESE MEDIA COMPANIES, YOU CAN
00:41:20BASICALLY GET WHAT YOU WANT WITHOUT EVER CHANGING THE LAW IN
00:41:23A FORMAL WAY. AND WE SHOULD TALK ABOUT IT THAT WAY.
00:41:28YOU THINK THE 14TH AMENDMENT IS SHOULD BE INTERPRETED AS A
00:41:32COLORBLIND AMENDMENT? NO.
00:41:37EXPLAIN IT. YOU GOT TO DO A LITTLE MORE THAN THAT. THESE PEOPLE PAID GOOD MONEY FOR
00:41:41THIS. OKAY? THEY DIDN'T ACTUALLY. THEY DID. BY THE BOOK.
00:41:44THANK YOU. SO THE 14TH AMENDMENT, AGAIN,
00:41:49IT'S BORN IN THE ASHES OF SLAVERY.
00:41:51AND IT IS INTENDED, ED, TO LITERALLY BRING THE FORMERLY
00:41:57ENSLAVED INTO THE BODY POLITIC AS CITIZENS.
00:41:59IT'S MEANT TO ADDRESS THE
00:42:01PROSPECT OF THE SOUTH TRYING TO
00:42:04REINSTATE SLAVERY.
00:42:06YOU KNOW, THE PROVISIONS DEALING
00:42:08WITH FINANCIAL SUPPORT FOR THE FORMER INSURRECTIONISTS ARE ALL
00:42:12ABOUT TRYING TO PREVENT OTHER NATIONS FROM GIVING THEM THE
00:42:15FUNDING THAT THEY WOULD NEED TO
00:42:17RESURRECT A SLAVE ECONOMY AND A
00:42:20SLAVE GOVERNMENT IN THE ABSENCE
00:42:22OF THE CONFEDERACY. THERE'S NOTHING COLORBLIND ABOUT
00:42:26IT. THEY'RE TRYING TO PREVENT THE RE
00:42:30INSTANTIATION OF SLAVERY AND THE CONFEDERACY, AND THEY'RE
00:42:33EXPLICITLY TALKING ABOUT LAWS
00:42:35THAT ARE PASSED TO PREVENT
00:42:39DISCRIMINATION AGAINST THE FORMERLY ENSLAVED, TO GIVE THE FORMERLY ENSLAVED THE SAME
00:42:44RIGHTS AS WHITE PEOPLE. THERE'S NOTHING COLORBLIND ABOUT THIS.
00:42:48THEY ALWAYS POINT TO JUSTICE
00:42:50JOHN MARSHALL, HARLAND, THE
00:42:54FIRST DISSENT IN PLESSY VERSUS FERGUSON.
00:42:56SO JUSTICE HARLAN IN HIS PLESSY DISSENT SAYS OUR CONSTITUTION IS
00:43:00COLORBLIND AND KNOWS NO COLOR, CASTE, BLAH, BLAH, BLAH.
00:43:03WHAT THEY FORGET, IT'S LIKE THERE'S A WHOLE THREE PARAGRAPHS
00:43:07BEFORE WHERE HARLAN IS TALKING ABOUT THE WHITE RACE IS DOMINANT.
00:43:11AND SO IT ALWAYS WILL BE LIKE HARLAN'S POINT ISN'T THAT WE
00:43:14HAVE A COLORBLIND CONSTITUTION. HIS POINT IS THAT WE DON'T NEED
00:43:17TO HAVE JIM CROW SEGREGATION FOR WHITE PEOPLE TO BE DOMINANT.
00:43:20LIKE THAT'S A DIFFERENT ARGUMENT. THAT'S A TOTALLY DIFFERENT ARGUMENT.
00:43:24AND NO ONE AND IT'S LIKE, READ THE WHOLE THING. THIS IS LIKE A PROFESSOR READ THE SYLLABUS, READ THE WHOLE
00:43:29SYLLABUS. IF YOU READ ALL OF IT YOU WOULDN'T LIKE YOU WOULDN'T BE
00:43:33LOOKING AT JUSTICE HARLAN AND BEING LIKE, THIS IS THE WAY.
00:43:36AND THEN THERE'S ALSO THE PARTS
00:43:38AFTER OUR CONSTITUTION IS COLORBLIND, WHERE JUSTICE HARLAN
00:43:41GOES IN ON THE CHINESE, LIKE THIS IS THIS IS NOT TO DENIGRATE
00:43:45JUSTICE HARLAN, BUT THESE ARE COMPLICATED PEOPLE.
00:43:47AND WE ARE TAKING THEIR WORDS
00:43:49AND MAKING FACILE SOUNDBITES OUT OF THEM.
00:43:52YESTERDAY WAS A TOUGH ONE,
00:43:55LOOKING AT WHAT THE SUPREME
00:43:57COURT DID IN THE ALABAMA CASE.
00:43:59TALK A LITTLE ABOUT THAT. WHAT DO YOU WHAT DO YOU THINK?
00:44:03HOW WORRIED ARE YOU CONCERNED ABOUT IT?
00:44:05WHAT DOES THAT SAY ABOUT THIS COURT?
00:44:08I MEAN, IN A LOT OF WAYS, IT
00:44:11JUST SEEMS TO ME THAT IT'S IT'S BEEN EXPOSED.
00:44:15I MEAN, IT'S NAKED NOW.
00:44:15I MEAN, WE KNOW IT'S BEEN NAKED.
00:44:19I'M I'M A LITTLE ALWAYS LITTLE MR. OPTIMIST HERE. BUT YOU KNOW THAT ONE.
00:44:23YOU THE OPTIMIST. MR. REDISTRICTING.
00:44:26YEAH, THAT'S A GOOD QUESTION.
00:44:28BUT WHAT DO YOU THINK ABOUT THAT DECISION YESTERDAY?
00:44:32SO ACTUALLY, I'M GOING TO QUOTE YOU.
