Latest / rationally BASED / Episode 14 | Constitutional Commandments

Transcript

Episode 14 | Constitutional Commandments · rationally BASED

0:00
SPEAKER_00: Welcome back to Rationally Based, a podcast about law and politics on the edge.
0:03
SPEAKER_00: Catherine, what's on deck for today?
0:05
SPEAKER_02: Well, first, another assassination attempt against Trump will revisit the legal issues surrounding a White House ballroom and bring you the latest developments.
0:13
SPEAKER_02: Second, Democrats have some plans for when they get in power.
0:17
SPEAKER_02: Is that plan still more lawfair?
0:20
SPEAKER_02: Third, can Texas command schools to display the Ten Commandments?
0:24
SPEAKER_02: Our most based circuit says yes.
0:26
SPEAKER_00: Let's dive in.
0:40
SPEAKER_00: I'm your host, Elon Warman, a law professor at the University of Minnesota Law School.
0:44
SPEAKER_02: And I'm Catherine Johnson with Center of the American Experiment.
0:46
SPEAKER_00: As always, hit that like and subscribe button.
0:48
SPEAKER_00: Catherine, where are we starting?
0:50
SPEAKER_00: The assassination attempt?
0:51
SPEAKER_02: Yes, we have to, because a lot of talk, once again, about the ballroom.
0:56
SPEAKER_02: Because this event that took place, apparently, there's really only one place in DC where they can hold an event with this many people.
1:04
SPEAKER_02: I didn't see exactly how many people were there, but it's thousands.
1:07
SPEAKER_02: It's huge.
1:08
SPEAKER_02: And it's a hotel.
1:09
SPEAKER_02: It has, you know, lots of entrances and exits.
1:11
SPEAKER_02: It's not super secure.
1:13
SPEAKER_00: It's the Washington Hilton.
1:14
SPEAKER_00: And I think it can take up to 3,500 people or something.
1:17
SPEAKER_00: So it's huge.
1:17
SPEAKER_00: And it's where Reagan was shot.
1:19
SPEAKER_02: Yes.
1:20
SPEAKER_02: So obviously, this is a problem.
1:22
SPEAKER_02: The president needs a secure place where he can attend events.
1:26
SPEAKER_02: And so, hello, enter the ballroom he's trying to build.
1:30
SPEAKER_00: Well, friend of the pod, Adrian Vermule, a professor at Harvard Law School, had this great ex post, which we will show to our uh audience here.
1:39
SPEAKER_00: And I'll read it.
1:40
SPEAKER_00: He says on April 16th, in his most recent opinion in the ongoing litigation over the construction of the White House ballroom, Judge Leon of the Federal District Court in DC wrote: The fact that the ballroom is planned to include security features such as bulletproof windows and a drone-proof roof does not bring the structure within the scope of the national security exception.
1:58
SPEAKER_00: While these features may well be beneficial, defendants have not provided any national security justification for why these features must be installed immediately, such that they should be excluded from the scope of the injunction.
2:11
SPEAKER_00: I don't know.
2:12
SPEAKER_00: What do you think?
2:12
SPEAKER_02: Aaron Powell Oh, I think we now have an immediate threat.
2:16
SPEAKER_02: When when was this?
2:17
SPEAKER_02: That the April 16th, so right before this happened.
2:21
SPEAKER_02: I mean, hopefully they understand now the threat to Donald Trump's life is immediate and constant.
2:26
SPEAKER_00: Now look, this puts me in a bit of a tough spot because I'm not usually one to oppose what the Trump administration is doing.
2:34
SPEAKER_00: In fact, I think part of the reason we have the Rationally Based Podcast is to provide an intellectual defense of a lot of the Trump agenda and a lot of what Trump is doing.
2:43
SPEAKER_00: Not for the sake of defending Trump, but because we think it's defensible, okay?
2:47
SPEAKER_00: But once in a while, I actually think that what he's doing probably exceeds legal authority.
2:53
SPEAKER_00: And uh I I know, Catherine, I know.
2:55
SPEAKER_00: She d I'm not based enough for you on this one issue, but I just in this one case, I don't think there's legal authority to build the ballroom.
3:04
SPEAKER_02: Okay.
3:04
SPEAKER_02: No, but but Trump makes a great point.
3:07
SPEAKER_02: He had a post saying, and I think you did point this out in our episode of the ballroom, that there are some problems with this lawsuit.
3:14
SPEAKER_02: For example, this woman doesn't have standing.
3:18
SPEAKER_02: Here's Trump's tweet.
3:19
SPEAKER_02: Let me read it in full, or truth social, rather.
3:21
SPEAKER_02: What happened last night is exactly the reason that our great military, secret service, law enforcement, and for different reasons, every president for the last 150 years have been demanding that a large, safe, and secure ballroom be built on the grounds of the White House.
3:35
SPEAKER_00: I love it.
3:35
SPEAKER_00: I love the hyperbole.
3:36
SPEAKER_00: Every president since Abraham Lincoln has been demanding a ballroom.
3:40
SPEAKER_00: Okay, that's okay, maybe if they were asked, maybe.
3:42
SPEAKER_02: This event would never have happened with the military top secret ballroom currently under construction at the White House.
3:48
SPEAKER_02: It cannot be built fast enough.
3:49
SPEAKER_02: While beautiful, it has every highest level security feature there is.
3:53
SPEAKER_02: Plus, there are no rooms sitting on top for unsecured people to pour in, and is inside the gates of the most secure building in the world, the White House.
4:01
SPEAKER_02: The ridiculous ballroom lawsuit brought by a woman walking her dog who has absolutely no standing to bring such a suit must be dropped immediately.
4:08
SPEAKER_02: Nothing should be allowed to interfere with it as with its construction, which is on budget and substantially ahead of schedule.
4:15
SPEAKER_02: Thank you for this, your attention to this matter.
4:17
SPEAKER_00: So I'm glad that Trump has been read into Article III of the Constitution, which requires actual cases and controversies for judges to get involved.
4:24
SPEAKER_00: A case or controversy, you'll remember from various episodes of the Rationally Based Podcast, we talk a lot about it, requires an actual injury that is concrete and imminent and particularized, and not just sort of a generalized grievance.
4:37
SPEAKER_00: Because if a generalized grievance were sufficient to get in court, then courts would just constantly sit in judgment over executive and legislative policies.
4:44
SPEAKER_00: And they can't do that.
4:45
SPEAKER_00: They're not a council of revision.
4:47
SPEAKER_00: The founders rejected a council of revision, just this roving commission to inquire into executive and legislative wrongdoing.
4:54
SPEAKER_00: And so look, I I agree that there isn't standing probably in that.
5:01
SPEAKER_00: Yeah.
5:02
SPEAKER_00: Which is kind of funny.
5:04
SPEAKER_00: I I'd love to take that deposition.
5:06
SPEAKER_00: When did you last walk your dog in front of the ballroom?
5:08
SPEAKER_00: Like do you dislike other neoclassical buildings?
5:11
SPEAKER_00: Which other buildings do you dislike?
5:12
SPEAKER_00: Are you actually injured by the dog feeling of the sort of how does your dog feel?
5:16
SPEAKER_00: Yeah.
5:16
SPEAKER_00: So I mean that would be like a really fun deposition to take.
5:19
SPEAKER_00: But so this might be one of those situations where it does actually exceed lawful authority currently to build the ballroom, but there's nothing we can do about it.
5:26
SPEAKER_00: And there are other situations like that.
5:28
SPEAKER_00: You know, Congress, um, almost unanimously, I think, uh certainly with vast majorities in both houses of Congress, passed that TikTok ban, which required Trump, um the executive branch, to basically ban TikTok until there was a sale from the Chinese company ByteDance to some American company.
5:47
SPEAKER_00: And there was a deadline of 90 days.
5:48
SPEAKER_00: And Trump, through executive order, just constantly um expand extended uh the delay, right?
5:55
SPEAKER_00: He just delayed um the deadline for actually enforcing this.
5:59
SPEAKER_00: That's probably unlawful, right?
6:00
SPEAKER_00: Congress very specifically said you've got 90 days, you've got to prohibit it.
6:03
SPEAKER_00: And he kept extending that.
6:05
SPEAKER_00: There was no basis in the statute to do it.
6:07
SPEAKER_00: But who has standing?
6:08
SPEAKER_00: Who has standing to enforce a TikTok pan, right?
6:11
SPEAKER_00: Who's hurt by allowing TikTok to continue?
6:14
SPEAKER_00: So there was no lawsuit ever brought in that situation.
6:17
SPEAKER_02: That seems like kind of a problem.
6:19
SPEAKER_02: Isn't everyone kind of hurt by the TikTok situation?
6:22
SPEAKER_02: Trevor Burrus, Jr.
6:22
SPEAKER_00: Well, and if they are, then it's a generalized grievance.
6:24
SPEAKER_00: And it's it's it's you know, the remedy for generalized grievances is the political process, right?
6:29
SPEAKER_00: It's not uh the judicial process.
6:31
SPEAKER_00: So here, you know, look, I I stick by my guns, so to speak.
6:35
SPEAKER_00: Maybe that's not the right word to use uh in the context of this conversation.
6:39
SPEAKER_00: But look, again, the statute, which we talked about last time, just uh for our new listeners, um the statute gives a small amount of appropriations, okay, which already is an indication that, like, oh, Congress was not anticipating a big ballroom.
6:53
SPEAKER_00: Even though it's private funds, that's not the point.
6:54
SPEAKER_00: The point is that Congress was not anticipating big uh alterations when it enacted this general statute, giving the president the right to um pay for the care, maintenance, repair, alteration, refurnishing, improvement, air conditioning, heating, and lighting, right?
7:13
SPEAKER_00: Of the White House complex, right?
7:15
SPEAKER_00: And so the theory here is like, Catherine, what you thought this could be an improvement or an alteration?
7:20
SPEAKER_02: It could be an improvement.
7:21
SPEAKER_02: It would definitely be an improvement.
7:23
SPEAKER_02: It could be an alteration.
7:24
SPEAKER_02: But you taught me that in the context of the way it's written, probably what they meant was not tearing down a wing and building a whole new wing, because they mentioned things like the HVAC system.
7:36
SPEAKER_00: Yeah, and so there's a canon of interpretation, which has a Latin name, which you made fun of at the time, which we can anglicize no sidor associis, also known as the neighboring words canon, which is this idea that ordinarily words take on the meanings of their associates, right?
7:50
SPEAKER_00: So again, like when you say like the environmental protection agency can regulate rivers, streams, and banks, it doesn't mean Wells Fargo, right?
7:58
SPEAKER_00: It means river banks, right?
8:00
SPEAKER_00: Not financial banks.
8:01
SPEAKER_02: It's just context, but lawyers have to have like a Latin word for it.
8:05
SPEAKER_00: Yeah, that's why we get paid the big bucks.
8:06
SPEAKER_00: 800 bucks an hour.
8:07
SPEAKER_00: Like, anyway, well, that's cheap these days, actually.
8:09
SPEAKER_00: Yeah, really.
8:10
SPEAKER_00: Um but look, so I just, you know, it's it's smug improvement, alteration, it's smuggled in uh among words like air conditioning, heating, lighting, again, in the context of small appropriations, probably no legal authority.
8:22
SPEAKER_00: So I'm all on board with Randy Fine's um ex post, which we will also um put up for our listeners.
8:29
SPEAKER_00: So Randy Fine said, I'm filing, and he's a congressman.
8:34
SPEAKER_00: From where?
8:34
SPEAKER_00: New York, I think.
