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Can Trump Undo Our Citizenship Rights? (with ACLU’s Cecilia Wang) · The Oath and The Office

0:11
Speaker 1: Welcome to The Oath and the Office podcast. I'm John
0:14
Speaker 1: Fiegel saying we've got a packed one this week. Redistricting,
0:17
Speaker 1: the mass comes off and there's a hood underneath. John
0:20
Speaker 1: Roberts and the Dirty six on Leach, a wave of
0:22
Speaker 1: rapidly racist jerry mandering, an attack on democracy like we've
0:26
Speaker 1: never seen. Not to be outdone, the DOJ has a
0:29
Speaker 1: new push to start stripping citizenship, and Trump's attacking his
0:33
Speaker 1: own judges. Plus to special guest Cecilia one legal director
0:37
Speaker 1: at the ACLU who argued the birthright citizenship case before
0:41
Speaker 1: the court. So let's bring in the star of our podcast,
0:44
Speaker 1: the author of The Oath and the Office, Professor Corey Bretschneider.
0:47
Speaker 1: It's good to see you, sir.
0:49
Speaker 2: Thanks so much, John.
0:50
Speaker 3: I look forward to this every week, and you know,
0:53
Speaker 3: this is really an amazing episode, one that speaks to
0:57
Speaker 3: the core of why we started this show in the
0:59
Speaker 3: first place. Trump's assault on birthright citizenship is attempted to
1:04
Speaker 3: reverse the Fourteenth Amendment first section guaranteeing birthright citizenship. You're
1:09
Speaker 3: born in the United States, You're a citizen, one of
1:11
Speaker 3: his most blatant attacks on the Constitution, and so to
1:14
Speaker 3: have an episode in which we're going to be joined
1:16
Speaker 3: by the person who argued the case. And it wasn't
1:19
Speaker 3: just any argument. It really was a superb argument. You'll hear,
1:22
Speaker 3: really how brilliant this person is, Cecilia Wang, this amazing lawyer.
1:26
Speaker 2: So we have a lot to talk about.
1:27
Speaker 3: Of course, the attack on our voting rights, and you
1:30
Speaker 3: know what's at stake in birthright citizenship is not just
1:33
Speaker 3: about non citizens being denied citizenship, but also the wider
1:37
Speaker 3: issue we'll speak to about this idea that the Trump
1:40
Speaker 3: administration is actually trying to take away citizenship from those
1:43
Speaker 3: who already have it.
1:44
Speaker 1: That is correct, that is part of the goal, and
1:47
Speaker 1: we have a lot to unpack, so let's dive into it.
1:50
Speaker 2: Corey.
1:51
Speaker 1: Of course, to nobody surprise, as soon as the Supreme
1:54
Speaker 1: Court told the states that they can go ahead and
1:57
Speaker 1: jerrymander their districts anyway they want, as long as it's
2:00
Speaker 1: not based you know, on color, as long as it's
2:05
Speaker 1: not to redress historic and yeah, as long as it's
2:08
Speaker 1: not to address historic injustices but just perpetuate new ones
2:13
Speaker 1: have at it, and we have seen a feeding frenzy,
2:16
Speaker 1: particularly among the former Confederate States, Republican Party is ninety
2:20
Speaker 1: percent white. African Americans vote for Democrats about eighty five
2:24
Speaker 1: percent minimum, and it seems like Republican in this case
2:29
Speaker 1: is really a euphemism for white, so they can hide
2:32
Speaker 1: behind partisanship, but the impact is going to be the same.
2:35
Speaker 1: Tennessee is a state with a forty percent black population
2:38
Speaker 1: and majority black. Memphis hasn't lost the vote, They've just
2:42
Speaker 1: lost the power of the vote and any kind of
2:44
Speaker 1: representation as that city has been carved into thirds by
2:47
Speaker 1: a white supermajority that's now made those votes diluted and
2:51
Speaker 1: be minority members of all white districts. So it's tricky
2:55
Speaker 1: Cory they you know, some of our liberal friends say, oh,
2:57
Speaker 1: they're going back to Jim Crow. This is something more
3:00
Speaker 1: insidious and new ones. They haven't stripped them of their votes,
3:03
Speaker 1: but they have stripped them of their votes in Congress.
3:05
Speaker 1: We're going to see no black congress people from the
3:09
Speaker 1: South in either party by the time this is done.
3:12
Speaker 1: Are we really still watching isolated voting rights disputes or
3:16
Speaker 1: are we witnessing the beginning of a long term minority
3:20
Speaker 1: rule system that uses courts and maps and election law
3:24
Speaker 1: to dominate.
3:26
Speaker 3: Wow you know, we talked last week about the Louisiana case,
3:30
Speaker 3: and we've talked before.
3:31
Speaker 2: About the assault on voting rights.
3:33
Speaker 3: But what we're really seeing this week, really within a
3:35
Speaker 3: few days, is why the Supreme Court, when it gives
3:38
Speaker 3: a green light to discrimination, people are going to take
3:41
Speaker 3: them up on that. And that's really the story of
3:43
Speaker 3: this week. So the Supreme Court read the nineteen sixty
3:46
Speaker 3: five Voting Rights Act essentially require kind of color blindness.
3:50
Speaker 3: Anytime race is taken into account, you have to show
3:53
Speaker 3: that it's intentional discrimination that you are fighting against, if
3:57
Speaker 3: you're trying to preserve black votes, if you're trying to
4:00
Speaker 3: preserve black voting power. And what the Supreme Court is
4:02
Speaker 3: really saying is an attempt to preserve black voting power
4:05
Speaker 3: and to create districts in which actually black.
4:08
Speaker 2: Representatives will be elected. That that's no good anymore.
4:11
Speaker 3: Even though, now let me just let this sink in.
4:14
Speaker 3: In nineteen sixty five, there was a movement, the civil
4:17
Speaker 3: rights movement. We know these images. We learned about them.
4:21
Speaker 3: Some of us grew up with them, others learned about
4:22
Speaker 3: it in school. But people being beaten, in many cases
4:26
Speaker 3: near death to try to get enact a very specific law,
4:30
Speaker 3: the nineteen sixty five Voting Rights Act, and in fact,
4:34
Speaker 3: even radical politics Malcolm X's speech The Ballot or the
4:37
Speaker 3: bullet is about how important this law was. People from
4:40
Speaker 3: all political vantage points, Moderates, some conservatives who were worried
4:45
Speaker 3: about the problem of race, liberals, progressives, and even radicals
4:48
Speaker 3: all joined together to push for this legislation. And what
4:52
Speaker 3: happened last week was nothing less than really eviscerating it.
4:55
Speaker 3: It was about legislation to protect black voting power, that
4:59
Speaker 3: recognize that attempts to dilute the black vote in particular
5:02
Speaker 3: wouldn't be allowed, and opening ways both through legislation but
5:06
Speaker 3: also for legislators who wanted to make good on the
5:10
Speaker 3: demands of this law to draw districts in a way
5:13
Speaker 3: that would preserve black voting power and that would elect
5:16
Speaker 3: black representatives. And the court just ripped into that. It
5:19
Speaker 3: left in place restrictions on things like literacy tests, but
5:23
Speaker 3: it did a lot to really say no more, we
5:26
Speaker 3: really to evsterate this nineteen sixty five Civil Rights Act,
5:29
Speaker 3: and in particular Section two.
5:31
Speaker 2: And what's happened as a follow up is that.
5:34
Speaker 3: You know, basically, lawyers used to tell those who wanted
5:38
Speaker 3: to draw lines in a way that would dilute black votes.
5:40
Speaker 3: You can't do that. There's a law that prevents it.
5:42
Speaker 3: And now I think Republican legislators are hearing the opposite.
5:46
Speaker 3: Go for it, you're no longer restricted. Just pretend it's
5:48
Speaker 3: about party, not about race, and you can do it.