00:44:34YOU PUT OUT A STATEMENT.
00:44:36YOU'VE DONE AMAZING WORK ON
00:44:39REDISTRICTING, AND WE ALL OWE YOU A DEBT OF GRATITUDE FOR JUST
00:44:43BEING OUT IN FRONT AND NEVER
00:44:44LOSING SIGHT OF WHAT THIS MEANS.
00:44:51BUT YOU HIT THE NAIL ON THE HEAD
00:44:54LIKE THIS HAS BEEN A MORE THAN
00:44:58DECADE LONG EFFORT TO HOBBLE AN
00:45:00ULTIMATELY JUST MANTEL. THE VOTING RIGHTS ACT ON THE
00:45:03PART OF THIS COURT. IT BEGAN IN SHELBY COUNTY VERSUS
00:45:07HOLDER. I KNOW YOU HATE HAVING ONLY CALL IT THE SHELBY COUNTY CASE.
00:45:11I DON'T WANT MY NAME ASSOCIATED WITH THERE BE LIKE DRED SCOTT
00:45:14VERSUS HOLDER. I DON'T WANT MY NAME. ASSOCIATED JUSTICE.
00:45:17SO IF YOU DON'T WANT TO -- ME OFF.
00:45:20SHELBY COUNTY CASE 2013, SHELBY
00:45:26COUNTY.
00:45:26IN 2013 EFFECTIVELY DISMANTLE
00:45:30THE PRE-CLEARANCE REGIME OF THE VOTING RIGHTS ACT. I DON'T THINK PEOPLE QUITE
00:45:34UNDERSTAND WHY PRECLEARANCE IS SO IMPORTANT. PRE-CLEAR LET'S ESTABLISH A
00:45:37FORMULA BY WHICH STATES WITH A HISTORY OF SUPPRESSIVE VOTER
00:45:41LAWS ANY CHANGE THAT THEY WANTED TO MAKE TO THEIR VOTING LAWS,
00:45:45WHETHER IT WAS MOVING A BALLOT BOX, YOU KNOW, CHANGING A LAW,
00:45:49WHATEVER, THEY HAD TO FIRST GO TO THE DEPARTMENT OF JUSTICE OR
00:45:51A THREE JUDGE COURT AND MAKE THE CASE FOR IT.
00:45:54AND THAT TYPICALLY MEANT THAT THE LAWS THAT WERE BAD, THAT
00:45:58WERE SUPPRESSIVE NEVER GOT ON THE BOOKS, LIKE THEY JUST NEVER
00:46:00HAD A CHANCE TO GO ANYWHERE. THE CHIEF JUSTICE IN SHELBY
00:46:04COUNTY SAYS THAT THE
00:46:06PRECLEARANCE COVERAGE FORMULA MISSES THAT.
00:46:11THERE'S ALL OF THIS RACIAL PROGRESS THAT'S BEEN HAPPENING IN THE SOUTH AND MORE BLACK
00:46:13PEOPLE ARE VOTING THAN EVER. AND HE CITES THE ELECTION OF
00:46:192008 AND 2012. MM HMM. HMM.
00:46:23YES. LIKE BLACK PEOPLE CAME OUT FOR THAT ONE.
00:46:26SO THERE'S A NARRATIVE OF
00:46:28PROGRESS THAT HE IS RELYING UPON. HE ALSO ARGUES OF THE
00:46:33PRECLEARANCE COVERAGE FORMULA, WHICH HE SAYS GIVES UNDUE POWER
00:46:35TO CONGRESS, TO POLICE THE STATES WHICH HAVE AUTHORITY TO
00:46:39CONDUCT THEIR ELECTIONS, THAT IT INTRUDES ON THE SOVEREIGNTY OF
00:46:42STATES AND TREATS SISTER STATES DIFFERENTLY, AND THAT IS A PROBLEM.
00:46:46THAT'S ALSO A KIND OF WEIRD READING OF FEDERALISM.
00:46:48BUT, YOU KNOW, WHATEVER.
00:46:51HE KNOWS THAT IN STRIKING DOWN
00:46:53THE COVERAGE FORMULA, HE SAYS IN THE OPINION LIKE, YOU KNOW, CONGRESS CAN JUST WRITE ANOTHER
00:46:57COVERAGE FORMULA, A BETTER ONE, A CONSTITUTIONAL ONE. CONGRESS IS NOT WRITING A
00:47:01COVERAGE FORMULA. EVERYONE KNOWS IN 2013 THAT CONGRESS IS TOO RIVEN AND
00:47:05POLARIZED TO WRITE A COVERAGE FORMULA. THEY'RE NOT DOING THAT. SO THIS IS GOING TO DIE ON THE
00:47:09VINE AND THEY KNOW IT. THE CHIEF JUSTICE TELLS US THAT. DON'T WORRY, THERE'S STILL
00:47:13SECTION TWO. SECTION TWO IS A POTENT MEANS OF
00:47:17ADDRESSING SUPPRESSIVE VOTER LAWS. BUT IT'S NOT FANTASTIC BECAUSE
00:47:20IT REQUIRES LITIGATION. SO YOU'VE GOT TO GO GET A PLAINTIFF AND THEN YOU GOT TO
00:47:23GET MONEY AND YOU GOT TO LODGE A LAWSUIT INSTEAD OF JUST LIKE
00:47:27HAVING IT NIPPED IN THE BUD THROUGH PRECLEARANCE. NOW IT'S ENACTED AND YOU'VE GOT
00:47:30TO GET IT ENJOINED. YOU'VE GOT TO FIGHT IT, ALL OF THAT.
00:47:34THE MINUTE SHELBY COUNTY WAS
00:47:36ANNOUNCED, TEXAS HAS THE MOST
00:47:40SUPPRESSED VOTER ID LAW. IT WAS ULTIMATELY INVALIDATED IT, BUT THEY WENT FOR IT.