8:36
SPEAKER_00: I don't know.
8:36
SPEAKER_00: I am filing the Build the Ballroom Act to create explicit statutory authority for a White House ballroom.
8:43
SPEAKER_00: While the lawsuits attempting to stop this privately funded gift to the court to the country are nonsense, last night makes it clear that we need it and we need it now.
8:51
SPEAKER_00: I look forward to Democrats repudiating their violent rhetoric, I love this, against President Trump by co-sponsoring and supporting this bill.
8:58
SPEAKER_00: Mr.
8:59
SPEAKER_00: President, build away.
9:00
SPEAKER_00: And I'm build away.
9:01
SPEAKER_00: I'm all for that because look, historically, Congress, if it took its responsibilities seriously, uh it it, you know, so Congress, to be clear, Congress has power under the necessary and proper clause to pass all laws which are necessary and proper for carrying into execution not only Congress's own powers, but also all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.
9:30
SPEAKER_00: So this gets a bit into our next topic.
9:32
SPEAKER_00: But Congress is responsible for establishing a judicial system.
9:36
SPEAKER_00: Congress is responsible for establishing how many judges there are gonna be, how many justices on the Supreme Court there are gonna be.
9:43
SPEAKER_00: Congress is responsible for establishing an executive branch, for establishing a White House staff, for establishing appropriations for Supreme Court law clerks.
9:52
SPEAKER_00: So Congress, if it were to take its responsibility seriously, would pass a law providing uh the needed authorization to build this highly secure um compound.
10:02
SPEAKER_02: And unfortunately, Congress can't do anything, and Congress has way too many.
10:07
SPEAKER_02: I feel like you're listing all these things.
10:09
SPEAKER_02: They have too many things going on.
10:10
SPEAKER_02: We need them to do fewer things.
10:12
SPEAKER_02: Uh we should delegate some of these responsibilities elsewhere.
10:14
SPEAKER_00: Aaron Powell Like to the president through a statute.
10:16
SPEAKER_00: Okay, so fair enough.
10:17
SPEAKER_00: But but this statute that they already enacted, I don't think does it.
10:22
SPEAKER_00: All right.
10:22
SPEAKER_00: So I am less based on this issue, I suppose.
10:26
SPEAKER_00: Um but look, I think Congress can enact um this statute, I think it would be good, like a good signal that Congress can actually do something once in a while.
10:36
SPEAKER_00: Trevor Burrus, Jr.
10:36
SPEAKER_02: Yeah, and for the common good.
10:37
SPEAKER_02: I mean, look, the ballroom doesn't just help President Trump, it helps all of the presidents to come after him.
10:42
SPEAKER_02: If we really have a violence issue on both sides, like the Democrats like to say, which we all know is BS, of course.
10:49
SPEAKER_02: Um, but if we really have a violence issue on both sides, then they should want the ballroom just as much as Trump does.
10:54
SPEAKER_00: Aaron Powell By the way, before we move to our next topic, uh obviously I'm still like a little under the weather.
10:59
SPEAKER_00: You could you could tell.
11:00
SPEAKER_00: Turns out I have pneumonia.
11:01
SPEAKER_00: Uh so um which explains the why Catherine knows why you're not actually getting sick, because it's bacterial and I have antibiotics now, so I'm I'm feeling better, but still have a little bit of a cough.
11:11
SPEAKER_02: So the next episode will be a better listening experience for everyone.
11:16
SPEAKER_00: I should be better by the next episode.
11:18
SPEAKER_00: Uh yes.
11:19
SPEAKER_00: So I know it's been three episodes and running now that I've um not been my usual uh self.
11:24
SPEAKER_00: So um thank you again to the audience for indulging my uh slight uh weird voice and and cough.
11:30
SPEAKER_00: But okay, so that's the latest on the ballroom.
11:32
SPEAKER_00: Um Democrat lawfare plans, is that what's next?
11:35
SPEAKER_02: Yeah, I think we should move on to this interview that James Carville did.
11:40
SPEAKER_02: Um, basically giving us all the plans that Democrats have if and when they finally get power.
11:46
SPEAKER_02: James Carville, of course, is is kind of a he's a Democrat strategist from the Obama era.
11:52
SPEAKER_02: This was at Politicon.
11:54
SPEAKER_02: Um here's what he said.
11:55
SPEAKER_00: He said it's And remember, Catherine, we're a family-friendly podcast, so you can't read this all.
11:59
SPEAKER_00: Such a good point.
12:00
SPEAKER_02: If the Democrats win the presidency and both houses of Congress, I think on day one, they should make Puerto Rico and DC a state, and they should expand the Supreme Court to 13.
12:10
SPEAKER_02: F it, eat our dust.
12:13
SPEAKER_00: I mean, that's kind of funny.
12:15
SPEAKER_00: Eat our dust, like you already dropped the F bomb.
12:17
SPEAKER_00: Why do you need to eat our dust?
12:18
SPEAKER_00: Like I feel like eat uh eat our dust is like the nice like uh word or phrase to replace the f-bomb, like you know, pound sand or go fly a kite or something like that.
12:29
SPEAKER_00: But you already dropped the f-bomb, so why do you need to say eat it, you know, after which I think is kind of hilarious.
12:34
SPEAKER_00: But anyway, go on.
12:35
SPEAKER_02: The craziest thing about this to me is like James Carville is known for being sort of a moderate voice on the left.
12:41
SPEAKER_02: I mean, he's a very serious Democrat, but he's always been reasonable, reasonable in talking about what he thinks the issues that Democrats should run on are.
12:50
SPEAKER_02: He knows that some of the most insane far-left people are not great for the average Democratic voter.
12:59
SPEAKER_02: So it's interesting to hear him say these things that I would have said uh are really pretty radical, making two new states and um why stop there, by the way.
13:09
SPEAKER_02: Yeah, how many why not?
13:11
SPEAKER_00: Why not divide New York or something?
13:14
SPEAKER_00: Right.
13:15
SPEAKER_02: But okay, two new states.
13:16
SPEAKER_02: And then expanding the Supreme Court.
13:18
SPEAKER_02: He wants to pack the court.
13:19
SPEAKER_02: He just said those things out loud.
13:20
SPEAKER_02: So let's start with the court packing.
13:22
SPEAKER_02: Elon, does the Constitution not say anything about this?
13:25
SPEAKER_02: Can the Democrats just pack the court if they want to?
13:28
SPEAKER_00: Okay.
13:28
SPEAKER_00: This is a very um tough and interesting topic.
13:31
SPEAKER_00: So it goes back to the point I made about the necessary and proper clause.
13:35
SPEAKER_00: So Article um uh one of the Constitution, which establishes Congress and its powers, section eight um has an enumeration of powers again, says Congress has power power, shall have power to make all laws which shall be necessary and proper for carrying into execution not only its powers, but all the other powers vested in the Constitution and the other departments, including the judiciary.
13:55
SPEAKER_00: So Congress is ultimately responsible for structuring and effectuating the judiciary.
14:00
SPEAKER_00: Article three of the Constitution only says this.
14:04
SPEAKER_00: Okay, its first sentence says the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.
14:17
SPEAKER_00: What does this mean?
14:18
SPEAKER_00: It means there's no fixed number of Supreme Court judges.
14:21
SPEAKER_00: There's there's no fixed number of lower federal courts.
14:25
SPEAKER_00: There doesn't even have to be federal courts at all.
14:28
SPEAKER_00: There could just be one Supreme Court with a chief justice.
14:30
SPEAKER_00: I guess they could just have one judge as like the Supreme Court who would hear appeals from the state courts or something like that.
14:36
SPEAKER_00: So it's up to Congress to do all this.
14:38
SPEAKER_00: Now, this isn't just important for purposes of like court packing and the Supreme Court.
14:43
SPEAKER_00: It's actually, in my view, far more important and pressing for the lower courts.
14:48
SPEAKER_00: Did you know that we have not actually authorized, Congress has not established new federal district judgeships since 2003?
14:55
SPEAKER_02: And that's a thing they would do commonly before that.
14:57
SPEAKER_00: Yeah.
14:58
SPEAKER_00: They they absolutely every decade or so you would look, the population of the United States grows.
15:03
SPEAKER_00: The caseloads of the federal courts grow.
15:05
SPEAKER_00: And so you need to expand the lower federal courts.
15:08
SPEAKER_00: You need to authorize new judgeships.
15:10
SPEAKER_00: Because you can't file a lawsuit and then two years later have a district court decide it, right?
15:15
SPEAKER_00: The Ninth Circuit historically, although they've reduced the time, but historically, uh, it would take two, three years for an appeal for you just to be resolved.
15:25
SPEAKER_00: That's way too much time.
15:26
SPEAKER_00: We need more district judges.
15:27
SPEAKER_00: We need more circuit appellate court judges.
15:29
SPEAKER_00: I know that's funny because you know we say district judges are a threat to the Republic on this podcast.
15:34
SPEAKER_02: And now we need more.
15:35
SPEAKER_00: And they and they are, but like 99% of what they do is actually just resolving normal disputes between people.
15:42
SPEAKER_00: It's 1%, and 1%'s a lot, you know.
15:44
SPEAKER_00: Um that gets very political and politically salient.
15:47
SPEAKER_00: But like so it's been 23 years, and it shows your it goes to your point, Catherine, that Congress doesn't do anything, right?
15:54
SPEAKER_00: It it doesn't it but but here Why aren't they doing that though?
15:56
SPEAKER_02: Is it because they don't want uh Okay, so if you they approved more federal judges, wouldn't the same party in power get to appoint them?
16:04
SPEAKER_02: Or how does that work?
16:05
SPEAKER_00: Which is exactly why the other side doesn't want to vote for it, right?
16:09
SPEAKER_00: So the so the there's a first mover problem, right?
16:11
SPEAKER_00: As soon as you authorize new judgeships, it's whoever controls the White House and the Senate will appoint to those judgeships.
16:17
SPEAKER_01: Yeah.
16:18
SPEAKER_00: So the way you do this, and actually I feel bad uh attacking Congress here, because Congress did actually solve this problem, and it was Biden who vetoed it, even though it was unanimously enacted in the Senate.
16:27
SPEAKER_00: So in 2024, um Congress unanimously, uh the Senate unanimously and with overwhelming support in the House passed a judge's bill that basically said over the next 10 years, this is the way to do it, right behind a veil of ignorance.
16:40
SPEAKER_00: Over the next 10 years, every two years, we're gonna authorize another eight to eleven judgeships.
16:47
SPEAKER_00: And over ten years, uh it amounts to like 66 judges or something like that.
16:52
SPEAKER_00: And so the theory is um if it had been passed and signed in 2024, it means Biden would have gotten eight new judgeships to fill.
17:00
SPEAKER_00: Two years later, it would have been Trump and the Republicans, right?
17:04
SPEAKER_00: Which is what we have now.
17:05
SPEAKER_00: Two years after that, who knows, right?
17:06
SPEAKER_00: Who knows who will control the Senate?
17:07
SPEAKER_00: I mean, Trump will still be in the White House, and that's how you would do it, right?
17:10
SPEAKER_00: You would stagger it over a 10-year period.
17:13
SPEAKER_00: So you don't so to give both parties a chance to occupy the White House.
17:17
SPEAKER_02: Biden was the one who didn't like that.
17:18
SPEAKER_02: Trevor Burrus, Jr.
17:19
SPEAKER_00: Biden vetoed it because why?
17:22
SPEAKER_00: Why?
17:23
SPEAKER_00: I'm cynical.