5:51
Speaker 1: That's it. And they are perpetuating an even more racist system,
5:54
Speaker 1: possibly the largest rollback of minority representation since reconstruction. And
5:58
Speaker 1: they're perpetuating this race through a really diabolically smart way
6:02
Speaker 1: by saying racism doesn't exist, it's not racist, we have
6:06
Speaker 1: nothing against them. We're just doing this for politics. We're
6:09
Speaker 1: not stealing the black vote because we hate black people.
6:13
Speaker 1: We're stealing the black vote because we are historically unpopular.
6:17
Speaker 1: Gas is so expensive, the Epstein files are not going away,
6:20
Speaker 1: and we need to cheat to win an election. So
6:23
Speaker 1: we're not rac we're not racist. We're just going to
6:25
Speaker 1: put a racist system in place to help us hold
6:28
Speaker 1: power at a time that we are historically unpopular. And again,
6:31
Speaker 1: we touched on this briefly last week, but look at
6:33
Speaker 1: look at this mentality race conscious college admissions to address
6:38
Speaker 1: centuries of discrimination. Well, that's illegal. Race conscious voting maps
6:43
Speaker 1: to remedy centuries of voter dilution that's illegal, but race
6:47
Speaker 1: conscious immigration crackdowns, race conscious policing, race conscious travel bands.
6:53
Speaker 1: This court really only seems to think, Professor, that we've
6:56
Speaker 1: got to be color blind only at the times when
6:59
Speaker 1: race is used to help minorities. And what we've witnessed
7:03
Speaker 1: with the Virginia Supreme Court is downright diabolical. These Republican
7:08
Speaker 1: governors who have just imposed these just imperially imposed these redistrictings.
7:13
Speaker 1: Whereas California and Virginia went to the voters and said,
7:17
Speaker 1: Republicans are doing this, we don't want to do it,
7:20
Speaker 1: should we do it to save democracy and counter their
7:23
Speaker 1: attempts to steal the House? The voters decided, and then
7:27
Speaker 1: three white people undid the votes of the majority of
7:32
Speaker 1: Virginians and now they're going to try to redistrict and
7:36
Speaker 1: rob people of their vote. I mean, how significant was
7:39
Speaker 1: the Virginia Supreme Court decision striking down the voter approved
7:43
Speaker 1: redistricting system. This isn't really just a legal dispute at
7:47
Speaker 1: this point. It's representing courts just overriding democratic self government.
7:52
Speaker 3: Yeah, I mean, you know, one hope was Okay, we've
7:55
Speaker 3: eviscerated the nineteen sixty five Voting Right Tact.
7:58
Speaker 2: Maybe we'll leave things to the states.
8:00
Speaker 3: This example shows is no state supreme courts, just like
8:03
Speaker 3: the United States Supreme Court can undo decisions of local
8:07
Speaker 3: majorities the same way the Supreme Court really.
8:09
Speaker 2: Undid Let's just call it what it is, the decision.
8:12
Speaker 3: Of a national majority to enact that law, the nineteen
8:15
Speaker 3: sixty five Voting Rights Act. I do want to, in
8:17
Speaker 3: the big picture, come back to something that you said,
8:19
Speaker 3: because I want to make sure listeners are following it.
8:22
Speaker 3: I mean, it really is the case that now, if
8:24
Speaker 3: you want to be involved in diluting black votes and
8:27
Speaker 3: making sure there are no black representatives in your state, the.
8:30
Speaker 2: Supreme Court has given you a roadmap.
8:31
Speaker 3: It said, even though that's prevented by the nineteen sixty
8:34
Speaker 3: five Civil Rights Act. You can't say it explicitly, but
8:37
Speaker 3: just pretend that you're doing partisanship, that you're trying to
8:40
Speaker 3: maximize Republican votes and Republican seats, and then we won't
8:44
Speaker 3: say anything about it. Now here's the pernicious part. Just
8:47
Speaker 3: to expand on your point, if you're trying to rectify
8:50
Speaker 3: a current and pass system of discrimination against black voters
8:54
Speaker 3: and draw districts in a way to comply with the
8:57
Speaker 3: nineteen sixty five Civil Rights Act demand that really non
9:01
Speaker 3: discrimination in the vote means respecting black voting power. If
9:04
Speaker 3: you're trying to enable black voting power, that's highly suspicious
9:09
Speaker 3: and almost certainly unless you can show that you're rectifying
9:11
Speaker 3: intentional discrimination, that you have the goods, the kind of
9:14
Speaker 3: smoking gun that's very, very hard to get, then I
9:17
Speaker 3: don't think so you can't do it. You mentioned the
9:19
Speaker 3: travel band. I mean, what a horrible instance. You know,
9:22
Speaker 3: Donald Trump in the travel band case said I want
9:25
Speaker 3: to complete in total shutdown of Muslim immigration.
9:27
Speaker 2: Into the United States.
9:28
Speaker 3: And then he did a little bit. His lawyers did
9:30
Speaker 3: a little bit to try to cover that up. That
9:32
Speaker 3: was an example of intentional discrimination. This is just going
9:35
Speaker 3: to illustrate how hard it is to show the lawyers
9:38
Speaker 3: covered it up.
9:38
Speaker 2: How did they do it?
9:39
Speaker 3: They added North Korea and Venezuela, which are not Muslim
9:43
Speaker 3: majority countries. They got rid of the preference for Christian
9:46
Speaker 3: over Muslim refugees that was in the first travel ban.
9:49
Speaker 3: They took out any marker of intentional discrimination.
9:52
Speaker 2: And unbelievably.
9:53
Speaker 3: The court was like, oh, that's not intentional discrimination, it's
9:55
Speaker 3: just by coincidence, relates to that other travel band that
9:58
Speaker 3: they're talking about before the election. And one last sentence,
10:01
Speaker 3: Trump Trump told us repeatedly, I prefer the first travel band.
10:06
Speaker 3: He let us know that the whole thing was a subterfusion,
10:09
Speaker 3: and the court still didn't do anything about it.
10:11
Speaker 2: Yeah.
10:11
Speaker 3: In the Virginia case, you know, democracy, we tried to
10:13
Speaker 3: resolve the problem through democracy.
10:16
Speaker 2: The people voted, and here came the.
10:17
Speaker 3: Virginia Supreme Court and overrode a process that took millions
10:22
Speaker 3: of dollars. Many people were involved in the voters of
10:24
Speaker 3: Virginia spoke, and they just undid it. Now, that's a
10:27
Speaker 3: different set of issues legally from what's happening at the
10:30
Speaker 3: national level, but it's certainly part of the wider story
10:33
Speaker 3: of undoing Yeah, guarantees some civil rights and non discrimination
10:37
Speaker 3: to vote.
10:38
Speaker 1: And again, you know, they seem to think that this
10:40
Speaker 1: isn't racist because they don't have hate in their hearts.
10:43
Speaker 1: This is what systemic racism looks like because they've rigged
10:46
Speaker 1: it that there's not going to be any black Republicans
10:49
Speaker 1: in Congress either, they have rigged it so black people
10:52
Speaker 1: will still get to go vote, and maybe those votes
10:55
Speaker 1: will count for state and local elections in some areas,
10:58
Speaker 1: but in other areas.
10:59
Speaker 2: No.
11:00
Speaker 1: They have found a way to make sure that majority
11:04
Speaker 1: black neighborhoods are now minorities in a wider white neighborhood.
11:08
Speaker 1: And this is how the system works. They're arguing that
11:11
Speaker 1: they're defending constitutional originalism Corey, they're defending judicial restraint. But
11:17
Speaker 1: when courts overturn voter approved reforms only after voters approved them,
11:23
Speaker 1: that's an important point. They didn't come out and say
11:26
Speaker 1: before the referendum, you can't do this. They waited to
11:28
Speaker 1: see how the referendum went, and then they came out
11:30
Speaker 1: and said, oh, that's what you want. Uh, well, that's wrong.