00:47:44AND STATES HAVE BEEN DOING IT OVER AND OVER AGAIN. AND IN FACT, DESPITE WHAT
00:47:47JUSTICE ALITO SAYS IN THE KELLY
00:47:49OPINION, THERE IS EVIDENCE THAT SINCE SHELBY COUNTY, THE
00:47:53PERCENTAGE OF MINORITY VOTERS HAS ACTUALLY GONE DOWN,
00:47:55ESPECIALLY IN THE SOUTH.
00:47:58SO THAT'S THE FIRST THING WE ARE GETTING RID OF PRE COVER
00:48:02PRECLEARANCE. WE HAVE SECTION TWO, THEN THEY START HOBBLING SECTION TWO,
00:48:04ABBOTT VERSUS PEREZ HOBBLE SECTION TWO, BRNOVICH VERSUS DNC
00:48:09MAKES IT HARDER TO ESTABLISH DISCRIMINATORY EFFECT UNDER SECTION TWO.
00:48:12AND NOW LOUISA, ANNA VERSUS KELLY DECIDES IT'S GOING TO
00:48:16RETHINK THE WHOLE FORMULA. AND INSTEAD OF ESTABLISHING
00:48:20DISCRIMINANT TORY EFFECT, WHICH IS WHAT CONGRESS WROTE INTO THE VOTING RIGHTS ACT, IT HAS TO BE
00:48:25INTENTIONAL DISCRIMINATION. IF YOU'VE EVER PRACTICE EMPLOYMENT LAW OR LABOR LAW, YOU
00:48:30KNOW, IT IS SO HARD TO ESTABLISH INTENTIONAL DISCRIMINATION. WHY?
00:48:34BECAUSE PEOPLE DON'T GO AROUND CALLING PEOPLE THE N WORD IN THE WORKPLACE ANYMORE.
00:48:38THEY DO OTHER THINGS. THEY'RE MORE SUBTLE ABOUT IT.
00:48:41STATE LEGISLATURES ARE ALSO
00:48:43INCREASINGLY MORE SAVVY ABOUT HOW TO DO THIS.
00:48:46SO IT'S GOING TO BE VERY HARD TO DO INTENTIONAL DISCRIMINATION IN
00:48:50A WAY THAT IS LEGIBLE TO THE COURT. AND THEN WITH THIS DECISION IN
00:48:52ALLEN VERSUS MILLIGAN, THE COURT
00:48:55AT THE REQUEST OF ALABAMA, WHO WANTED TO USE A MAP THAT THE
00:49:00COURT A TYPE OF MAP THAT THE COURT HAD PREVIOUSLY SAID WOULD HAVE BEEN RACIALLY
00:49:05DISCRIMINATORY AND THAT A THREE JUDGE PANEL COMPRISED OF TO
00:49:08TRUMP APPOINTEES ALSO SAID WOULD HAVE BEEN RACIALLY
00:49:12DISCRIMINATORY. TWICE, THE COURT ALLOWS ALABAMA
00:49:15TO USE THAT MAP IN THE UPCOMING ELECTION.
00:49:18AND IN MAKING THAT POINT, THE COURT ALSO EFFECTIVELY SAYS THAT
00:49:22IT'S NOT SIMPLY THAT WE ARE
00:49:24GOING TO REQUIRE A SHOWING OF INTENTIONAL DISCRIMINATION TO
00:49:27MAKE OUT A CLAIM UNDER SECTION TWO OF THE VOTING RIGHTS ACT.
00:49:31WE'RE GOING TO HAVE AN ALMOST A REBUTTABLE PRESUMPTION THAT
00:49:34STATES ARE ACTING IN GOOD FAITH,
00:49:36EVEN IF THEY OFFER SOME MADE UP.
00:49:40CLEARLY PRETEXTUAL, NONRACIAL
00:49:43REASON, AND THAT WILL DEFEAT ANY CLAIM OF INTENTIONAL
00:49:47DISCRIMINATE. AND SO, KAYLEIGH WAS THE FIRST NAIL.
00:49:50ALLEN VERSUS MILLIGAN MAKES IT
00:49:53VIRTUALLY IMPOSSIBLE TO WIN UNDER SECTION TWO.
00:49:57AND IT'S OVER. LIKE THE VOTING RIGHTS ACT IS
00:50:01OVER. SAD BUT TRUE.
00:50:03AND SO THE NEXT TIME THERE IS A
00:50:06DEMOCRATIC TRIFECTA AND I'M
00:50:09HOPING THAT IS IN 29 AND WE HAVE
00:50:10THE CAPACITY TO PASS LAWS, THE
00:50:14FILIBUSTER CAN'T GET IN THE WAY
00:50:16AND WE CAN'T ALLOW SENATORS LIKE
00:50:19CINEMA AND MANCHIN TO PREVENT
00:50:21THAT CARVE OUT AS THEY DID THE LAST TIME.
00:50:24SO THE THE CAPACITY, THE ABILITY
00:50:26TO CHANGE SUPREME COURT
00:50:30DECISIONS EXISTS. AND I THINK PEOPLE HAVE TENDED TO FORGET THAT. YOU KNOW, IT'S LIKE SUPREME
00:50:34COURT'S RULE AND THEREFORE THAT THAT'S IT. WE HAVE THERE ARE LEGISLATIVE
00:50:37THINGS THAT WE CAN DO WITH REGARD TO SUPREME COURT DECISIONS.
00:50:41YOU KNOW, WE FIGHT HARD. YOU KNOW, WE DID FORGET AUDIENCE
00:50:45QUESTIONS. NO, NO, NO. OKAY. GETTING TO THAT WAS GOING TO DO IT.
00:50:48I MEAN, I'M TRYING TO HELP YOU OUT. YOU SAY YOU WERE SUPPOSED TO BE OVER HERE. I THOUGHT THAT'S HOW I. OKAY.