17:24
SPEAKER_00: The only possible explanation is because Trump had won the election.
17:27
SPEAKER_00: And it was December 2024, and he vetoed it because although the whole point of this was to stagger it, he didn't want the Republicans to have the first volley, right?
17:38
SPEAKER_00: Which again, at the whole point of staggering, is like someone's gonna get the first volley.
17:43
SPEAKER_00: Deal with it.
17:44
SPEAKER_00: Just deal with it.
17:45
SPEAKER_00: But he came up with some cockamami theory as to why we didn't need it, because there were still outstanding nominations, which of course there are still outstanding judicial nominations.
17:54
SPEAKER_00: It doesn't solve the problem, it just exacerbates the problem, right?
17:57
SPEAKER_00: And so shame on by on Joe Biden.
17:59
SPEAKER_00: Like they finally passed, Congress finally did something in a bipartisan way that was uh you know not self-interested, that was actually outward looking toward the judiciary.
18:09
SPEAKER_00: And Joe Biden couldn't get over his political.
18:13
SPEAKER_00: Of course, Joe Biden probably didn't know what was going on.
18:15
SPEAKER_00: So it was this young, progressive, you know, staffers who probably told them veto this.
18:21
SPEAKER_02: That's really sad because, like you say, you know, 99% of the cases that they they have are just normal disputes amongst people, right?
18:28
SPEAKER_02: So it's really something that could have impacted a lot of people for the better.
18:33
SPEAKER_02: Um, the other thing I've heard conservatives argue for is breaking up the Ninth Circuit, the one that's huge over California, and I think it even has like Guam and some other places.
18:44
SPEAKER_02: Um it that would take an act of Congress, too.
18:47
SPEAKER_02: Why wouldn't we just do that as well?
18:49
SPEAKER_02: Because they have all kinds of, they have a whole backlog of cases, right?
18:52
SPEAKER_00: Yes.
18:52
SPEAKER_00: So there are a couple issues with the Ninth Circuit.
18:55
SPEAKER_00: One, historically, it was super liberal and really obnoxious.
18:58
SPEAKER_00: And so it it when you have a very liberal circuit that's very large, okay, it covers like the whole Western United States, California, uh, Oregon, Washington, Hawaii, Alaska, Nevada, Arizona, Montana.
19:10
SPEAKER_00: I mean, like, it's a huge our favorite circuit, the Fifth Circuit, only as Texas, Mississippi, Louisiana, right?
19:15
SPEAKER_00: I mean, like for comparison.
19:17
SPEAKER_00: And so it was crazy.
19:18
SPEAKER_00: And so when you had really liberal judges controlling the Ninth Circuit, they would establish policy, right?
19:25
SPEAKER_00: They would make all these crazy constitutional rulings for the entire Western United States.
19:30
SPEAKER_00: And so, and to be clear, by the Ninth Circuit, we mean a panel of three judges, right?
19:34
SPEAKER_00: A panel of three judges drawn from the entire Western United States would have some crazy ruling like the Grants Pass case, which we talked about last time, home public encampments, where they said there was an Eighth Amendment right to camp in public.
19:48
SPEAKER_00: Like it which it would be cruel and unusual punishment to prohibit you from camping in public, which is utterly insane.
19:54
SPEAKER_00: That was the Ninth Circuit.
19:55
SPEAKER_00: That was the Ninth Circuit.
19:57
SPEAKER_00: And so when you have all of these liberal judges in the Ninth Circuit making policy for a vast major number of states uh in the Western United States, of course you want to break it up so that the judges can do less damage, right?
20:07
SPEAKER_00: If so you want to do something crazy, let it just control California, right?
20:11
SPEAKER_00: Um and then another problem, of course, is that you know, so most cases on appeal are heard by three judge panels, but you can then ask for rehearing on the full court.
20:20
SPEAKER_00: Well, the full court is 50 judges.
20:22
SPEAKER_00: It's like 26 active judges and like 24 or something senior judges.
20:26
SPEAKER_00: Well, you can't have 50 people sitting as an en bond court, you know, like the Fifth Circuit, I think, is like 14 judges or whatever.
20:33
SPEAKER_02: So they would just say they all have to get in the same room.
20:35
SPEAKER_02: Right.
20:35
SPEAKER_00: And so what they would do is 11 judges would be randomly selected.
20:38
SPEAKER_00: Okay, well, that's not an on bond court.
20:39
SPEAKER_00: That's just like another panel.
20:40
SPEAKER_00: It's way too big.
20:41
SPEAKER_00: But now the the the movement to to break up the Ninth Circuit has has softened a bit because Trump has appointed so many judges to the Ninth Circuit.
20:49
SPEAKER_00: Oh, interesting.
20:50
SPEAKER_00: Since they got rid of the blue slip um for Court of Appeals uh nominees.
20:54
SPEAKER_00: And so now they're kind of like, I don't know, we kind of like the Ninth Circuit now, right?
20:58
SPEAKER_00: It's the Fourth Circuit that's like the new Ninth Circuit.
21:00
SPEAKER_00: Oh, yeah.
21:00
SPEAKER_00: Because they're crazy.
21:01
SPEAKER_00: Um that's like Virginia, North Carolina, and I think it covers South Carolina.
21:05
SPEAKER_01: Oh, interesting.
21:06
SPEAKER_00: Uh and Maryland, maybe not South Carolina, but um it might cover South Carolina as well.
21:10
SPEAKER_00: Um so the Mid-Atlantic, the historic Mid-Atlantic.
21:13
SPEAKER_00: But anyway, okay, so again, that would require an act of Congress.
21:16
SPEAKER_00: What about the Supreme Court justices?
21:18
SPEAKER_02: Aaron Powell Well, yeah, it if it doesn't say how many justices there will be on the Supreme Court.
21:24
SPEAKER_02: What I learned looking into this for this episode is historically the number of justices depended on how many circuit courts there were.
21:31
SPEAKER_02: So can you explain that?
21:32
SPEAKER_02: And that's not still the case, or that is?
21:35
SPEAKER_00: So historically, and we talked about this um on our first episode when we talked about that crazy case um where a former California Supreme Court justice tried to assassinate a as a US Supreme Court justice um while that justice was riding circuit.
21:51
SPEAKER_00: What does this mean?
21:51
SPEAKER_00: Well, historically, there were no circuit courts of appeal.
21:54
SPEAKER_00: Uh there were district judges and there were Supreme Court judges.
21:57
SPEAKER_00: And then a circuit court would uh be Composed of the district judge and the Supreme Court Justice for that geographic circuit, for that area.
22:06
SPEAKER_00: And so the Supreme Court justices would literally ride circuit.
22:09
SPEAKER_00: They would get on horseback and they would go to the courthouses in their geographic territory.
22:14
SPEAKER_02: Is that why they call it riding circuit?
22:16
SPEAKER_02: Because they're on horseback?
22:16
SPEAKER_00: They were on horseback.
22:17
SPEAKER_00: They were literally riding, horseback riding.
22:20
SPEAKER_00: Trevor Burrus, Jr.
22:20
SPEAKER_02: Wait, if you're in the Ninth Circuit, were you horseback riding from the Ross?
22:23
SPEAKER_00: Well, at that point there were trains.
22:26
SPEAKER_00: And so he was Oh, by the time we got to the Ninth Circuit, by the time we expanded.
22:30
SPEAKER_00: So Justice Field was attacked by the Cal former Justice of the California Supreme Court on the train, I think from LA to San Francisco.
22:37
SPEAKER_00: But he was riding circuit, but really he was just taking a train ride.
22:41
SPEAKER_00: And so the way it historically worked, there were six justices, I think, to begin with, and they were each assigned to a geographic region.
22:48
SPEAKER_00: They each had a circuit and they had to ride circuit.
22:51
SPEAKER_00: And then when uh we expanded westward, got some new states.
22:55
SPEAKER_00: I think Kentucky came in.
22:56
SPEAKER_00: Um there was a seventh circuit, a new circuit made for the Western states.
23:00
SPEAKER_00: And so you got a seventh justice who would be responsible for that new circuit.
23:03
SPEAKER_00: I think that was 1807.
23:05
SPEAKER_00: And then in 1830.
23:08
SPEAKER_00: Yeah, until then.
23:09
SPEAKER_01: Doesn't that cause issues?
23:10
SPEAKER_00: Um well, but like big tide?
23:12
SPEAKER_00: Yeah, but back then it was largely unanimous.
23:15
SPEAKER_00: Oh, happier times.
23:16
SPEAKER_00: Everyone got along.
23:17
SPEAKER_00: Well they would all write Siriatum, they would all write their own opinions, so there'd be six opinions until like the Marshall Court, but generally like they weren't disagree- disagreeing very much.
23:26
SPEAKER_00: There was some disagreement.
23:27
SPEAKER_00: Um but yeah, uh it's ideal is to have an odd number.
23:30
SPEAKER_01: I would think.
23:44
SPEAKER_00: And then it went up to ten at one point during the Civil War, and then they tried to attrition it by um waiting for justices to retire, and then they abolished the seats of the justices because they didn't want Andrew Johnson.
23:56
SPEAKER_02: Aaron Ross Powell So there were ten Supreme Court justices at one point.
23:59
SPEAKER_00: Aaron Powell Well, I think there were ten authorized seats.
24:01
SPEAKER_00: I can't remember if actually there it would there was a full panoply of them.
24:05
SPEAKER_00: But very quickly they actually got rid of seats because they didn't want because Lincoln was assassinated and they didn't want Andrew Johnson filling seats on the Supreme Court and ruining Reconstruction, which the Supreme Court already did ruin Reconstruction.
24:16
SPEAKER_00: They didn't need Johnson appointees to do that, it turned out.
24:19
SPEAKER_00: And then finally they're like, okay, after Andrew Jackson was gone, Andrew Johnson, excuse me, Ulysses Grant was president.
24:25
SPEAKER_00: 1869, they're like, okay, let's fix the court at nine.
24:29
SPEAKER_00: And they they didn't quite abolish circuit writing, but they diminished it greatly.
24:33
SPEAKER_00: And by 1911-ish, I think, they got rid of circuit writing entirely.
24:38
SPEAKER_00: And so since 1869, there's no need to expand the court because they're not riding circuit anymore, right?
24:44
SPEAKER_00: They created the circuit courts.
24:46
SPEAKER_00: And so now there are permanent appellate courts.
24:49
SPEAKER_00: So you don't need the Supreme Court justices to ride circuit and join the district judges.
24:54
SPEAKER_00: So we have 11 circuits today, plus the federal circuit and the DC circuit.
24:59
SPEAKER_00: So if you count, I guess that, so it's like 13 circuits, but two are in DC, so it's not really writing circuit.
25:05
SPEAKER_00: Let's say 11 circuits.
25:06
SPEAKER_00: You don't need 11 justices because they're not writing circuit.
25:09
SPEAKER_00: Yeah.
25:09
SPEAKER_00: There are still circuit justices.
25:11
SPEAKER_00: So like so each justice actually gets a circuit.
25:14
SPEAKER_02: For what purpose?
25:15
SPEAKER_00: Um emergency appeals and emergency orders.
25:18
SPEAKER_00: So like um, I think Alito has the Fifth Circuit, for example.
25:22
SPEAKER_00: So of course Alito gets the most based circuit of just kind of like why, but very fascinating.
25:27
SPEAKER_00: Um and so like emergency orders um go up to the individual circuit justice who can then kind of refer it to the full court if necessary.
25:34
SPEAKER_00: But the point is you don't need to expand the court, right?
25:38
SPEAKER_00: Um, since 1860.