11:34
Speaker 1: I mean, when courts are overturning the will of the
11:37
Speaker 1: voters after the voters approved them, how should Americans interpret that? Louisiana,
11:43
Speaker 1: they're throwing out votes that have already been cast so
11:47
Speaker 1: they can cheat.
11:49
Speaker 2: Yeah.
11:49
Speaker 3: Their argument is that this legislation came too late, The
11:53
Speaker 3: process took too long, and some of the people who
11:55
Speaker 3: voted thought they were voting under the old scheme, not
11:58
Speaker 3: the one that had been voted into Virginia's law, and
12:02
Speaker 3: so the Supreme Court struck it down on the grounds
12:04
Speaker 3: that you know, this was not There wasn't fairness, there
12:06
Speaker 3: wasn't kind of notice that it was retroactive. But the
12:09
Speaker 3: bottom line is, you know, in the big picture that
12:13
Speaker 3: we have the Supreme Court undoing democracy by really rewriting
12:17
Speaker 3: the nineteen sixty five civil rights sacks. So it wouldn't
12:19
Speaker 3: be recognizable to anybody at the time. The idea that
12:22
Speaker 3: this is somehow based in the text is beyond foolish.
12:25
Speaker 2: You know, people fought not.
12:27
Speaker 3: For white rights, not for worries about discrimination against white
12:31
Speaker 3: people in drawing maps, which is essentially what the Supreme
12:34
Speaker 3: Court has done, has rewritten it to mean that. And
12:37
Speaker 3: then you know, one common thing that you hear from
12:39
Speaker 3: conservatives too is well, states rights, states rights.
12:41
Speaker 2: States rights, and used to say that, yeah.
12:44
Speaker 3: The moment that a state engages in a democratic process
12:47
Speaker 3: to preserve the vote, the Supreme Court of Virginia steps in,
12:51
Speaker 3: and you know, I don't see it used to be
12:53
Speaker 3: maybe there would have been recourse under the nineteen sixty
12:56
Speaker 3: five civil rightsack that we could have brought this to
12:57
Speaker 3: the Supreme Court. I would have said federal law, you know,
13:01
Speaker 3: is play here. But what I'm hearing from experts is
13:04
Speaker 3: no that Virginia's spoken. The nineteen sixty five Voting Rights
13:08
Speaker 3: Act has largely been a viscerated, and this might be
13:11
Speaker 3: the end of it.
13:12
Speaker 1: I mean, you're right, they only care about states rights
13:15
Speaker 1: when they want to be racist in some way. If
13:17
Speaker 1: the state of New York wants to have gun safety laws,
13:19
Speaker 1: they don't believe in states rights, then medical cannabis. I mean,
13:22
Speaker 1: we've seen so many areas where they don't really care
13:24
Speaker 1: about states rights. They care about their own power, and
13:27
Speaker 1: they'll believe whatever they have to believe to push that over.
13:29
Speaker 1: So everyone's saying, all right, how are these Democrats going
13:33
Speaker 1: to fight back? How are we going to save this democracy?
13:35
Speaker 1: How hard are they going to play hardball? I mean,
13:39
Speaker 1: I heard that Chuck Schumer was so angry he tore
13:42
Speaker 1: one of the tassels off of one of his loafers.
13:44
Speaker 1: Like that level of rage. We need more than that.
13:46
Speaker 1: And there's a lot of ideas floating around, And I
13:49
Speaker 1: want to ask you about a very interesting legal theory,
13:52
Speaker 1: which is that, okay, if they're going to do this,
13:55
Speaker 1: if they're going to throw out the will of the voters. Well,
13:58
Speaker 1: under Virginia's constitution, they let the General Assembly set mandatory
14:02
Speaker 1: retirement rules for judges. So if Democrats wanted to approach
14:07
Speaker 1: this and play it the way Republicans do, you know,
14:10
Speaker 1: dirty but legal, they could constitutionally lower the judicial retirement age,
14:16
Speaker 1: force these judges out of work, and then appoint all
14:21
Speaker 1: new judges and reopen the entire redistricting fight. Again, it's
14:25
Speaker 1: dirty as sin, but legally it could work, and the
14:28
Speaker 1: amount of rage on Fox News over this idea almost
14:32
Speaker 1: makes it worth it. This reminds me of how Fdr
14:35
Speaker 1: when three Supreme Court judges were trying to undo the
14:37
Speaker 1: new Deal. He didn't really try to pack the court.
14:40
Speaker 1: He just threatened to pack the court, and those judges
14:43
Speaker 1: back down. I'm all in favor cory of Democrats going
14:46
Speaker 1: for this as hard as they can. Whether they do
14:49
Speaker 1: it or not, I think people just want to see
14:51
Speaker 1: them on the offense and say, all right, if you're
14:54
Speaker 1: going to use procedure as a weapon against democracy, we're
14:57
Speaker 1: going to try that out too.
14:59
Speaker 3: Well, go back to that, durppoint, it's worth going into
15:01
Speaker 3: a bit of history with this. That exactly as you say,
15:04
Speaker 3: He never carried it out, but the idea was during
15:08
Speaker 3: the New Deal, conservative justices on the Supreme Court, this
15:12
Speaker 3: is going to resemble many ways what we're facing now.
15:14
Speaker 3: We're looking at democratically passed legislation and not rewriting it
15:18
Speaker 3: in the way the Court did with the nineteen sixty
15:20
Speaker 3: five Voting Rights Act. They didn't strike it down or
15:22
Speaker 3: say it was unconstitutional. They essentially reinterpreted it until it
15:25
Speaker 3: meant nothing. But at the time they were more aggressive.
15:28
Speaker 3: They said, this is all the New Deal essentially is
15:31
Speaker 3: all illegal. It's violating the federal Constitution. There's no power
15:35
Speaker 3: in particular of the federal government to enact a new deal. Now,
15:39
Speaker 3: America was in the Great Depression and FDR realized that
15:43
Speaker 3: this couldn't stand. They couldn't be passing his signature agenda
15:46
Speaker 3: with the support of Congress, and here come these unelected
15:50
Speaker 3: Supreme Court coming in and striking it down on pretty
15:53
Speaker 3: dubious legal theories I think, I mean longstanding, but ones
15:56
Speaker 3: that certainly since the New Deal have been abandoned. One
16:00
Speaker 3: thing that he did, in addition to arguing in court
16:02
Speaker 3: for the constitutionality of his own agenda, was to say, well,
16:06
Speaker 3: what if we add justices until the existing justices votes
16:09
Speaker 3: are so diluted, and there's nothing illegal in that nothing.
16:12
Speaker 3: We've had different numbers of Supreme Court justices at different
16:15
Speaker 3: points in time, and so through legislation, you could up
16:18
Speaker 3: the number, say to thirty, and keep getting through the
16:22
Speaker 3: again the legal process of nomination and confirmation new justices.
16:27
Speaker 3: So now, as we're facing this plethora of attacks on
16:30
Speaker 3: our democracy, it's looking more and more like the crisis
16:32
Speaker 3: of the New Deal.
16:33
Speaker 2: And I'm not underplaying that crisis. It was a real crisis.
16:36
Speaker 3: How FDR didn't have to actually carry it out. Scholars
16:39
Speaker 3: disagree about the reasons, but I think one reason why
16:41
Speaker 3: the Supreme Court magically changes its mind. In fact, there's
16:45
Speaker 3: something called the switch in time that saves nine, where
16:48
Speaker 3: all of a sudden, the New Deal goes from being
16:50
Speaker 3: struck down to being upheld. Go figure. Partly it was
16:53
Speaker 3: about this threat. Partly it was about the power of Congress.
16:56
Speaker 3: The justices just couldn't see themselves opposing a democracy in
17:00
Speaker 3: this massive sense. So now the question is should we
17:03
Speaker 3: do this now too? Should we threaten to if Democrats,
17:06
Speaker 3: of course, would have to retake both Congress and.