00:50:52ALL RIGHT. WE HAVE A MICROPHONE. AND GIVEN, AS I SAID, THE
00:50:56HUMONGOUS AMOUNTS OF MONEY THAT YOU ALL PAID TO GET IN HERE,
00:50:59WE'RE GOING TO GIVE YOU ALL THE
00:51:01ABILITY TO ASK PROFESSOR MURRAY SOME QUESTIONS. HI.
00:51:04THANK YOU BOTH FOR ALL THE WORK THAT YOU DO. I LIVE IN VIRGINIA, SO WE'VE HAD
00:51:08A REALLY INTERESTING YEAR AND ARTICLE ONE, SECTION FOUR HAS BEEN MY LIFE FOR THE PAST
00:51:12SEVERAL MONTHS. I JUST I WONDER ABOUT YOUR THOUGHTS IN TERMS OF WHAT
00:51:17LEGISLATURE CAN DO, BECAUSE IN VIRGINIA, I'M SURE, AS YOU BOTH
00:51:20KNOW, OUR DEMOCRATIC AG TOOK OR YOUR DEMOCRATIC AG TOOK A VERY
00:51:24INTERESTING APPROACH TO USE A
00:51:27VERSION OF THE INDEPENDENT STATE
00:51:29LEGISLATURE THEORY AS A MEANS TO
00:51:32BLOCK OUR VOTES THAT WERE THROWN
00:51:34OUT, WHICH IS REALLY INTERESTING TO HAVE MY VOTE NULLIFIED
00:51:38RETROACTIVELY. I'M JUST INTERESTED TO KNOW WHAT
00:51:41YOUR THOUGHTS ARE ON THAT.
00:51:44I THINK YOUR AG HAD SOME ISSUES
00:51:47EVEN BEFORE THIS, BUT LEAVING
00:51:49THAT ASIDE FROM AN.
00:51:54I THINK THERE'S JUST A LOT OF
00:51:56STUFF GOING ON RIGHT NOW AND.
00:52:00I THINK YOU THERE WILL BE LEGAL
00:52:04CHALLENGES TO MUCH OF IT AGAIN SOME OF THIS WILL GO UP TO STATE COURTS.
00:52:09THAT'S IMPORTANT. SOME OF IT MAY GO TO FEDERAL COURTS. THAT WILL ALSO BE IMPORTANT.
00:52:11I THINK THE REAL QUESTION HERE IS WE HAVE TO RECOGNIZE THAT
00:52:15THERE'S POWER ON ALL KINDS OF TABLES AND IN LOTS OF DIFFERENT
00:52:19FORUM FORA AND WE CANNOT LEAVE
00:52:23ANY OF IT BEHIND. RIGHT. SO, YES, IT IS FIGHTING ON THAT
00:52:26FRONT AND USING WHATEVER TOOLS WE HAVE. AND I THINK THE POINT YOUR AG
00:52:30WAS HOPING TO MAKE, MAYBE IMPERFECTLY, WAS THIS IS SORT OF
00:52:32A MASTER'S TOOLS TO DISMANTLE THE MASTER'S HOUSE LIKE THE
00:52:36INDEPENDENT STATE LEGISLATURE THEORY. ALSO FAN FICTION, BUT MAYBE WE
00:52:39CAN USE IT FOR PROGRESSIVE ENDS.
00:52:40I'M NOT QUITE SURE IT'S GOING TO
00:52:43PAN OUT THAT WAY, BUT A-PLUS FOR
00:52:46CREATIVITY, I GUESS. I MEAN, AND FOR LITERALLY TRYING
00:52:49TO USE WHATEVER WE HAVE. LIKE WE'RE KIND OF IN IT RIGHT
00:52:52NOW, LIKE THIS IS GO TIME.
00:52:54AND I THINK WE HAVE TO TRY A LOT OF THINGS, LIKE WE HAVE TO MOVE
00:52:58FAST. SOME THINGS MAY BE BROKEN, BUT I THINK WE HAVE TO TRY ALMOST
00:53:02EVERYTHING. OKAY.
00:53:06HI.
00:53:06SO I JUST WANTED TO PUSH BACK A
00:53:11LITTLE BIT ON THE ORIGINALISM QUESTION.
00:53:14ON MY WAY TO ANOTHER QUESTION.
00:53:16SO IF I CAN THINK OF THE THREE
00:53:18WORST DECISIONS OFF THE TOP OF
00:53:20MY HEAD AND IT'S A BIG LIST, BUT
00:53:23BUSH VERSUS GORE, D.C. VERSUS
00:53:25HELLER, U.S. VERSUS TRUMP, PART
00:53:29OF WHAT MADE THEM SO BAD? WELL, THERE ARE TWO THINGS,
00:53:33WHICH IS THERE A HISTORICAL
00:53:37NATURE AND ALSO THAT THEY USED ALMOST NO LAW TO REACH THEIR
00:53:42DECISIONS AND THEY HAD THEIR OWN SPECIAL THEORIES SO THAT, IN
00:53:45FACT, IF THEY HAD ACTUALLY BEEN
00:53:47ORIGINALIST IN ANY OF THOSE
00:53:51DECISIONS, THOSE RESULTS COULD
00:53:54NOT HAVE BEEN REACHED, WHICH
00:53:57LEADS ME TO MY REAL QUESTION, WHICH IS REALLY A QUESTION OF
00:54:01LEGAL THEORY MORE THAN CONSTITUTIONAL LAW.
00:54:05I'D LIKE YOUR OPINION AND ALSO
00:54:07GENERAL HOLDER.
00:54:09I MEAN, WE THE SUPREME COURT
00:54:11MAKES DECISIONS AND WE ACCEPT IT
00:54:15BECAUSE IT'S THE SUPREME COURT. RIGHT.