25:39
SPEAKER_00: So it's been like look, a small C constitutional principle that the Supreme Court is now is now nine.
25:44
SPEAKER_00: You don't need to manipulate it for political purposes.
25:48
SPEAKER_02: Well, and of course, FDR did try to do this already.
25:52
SPEAKER_02: Um, he tried to pack the court, he proposed a plan that would allow the president to nominate an additional judge to the court.
25:58
SPEAKER_02: And I forgot this, but it was for every sitting judge who had served for at least 10 years, had reached the age of 70, and did not step down within six months.
26:07
SPEAKER_02: So he was kind of trying to push people out.
26:09
SPEAKER_02: If approved by Congress, the legislation would have given the president up to six new appointments to the Supreme Court.
26:15
SPEAKER_02: Obviously, he was unsuccessful.
26:17
SPEAKER_02: Congress was not on board with that plan, um, refused to pass it.
26:21
SPEAKER_02: But looking back, one of the things I didn't know when I was, you know, originally going through APUSH or whatever, I didn't realize that the way that the court was ruling when it came to FDR's New Deal was not favorable until he really did.
26:35
SPEAKER_02: He tried to pack the court.
26:36
SPEAKER_02: And then all of a sudden, they came down with rulings that were more favorable to FDR.
26:43
SPEAKER_02: So even though he didn't get to pack the court, it clearly had an impression on the justices who said, wait a second, we don't want more of us, you know, don't diminish each of their power in some ways.
26:55
SPEAKER_02: We don't want that, but maybe we'll make a deal and hand you some wins um in exchange for you dropping this.
27:01
SPEAKER_02: Is that possible?
27:02
SPEAKER_02: That's a theory I saw.
27:02
SPEAKER_00: Yes, so this is the famous switch in time that saved nine, the nine justices.
27:08
SPEAKER_00: It was one justice, Owen Owen Roberts, I think was his name.
27:12
SPEAKER_00: The problem with the court packing plan was that it was clearly intended for political purposes.
27:17
SPEAKER_00: It was because the Supreme Court, which again is supposed to be independent of politics, supposed to be above politics, and whether it's always, you know, that's a separate question, but it's supposed to be independent of the political branches, was constantly ruling against FDR.
27:29
SPEAKER_00: And so then he says, Well, I'm gonna stuff the court.
27:31
SPEAKER_01: Yeah.
27:32
SPEAKER_00: Right?
27:32
SPEAKER_00: Um, I'm gonna pack the court with judges favorable to me in order to get rulings favorable to me.
27:38
SPEAKER_00: And this was even the Democrat, I think it was probably supermajorities by then, but even the Democrat-controlled Congress wouldn't support it.
27:46
SPEAKER_00: And they said this is a totally unconstitutional thing.
27:49
SPEAKER_00: Small, small you unconstitutional.
27:51
SPEAKER_00: Not it doesn't clearly violate the text of the Constitution.
27:54
SPEAKER_00: Congress has expanded the court for circuit writing purposes, but it certainly violates this idea that the courts should be independent.
28:01
SPEAKER_00: And the Democrats wrote a committee report saying we trust that an idea like this will never again see the light of day, like in American history.
28:09
SPEAKER_00: But as you said, it kind of worked.
28:13
SPEAKER_00: Maybe that's the theory.
28:14
SPEAKER_00: Now, look, maybe Owen Roberts really did just say, uh, you know, have a change of heart.
28:19
SPEAKER_00: It's hard to know, but like obviously the threat, the the story is that the threat worked.
28:24
SPEAKER_00: And so now the Democrats kind of are trying to make that same threat.
28:27
SPEAKER_00: Like, you better start ruling in our favor.
28:29
SPEAKER_00: But that's the whole point.
28:29
SPEAKER_00: Like, that's why it's so unconstitutional in this small c constitutional sense, right?
28:34
SPEAKER_00: Not necessarily unconstitutional according to the actual text of the constitution.
28:38
SPEAKER_00: But in terms of this unwritten principle, the only reason the Democrats want to expand the court is because they lost control of the court, because they want the court to rule more in favor of them.
28:48
SPEAKER_00: Well, the court is supposed to be independent and politically neutral.
28:52
SPEAKER_00: And again, whether they always meet that standard is it's hard to say.
28:56
SPEAKER_00: It's a harder discussion to have.
28:58
SPEAKER_00: But that's at least the ideal.
28:59
SPEAKER_00: And if the Democrats are just pushing this for political purposes, then that ideal goes out the window.
29:04
SPEAKER_00: Right?
29:05
SPEAKER_02: Yeah.
29:05
SPEAKER_02: And I think that combined that threat of potentially packing the court, combined with, I've heard Molly Hemingway talking about her book, Alito, a lot lately.
29:14
SPEAKER_02: And she describes the kind of um Dobbs decision and all of the violence threats that were against the justices in great detail.
29:25
SPEAKER_02: I mean, we do know someone tried to kill Kavanaugh and um has, I think, went to jail for that.
29:30
SPEAKER_02: So Democrats have these really credible threats and people in their party who are willing to go so far as to kill people to act on those threats.
29:41
SPEAKER_02: So to me, it sounds like, man, we're in a really tough situation.
29:44
SPEAKER_02: And I hope that the conservative justices don't do as uh that guy did in FDR's time and say, look, let's make a deal, let's fold.
29:53
SPEAKER_02: But I can only imagine like the courage and the strength it takes to be a conservative justice on the court right now.
29:58
SPEAKER_02: Trevor Burrus, Jr.
29:58
SPEAKER_00: Yeah, well especially because this is not really the topic for today.
30:01
SPEAKER_00: It's a bit of a digression, but the Kavanaugh would-be assassin was given shorter prison time because remember the judge uh he um identified, started identifying as as female?
30:11
SPEAKER_00: No, we don't.
30:12
SPEAKER_00: No.
30:13
SPEAKER_00: Are you serious?
30:14
SPEAKER_01: I don't remember that.
30:15
SPEAKER_03: Yeah.
30:15
SPEAKER_00: I'm being serious.
30:16
SPEAKER_00: Look this up.
30:17
SPEAKER_00: Audience can fact check me about this.
30:19
SPEAKER_00: But apparently the judge thought that you know this was like so wonderful and accepted, you know, his like who she now is and everything.
30:26
SPEAKER_00: And like the conservatives were outraged by this.
30:28
SPEAKER_00: Like, why is that relevant to whether the crime that was committed at the time, right?
30:32
SPEAKER_00: And anyway, so again, kind of fascinating whether judges are a threat to the republic.
30:37
SPEAKER_00: But okay, it all comes back to the same themes uh on this podcast.
30:41
SPEAKER_00: But there's one other point about this that we wanted to say, which is um my friend with whom uh I disagree about a lot, um, though we agree about birthright citizenship, uh.
30:50
SPEAKER_00: So that's one of the most important things uh right now.
30:53
SPEAKER_00: Randy Barnett actually posted about um uh uh court packing.
30:57
SPEAKER_00: And um we'll try to put this up for our um audience on YouTube as well.
31:03
SPEAKER_00: And Randy Barnett said, I testified to the Presidential Commission on the Supreme Court.
31:07
SPEAKER_00: I testified as well, by the way, to the Presidential Commission on the Supreme Court.
31:10
SPEAKER_00: I don't remember what I said.
31:11
SPEAKER_00: Um but Randy Barnett testified and remembers, and he said that a partisan court packing statute would be unconstitutional because it isn't a proper law.
31:22
SPEAKER_00: Now, I I don't know.
31:25
SPEAKER_00: So remember like Catherine K.
31:26
SPEAKER_02: You explained this.
31:27
SPEAKER_02: I I don't understand.
31:28
SPEAKER_02: Trevor Burrus, Jr.
31:28
SPEAKER_00: We were just saying that you know, like this fixed at nine is like the small c constitutional principle.
31:33
SPEAKER_00: Trevor Burrus, Jr.
31:33
SPEAKER_02: Yeah, it's it's like uh tradition or something like that.
31:35
SPEAKER_00: Trevor Burrus Exactly.
31:36
SPEAKER_00: Customary practice.
31:37
SPEAKER_00: Um not every constitutional principle is actually articulated in the constitutional text.
31:43
SPEAKER_00: Um but if it's not articulated in the constitutional text, the question is can judges enforce these unwritten constitutional principles?
31:50
SPEAKER_00: And it's more difficult.
31:51
SPEAKER_00: Here, again, this is a kind of unwritten small c constitutional principle, but I don't know if that means judges could enforce the constitutional principle.
31:59
SPEAKER_00: It's more for the political branches to observe.
32:00
SPEAKER_00: But what Randy Barnett is saying is that actually court packing would exceed Congress's power under the necessary and proper clause, although Congress historically expanded the court to allow for circuit writing, right?
32:12
SPEAKER_00: Um so the clause, it goes back to this clause we've talked about multiple times on today's episode.
32:16
SPEAKER_00: Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the other powers of the national government.
32:23
SPEAKER_00: So what he's saying is a court packing plan that wouldn't coincide with circuit writing, for example.
32:29
SPEAKER_00: There's no purpose for it.
32:31
SPEAKER_00: If it's purely done for the purpose of partisan advantage and to undermine the legitimacy of the court and to undermine the neutrality of the court, it wouldn't be a proper law and therefore would be unconstitutional under the necessary proper clause.
32:43
SPEAKER_00: This kind of argument gives me heartburn because that's an easy road to living, breathing constitutionalism.
32:49
SPEAKER_00: Right?
32:50
SPEAKER_00: To say, oh, well, Congress is law.
32:52
SPEAKER_00: There's no explicit textual basis against it.
32:55
SPEAKER_00: Congress has expanded and contracted the Supreme Court for the first 80 or so years of the Republic, but today it wouldn't be proper based on these amorphous, small C constitutional customs.
33:06
SPEAKER_00: But that sounds like living constitutionalism to me.
33:09
SPEAKER_00: Like to use proper in that way is like I I don't know.
33:12
SPEAKER_00: It gives me heartburn, but maybe we need to have um Randy on the show to defend himself.
33:17
SPEAKER_00: So anyway, that's that's court packing.
33:20
SPEAKER_02: Let's talk about the other part of what James Carville talked about.
33:23
SPEAKER_02: He wanted to make DC and Puerto Rico a state if the Democrats take power.
33:28
SPEAKER_02: Um let's let's talk about making DC a state, because I think Puerto Rico is a separate situation.
33:33
SPEAKER_02: But making DC a state isn't actually a new idea.
33:36
SPEAKER_02: Um in 2020 and 2021, proposals to make DC a state actually passed in the House of Representatives, um, which is crazy.
33:44
SPEAKER_02: I I didn't remember that.
33:45
SPEAKER_02: Um but this is, of course, because in 2024, DC went for Kamala Harris by over 90 percent.
33:52
SPEAKER_02: So the Democrats love DC and they're losing.
33:55
SPEAKER_00: They're losing ground.
33:55
SPEAKER_00: It used to be like 98 percent.
33:58
SPEAKER_00: Now it's just 90 percent.
33:59
SPEAKER_00: Like what happened?
34:01
SPEAKER_02: Well, let's start here.
34:02
SPEAKER_02: Why isn't DC a state already?
34:05
SPEAKER_02: Why is it such a weird little area that we have?
34:08
SPEAKER_00: All right.
34:08
SPEAKER_00: First of all, I actually want to start somewhere else.
34:11
SPEAKER_00: Oh, if just if they really believed DC should be a state normatively, right?
34:16
SPEAKER_00: Like the whole point is, Catherine, you agree, right?