17:08
Speaker 2: The presidency we add justices. Should we play constitutional hardball?
17:13
Speaker 2: This is certainly an example, and I'm affirmed yes.
17:16
Speaker 3: I mean how that's going to play out, whether the
17:18
Speaker 3: number is thirty, whether it's doing it, you know, in
17:20
Speaker 3: a variety of different ways, using impeachment.
17:23
Speaker 2: There are a lot of legal tools to do this
17:25
Speaker 2: that also we.
17:26
Speaker 3: Can talk about it. I've talked about packing the court,
17:29
Speaker 3: my colleague. This is the phrase court reform. So I'm okay,
17:32
Speaker 3: I'll call it court.
17:33
Speaker 1: Reform whatever I'm need it.
17:36
Speaker 2: And that is a very good analogy of that point
17:38
Speaker 2: in history.
17:39
Speaker 1: Yeah, I can't wait to interview and support and donate
17:42
Speaker 1: to candidates who are going to really bring the fight
17:44
Speaker 1: because they care more about democracy than power. Of course,
17:48
Speaker 1: Republican friend.
17:49
Speaker 3: John, you know, during Biden's administration, there were so many opportunities,
17:52
Speaker 3: including a moment where this was at least looked into,
17:55
Speaker 3: I know, and much to my disappointment, Biden, you know,
17:58
Speaker 3: in so many ways, really failed to make the structural
18:01
Speaker 3: reforms that we needed to our constants.
18:03
Speaker 1: Because he worshiped norms.
18:04
Speaker 2: Can't be we can't allow it to escape again.
18:07
Speaker 1: He worshiped norms and wanted to be the good guy
18:09
Speaker 1: and didn't want to do this sort of thing, which
18:11
Speaker 1: is understandable, but you know, I'm old enough to remember,
18:13
Speaker 1: because amnesia is the most deadly airborne virus in this country.
18:18
Speaker 1: These Republicans decided one time to change the Supreme Court
18:23
Speaker 1: from nine to eight for an entire year, just to
18:27
Speaker 1: deny a black president an up or down vote on
18:29
Speaker 1: his duly appointed Supreme Court nominee. I mean, I remember
18:33
Speaker 1: how right after doing that, they rushed Amy Cony Barrett
18:38
Speaker 1: through an election, after votes were already cast, before Ruth
18:40
Speaker 1: Bader Ginsberg was even cold. Yet, all we're talking about
18:44
Speaker 1: is doing the same kind of things that Republicans keep
18:46
Speaker 1: doing over and over again, because Republicans don't respect norms
18:50
Speaker 1: and they don't respect doing the right thing.
18:53
Speaker 3: Yeah, and for those you know, there are a lot
18:55
Speaker 3: of objections, of course to what we're saying, And of.
18:57
Speaker 1: Course there are some of them, but they're not coming
18:59
Speaker 1: from but I'm sorry, but those subjections came from people
19:02
Speaker 1: who had dick to say when Mitch McConnell decided we
19:05
Speaker 1: could have an eight person Supreme Court in a whole
19:07
Speaker 1: and that it's.
19:07
Speaker 3: Going to be my point that look, what the objection
19:10
Speaker 3: normally says, is this the objection says, Look, if we
19:13
Speaker 3: engage in court packing or court reform, whatever you want
19:17
Speaker 3: to call it, but constitutional hardball of these different kinds,
19:20
Speaker 3: then what's going to happen is that now once Republicans
19:24
Speaker 3: are in power, they're going to do the same, and
19:26
Speaker 3: there's going to be you know, one hundred members of
19:27
Speaker 3: the Supreme Court, or it'll just be a back and forth.
19:30
Speaker 3: We're already there, and that moment that you're talking about
19:33
Speaker 3: with Merrick Garland's nomination and the refusal to act on
19:36
Speaker 3: it was the destruction of the norm And so if
19:39
Speaker 3: one group is just destroying the norms and the other
19:41
Speaker 3: group is pretending that the norms are still there.
19:44
Speaker 2: I don't think so.
19:45
Speaker 3: It's the same thing with redistricting too that California and
19:49
Speaker 3: New York.
19:49
Speaker 2: California has already moved on this. New York needs to
19:51
Speaker 2: move really need to yes to reshape votes. I don't
19:56
Speaker 2: even want to call it, Jerrymann. It's a way of
19:58
Speaker 2: protecting against the destruction of dem Dockers, thank you.
20:00
Speaker 3: What's happened on the other side, it's democratic defense.
20:03
Speaker 1: I mean, Jim Cliburn's seat in South Carolina will disappear.
20:08
Speaker 1: They are not going to try to get rid of him.
20:10
Speaker 1: He's too popular, so they're just going to make sure
20:12
Speaker 1: that the folks who vote for him have votes that
20:14
Speaker 1: don't count for anything. Then the Court just allowed Alabama
20:18
Speaker 1: to pick a different map for this year's congressional elections,
20:21
Speaker 1: totally last minute. Again, Louisiana is throwing out thousands and
20:25
Speaker 1: thousands of votes because they don't care and Corey. Tennessee
20:29
Speaker 1: forty percent non white, and yet they're trying to dilute
20:32
Speaker 1: their representation. How should Americans understand what's happening in Tennessee historically.
20:37
Speaker 3: Well, I think Tennessee, Alabama, where you know, there's an
20:41
Speaker 3: attempt to get the Supreme Court to intervene here on
20:43
Speaker 3: the basis of the nineteen sixty five Voting Rights Act.
20:46
Speaker 3: What we're going to see in a lot of these
20:47
Speaker 3: cases is, as there's an attempt to dilute black votes,
20:50
Speaker 3: black voting power, there'll be lower courts that intervene in
20:54
Speaker 3: the right way based on the old interpretation of the
20:56
Speaker 3: nineteen sixty five Civil Rights Act. And I shouldn't say old,
20:59
Speaker 3: they should say the right interpretation.
21:01
Speaker 2: Thank you.
21:01
Speaker 3: They will push back on a lot of these attempts
21:03
Speaker 3: to destroy districts that ensure black voting power.
21:06
Speaker 2: But here's the problem.
21:07
Speaker 3: The Supreme Court, I'm almost certain, is going to come
21:10
Speaker 3: in and say that in almost all these cases you
21:13
Speaker 3: failed to show intentional discrimination. The breakup of these districts
21:17
Speaker 3: is about partisanship.
21:18
Speaker 2: And that's okay.
21:19
Speaker 3: And that's why this decision matters so much because we're
21:22
Speaker 3: seeing on the ground already you mentioned Tennessee and Alabama
21:26
Speaker 3: attempts to destroy black voting power. We'll see lower courts
21:29
Speaker 3: push back, and then the Supreme Court's going to say,
21:31
Speaker 3: did you not read what we did?
21:33
Speaker 2: You know a few days ago? And U that's where
21:36
Speaker 2: we are. Okay.
21:36
Speaker 1: We got to take a quick break back in just
21:39
Speaker 1: a moment. This is the Oath in the Office. Welcome
21:50
Speaker 1: back to the Oath in the Office podcast. I'm John Feugelsang, Corey,
21:53
Speaker 1: let's talk about citizenship for just a minute. The DOJ
21:56
Speaker 1: is reportedly expanding their efforts to take citizens away from
22:01
Speaker 1: some American citizens because they feel like it historically, Corey,
22:06
Speaker 1: how rare is de naturalization as a political tool in
22:10
Speaker 1: this country.