00:54:19AND MY QUESTION IS, IS THERE ANY
00:54:21DECISION THAT YOU CAN CONCEIVE
00:54:24OF WHERE WE WOULD SAY THAT THE
00:54:28COURT WAS ACTING CORRUPTLY,
00:54:30WHERE IT WOULD JUST DEFY
00:54:34IMPEACHMENT? YOU KNOW, OBVIOUSLY, IF THE PERSON WERE PAID OR SOMETHING
00:54:38LIKE THAT, WE WOULD SAY, OKAY, THAT'S AN OBVIOUS.
00:54:42BUT IS IT YOUR POSITION THAT
00:54:45ANYTHING THE SUPREME COURT SAYS,
00:54:47NO MATTER WHAT IS THE LAW, NO
00:54:51MATTER HOW UNTETHERED IT IS TO
00:54:57REALITY? THAT'S ALL RIGHT. SO INTERESTING QUESTION. SUPPOSE THE SUPREME COURT
00:55:01DECIDED THAT THE RIGHT TO FREE SPEECH.
00:55:05I DON'T KNOW WHAT THE FACTS WOULD BE, WHAT THE CASE WOULD BE.
00:55:09THE RIGHT TO FREE SPEECH IS NO
00:55:11LONGER PART OF THE AMERICAN
00:55:15EXPERIMENT. WHAT COULD WE DO? WE DON'T WE DON'T EVEN HAVE TO
00:55:19HYPOTHETIC CALLS. WHAT IF A SUPREME COURT JUSTICE WROTE A CONCURRENCE COMPLETELY
00:55:23REWRITING THE FOURTH AMENDMENT TO ALLOW FOR GROUP BASED
00:55:27SUSPICION OFF THE TOP OF MY
00:55:33HEAD.
00:55:33I THINK MOST PEOPLE IN RESPONSE
00:55:37TO JUSTICE KAVANAUGH'S CONCURRENCE IN GNOME VERSUS
00:55:41VASQUEZ PERDOMO WERE VERY CLEAR
00:55:44IN THEIR OPPOSITION. LIKE, THAT'S NOT THE FOURTH
00:55:47AMENDMENT THAT WE'VE HAD. WE'VE ALWAYS HAD INDIVIDUALIZED SUSPICION.
00:55:50THAT'S A WHOLE POINT OF THE FOURTH AMENDMENT. WE'VE NEVER AUTHORIZED THE
00:55:54GOVERNMENT TO RACIALLY PROFILE OR NOT EXPLICITLY ANYWAY.
00:55:59AND THIS CONCURRENCE COMPLETELY RUNS AFOUL OF THAT.
00:56:03AND, YOU KNOW, I THINK JUSTICE KAVANAUGH RIGHTLY GOT SO MUCH HEAT FOR THAT.
00:56:07PEOPLE STARTED CALLING THESE ICE STOPS CABINETS STOPS.
00:56:11AND APPARENTLY THAT'S A PROBLEM FOR HIM BECAUSE HE WROTE IN
00:56:14ANOTHER SHADOW DOCKET DECISION
00:56:17COMPLETELY APROPOS OF NOTHING, A
00:56:19WHOLE EXEGESIS ON THE MEANING OF THE FOURTH AMENDMENT WAS LIKE,
00:56:23OKAY, I'M GLAD WE'RE BACK ON THE RIGHT PAGE.
00:56:25SO I DO THINK PEOPLE ROUTINELY
00:56:29CALL OUT DECISIONS THAT THEY DON'T FIND TO BE LEGITIMATE.
00:56:33I THINK LOTS OF WOMEN DID THAT IN THE WAKE OF DOBBS AND THE
00:56:38OVERRULING KING OF ROW. I THINK THAT'S A DIFFERENT THING FROM SAYING THAT THOSE ARE
00:56:42IMPEACHABLE OFFENSES. I MEAN, IF YOU READ THE BOOK, YOU'LL SEE THAT THE STANDARD FOR
00:56:47IMPEACHMENT, HIGH CRIMES AND MISDEMEANORS IS PRETTY SPECIFIC. I'M NOT QUITE SURE.
00:56:51DECISIONS THAT WE THINK ARE A
00:56:53TEXTUAL OR OR JUST, YOU KNOW, A
00:56:58CONSTITUTIONAL WOULD FALL INTO THE CATEGORY OF HIGH CRIMES AND MISDEMEANORS, ALTHOUGH, AS YOU
00:57:02SAY, YOU KNOW, TAKING MONEY FROM YOUR EMOTIONAL SUPPORT
00:57:07BILLIONAIRE FOR A PARTICULAR DECISION THAT MIGHT WORK AS AN
00:57:09IMPEACHABLE OFFENSE, IT'S THEIR
00:57:11JOB TO APPLY THE LAW, I THINK.
00:57:16YES, I THINK THEY WOULD. BUT I DON'T THINK THAT'S QUITE I MEAN, AGAIN, READ THE BOOK.
00:57:20I DON'T THINK THAT'S QUITE HIGH.
00:57:22CRIMES AND MISDEMEANORS AND WITH REGARD TO THE QUESTION ABOUT
00:57:25ORIGINALISM, I DON'T REALLY KNOW THAT YOU NEED TO PUSH BACK BECAUSE I DON'T KNOW THAT I
00:57:30DISAGREE. I OBJECT TO ORIGINALISM BECAUSE
00:57:33I DON'T BELIEVE THAT WE SHOULD BE PRIORITIZING A METHOD OF
00:57:37INTERPRETATION, ONE THAT DEPENDS
00:57:39ON FIDELITY TO MOMENTS OF TRUE DEMOCRATIC DEFICIT. RIGHT.