34:18
SPEAKER_00: This is for pure political power.
34:19
SPEAKER_00: Oh, yeah.
34:20
SPEAKER_00: They want two more Senate seats.
34:21
SPEAKER_02: Yeah.
34:23
SPEAKER_02: One more congressman and two more Senate seats.
34:25
SPEAKER_00: The argument that they make, though, is that it's unjust and unconstitutional and violates the principles of the American Revolution to tax the citizens of D.C., they get federal taxes, right, imposed upon them, but they're not represented in Congress.
34:39
SPEAKER_00: It's no taxation without representation.
34:42
SPEAKER_00: Okay.
34:43
SPEAKER_00: They kind of have a point, then maybe.
34:45
SPEAKER_00: But if that's true, there's a simple solution.
34:48
SPEAKER_00: And I've proposed a constitutional amendment to this effect.
34:50
SPEAKER_00: Steven Sachs, a professor at Harvard Law School, has proposed an amendment to this effect.
34:54
SPEAKER_00: If that's really the concern, then you can pass an amendment that says for purposes of representation in the electoral college and in the house, which they already get electoral votes, by the way.
35:03
SPEAKER_00: So they are represented.
35:04
SPEAKER_00: There was an amendment to the constitution that already represents them in the electoral college.
35:08
SPEAKER_00: But you can pass an amendment that says for purposes of representation in the House and the Senate, they shall be treated as citizens of Maryland.
35:15
SPEAKER_03: Oh, interesting.
35:16
SPEAKER_00: Right, wouldn't that solve the problem?
35:17
SPEAKER_00: Yeah.
35:17
SPEAKER_00: Because now the Maryland representatives would have to win your vote.
35:21
SPEAKER_00: They'd have to campaign in DC.
35:23
SPEAKER_00: They would represent your interests.
35:25
SPEAKER_00: And whenever you propose this to progressives, right, who say no taxation without representation, they're like, no, no.
35:32
SPEAKER_00: DC deserves its own state.
35:34
SPEAKER_00: And it's like, what why?
35:36
SPEAKER_00: It's like, well, because they have their own culture and interests.
35:38
SPEAKER_00: Okay, well, what about does Northwest DC get its own state and Southeast DC gets a different state?
35:43
SPEAKER_00: Like, it's absurd if the concern is actually taxation.
35:46
SPEAKER_00: I mean, all states, pick any state, it's going to have huge diversity.
35:49
SPEAKER_00: Yeah.
35:49
SPEAKER_00: Right?
35:50
SPEAKER_00: It doesn't mean San Francisco gets its own state, right?
35:52
SPEAKER_00: For the rest of California or whatever.
35:54
SPEAKER_02: Yeah, Minnesota, I would love if the cities were their own state.
35:57
SPEAKER_02: The rest of us can't do it.
35:58
SPEAKER_00: Actually, maybe I do support this idea.
36:00
SPEAKER_02: But that's we could have infinity states.
36:02
SPEAKER_00: But that would yeah, no, that's right.
36:04
SPEAKER_00: Like I mean, it's silly.
36:05
SPEAKER_00: Like, where does it end, right?
36:06
SPEAKER_00: And so that's what proves, like, puts the lie to the to the view that it's all about taxation and thought representation.
36:12
SPEAKER_00: Because there is a solution.
36:13
SPEAKER_02: A much easier solution.
36:14
SPEAKER_00: A much easier solution, but the result would be they don't get two extra senators.
36:17
SPEAKER_00: And so then they're like, no, no, no, we can't have that.
36:19
SPEAKER_00: So it's a it's a total it's a total farce.
36:22
SPEAKER_00: To answer your question, though, like um it used to be, you know, the before the Constitution, Congress, the Confederated Congress Congress are under the Articles of Confederation met in Philadelphia.
36:32
SPEAKER_00: And there was a mutiny in 1783 that Continental soldiers had not been paid.
36:36
SPEAKER_00: Um and so they like 400 or so of them marched on Philadelphia.
36:39
SPEAKER_00: It's called the Philadelphia Mutiny.
36:41
SPEAKER_00: And they surrounded Congress.
36:43
SPEAKER_00: And they asked Congress asked for Pennsylvania to call forth the militia to help disband um the continental soldiers.
36:51
SPEAKER_00: Um, and Pennsylvania refused.
36:53
SPEAKER_00: Now there's a question whether the militia would have responded to the call, you know, and other kinds of things.
36:58
SPEAKER_00: But this is part of the reason.
36:59
SPEAKER_00: They're like, we need our own district.
37:01
SPEAKER_00: We need federal control over a federal district because you cannot put it in the hands of a state that may or may not come to protect the federal government in times of need.
37:09
SPEAKER_00: So making it a state um would totally um violate the reason for having the district in the first place.
37:15
SPEAKER_00: So all of this is pure political power.
37:17
SPEAKER_00: All of this is small c unconstitutional, okay?
37:20
SPEAKER_00: Small U unconstitutional.
37:23
SPEAKER_00: Um and uh just like give give give us a break.
37:26
SPEAKER_00: Like stop being just partisan uh hacks and and you know, anyway, unconstitutional.
37:32
SPEAKER_02: It's scary to see what to hear out loud what they would be willing to do if they take power in the near future.
37:39
SPEAKER_02: I feel like Trump has truly broken their brains.
37:42
SPEAKER_02: And I also feel like we at the right get blamed a lot for not caring about like the norms and and things like that, not upholding the institutions.
37:50
SPEAKER_02: It's always the left that is proposing things.
37:53
SPEAKER_00: Yeah, what norms?
37:54
SPEAKER_00: What norms are we undermining?
37:55
SPEAKER_00: I mean, because like, first of all, what institutions do Republicans control?
38:00
SPEAKER_00: Higher education, don't control those, don't control the state bars, talk about undermining our institutions.
38:05
SPEAKER_00: Like, I mean, what institutions do we control?
38:07
SPEAKER_00: The the the Senate, the judges, the appointments?
38:10
SPEAKER_00: Well, remember Borked, which I had to teach you about.
38:12
SPEAKER_00: That's what it started.
38:13
SPEAKER_02: You know, by the way, bring it back to uh Molly Hemingway, Borked is in her book, so I knew exactly what Oh, excellent.
38:19
SPEAKER_00: Molly, come on the show.
38:20
SPEAKER_00: I know we're trying to schedule you, so our our our audience can uh look forward to that.
38:25
SPEAKER_00: But okay, one more topic, very legal topic.
38:28
SPEAKER_00: The Ten Commandments, the establishment of religion.
38:32
SPEAKER_00: This is an earthquake in the legal world.
38:36
SPEAKER_00: All right, wanna set it up for us?
38:37
SPEAKER_02: Okay, so the U.S.
38:38
SPEAKER_02: Court of Appeals for the Fifth Circuit, which is my favorite circuit, the most based circuit, has held that it's constitutional for Texas to require the Ten Commandments be displayed in public schools.
38:50
SPEAKER_02: Um, this is obviously a big deal because the Supreme Court, in a case called Stone v.
38:55
SPEAKER_02: Graham in 1980, held that displaying the Ten Commandments violated the establishment clause of the Constitution.
39:02
SPEAKER_02: This is the clause in the First Amendment that provides Congress shall make no law respecting an establishment of religion.
39:09
SPEAKER_02: And this is one of those cases you learn about in school, like I feel like is so infamous.
39:13
SPEAKER_02: You know, I remember my teachers holding this up and saying, see, this is why America is so great, that separation of church and state that exists.
39:21
SPEAKER_02: So how did the Fifth Circuit get around that case?
39:25
SPEAKER_00: Okay.
39:26
SPEAKER_00: So this all starts with the Warren Court, the liberal war in court where they just start making things up.
39:33
SPEAKER_00: Okay.
39:34
SPEAKER_00: In the 60s, 70s, 80s, it goes into the burger court, but really it starts with the Warren Court.
39:39
SPEAKER_00: And there's a famous test called Lemon v.
39:42
SPEAKER_00: Kurtzman, um, which was the test for decades about whether something constitutes an establishment of religion.
39:49
SPEAKER_00: Now we'll get to this because the Fifth Circuit talks about this.
39:52
SPEAKER_00: But under the original meaning of the constitution, like what is an establishment of religion?
39:55
SPEAKER_00: If you ask the man on the street, like, um, is displaying the Ten Commandments an establishment of religion, right?
40:01
SPEAKER_00: They would say, no, like the Anglican church is an established religion.
40:05
SPEAKER_00: Like having a state religion is an establishment of religion.
40:09
SPEAKER_00: Forcing people to attend church is an establishment of religion, taxing them to support the Anglican Church.
40:15
SPEAKER_00: The Book of Common Prayers, Queen Elizabeth mandated the Book of Common Prayers.
40:19
SPEAKER_00: Mandating a liturgy, that is an establishment of religion.
40:23
SPEAKER_00: Displaying a religious symbol is and first of all, is the Ten Commandments religious?
40:27
SPEAKER_00: Like, well, well, I mean a little bit, but I guess we'll get into that.
40:30
SPEAKER_00: So as an original matter, like the clue the court clearly strayed from this, okay?
40:35
SPEAKER_00: And in Lemon v.
40:36
SPEAKER_00: Kurtzman, they created a three-part test to determine what is an establishment of religion.
40:41
SPEAKER_00: All right, audience, play along because I'm gonna make Catherine play this game.
40:45
SPEAKER_00: Okay.
40:45
SPEAKER_00: Factor one, does the law or activity in question have a secular legislative purpose?
40:52
SPEAKER_00: If yes, okay.
40:53
SPEAKER_00: If no, it's a mark against it.
40:56
SPEAKER_00: Does the primary effect of the law or activity advance or inhibit religion?
41:01
SPEAKER_00: Okay, and it can't do either.
41:02
SPEAKER_00: It can't do either.
41:03
SPEAKER_00: Three, does the law or activity create an excessive entanglement with religion?
41:09
SPEAKER_00: If there's too much entanglement, um uh so state and church entanglement, then um that uh is uh would be an unconstitutional establishment.
41:18
SPEAKER_00: Now, the way the Fifth Circuit got here, okay, and and maybe this is where we'll start, is in 2022, the Supreme Court overturned the Lemon v.
41:27
SPEAKER_00: Kurtzman test, okay, in in the Coach Kennedy case, v.
41:30
SPEAKER_00: Bremerton High School.
41:31
SPEAKER_00: Yeah, I remember this.
41:32
SPEAKER_00: Yeah.
41:32
SPEAKER_00: Who's Coach Kennedy?
41:33
SPEAKER_00: He wanted, all right, here's our first test, okay?
41:36
SPEAKER_00: Under the Lemon v.
41:37
SPEAKER_00: Kurtzman test.
41:39
SPEAKER_00: An audience you can play along with Catherine.
41:42
SPEAKER_00: Coach Kennedy wanted to pray uh on the on the midfield uh at the football game at the end of the game, after the football game, high school football game had ended, he would go to the midfield line and he would pray.
41:55
SPEAKER_00: And any football player that wanted to participate in the prayer could join him.
41:59
SPEAKER_02: They weren't forced, it was like if they wanted to.
42:01
SPEAKER_00: Establishment of religion.
42:02
SPEAKER_02: Oh gosh.
42:03
SPEAKER_00: Um apply the lemon v.
42:05
SPEAKER_00: Kurtzman test.
42:05
SPEAKER_02: Okay, hold on, hold on, hold on.
42:07
SPEAKER_02: I need to look at my notes.