22:11
Speaker 3: Wow, it really is a tool of authoritarianism to say,
22:13
Speaker 3: if we don't like you, we're going to take not
22:15
Speaker 3: only you know, potentially violate your rights, but violate what
22:19
Speaker 3: the Supreme Court is called the right to have rights,
22:21
Speaker 3: the right of citizenship in the first place. And not
22:24
Speaker 3: only did the Court in the past rebuke these kind
22:27
Speaker 3: of efforts in many cases, there's one where they really
22:30
Speaker 3: use that phrase, the right to have rights, which is
22:32
Speaker 3: also made famous by the political philosopher Hannah or Rent,
22:35
Speaker 3: and it was a case called Trump versus Dulles, where
22:38
Speaker 3: the Supreme Court said that it was a violation of
22:40
Speaker 3: cruel and unusual punishment the Eighth Amendment to strip away
22:44
Speaker 3: as punishment for a crime, the rights of a citizen. Now,
22:47
Speaker 3: over time they made an exception for that, which is
22:50
Speaker 3: that if you committed fraud in your application.
22:53
Speaker 2: The theory was, well, you never really became a citizen
22:55
Speaker 2: in the first place, so if you could.
22:56
Speaker 3: Show fraud in the application process, it was a narrow win,
23:00
Speaker 3: but it was not one that was widely used, and
23:02
Speaker 3: it was one that the Court made very clear too.
23:05
Speaker 3: You can't just use that as your excuse for really
23:07
Speaker 3: engaging and stripping the citizenship of your enemies or people
23:10
Speaker 3: that you don't like.
23:11
Speaker 2: Yet here we are revisiting this.
23:13
Speaker 3: They're going to try to use this narrow exception, the
23:15
Speaker 3: supposed fraud, in order to go after I think a
23:18
Speaker 3: lot of naturalized citizens who they consider enemies. They've already
23:22
Speaker 3: said in the Khalil case that non citizens have no
23:25
Speaker 3: First Amendment rights.
23:26
Speaker 2: Just insane. Yeah, and now they're trying to say you
23:29
Speaker 2: don't have a right to citizenship if you were naturalized. Amazing.
23:32
Speaker 1: I mean, I mean, I don't know how to be
23:35
Speaker 1: scared about this. Do we need to start viewing citizenship
23:38
Speaker 1: not as a constitutional guarantee but something conditional, something revocable.
23:43
Speaker 1: I mean, have we crossed that authoritarian line?
23:46
Speaker 3: We should view it as anything, but we should view
23:48
Speaker 3: it as irrevocable. And one of the amazing things and
23:51
Speaker 3: it's just coming up in a few minutes that Cecilia Wang,
23:54
Speaker 3: the legal director of the ACLU, has done, is present
23:58
Speaker 3: a beautiful argument for the Constitution as clear as day
24:02
Speaker 3: says if you're born in the United States, you're a citizen.
24:05
Speaker 3: So that's step one is pushing back there. Now we
24:08
Speaker 3: have to recognize there are multiple fronts. This is the
24:10
Speaker 3: second front that they've opened up against the right to
24:13
Speaker 3: be a citizen. And here we've got to say too,
24:15
Speaker 3: using this really important case Trout versus Dulles, one of
24:18
Speaker 3: the most important I think when it comes to our
24:20
Speaker 3: rights as citizens, the.
24:21
Speaker 2: Idea that we have a right to have rights, that.
24:24
Speaker 3: Citizenship can't be stripped away as punishment for.
24:26
Speaker 2: A crime, and we've got to insist on that.
24:28
Speaker 3: We've got to do it through litigation, and we've got
24:31
Speaker 3: to do it I think through legislation. These are among
24:33
Speaker 3: the laws that need to be passed if Democrats ever
24:36
Speaker 3: retake the Congress and the presidency.
24:39
Speaker 1: Yeah, it's pretty terrifying. I thought we had safeguards against
24:42
Speaker 1: this sort of thing. Do you think they'll be successful, Corey,
24:45
Speaker 1: I mean, do you think they'll just tell people you're
24:49
Speaker 1: not one of us anymore?
24:51
Speaker 3: Well, I think the first test is, and we're about
24:54
Speaker 3: to talk about it, the birthright citizenship case.
24:56
Speaker 2: And I was really hardened to listen to that case.
25:00
Speaker 3: Here the justices defend the Constitution, and I think this
25:03
Speaker 3: is as clear here too, that you can't just take
25:05
Speaker 3: away somebody's citizenship because.
25:07
Speaker 2: You don't agree with them.
25:08
Speaker 3: Now, they're going to look for cases in the beginning
25:11
Speaker 3: in which there might really be fraud, and in those
25:13
Speaker 3: cases I think the administration, even though their motive is not,
25:16
Speaker 3: you know, just to combat fraud, they might get away
25:18
Speaker 3: with them. But as they go deeper, that's where the
25:20
Speaker 3: pushback will have to happen. And as with birthright citizenship,
25:24
Speaker 3: they're going to try, certainly to take away all of
25:26
Speaker 3: our rights. They're trying to destroy democracy. The administration Trump
25:30
Speaker 3: is and that's what it's about, and we'll fight back
25:32
Speaker 3: as hard as we can.
25:33
Speaker 1: God we live in the only country on earth to
25:35
Speaker 1: produce white trash oligarchs. We're also seeing Trump publicly attack
25:41
Speaker 1: his own hires, Amy Cony Barrett and Neil Gorsich after
25:45
Speaker 1: rulings he disliked. When I say his hires, I mean,
25:48
Speaker 1: you know, the Federal of Society handing him a piece
25:50
Speaker 1: of paper saying this is who you like. But Corey,
25:53
Speaker 1: how unusual is it for a president to pressure justices
25:56
Speaker 1: from his own ideological cult in such per terms, so
26:01
Speaker 1: nakedly and publicly. I mean, I think I maybe heard
26:05
Speaker 1: George Bush Senior complain about suitor once.
26:07
Speaker 3: Maybe Well, it shows you how little he understands about
26:11
Speaker 3: how the Constitution is supposed to work. He thinks that
26:14
Speaker 3: he appointed his judges and they're supposed to say this
26:17
Speaker 3: guy is great, the same way that the sick advance
26:19
Speaker 3: like Stephen Miller around him say every.
26:21
Speaker 2: Day, and they're not saying that.
26:23
Speaker 3: They are I think approving too much of his agenda
26:26
Speaker 3: through the shadow docket, which we've talked about.
26:28
Speaker 2: And will continue to talk about.
26:30
Speaker 3: But what he just saw at the Supreme Court and
26:32
Speaker 3: he walked out mid argument, was these justices essentially saying
26:35
Speaker 3: you can't do that.
26:36
Speaker 2: What are you talking about?
26:37
Speaker 3: The fourteenth Amendment says if you're born in the United States,
26:40
Speaker 3: you're a citizen, full stop.
26:42
Speaker 2: And I think that really he can't quite understand it.
26:44
Speaker 3: If you're an authoritarian, the idea that you were people,
26:47
Speaker 3: you were judges, and you know, even the way he
26:49
Speaker 3: talks about them, Neil and Amy, you know, these are
26:52
Speaker 3: supposed to be my people, that they're pushing back. It
26:56
Speaker 3: shows you how little he understands about this system. When
26:59
Speaker 3: you and I met I wrote a piece for Politico
27:00
Speaker 3: called Trump Versus the Constitution of guys right, and this
27:03
Speaker 3: is the latest iteration of Trump versus the Constitution.
27:06
Speaker 1: I mean, how much do you think about all these struggles,
27:10
Speaker 1: all these constitutional conflicts, How much is it really ultimately
27:13
Speaker 1: about pluralistic democracy itself. Who gets representation, who gets citizenship,
27:18
Speaker 1: whose votes count equally? Because these guys seem to despise
27:22
Speaker 1: the concepts of democracy while pretending to love it, and
27:26
Speaker 1: much the way they despise the teachings of the New
27:28
Speaker 1: Testament while pretending they love it.
27:31
Speaker 3: Well, I think that really is when we talk about
27:33
Speaker 3: defending democracy, what you and I mean, we should use
27:36
Speaker 3: the phrase explicitly is multi racial democracy, multi ethnic democracy,
27:40
Speaker 3: pluralistic democracy. When Trump talks about democracy means a democracy
27:45
Speaker 3: where the white people are in charge. And you see
27:48
Speaker 3: that in so many of his animous, hatred based policies.