00:57:43BUT THAT'S A DIFFERENT ARGUMENT TO LIKE, YOU KNOW, WHETHER
00:57:46HELLER WOULD BE BETTER IF IT WERE ORIGINALIST, LIKE THEY SAY,
00:57:50HELLER IS AN ORIGINAL DECISION, BUT IT'S NOT. I MEAN, IT USES LOTS OF OTHER
00:57:54SCHOOLS OF INTERPRETATION. IT'S ACTUALLY QUITE PROMISCUOUS IN THE KINDS OF INTERPRETIVE
00:57:57METHODS IT USES. BUT IT'S NOT FAITHFULLY ORIGINALIST.
00:58:01BUT THAT'S NOT WHY I OBJECT TO ORIGINALISM.
00:58:03YES, I THINGS ARE REALLY OUT OF BALANCE.
00:58:07AND, YOU KNOW, I THINK ABOUT THE
00:58:11EXECUTIVE ORDERS AND I RECENTLY
00:58:14HEARD THAT CLINTON, BUSH AND
00:58:17OBAMA, EACH OF THEM HAD ABOUT 35
00:58:21EXECUTIVE ORDERS IN THEIR EIGHT YEARS.
00:58:25CLINTON I MEAN, TRUMP HAS HAD
00:58:28240 THIS YEAR.
00:58:30AND OF THOSE 240 THEN THE ONES
00:58:34THAT WERE CONTESTED AND WENT TO
00:58:34THE SHADOW DOCKET OF OVER 80%
00:58:40WERE IN TRUMP'S FAVOR.
00:58:44AND I'M WONDERING IF YOU CAN TALK A LITTLE BIT MORE ABOUT
00:58:46THIS SELECTIVE ORIGINALISM.
00:58:50SURE. SO, YOU KNOW, ONE THING I THINK YOU IT'S WORTH THINKING ABOUT
00:58:54WITH REGARD TO JUST THE RISE IN EXECUTIVE ORDERS, LIKE THAT'S A
00:58:59FAILURE FOR OF INSTITUTIONS. THAT'S A FAILURE OF LIKE CONGRESS, LIKE, YOU KNOW,
00:59:01PRESIDENT OBAMA PASSED A BUNCH OF EXECUTIVE ORDERS DEALING WITH
00:59:05IMMIGRATION BECAUSE CONGRESS COULD NOT PASS COMPREHENSIVE
00:59:07IMMIGRATION REFORM, EVEN THOUGH IT WAS CLEAR THAT IT WAS NECESSARY.
00:59:11SO, YOU KNOW, THE RISE OF THESE
00:59:13EXECUTIVE ORDERS, I THINK,
00:59:15POINTS TO A CONGRESS THAT IS NOT
00:59:18FUNCTIONAL IN A LOT OF WAYS OR A
00:59:20CONGRESS THAT IS ACQUIESCED IN
00:59:23TERMS OF GUARDING ITS PROGRAMS. AND I THINK THAT'S WHAT'S GOING
00:59:26ON WITH REGARD TO THE TRUMP EXECUTIVE ORDERS.
00:59:30AGAIN, I THINK PART OF THE STRATEGY HERE IS TO DO AS MUCH AS POSSIBLE.
00:59:33AND IT'S JUST VERY HARD TO CHALLENGE ALL OF THEM. AND, YOU KNOW, ON THE PODCAST
00:59:37SCRUTINY, WE TALKED ABOUT THAT LIKE WE PREDICTED THERE'D BE LIKE A ZILLION EXECUTIVE ORDERS
00:59:41KNOWING THAT NOT ALL OF THEM COULD BE CAUGHT LIKE, LIKE THE
00:59:45FILTER TO CATCH THEM ALL WAS GOING TO HAVE TO BE VERY POWERFUL. SO SOME WERE GOING TO GET
00:59:49THROUGH AND LIKE THEY'RE GOING TO DO CERTAIN THINGS LIKE KIND
00:59:51OF REWRITE THE LAWS IN WAYS THAT
00:59:54WERE MORE FAVORABLE TO THE PRESIDENT'S POSITION, NOT ALL OF THEM WERE GOING TO BE CHALLENGED, WHICH MEANT THAT
00:59:58THEY WOULD BECOME CONCRETIZED THE SUPREME COURT.
01:00:02I THINK ON THE SHADOW DOCKET. AND THEN THAT REALLY IS THE REAL
01:00:06PROBLEM. THEY'RE DOING A LOT OF THIS ON THE SHADOW DOCKET, WHICH DOESN'T
01:00:09MEAN THAT YOU KNOW, THE SHADOW DOCKET IS AN INTERIM CASE
01:00:12MANAGEMENT DOCKET THAT'S MEANT
01:00:15TO SORT OF DEAL WITH PROCEDURAL MATTERS. SO CASES, YOU KNOW, ORDERS OF
01:00:19LOWER COURTS GETS CHALLENGED TO THE SHADOW DOCKET ON THE SHADOW
01:00:22DOCKET TO THE COURT AND THE COURT TYPICALLY IS SUPPOSED TO
01:00:25USE THE SHADOW DOCKET TO JUST MAINTAIN THE STATUS QUO.
01:00:29SO IF, FOR EXAMPLE, YOUR CONTESTING AN EXECUTIVE ORDER
01:00:32DISMANTLING THE DEPARTMENT OF EDUCATION BY WITHHOLDING FUNDING TO THAT DEPARTMENT AND A LOWER
01:00:37COURT SAYS, YES, WE ARE GOING TO ENJOIN THE EXECUTIVE FROM DOING
01:00:40THAT AND THE GOVERNMENT RUNS TO THE SUPREME COURT, PLEASE HELP
01:00:44US DISMANTLE THE DEPARTMENT OF EDUCATION. TYPICALLY, WHAT WOULD BE
01:00:47EXPECTED OF THE COURT IS TO SAY, OKAY, WE'RE GOING TO LIKE KEEP
01:00:50THE INJUNCTION IN PLACE, LET THE
01:00:52STATUS QUO SIT WHILE THIS LITIGATION PERCOLATES AND MAKES
01:00:55ITS WAY UP TO US EVENTUALLY. THAT'S NOT WHAT THIS COURT IS
01:00:59DOING. INSTEAD, ON THE SHADOW DOCKET, WHICH HAS VERY LITTLE RULING ON
01:01:03VERY LITTLE BRIEFING, VERY LITTLE EXPLANATION, THEY'RE
01:01:06LETTING THE ADMINISTRATOR TO DO IT, SORT OF LIKE LIFTING THESE
01:01:09LOWER COURT INJUNCTION, ALLOWING THE ADMINISTRATION TO DO THIS. AND IT MAY BE THE CASE THAT ONCE
01:01:13A LITIGATION PERCOLATES BACK UP TO THEM, THEY'LL SAY, YOU KNOW
01:01:16WHAT, THIS IS UNCONSTITUTIONAL. YOU CAN'T DO THAT.