42:08
SPEAKER_00: Excuse my cough.
42:10
SPEAKER_02: Okay.
42:10
SPEAKER_02: Had a secular legislative purpose?
42:13
SPEAKER_02: Does praying have a secular Oh, like camaraderie?
42:16
SPEAKER_02: Maybe.
42:16
SPEAKER_00: Well, that's good.
42:17
SPEAKER_02: Maybe.
42:18
SPEAKER_02: Okay.
42:18
SPEAKER_00: But it's that but but you're right.
42:20
SPEAKER_00: The first one it's pretty bad, right?
42:21
SPEAKER_00: It's a religious thing.
42:21
SPEAKER_00: It doesn't seem secular purpose.
42:23
SPEAKER_02: It doesn't seem to have a secular purpose.
42:24
SPEAKER_02: Okay.
42:25
SPEAKER_02: Advanced or inhibited religion.
42:27
SPEAKER_02: Well, it does definitely advance religion because he's praying.
42:30
SPEAKER_02: Okay.
42:31
SPEAKER_02: Created an excessive entanglement with religion.
42:35
SPEAKER_02: I mean, I guess it's kind of tied to the football game.
42:37
SPEAKER_02: So guess this wouldn't pass the lemon test.
42:40
SPEAKER_00: Aaron Powell, which is crazy, right?
42:41
SPEAKER_00: So that's what the lower courts held.
42:43
SPEAKER_02: That that this violate that a coach Even though it's it's voluntary, it's like he just welcomes people to pray if they want.
42:50
SPEAKER_00: And it's after the football game.
42:51
SPEAKER_00: Like you could go home.
42:52
SPEAKER_00: Like you could already go home.
42:53
SPEAKER_00: Like you don't have to be here in order to play.
42:55
SPEAKER_00: Like this isn't even halftime, right?
42:58
SPEAKER_00: And they said it was an establishment of religion.
43:00
SPEAKER_00: If you asked any person on the street in 1791, like a coach praying at the end of a high school game, you know, of whatever they played back in 1791, they'd be like, what?
43:09
SPEAKER_00: Like, oh, that's insane.
43:11
SPEAKER_00: So the Supreme Court agreed and overturned the Lemon test.
43:14
SPEAKER_00: Wow.
43:15
SPEAKER_00: And the the Supreme Court said that Lemon v.
43:17
SPEAKER_00: Kurtzman is overruled, it's abrogated, no more.
43:20
SPEAKER_00: They allowed Coach Kennedy uh to pray.
43:23
SPEAKER_00: Uh uh the voluntary prayer in the midfield line at the end of a football.
43:28
SPEAKER_02: That's such an interesting point because, like I said, in in school, I think growing up, you learn that like school and church totally separate can never touch.
43:36
SPEAKER_02: And that's what the founders meant by um, you know, that separation of church and state, which isn't even in the Constitution, of course, but is a term that you hear all the time.
43:44
SPEAKER_00: Yeah, it comes it comes from Jefferson, right?
43:46
SPEAKER_00: Thomas Jefferson, he said there should be a wall of separation, which you might hear between church and state.
43:52
SPEAKER_00: But the First Amendment doesn't say it.
43:53
SPEAKER_00: Catherine, you read it.
43:54
SPEAKER_00: It says um Congress shall make no law respecting the establishment of religion.
43:57
SPEAKER_00: Not only that, but the states had religious establishments.
44:00
SPEAKER_00: How could there be a wall of separation?
44:02
SPEAKER_00: The states had religious establishments.
44:03
SPEAKER_00: This was only Congress.
44:04
SPEAKER_00: The last disestablishment of religion was in 1833 in Massachusetts.
44:09
SPEAKER_02: Not to mention there are plenty of other people at that time that probably would have really disagreed with him, right?
44:12
SPEAKER_02: Like I've I've heard, you know, quotes, people who said, this is only a country that will survive if they are a Christian or faithful populace, right?
44:22
SPEAKER_00: John Adams said this.
44:23
SPEAKER_00: Farewell address, George Washington.
44:25
SPEAKER_00: The Constitution is made for a moral and religious people, right?
44:29
SPEAKER_00: And so again, not having an establishment of religion is not the same thing as inculcating religious values, right?
44:36
SPEAKER_00: Again, as long as you're not forcing somebody into a worship service or forcing them to pay taxes.
44:41
SPEAKER_00: So again, it it connects to the free exercise of religion.
44:44
SPEAKER_02: Um because what the founders didn't want was basically like a state, a government mandated church, a government church.
44:50
SPEAKER_00: Bingo.
44:51
SPEAKER_00: And so finally they're getting close.
44:52
SPEAKER_00: So how did the Fifth Circuit handle this?
44:53
SPEAKER_00: They said, well, Stone v.
44:55
SPEAKER_00: Graham, the case you talked about about the Ten Commandments, uh is is is abrogated.
44:59
SPEAKER_00: But it the only reason that decision, that the Ten Commandments, have ever been held to be establishments of religion, right?
45:06
SPEAKER_00: Displays of the Ten Commandments in school or in courthouses or whatever, is because of the Lemon v.
45:10
SPEAKER_00: Kurtzmann test, but they overturned the Lemon v.
45:12
SPEAKER_00: Kurtzmann test.
45:13
SPEAKER_00: So the Fifth Circuit had to start from scratch.
45:16
SPEAKER_00: But before we get there, because this is so much fun, I wanted to do a few more historic cases under the Lemon v.
45:23
SPEAKER_00: Kurtzman test for our audience.
45:25
SPEAKER_00: Play along at home, and Catherine will play it live with you here.
45:28
SPEAKER_00: We talked only a little bit about this before the show, so uh we're gonna get her raw views together.
45:33
SPEAKER_00: I'm still nervous.
45:34
SPEAKER_00: Lemon v.
45:34
SPEAKER_00: Kurtzman test.
45:35
SPEAKER_00: Remember, secular purpose, primary effect of inhibiting or advancing religion, and excessive entanglement.
45:40
SPEAKER_00: Okay, and you can refer back to those three factors.
45:42
SPEAKER_00: This is like a last cool exam.
45:43
SPEAKER_00: Okay, famous case.
45:45
SPEAKER_00: County of Allegheny, the ACLU.
45:48
SPEAKER_00: Of course, it's always the A C L Uh that sues.
45:51
SPEAKER_00: Um 1989.
45:52
SPEAKER_00: Okay, so here are the facts.
45:53
SPEAKER_00: Each December, there were two different holiday displays put up on public property in downtown Pittsburgh.
45:59
SPEAKER_00: Display one, a cresh, a nativity scene, a life-size Christian nativity scene was placed on the main staircase inside the Allegheny County Courthouse.
46:07
SPEAKER_00: It included figures of Mary, Joseph, Jesus, shepherds, angels, and animals.
46:11
SPEAKER_00: A banner at the base read, Glory to God in the highest.
46:15
SPEAKER_00: There is no other holiday symbol involved.
46:17
SPEAKER_00: Okay, that's creche number one.
46:19
SPEAKER_00: Display number two, a menorah.
46:22
SPEAKER_00: An 18-foot menorah was placed just outside the City County building, next to a 45-foot decorated Christmas tree, and a sign that read, Salute to Liberty.
46:31
SPEAKER_00: This freedom is a gift of the American people to one another, and it was a celebration of the winter holiday season.
46:44
SPEAKER_00: So what what do you think?
46:46
SPEAKER_02: Okay.
46:46
SPEAKER_02: Um had a secular legislative purpose?
46:50
SPEAKER_02: Uh okay.
46:51
SPEAKER_02: Well, I just said it sounds like a great place to live.
46:53
SPEAKER_02: Maybe the purpose is like bringing cheer to people.
46:56
SPEAKER_02: I don't know.
46:56
SPEAKER_02: That seems kind of legit to me, actually.
46:58
SPEAKER_00: So would that be the second?
46:59
SPEAKER_00: The menorah and Christmas tree bring cheer.
47:01
SPEAKER_00: But what about just the nativity scene?
47:03
SPEAKER_02: It brings cheer, don't you think?
47:04
SPEAKER_02: Like maybe.
47:06
SPEAKER_00: All right, keep going.
47:08
SPEAKER_00: Advancing and inhibiting.
47:09
SPEAKER_02: Okay, that one's iffy.
47:10
SPEAKER_02: Okay.
47:11
SPEAKER_02: I already have to have bad start.
47:12
SPEAKER_00: Does one advance more than the other?
47:14
SPEAKER_02: No, they both advance.
47:15
SPEAKER_02: I would say they both definitely advance religion because there's a menorah and there's a nativity scene.
47:19
SPEAKER_02: So both advance religion.
47:22
SPEAKER_02: Created an excessive entanglement.
47:24
SPEAKER_02: That one, it's not excessive.
47:26
SPEAKER_02: I mean, it's just, you know, things setting outside.
47:27
SPEAKER_02: But I think it's that second one to me that they both clearly advance religion because the menorah and the uh nativity scene.
47:34
SPEAKER_02: So therefore, I think it does not pass the lemon law.
47:37
SPEAKER_00: Okay.
47:37
SPEAKER_00: Not bad, but you're not entirely right.
47:39
SPEAKER_00: So of course, there's no right or wrong here because this is test is insane.
47:43
SPEAKER_00: Uh five to four, they struck down the crush.
47:47
SPEAKER_00: Okay?
47:47
SPEAKER_01: Okay.
47:48
SPEAKER_00: Too much Jesus.
47:49
SPEAKER_00: Okay?
47:50
SPEAKER_00: And it said God and things like that.
47:52
SPEAKER_00: Okay.
47:52
SPEAKER_02: Yeah, glory to God.
47:53
SPEAKER_02: Was that like a little heavy-handed?
47:54
SPEAKER_00: Six to three, they upheld the menorah.
47:57
SPEAKER_00: Because the menorah display, uh, if you associate it sort of like with enough um other uh uh so so I guess the menorah is not considered religious, it's considered historical about like the Maccabees, it's like which okay, that's super weird.
48:11
SPEAKER_00: Isn't Jesus historical?
48:13
SPEAKER_00: I I I Catherine, don't try to reason your way through these decisions, okay?
48:17
SPEAKER_00: It's but if you add a Christmas tree and you don't say anything about God, but you say holiday, then it was okay.
48:23
SPEAKER_00: Six to three.
48:24
SPEAKER_00: But here's another one, okay?
48:25
SPEAKER_00: Lynch v.
48:26
SPEAKER_00: Donnelly, 1984, a city in Rhode Island, had a cresh, again a nativity scene, in its annual Christmas display in a private park, but supported by the city, alongside symbols like a Santa Claus house.
48:39
SPEAKER_00: So so there was Santa Claus.
48:41
SPEAKER_00: So okay, there was a cresh.
48:42
SPEAKER_00: So Jesus and Mary with the lamb, okay?
48:45
SPEAKER_00: And Santa Claus and um reindeer and a Christmas tree.
48:51
SPEAKER_02: Kinda weird.
48:52
SPEAKER_00: What do you think?
48:52
SPEAKER_00: Constitutional?
48:53
SPEAKER_02: No, no, it's not constitutional because nativity scene in the last one was no.
48:58
SPEAKER_02: It was a no-go.
48:59
SPEAKER_02: They didn't like the nativity scene, so I will say unconstitutional.
49:02
SPEAKER_00: Wrong.
49:02
SPEAKER_00: Five to four, it was uh five to four, it was constitutional.
49:07
SPEAKER_00: Why?
49:08
SPEAKER_00: Because if you have a nativity scene and you add enough childish things to it, like Santa Claus and reindeer, then it takes away its religious intonations.