27:51
Speaker 3: The travel band we mentioned earlier, and the clearest example
27:54
Speaker 3: is trying to revoke one of the places where the
27:57
Speaker 3: Congress couldn't have been clearer in its fourteenth Amendment that
28:01
Speaker 3: if you were born in the United States, you are
28:03
Speaker 3: a citizen. It wasn't just a reversal of the dread
28:05
Speaker 3: Scott case that said black Americans are not citizens in
28:09
Speaker 3: our constitution, They're not even legal persons. It was meant
28:12
Speaker 3: to create a much broader multiracial democracy, and one that
28:17
Speaker 3: means what it says when it says, if you're born
28:19
Speaker 3: in the United States, full stop, you're a citizen. We're
28:21
Speaker 3: going to apply a test of parentage of race, and
28:24
Speaker 3: this president's trying to destroy it. That's why we're going
28:27
Speaker 3: to focus on this case in such depth today.
28:29
Speaker 1: Well, I'm excited for this guest. Let's take a quick break.
28:32
Speaker 1: We'll be back in a moment on the Oath in
28:33
Speaker 1: the Office.
28:38
Speaker 4: Hey all, Clang Kershner here. Friends, I hope you'll join
28:41
Speaker 4: me on my audio podcast, Justice Matters. We talk about
28:46
Speaker 4: not only the legal issues of the day, but we
28:48
Speaker 4: also talk about the need to reform ethics in our government.
28:53
Speaker 4: Here's one example. The Oath of Office, you know, the
28:56
Speaker 4: one I do solemnly swear to support and defend the
28:59
Speaker 4: Constantute US against all enemies foreign end domestic. Let's add
29:04
Speaker 4: twenty two words to that oath quote, and I will
29:08
Speaker 4: promptly report any instances of crime and or corruption by
29:12
Speaker 4: government officials and employees of which I've become aware. Friends,
29:19
Speaker 4: our democracy is worth fighting for. Join us in this
29:24
Speaker 4: fight because justice matters. Look for Justice Matters wherever you
29:31
Speaker 4: ordinarily find your podcasts.
29:38
Speaker 3: Welcome back to the Oath in the Office. It really
29:40
Speaker 3: is an honor today to introduce to you Cecilia Wang,
29:44
Speaker 3: who is the ACLU's National Legal Director most recently, and
29:48
Speaker 3: this is what we're going to talk to her about.
29:50
Speaker 3: She in the Supreme Court argued that Trump's executive order
29:54
Speaker 3: essentially revoking birthright citizenship was unconstitutional, and she's going to
29:59
Speaker 3: walk us through some of that argument, what it was
30:01
Speaker 3: like to participate in it. And as of course listeners
30:04
Speaker 3: know listening to this show since the beginning, since we've
30:07
Speaker 3: started it, we've regarded this promise to revoke birthright citizenship
30:11
Speaker 3: as really a symbol not just any ordinary case, but
30:14
Speaker 3: a symbol of Trump's attack on the Constitution. So this
30:18
Speaker 3: isn't any ordinary case. It's a historic one that was
30:21
Speaker 3: I listened to it. It was an amazing argument, a
30:23
Speaker 3: historic argument, one that will be taught in constitutional law,
30:27
Speaker 3: I think for forever. As long as we have a country,
30:30
Speaker 3: we have constitutional law. So Cecilia Wang, welcome to the
30:34
Speaker 3: oath in the office.
30:35
Speaker 5: Thank you so much, Corey, it's a pleasure to be
30:37
Speaker 5: with you.
30:38
Speaker 2: Can we just start with the big picture.
30:40
Speaker 3: We have, of course, the first section of the Fourteenth
30:43
Speaker 3: Amendment that until this executive order many people thought was
30:46
Speaker 3: pretty plain. This day, it says if you're born in
30:48
Speaker 3: the United States that you are a.
30:50
Speaker 2: Citizen full stop.
30:52
Speaker 3: And there is this phrase, of course that we'll get
30:54
Speaker 3: into subject to the jurisdiction. But let's start with a
30:57
Speaker 3: big picture. What's really at stake with this case.
31:00
Speaker 6: So the immediate stakes in the birthright citizenship case, of course,
31:05
Speaker 6: is whether President Trump's executive order regarding the Fourteenth Amendment
31:10
Speaker 6: citizenship clause can go into effect. So he contrary to
31:15
Speaker 6: the plain words of the Fourteenth Amendment and its historical context,
31:21
Speaker 6: as well as statute passed by Congress, who's trying to
31:24
Speaker 6: exclude the children of undocumented immigrants and people who are
31:29
Speaker 6: here in the United States lawfully but on a temporary
31:32
Speaker 6: visa temporary sometimes meaning yours from being covered by the
31:37
Speaker 6: Fourteenth Amendments guarantee of birthright citizenship. So those are the
31:40
Speaker 6: immediate stakes. Can President Trump carry out his revisionist view
31:47
Speaker 6: of the Fourteenth Amendment citizenship clause through an executive order
31:51
Speaker 6: that purports to reinterpret the Fourteenth Amendment in a way
31:55
Speaker 6: that's contrary to what both the Congress and the Supreme
32:00
Speaker 6: and all.
32:00
Speaker 5: Of us ordinary Americans thought.
32:03
Speaker 6: You know, it's been almost one hundred and sixty years
32:06
Speaker 6: since the fourteenth Amendment was ratified.
32:09
Speaker 5: So those are the immediate stakes. But to take a
32:11
Speaker 5: step back.
32:12
Speaker 6: And look at an even bigger picture, what's really at
32:16
Speaker 6: stake is whether the President of the United States can
32:21
Speaker 6: redefine and narrow our national tradition of birthright citizenship. Can
32:29
Speaker 6: the president decide that the people that he disfavors should
32:35
Speaker 6: be excluded, should not have a sense of belonging in
32:39
Speaker 6: our national community. And those are kind of the larger stakes.
32:43
Speaker 6: And if we take even another step back to look
32:47
Speaker 6: at the really bigger picture that you know, President Trump
32:51
Speaker 6: came into a second term really on day one trying
32:56
Speaker 6: to undo the work of reconstruction, which includes the citizenship
33:01
Speaker 6: clause of the fourteenth Amendment, but also so many aspects
33:06
Speaker 6: and progressive laws that were enacted and implemented as part
33:10
Speaker 6: of the second Reconstruction with the Civil Rights movement.
33:14
Speaker 5: And Jim Crow.
33:15
Speaker 6: And so those are all the stakes, from the narrowest.
33:19
Speaker 5: View to the broader view.
33:21
Speaker 3: Yeah, I love that you laid it out that way, because,
33:23
Speaker 3: of course, the immediate question is about whether this specific
33:26
Speaker 3: executive order is constitutional or not. But the wider question,
33:30
Speaker 3: of course, is what's going on with the president that
33:32
Speaker 3: wants to revoke a symbol of the idea of equality
33:35
Speaker 3: under law and the very symbol of multi racial and
33:38
Speaker 3: multi ethnic democracy. Well, it's because it's part of a
33:41
Speaker 3: wider assault on democracy. He doesn't believe. And I think
33:45
Speaker 3: the idea of multi racial democracy not only that you
33:48
Speaker 3: and I believe him, but that the crafters of this
33:51
Speaker 3: Fourteenth Amendment, with its birthright citizenship clause it's guaranteed and
33:55
Speaker 3: also of equal protection of the law, fought so hard
33:58
Speaker 3: for I want to get into a lot of the
34:00
Speaker 3: doctrine here and see how this argument played out and
34:04
Speaker 3: ask you about some of the questions. But I have
34:06
Speaker 3: to ask you, since we've been talking about Trump is,
34:09
Speaker 3: of course at the center of this.
34:10
Speaker 2: It's an executive order.