01:01:19BUT THE POINT OF IT IS THAT THE HORSE IS OUT OF THE BARN.
01:01:22YOU CAN'T UNRING THAT BELL. THEY WERE SUPPOSED TO USE THE
01:01:26SHADOW DOCKET TO MAINTAIN THE STATUS QUO. THE STATUS QUO IS THAT WE HAD A
01:01:29DEPARTMENT OF EDUCATION AND NOW
01:01:30WE DON'T.
01:01:34THINK WE HAVE TIME FOR. MAYBE ONE MORE QUESTION. LAST QUESTION.
01:01:37THIS PERSON SO NERVOUS.
01:01:43IT'S A SILLY QUESTION, BUT THE PRESSURE IS ON YOU, MY MAN. THIS IS THE LAST I MAKE IT GOOD
01:01:47KNOWING WHAT YOU KNOW ABOUT THE PAST 12, 16 YEARS OR SO.
01:01:50DO YOU THINK THE US HAS MOVED
01:01:52PAST THE POINT OF NEEDING A
01:01:54PRESIDENT AT ALL.
01:01:58THIS PRESIDENT OR I MEAN, I'M I
01:02:00MEAN, THIS PRESIDENT, BUT IN ALL I MEAN, I'M ALL FOR PRESIDENT.
01:02:05MELISSA BUT ABSOLUTE POWER.
01:02:07YEAH, WE ASK YOU, DO YOU THINK
01:02:11IT'S IMPORTANT TO THE FUTURE TO HAVE A PRESIDENT, ONE SINGULAR
01:02:15PERSON IN CHARGE OF ALL THESE DECISIONS?
01:02:17OR DO YOU THINK READ THE BOOK? HE'S NOT IN CHARGE OF ALL THESE
01:02:21DECISIONS. NOT NOT AS THINGS NOT SOUNDING LIKE.
01:02:23I MEAN, I THINK ME IT'S NOT A QUESTION OF LIKE, DO WE NEED A PRESIDENT LIKE, DO WE NEED A
01:02:28CONGRESS THAT WORKS? DO WE NEED COURTS THAT FOLLOW
01:02:31THE CONSTITUTION LIKE WE NEED? THESE WERE ALL OF THE THINGS
01:02:34THAT WERE CONTEMPLATE IT. AND YEAH, I KIND OF THINK WE NEED THEM ALL.
01:02:37AND AN EXECUTIVE THAT OBSERVES THE LIMITS THAT ARE PRESCRIBED
01:02:41AND A PEOPLE THAT KNOW WHAT
01:02:44THOSE LIMITS ARE, YOU KNOW, I'M LOOKING AT YOU, UNCLE LUKE, AND
01:02:48ARE PREPARED TO ENFORCE THEM AND
01:02:52REALLY SET UP AND ENFORCE THEM.
01:02:56WELL, LOOK, I'M GOING TO GIVE YOU THE LAST WORD, BUT I JUST
01:02:59WANT TO SAY THAT THIS IS A A GREAT BOOK AND IT IS AN
01:03:02UNEXPECTED PLEASURE. I'M JUST GOING TO ADMIT THAT IT IS.
01:03:06IF ANYTHING THAT YOU WRITE IS GREAT.
01:03:09I LOVE YOU ON THE PODCAST CONSTITUTION BOOK. OH, BUT THIS IS GREAT.
01:03:12THIS IS GREAT.
01:03:14AND THE THING THAT REALLY GETS
01:03:18ME ABOUT IT IS KIND OF WHAT WE WERE TALKING ABOUT BEFORE AND
01:03:21HOW WE AS A PEOPLE, I THINK TEND TO UNDERESTIMATE THE POWER THAT WE HAVE.
01:03:25AND YOUR TALKING ABOUT THE
01:03:29AMENDMENTS THAT COME OUT OF DISCUSSED OVER THE FIRST GILDED
01:03:32AGE ISN'T IS I THINK IN SOME
01:03:36WAYS A PRIMER, A DIRECTION THAT
01:03:40WE OUGHT TO BE THINKING ABOUT THAT YOU KNOW, WE DON'T SIMPLY
01:03:42HAVE TO TAKE THIS THAT THERE IS WITHIN THE CONSTITUTION THE
01:03:46ABILITY OF A FOCUSED PEOPLE TO
01:03:50MAKE SUBSTANTIVE CHANGE AND THOSE AMENDMENTS THAT YOU TALK
01:03:53ABOUT IN SOMETHING THAT, YOU KNOW, I MAY HAVE FORGOTTEN BUT
01:03:57WASN'T KIND OF FRONT OF MIND FOR ME AND TO TO READ THAT WAS
01:03:59REALLY KIND OF KIND OF TOOK ME BACK. AND SO. YEAH, WELL, THAT'S RIGHT. I MEAN, THE PEOPLE REBELLED
01:04:04AGAINST THE EXCESSES OF THE GILDED AGE AND PUT IN PLACE
01:04:08CONSTITUTIONAL MECHANISMS TO TRY TO MAKE SURE THAT IT DIDN'T HAPPEN AGAIN.