49:18
SPEAKER_02: Why are you laughing?
49:19
SPEAKER_02: This is a few foot Santa at the birth of Jesus?
49:22
SPEAKER_02: It's like, all right, that's fine.
49:23
SPEAKER_00: This is Supreme Court law until 2022.
49:26
SPEAKER_00: Anyway, okay, so let's do another one.
49:29
SPEAKER_00: This one's actually really fun.
49:30
SPEAKER_03: That's true.
49:31
SPEAKER_00: Wallace Wallace v.
49:33
SPEAKER_00: Jeffrey, 1985.
49:34
SPEAKER_00: Okay.
49:35
SPEAKER_00: In 1981, the Alabama legislature amended an existing statute to authorize a one-minute period of silence in public schools for meditation or voluntary prayer.
49:45
SPEAKER_00: So in 1978, the law had said a medit you know minute of silence.
49:49
SPEAKER_00: And then in 1981, they added the language or voluntary prayer.
49:53
SPEAKER_00: Constitutional?
49:55
SPEAKER_02: Yeah, because it's voluntary, right?
49:56
SPEAKER_02: So and they even put meditation in there, like, oh, that's kind of goofy.
50:00
SPEAKER_02: But I think it seems constitutional since it's totally voluntary.
50:05
SPEAKER_00: No.
50:05
SPEAKER_00: Uh unconstitutional.
50:07
SPEAKER_00: What?
50:07
SPEAKER_00: Because by adding the legislature adding or voluntary prayer, if we dig into the minds of the legislators, then they clearly had a non-secular purpose.
50:18
SPEAKER_00: Because otherwise, why did they add or voluntary prayer?
50:20
SPEAKER_02: Trevor Burrus, Jr.: I don't know, but the non-secular there could be a non-ression.
50:23
SPEAKER_00: Don't think too hard, Catherine.
50:24
SPEAKER_00: This is the Supreme Court.
50:26
SPEAKER_00: Okay?
50:26
SPEAKER_00: 1984.
50:27
SPEAKER_00: All right, I got I got two more, and then we'll go back to the commandments, okay?
50:32
SPEAKER_00: I think you're doing great, by the way.
50:33
SPEAKER_00: The Supreme Court decided to do that.
50:35
SPEAKER_00: Okay.
50:35
SPEAKER_00: That's okay.
50:36
SPEAKER_02: I agree.
50:37
SPEAKER_00: All right.
50:37
SPEAKER_00: This case is called Nyquist from 1973.
50:40
SPEAKER_00: This one's a doozy.
50:41
SPEAKER_00: So in 1970, New York enacted a statute with three provisions designed to help parents afford nonpublic schooling and to ease the burden on public schools.
50:50
SPEAKER_00: They gave maintenance and repair grants, so direct payments to the schools to upkeep and repair their facilities, tuition reimbursement grants to low-income parents, and income tax benefits, again, to parents who paid tuition to nonpublic schools.
51:03
SPEAKER_00: This applied to all nonpublic schools.
51:05
SPEAKER_00: It just turned out that the vast majority of them were either Catholic or Jewish.
51:09
SPEAKER_00: But again, these state income tax benefits, tuition reimbursement grants, maintenance grants, um uh not limited to religious schools.
51:17
SPEAKER_00: Catherine, constitutional under the Lemon test?
51:20
SPEAKER_02: Yeah, definitely.
51:21
SPEAKER_02: Because it had a secular purpose.
51:24
SPEAKER_02: It did not advance or inhibit religion, or at least, you know, it did so it didn't discriminate against or for the religious institutions.
51:33
SPEAKER_02: And then I would say not an excessive entanglement at all because they're just giving them grants.
51:38
SPEAKER_00: Wrong.
51:38
SPEAKER_00: It was unconstitutional because the vast majority were religious.
51:42
SPEAKER_00: And they said in effect, it has the primary effect of advancing religion.
51:46
SPEAKER_02: So if there were just fewer religious schools, it would have been fine, but because most of them were religious.
51:51
SPEAKER_00: Your guess is as good as mine.
51:52
SPEAKER_00: Well, okay, what about this one, which is related?
51:54
SPEAKER_00: Regan, 1980.
51:56
SPEAKER_00: New York reimbursed non-public schools again, say similar to Nyquist, okay?
52:00
SPEAKER_00: So this came a few years after Nyquist.
52:02
SPEAKER_00: So New York reimbursed non-public schools, but only for the actual cost of state mandated testing and the record keeping that was required by state law.
52:13
SPEAKER_00: Constitutional?
52:14
SPEAKER_02: I'm not sure why that's like really different.
52:16
SPEAKER_02: I mean, does it the fact that it's state mandated make it different?
52:19
SPEAKER_02: I don't think so.
52:19
SPEAKER_02: I think it would still be unconstitutional.
52:22
SPEAKER_02: Maybe I should switch my strategy though.
52:24
SPEAKER_02: Maybe I'll say constitutional because I've been wrong on every other one.
52:28
SPEAKER_00: This one was constitutional, but only by a five to four vote.
52:32
SPEAKER_00: Again, it shows you how insane all of these was.
52:35
SPEAKER_00: Only by a five to four vote.
52:36
SPEAKER_00: They distinguished Nyquist by saying that this was very specific to a state-mandated testing requirement rather than a general income tax benefit that would, you know, schools could potentially use for religious purposes or whatever.
52:49
SPEAKER_00: So, okay, this is the state of the law to our listeners, right?
52:52
SPEAKER_00: Why this is so earth-shattering to have the Fifth Circuit.
52:57
SPEAKER_00: Now get rid of Lemon, get rid of this ridiculous analysis in the Ten Commandments.
53:00
SPEAKER_02: So it's so interesting.
53:01
SPEAKER_02: It seems to me, obviously, they were trying to discourage any religious sort of activity or anything, which is literally in the Lemon test, isn't it?
53:10
SPEAKER_02: It's like you can't discourage religion.
53:13
SPEAKER_02: So that's literally what the test ended up doing, though, is you can't follow the law, because who knows what the Supreme Court is gonna say.
53:19
SPEAKER_02: So everyone probably just was like, you know what?
53:21
SPEAKER_02: Not gonna be.
53:22
SPEAKER_00: You're right.
53:22
SPEAKER_00: I mean, actually, the Nyquist case, especially, doesn't it encourage the discrimination against religious?
53:27
SPEAKER_02: Yeah, it seems like it to me.
53:28
SPEAKER_00: So the effect of it is to inhibit religion.
53:30
SPEAKER_00: That's a really, uh really interesting point.
53:32
SPEAKER_00: Um very astute observation.
53:35
SPEAKER_00: So uh you would, again, be a good lawyer, um, but not a lawyer yet.
53:39
SPEAKER_03: Probably never will ever be a lawyer.
53:41
SPEAKER_00: Um, so let's go back to the Ten Commandments.
53:44
SPEAKER_00: So we mentioned the Stone v.
53:45
SPEAKER_00: Graham case, um, which was actually um pretty crazy.
53:49
SPEAKER_00: So the in um Stone v.
53:51
SPEAKER_00: Graham, what was uh uh yeah, here it is.
53:54
SPEAKER_00: Okay, so Stone v.
53:55
SPEAKER_00: Graham involved a Kentucky statute that required that a copy of the Ten Commandments purchased with private donation adorn the wall of every public elementary and secondary school, and at the bottom of each poster, in small print, okay, admittedly, it would say the secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western civilization and the common law of the United States.
54:21
SPEAKER_02: Yes, yeah, absolutely.
54:22
SPEAKER_02: I mean that has always seemed to me oh my gosh, stop it.
54:26
SPEAKER_00: He's having too much fun saying that.
54:28
SPEAKER_00: Five to four.
54:29
SPEAKER_00: Five to four.
54:30
SPEAKER_00: They said it's unconstitutional because the Ten Commandments, Catherine, and this is I want your take on this, is plainly religious in nature and an instrument of religion.
54:39
SPEAKER_00: Agree?
54:40
SPEAKER_00: Disagree?
54:41
SPEAKER_02: No, I don't agree.
54:42
SPEAKER_02: It of course is an instrument of religion in some ways.
54:44
SPEAKER_02: I mean, it's it's crucial to um um multiple major religions, but it is also just a foundation of Western civilization.
54:52
SPEAKER_02: I mean, that it's it's definitely something that I think people in school absolutely should learn because look at the way that it informed everything that the founders did when they created the country.
55:02
SPEAKER_02: To not talk about the Ten Commandments would be, you know, doing a disservice.
55:06
SPEAKER_02: What do you do?
55:07
SPEAKER_00: But what do you do about the really religious stuff in there, like thou shalt not kill?
55:13
SPEAKER_02: Well, I think that other kids, even the non-religious ones, would be better off if they didn't care.
55:19
SPEAKER_00: Okay, what about the rel religious injunction, thou shalt not covet your neighbor's stuff, including your neighbor's wife?
55:25
SPEAKER_02: It's it's like these are good rules for everyone.
55:28
SPEAKER_02: The foundation of Western civilization.
55:31
SPEAKER_02: Literally.
55:32
SPEAKER_00: Like, how about respect and hu uh for human dignity?
55:35
SPEAKER_00: How about everybody is created in God's image, which means what?
55:38
SPEAKER_00: We treat people with equal worth and dignity?
55:41
SPEAKER_00: Are those religious ideas?
55:42
SPEAKER_00: Maybe, but they're also foundational to a moral Western civilization, right?
55:47
SPEAKER_02: Exactly.
55:47
SPEAKER_02: And not only that, it is what makes Western civilization so great.
55:51
SPEAKER_02: This idea that your rights don't come from government.
55:54
SPEAKER_02: Your rights come from God.
55:57
SPEAKER_02: That was something that was, you know, unique to our founding and is so important.
56:02
SPEAKER_02: And I think a lot of times the left wants our rights to come from government.
56:06
SPEAKER_02: They want to create new rights and remove rights when they feel like it.
56:10
SPEAKER_02: Um, but that is a horror, that's a horrible path to go down.
56:13
SPEAKER_02: I mean, you don't want that, because then whoever's in power has control over your rights.
56:18
SPEAKER_02: In reality, we're a country that says no, your rights come from God.
56:21
SPEAKER_02: And that is so special.
56:22
SPEAKER_02: And every kid should learn about that.
56:24
SPEAKER_00: Yeah, or Declaration of Independence.
56:26
SPEAKER_00: Nature's God, right?
56:27
SPEAKER_00: It doesn't matter.
56:27
SPEAKER_00: It could be divine providence, it could be natural law, it could be some intelligent designer.
56:32
SPEAKER_00: It doesn't really matter.
56:33
SPEAKER_00: But the point is like, where do we get these ideas that humans are created equal and have equal dignity?
56:37
SPEAKER_00: Like you can think that, like, oh, it's pure Kantianism or whatever.
56:41
SPEAKER_00: But like Kant was born in the 18th century, right?
56:44
SPEAKER_00: He was born into a religious universe, right?
56:46
SPEAKER_00: Where the morals, you know, Christianity, Judaism had already sort of been established.
56:52
SPEAKER_00: Um but you remember the Tim Kane, Ted Cruz exchange, right?
56:55
SPEAKER_00: Where Tim Kane was grilling somebody and said, um, some nominee, and Tim Cain was like, Well, I'm terrified by what you said.
57:02
SPEAKER_00: It sounds like you think rights um uh don't come from the government.
57:05
SPEAKER_00: It's the government.