34:11
Speaker 3: What was it like to argue his case with the
34:14
Speaker 3: President of the United States, with Donald Trump sitting right there.
34:18
Speaker 3: I think it was historically the only time that a
34:20
Speaker 3: president showed up, and he showed up to hear what
34:23
Speaker 3: you had to say.
34:24
Speaker 2: So what was that like?
34:25
Speaker 6: Well, candidly, Corey, I didn't know whether he was in
34:29
Speaker 6: the courtroom or not. I'd gotten notice the night before,
34:33
Speaker 6: of course, when he posted I guess on social media
34:36
Speaker 6: that he was planning to attend. We got advanced notice
34:39
Speaker 6: because we needed to arrive at the court earlier than
34:43
Speaker 6: usual because of the increased security around the President being
34:47
Speaker 6: in the house, and so.
34:49
Speaker 5: I knew that he might be there.
34:51
Speaker 6: But even as I was walking into the courtroom, the
34:55
Speaker 6: information I was getting from the clerk's office was that
34:58
Speaker 6: they weren't sure one hundred percent or that the President
35:01
Speaker 6: would be there. So I didn't notice one way or
35:04
Speaker 6: the other. I was very focused on the nine justices.
35:07
Speaker 6: I was focused on my opposing council and what he
35:10
Speaker 6: was saying, and so it didn't occur to me. It
35:14
Speaker 6: didn't affect me one way or the other that he
35:16
Speaker 6: was in the room. I didn't find out until later
35:18
Speaker 6: that he was in fact in the room at least
35:20
Speaker 6: for the first few minutes.
35:22
Speaker 2: Amazing moment.
35:23
Speaker 3: I mean, one of the signs of your effectiveness is
35:25
Speaker 3: that he evidently walked out mid argument, and also has recently,
35:29
Speaker 3: as I think you know, been talking about why in
35:32
Speaker 3: his words, Neil and Amy have not really been loyal
35:35
Speaker 3: enough then, which I think might have something to do
35:37
Speaker 3: with watching them respond to your arguments in a sympathetic way.
35:41
Speaker 2: I do want to ask you about the dynamics in
35:43
Speaker 2: the courtroom, but I also want.
35:44
Speaker 3: To ask about the specifics, because of course the Trump
35:47
Speaker 3: administration had to come up with a reason why he
35:50
Speaker 3: could essentially undo this guarantee of birthright citizenship and the
35:55
Speaker 3: court and Trump himself claims to care about the constitutional taxes,
36:00
Speaker 3: so they turned to this idea of subject to the jurisdiction.
36:04
Speaker 3: So tell us about how that argument works and how
36:07
Speaker 3: it relates, in particular, the related idea that the Fourteenth
36:11
Speaker 3: Amendment birthright citizenship clause was really only about black Americans
36:16
Speaker 3: and a reversal of the dread Scott case and not
36:19
Speaker 3: the broader guarantee that you and I have been talking about.
36:23
Speaker 2: And they offer this idea of also related of allegiance.
36:26
Speaker 3: So tell us about what their argument is and how
36:29
Speaker 3: you respond to it.
36:30
Speaker 6: Yeah, So, you know, as a lawyer, you always want
36:33
Speaker 6: to start the words in the case of the fourteenth Amendment.
36:36
Speaker 6: So the fourteenth Amendment says, all persons born in the
36:40
Speaker 6: United States and subject to the jurisdiction thereof are citizens
36:45
Speaker 6: of the United States. And so the only leeway in
36:50
Speaker 6: that text that the president, you know, tried to explore
36:53
Speaker 6: or take advantage of was, of course, that phrase subject
36:55
Speaker 6: to the jurisdiction, which you just referred to.
36:58
Speaker 5: So you start with.
36:59
Speaker 6: Ax and then you look to two sources to figure
37:05
Speaker 6: out what those words meant to the framers, to the
37:08
Speaker 6: Republican drafting committee that wrote the words of the fourteenth Amendment.
37:13
Speaker 6: And we know two things. The first is that the
37:17
Speaker 6: framers of the Fourteenth Amendment wanted to have broad birthright
37:23
Speaker 6: citizenship for almost everyone in the United States, but they
37:28
Speaker 6: wanted to encompass these pre existing historical exceptions to birthright citizenship,
37:35
Speaker 6: and that was what they meant by those words subject
37:38
Speaker 6: to the jurisdiction. Who are we talking about. Most people
37:41
Speaker 6: know that ambassadors, right, you know, foreign ministers, you know,
37:46
Speaker 6: representatives of foreign government when they're in the United States
37:49
Speaker 6: have immunity. And that's a matter of comedy between the two.
37:54
Speaker 6: Not comedy like haha, but com I t y that
37:58
Speaker 6: you know, these two countries, as a matter of mutual respect,
38:02
Speaker 6: and in order to be able to do diplomacy, give
38:06
Speaker 6: each other this immunity from prosecution. The ambassador in the
38:12
Speaker 6: United States is treated as if they're physically still in
38:16
Speaker 6: their home country. And so the children of ambassadors were
38:21
Speaker 6: excluded from birthright citizenship under that phrase subject to the
38:25
Speaker 6: jurisdiction there There were a number of other exceptions that
38:29
Speaker 6: originated in the English common law, including the ambassador exception,
38:33
Speaker 6: which the Framers wanted to carry over. The only exception
38:39
Speaker 6: to birthright citizenship that didn't come from the English common
38:43
Speaker 6: law that the Framers were trying to carry over after
38:47
Speaker 6: the fourteenth Amendment was ratified was an exception for members
38:51
Speaker 6: of Native American tribes known as Indian tribes in the
38:55
Speaker 6: technical legal term, and so that was it to the
39:00
Speaker 6: jurisdiction thereof in the citizenship clause simply meant that everyone
39:04
Speaker 6: born in the United States who is subject to the
39:07
Speaker 6: jurisdiction of the United States, meaning they have to obey
39:10
Speaker 6: the laws and they have a protection of the laws
39:13
Speaker 6: of the United States, is a citizen. And the only
39:16
Speaker 6: exceptions were these narrow categories like ambassadors and under the Constitution,
39:23
Speaker 6: members of tribal nations.
39:26
Speaker 3: So the way as I understand that the Solicitor General
39:29
Speaker 3: tried to take this historical fact that they're referring to
39:32
Speaker 3: and turn it into an argument, I mean, I have
39:35
Speaker 3: to say from the beginning, I've been wondering how are
39:36
Speaker 3: they going to create an argument so that the thing
39:39
Speaker 3: that we've all seen with our own eyes, how can
39:41
Speaker 3: they turn it into something that makes this an even
39:44
Speaker 3: plausible executive order. It seems to just clash directly with
39:48
Speaker 3: the meaning of the Constitution and its tex So they're
39:51
Speaker 3: relying heavily on this idea of subject to the jurisdiction.
39:53
Speaker 3: I guess one thing that I don't know if I
39:55
Speaker 3: want to say it's a full argument resembled an argument,
39:58
Speaker 3: is that, well, there wasn't this i idea of undocumented
40:01
Speaker 3: people in the nineteenth century, that the immigration systems were
40:05
Speaker 3: just so different.
40:06
Speaker 2: So if you.
40:07
Speaker 3: Think of the principle that applied here, that these exceptions
40:11
Speaker 3: and the meaning of who the amendment refers to wouldn't
40:14
Speaker 3: apply to the children of undocumented people. So that raises some,
40:18
Speaker 3: you know, interesting puzzles about how to think about, you know,
40:22
Speaker 3: facts that are different in the nineteenth century from now,
40:24
Speaker 3: how to think about history and texts.
40:27
Speaker 2: So tell us how did you handle that and how.
40:28
Speaker 3: Did you read the justices who, of course, you know,
40:32
Speaker 3: I would say a majority or so heavily focused on
40:35
Speaker 3: the idea that the law is the text.