01:04:12AND WE ARE IN THAT MOMENT, IT SEEMS TO ME, AND WE TEND TO
01:04:15UNDERESTIMATE THE POWER THAT WE HAVE. AND I THINK WE NEED TO REMEMBER IN MINNEAPOLIS.
01:04:18YOU KNOW, GREG BOVINO DIDN'T LEAVE MINNEAPOLIS BECAUSE HE HAD
01:04:22ACCOMPLISHED HIS MISSION AT KRISTI NOEM WAS SATISFIED WITH
01:04:25WHAT HE DID OR TRUMP THOUGHT. AND YOU KNOW, STEPHEN MILLER FOR
01:04:28HE GOT HIS -- KICKED OUT BY THE PEOPLE.
01:04:33MINNEAPOLIS, ORDINARY PEOPLE DOING EXTRAORDINARY THINGS.
01:04:36THAT IS WITHIN THE CAPACITY OF ALL OF US TO DO.
01:04:40AND THIS BOOK IS A GOOD REMINDER THAT, IN FACT, THAT POWER STILL
01:04:44EXISTS WITHIN US. IT ACTUALLY SHOWS THE WAYS IN
01:04:47WHICH WE CAN ACCOMPLISH IT.
01:04:49I WOULDN'T EXPECT ANYTHING OTHER THAN GREAT FROM THIS THIS
01:04:53WONDERFUL YOUNG WOMAN, YOUNG,
01:04:57ALL WELL, YOU'RE YOUNG, YOU KNOW, YOU'RE DISTRESSINGLY YOUNG.
01:05:00SHE IS A GREAT PROFESSOR.
01:05:03SHE IS A GREAT STUDENT OF THE
01:05:07AMERICAN EXPERIENCE AND A PERSON I ALWAYS GO TO WHEN I HAVE THESE
01:05:12CONSTITUTIONAL QUESTIONS ABOUT WHAT'S POSSIBLE.
01:05:14SHE IS AN AMERICAN TREASURE.
01:05:17I WILL GIVE YOU THE LAST WORD.
01:05:25YOU ARE MY FOREVER AGE.
01:05:28I TRULY, TRULY.
01:05:35AM. ONE LAST STORY FROM THE BOOK.
01:05:38IT'S WE HAVE THE POWER THAN IS EVERY SINGLE ONE OF US WITHIN US.
01:05:42AND THE LAST AMENDMENT TO THE CONSTITUTION, THE 27TH, IT WAS
01:05:46ACTUALLY PUT FORTH WITH THE REST
01:05:48OF THE BILL OF RIGHTS AND IT WAS
01:05:50NEVER RATIFIED UNTIL A YOUNG COLLEGE STUDENT AT THE
01:05:53UNIVERSITY OF TEXAS AT AUSTIN, GREGORY WATSON, WAS WRITING A
01:05:56PAPER AND HE WANTED TO WRITE A PAPER ON AMENDMENTS THAT NEVER MADE IT.
01:05:59AND SO HE WROTE ABOUT THE SO-CALLED COMPENSATION AMENDMENT
01:06:03HE GOT TO SEE ON HIS PAPER.
01:06:05GREGORY WAS UNDETERRED.
01:06:07HE STARTED CALLING LEGISLATORS. HE CALLED A SENATOR FROM MAINE,
01:06:10THE MAINE SENATOR PUT HIM IN CONTACT WITH STATE LEGISLATURES
01:06:14ALL AROUND THE COUNTRY. AND GREG WATSON GOT TO WORK.
01:06:17AND HE GOT THE STATE
01:06:20LEGISLATURES TO PASS THIS AMENDMENT TO RATIFY IT.
01:06:23HE WAS HELPED OUT BY THE FACT
01:06:25THAT CONGRESS, THE AMENDMENT PROHIBITS CONGRESS FROM RAISING
01:06:28ITS COMPENSATION IN A TERM WHERE THEY'RE ALL IN OFFICE.
01:06:31BUT HE WAS AIDED BY A MASSIVE CHECK KITING SCANDAL AT THE
01:06:35HOUSE BANK. SO CONGRESS DID FACILITATE THIS IN SOME WAY, BUT HE MANAGES TO
01:06:39GET THIS PASSED AND GREG WATSON,
01:06:42NOT ONLY CHANGES THE
01:06:46CONSTITUTION, HE GETS HIS GRADE CHANGED BECAUSE THE UNIVERSITY
01:06:48OF TEXAS AT AUSTIN IS LIKE, WAIT A MINUTE.
01:06:52AND THEY CHANGE HIS C TWO AND A
01:06:54SO IF YOU EVER THINK IT'S NOT
01:06:58IMPOSSIBLE, IF YOU THINK IT'S IMPOSSIBLE, I'LL GREG WATSON IS
01:07:01HERE TO REMIND YOU EVERYTHING. ONE OF US HAS THE POWER WITHIN
01:07:05US TO BE A CONSTITUTIONAL CHANGE MAKER.
01:07:07THANK YOU SO.
01:07:11READ THE BOOK. TELL YOUR FRIENDS ABOUT IT.
01:07:15THIS IS A GOOD, GOOD SUMMER. READ ALL RIGHT.
01:07:19TELL YOUR FRIEND ABOUT IT. I'M GOING TO TELL MY FRIEND ABOUT IT. YES. YES.
01:07:23ALL RIGHT. THANK YOU ALL FOR COMING.
01:07:26DID YOU KNOW YOU CAN WATCH BOOK
01:07:29TV ONLINE ANYTIME AT BOOK TV DOT ORG?
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01:07:54AND THE FORD FOUNDATION.
Data courtesy of The GDELT Project (gdeltproject.org), from the Internet Archive TV News Archive. Film strip and transcript are GDELT's, rehosted here under their terms of use, which permit it with this citation.