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
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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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