57:06
SPEAKER_00: It's uh he said, your view is theocratic because you believe rights come from God.
57:11
SPEAKER_00: I believe rights come from the government.
57:12
SPEAKER_00: And Ted Cruz walks in and he's like, What did I just hear?
57:15
SPEAKER_00: And then he read the first sentence of the Declaration of Independence, like that that rights we are endowed by our creator with certain unalienable rights.
57:22
SPEAKER_00: Anyway, so ongoing.
57:24
SPEAKER_02: Isn't that the appeal to heaven flag?
57:26
SPEAKER_02: Isn't that like exactly what it means?
57:27
SPEAKER_02: Our rights come from God and the idea that someone would have that flag now, the left thinks it's just like so crazy.
57:33
SPEAKER_00: That that's exactly right.
57:34
SPEAKER_00: I mean, government comes tyrannical, to whom do you appeal?
57:36
SPEAKER_00: Well, you have to appeal to first principles, moral principles, um, to heaven, right?
57:40
SPEAKER_02: Everyone in the country is so freaking lucky it is that way.
57:43
SPEAKER_00: So, but speaking of the Declaration of Independence, I have two more Ten Commandment problems for you before we finish the episode out with what the Fifth Circuit actually did.
57:53
SPEAKER_00: Um, so after Stone v.
57:54
SPEAKER_00: Graham, which again, five to four unconstitutional, okay.
57:57
SPEAKER_00: Uh, there was a case called McCreary in 2005, and actually a case called Van Orden decided on the same day.
58:02
SPEAKER_00: Okay.
58:02
SPEAKER_00: In the McCreary case, so two counties in Kentucky posted large gold frame copies of the Ten Commandments in their courthouses.
58:10
SPEAKER_00: ACLU sued them, of course.
58:11
SPEAKER_00: So then they said, okay, we're gonna add the Declaration of Independence, Magna Carta, the Bill of Rights, and the preamble to our state constitution, and we will call it foundations of American law and government.
58:23
SPEAKER_00: Okay?
58:24
SPEAKER_00: Constitutional?
58:24
SPEAKER_02: Aaron Powell That's nice.
58:25
SPEAKER_02: I think based on the Santa principle, which is like if you have something religious, you just throw a Santa in there and that makes it okay.
58:32
SPEAKER_02: I think that that means that this is constitutional.
58:34
SPEAKER_00: That is super astute but wrong.
58:37
SPEAKER_00: Run.
58:37
SPEAKER_02: I thought that was.
58:39
SPEAKER_00: That's exactly how I would do it.
58:40
SPEAKER_00: Right.
58:41
SPEAKER_00: It's the Santa principle.
58:42
SPEAKER_00: I love that.
58:42
SPEAKER_00: Like if you just make it childish enough, then it's okay.
58:46
SPEAKER_00: Or secular enough.
58:46
SPEAKER_00: Well, they five to four, they held that the way it started was religious in nature.
58:52
SPEAKER_00: And so you can't dereligious it by adding things like Magna Carta and the Declaration of Independence.
58:59
SPEAKER_00: Whatever.
59:00
SPEAKER_00: Totally crazy.
59:01
SPEAKER_00: Same day, okay, Van Orden was decided.
59:04
SPEAKER_00: Okay, a six-foot-tall granite monument inscribed with the Ten Commandments stood on the grounds, stood on the grounds of the Texas State Capitol for a few decades.
59:13
SPEAKER_00: It was one of 17 monuments and 21 historical markers scattered throughout the Capitol complex.
59:19
SPEAKER_00: Constitutional?
59:21
SPEAKER_02: Okay.
59:21
SPEAKER_02: Well, I would have thought that it was like the Santa I don't know.
59:25
SPEAKER_02: I have to throw the Santa principle out the window.
59:27
SPEAKER_02: So I guess this is unconstitutional because it doesn't matter the context.
59:30
SPEAKER_00: Good thought, but wrong.
59:31
SPEAKER_00: This one was constitutional, five to four, which shows you how utterly insane this all was.
59:36
SPEAKER_00: I can't even tell you like why it was unconstitutional, because like I guess a big granite monument is different than like a plaque in schools.
59:42
SPEAKER_02: Yeah, I don't get that at all.
59:44
SPEAKER_00: So our audience, I know we're coming up on our hour, five minutes to go.
59:47
SPEAKER_00: We'll talk about the fifth circuit held here, but like crazy, right?
59:51
SPEAKER_00: Totally crazy.
59:52
SPEAKER_00: That was the world under Lemon v.
59:53
SPEAKER_00: Kurtzman.
59:54
SPEAKER_00: The world was buried.
59:55
SPEAKER_00: And so the Fifth Circuit over a dissent.
59:57
SPEAKER_00: Judges, you know, there was a dissent.
59:59
SPEAKER_00: This was an en bond court, and several Democrat-appointed justices dissented saying Stone v.
1:00:03
SPEAKER_00: Graham is still good law.
1:00:04
SPEAKER_00: And the majority quite rightly said, no, no way.
1:00:06
SPEAKER_00: Like Stone v.
1:00:07
SPEAKER_00: Graham depended upon the existence of the Lemon v.
1:00:10
SPEAKER_00: Kurzman test.
1:00:11
SPEAKER_00: And so what they basically did is they did a historical analysis and they said, what are the hallmarks of a religious establishment?
1:00:17
SPEAKER_00: Exactly what we said.
1:00:18
SPEAKER_00: Compulsory attendance, compulsory taxation, and support, and a state-established liturgy.
1:00:22
SPEAKER_00: They had some examples like Virginia in 1643 made it unlawful to assemble in public for purposes of worship except according to the Book of Common Prayers.
1:00:30
SPEAKER_00: Again, in established.
1:00:33
SPEAKER_00: Yeah, that's an establishment of religion.
1:00:34
SPEAKER_00: The northern states, also the southern states taxed everybody to support the Church of England, the Anglican Church.
1:00:41
SPEAKER_00: So here's Kentucky.
1:00:42
SPEAKER_00: They weren't Anglican, they were congregationalists or whatever.
1:00:44
SPEAKER_00: But the the Constitution of Connecticut made it the duty of the legislature to, quote, provide for the maintenance of the purity of religion and to suppress the contrary, to declare, publish, and establish the laws for holiness and righteousness which God had made and given to us in scriptures.
1:00:59
SPEAKER_00: That's an establishment of religion.
1:01:01
SPEAKER_00: And then they ended with things like, and look, when they disestablished religion, right?
1:01:05
SPEAKER_00: They disestablished the state religions.
1:01:07
SPEAKER_00: Here are the things that they did, which tells us what an establishment is, right?
1:01:10
SPEAKER_00: So I think this one was from North Carolina's 1776 constitution.
1:01:16
SPEAKER_00: There shall be no establishment of any one religious church in preference over another, neither shall any person on any pretense whatsoever be compelled to attend a place of worship, obliged to pay for the building of any house of worship or the maintenance of a ministry, contrary to what he believes is right.
1:01:32
SPEAKER_00: All persons shall have a liberty to exercise their own mode of worship.
1:01:34
SPEAKER_00: Basically, again, compulsory attendance plus taxation.
1:01:38
SPEAKER_02: Oh, yeah, they really spell it out.
1:01:39
SPEAKER_02: That's what they meant by an establishment of religion.
1:01:41
SPEAKER_00: And they and we know that because when they disestablished it, that's what they said.
1:01:44
SPEAKER_00: These are the things we are no longer doing, right?
1:01:47
SPEAKER_00: Um the Fifth Circuit summarizes what an establishment is, citing my dear friend and mentor, Michael McConnell, a professor at Stanford, former Tenth Circuit judge.
1:01:55
SPEAKER_00: And he said the Fifth Circuit says uh an establishment of religion includes government control over religious doctrine, governance in church personnel, compulsory church attendance, compelled financial support, prohibition on worship in dissenting churches, use of the church as a civil institution for civil functions, and restriction of the political of political participation to members of established churches.
1:02:15
SPEAKER_00: That is an establishment of religion.
1:02:17
SPEAKER_00: Um and so, Catherine, applying that to the Ten Commandments, is the Ten Commandments display an establishment of No, it's not.
1:02:26
SPEAKER_02: Absolutely not.
1:02:27
SPEAKER_00: Because you're not compelling attendance in some religious worship.
1:02:31
SPEAKER_00: You're not taxing people to support a particular church.
1:02:34
SPEAKER_00: Now, look, it might be different.
1:02:35
SPEAKER_00: Like school prayer, it might be difficult, right?
1:02:38
SPEAKER_00: School if if if attendance in public schools is compulsory and the prayer in schools is compulsory, right?
1:02:45
SPEAKER_00: Uh that would be like compelling people to engage in worship.
1:02:49
SPEAKER_00: Right.
1:02:49
SPEAKER_00: That is, I think, close to an establishment of religion and probably would be bad if you or unconstitutional.
1:02:55
SPEAKER_00: If you make the prayer voluntary trickier, okay.
1:02:58
SPEAKER_02: Trickier, really?
1:02:59
SPEAKER_00: Yeah, I mean like people might feel coerced and because you have to attend and like so it's trickier, but but maybe constitutional.
1:03:05
SPEAKER_00: But the Ten Commandments, which again also has a secular value to it.
1:03:10
SPEAKER_00: Again, nobody's worshipping anything.
1:03:11
SPEAKER_02: Yeah, that it doesn't require you to participate in something.
1:03:13
SPEAKER_00: Nobody can worship and yeah, nobody is required, you know, to to believe that you know there shall be no other god but me, or you shall worship no other god but me.
1:03:22
SPEAKER_00: You know, like no, it's it's it's clearly not um compulsory attendance and some religious exercise.
1:03:28
SPEAKER_00: It's clearly a root of Western civilization.
1:03:31
SPEAKER_00: And so now in the Fifth Circuit, Texas has commanded the Ten Commandments.
1:03:36
SPEAKER_00: And you know what?
1:03:37
SPEAKER_00: Maybe reading about the Ten Commandments will be a little better for students than like being on TikTok all day.
1:03:43
SPEAKER_02: Yeah, I think so.
1:03:44
SPEAKER_02: I think so.
1:03:45
SPEAKER_02: I know it's another one of those episodes where I think like a lot of what I learned in my like public school um uh upbringing was not quite accurate.
1:03:53
SPEAKER_02: The establishment of religion thing, man, that is never how I saw it.
1:03:57
SPEAKER_02: Um, but is obviously correct based on what I know now and and what the founders really what they believed and and what they meant by, you know, the the separation of church and state, which is not in the constitution.
1:04:08
SPEAKER_00: But there's no wall of separation.
1:04:10
SPEAKER_02: Yeah.
1:04:11
SPEAKER_00: Um, there's free exercise.
1:04:12
SPEAKER_00: So we tolerate religious diversity.
1:04:14
SPEAKER_00: Right.
1:04:14
SPEAKER_00: There's no establishment of religion, which goes through the same principle, but there's no freedom from religion.
1:04:19
SPEAKER_00: There's no wall of separation.
1:04:21
SPEAKER_00: That was a Jeffersonian idea and not a constitutional idea.
1:04:25
SPEAKER_00: Well, we are at our hour.
1:04:27
SPEAKER_00: Thank you for listening.
1:04:28
SPEAKER_00: As always, please hit that like and subscribe button.
1:04:31
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1:04:34
SPEAKER_00: We're gonna drop a really good Substack post about lawfare in Arizona following up on our Revenge of January 6th episode, which people seemed to love.
1:04:42
SPEAKER_00: So stay tuned, and we'll see you next week.