40:38
Speaker 6: Yeah, So you know what you're referring to, is is
40:41
Speaker 6: kind of you know, there are two broad schools of
40:44
Speaker 6: thought when it comes to the interpretation of our Constitution,
40:48
Speaker 6: and the prevailing one for a majority of the Supreme
40:52
Speaker 6: Court currently is an originalist, a school of thought which says,
40:56
Speaker 6: when we're interpreting the words of the Constitution, we need
41:00
Speaker 6: to pay attention only to what the framers of those words,
41:05
Speaker 6: whether it's in seventeen eighty nine or in eighteen sixty
41:09
Speaker 6: eight in the case of the Fourteenth Amendment, what they
41:13
Speaker 6: were thinking, what was the original public meaning that was understood?
41:18
Speaker 6: And you know, the other school of thought, of course,
41:20
Speaker 6: is what you know, it might be referred to as
41:22
Speaker 6: living constitutionalism. So you know, the idea that you know,
41:26
Speaker 6: the framers weren't thinking about all possible future applications of
41:30
Speaker 6: their words necessarily, and that we do our best interpret
41:35
Speaker 6: you know, what the spirit behind those words was. As
41:39
Speaker 6: I said, the original school of thought is the prevailing
41:41
Speaker 6: one on the Supreme Court now, and sometimes that creates
41:45
Speaker 6: some real problems of constitutional interpretation, but not when it
41:50
Speaker 6: comes to the citizenship clause of the Fourteenth Amendment. We
41:55
Speaker 6: set out a purely originalist interpretation that I just laid
42:00
Speaker 6: out for you and your listeners that the Republican committee
42:04
Speaker 6: that was drafting the fourteenth Amendment, and indeed, all the
42:06
Speaker 6: members of Congress who debated the words of the citizenship Clause,
42:12
Speaker 6: we're all in agreement that the only exceptions were ambassadors,
42:18
Speaker 6: tribal members, and the other very very narrow exceptions that
42:22
Speaker 6: only applied to a couple people at most under the
42:24
Speaker 6: English common law, and that would include people born on
42:28
Speaker 6: foreign ships, you know, that were.
42:30
Speaker 5: Docked in a US port, for example.
42:34
Speaker 6: And so it was interesting, you know, as I was
42:36
Speaker 6: preparing the little aside here, as I was preparing for
42:40
Speaker 6: the argument. You know, lawyers do these practice sessions.
42:43
Speaker 5: We call them moots.
42:44
Speaker 6: And I had a Supreme Court, a member of the
42:47
Speaker 6: Supreme Court bar so who's you know, very experienced Supreme
42:50
Speaker 6: Court practitioner, who said, this is a really weird case
42:54
Speaker 6: because you have the ACLU making an originalist argument, and
42:59
Speaker 6: you have the Solicitor General of the United States talking
43:03
Speaker 6: about policy. And so, you know, I bristle a little
43:07
Speaker 6: bit at the idea of the ACLA used normally making
43:09
Speaker 6: policy arguments, that they were making textual list and original
43:12
Speaker 6: meaning arguments all the time. But in this case, there's
43:16
Speaker 6: just no question that that is what the framers and
43:21
Speaker 6: the state legislators who ratified the fourteenth Amendment understood the
43:25
Speaker 6: words to mean. Now, to get to another part of
43:28
Speaker 6: your question, you know, what is the Trump administration trying
43:31
Speaker 6: to do here? And what is their move to try
43:34
Speaker 6: to go against what everybody has understood about the meaning
43:39
Speaker 6: of the fourteenth Amendment since eighteen sixty eight and certainly
43:42
Speaker 6: since eighteen ninety eight. And you know what they did
43:47
Speaker 6: was they started with a Supreme Court decision from eighteen
43:52
Speaker 6: ninety eight called Wonkim arc, which was the first case
43:58
Speaker 6: in which the US government was trying to exclude the
44:04
Speaker 6: US born child of a foreign national from US citizenship.
44:10
Speaker 6: And this was a case where the Supreme Court held
44:13
Speaker 6: in eighteen ninety eight that this man, Wankim Mark, born
44:17
Speaker 6: in San Francisco to parents who were Chinese nationals, was
44:21
Speaker 6: a US citizen. And the Trump administration basically used a
44:25
Speaker 6: move that has been tried out previously by a number
44:30
Speaker 6: of people on the far right, who are you know,
44:32
Speaker 6: anti immigrant activists.
44:34
Speaker 5: You know, throughout the.
44:35
Speaker 6: Last few decades, you know, we have seen efforts on
44:40
Speaker 6: the far right to take away the citizenship of people
44:44
Speaker 6: of non citizens, take away citizenship from the children of
44:47
Speaker 6: non citizens. And the move that they make is that
44:51
Speaker 6: in the wonkim Arc decision, the Supreme Court just dis gray,
44:56
Speaker 6: writing majority opinion happens to mention several times by the
45:02
Speaker 6: government's count, twenty two times in all, in a very
45:04
Speaker 6: long opinion, that wankim Ark's parents were domiciled in the
45:12
Speaker 6: United States. And so the Trump administration basically has used
45:16
Speaker 6: a move that has been tried unsuccessfully in the past
45:19
Speaker 6: to try to reverse engineer an argument from that happenstance
45:25
Speaker 6: in the wangkim Ark decision to say, oh, that means
45:30
Speaker 6: you have to your parents have to have been domiciled
45:33
Speaker 6: in the United States at the time of your birth
45:36
Speaker 6: for you to be a citizen under the fourteenth Amendment.
45:39
Speaker 5: And so that kind.
45:40
Speaker 6: Of explains how the President structured his executive order, at
45:45
Speaker 6: least in part, because the one thing that he can't
45:48
Speaker 6: explain still is how he can exclude children born in
45:53
Speaker 6: the US to unauthorized immigrants who are domiciled in the
45:58
Speaker 6: United States. Right, many people, millions of people in this
46:01
Speaker 6: country who over state of visa or who entered without
46:05
Speaker 6: inspection but have lived in the US and have these
46:08
Speaker 6: strong ties and have no other home in many cases
46:11
Speaker 6: for decades, in many cases since they were young children themselves.
46:14
Speaker 6: So that basically is how we got to the president's
46:20
Speaker 6: theory of the fourteenth Amendment.
46:22
Speaker 3: Yeah, that they looked at wankim Mark, which is of
46:24
Speaker 3: course about the idea of the plain meaning of the
46:27
Speaker 3: birthright citizenship guarantee that if you're born in the United States,
46:31
Speaker 3: you're a citizen. It of course applies beyond Black Americans,
46:35
Speaker 3: and yet they try to use it in a way
46:37
Speaker 3: to say that No, in that specific case, the facts
46:41
Speaker 3: were that the person had allegiance. Win kim Mark had
46:44
Speaker 3: allegiance to the United States because of the fact that
46:46
Speaker 3: he was domiciled.
46:47
Speaker 2: Here, I mean, so let's get into the argument.
46:49
Speaker 3: I mean, it's fascinating, I have to say too, just
46:51
Speaker 3: giving us those notes, and I think people want to
46:53
Speaker 3: hear more about it. That coming into this, you thought, wow,
46:56
Speaker 3: I don't always get to argue straight originalism to use
46:59
Speaker 3: the theory of justice Gorsicch and Justice Barrett and at
47:03
Speaker 3: least supposedly justice as Alito and Thomas. But here it
47:07
Speaker 3: just screams out that we have the text and as
47:09
Speaker 3: you've been telling us, we have this amazing case that says, yes,
47:13
Speaker 3: this is not just about reversing dread Scott and dread
47:16
Speaker 3: Scott's evil holding that black Americans don't have citizenship under
47:20
Speaker 3: the Constitution or even legal personnel.
47:22
Speaker 2: That goes way beyond.
47:23
Speaker 3: That to mean what it says, you know, born in
47:26
Speaker 3: the United States, you are a citizen. So tell us
47:29
Speaker 3: what it was like as you are arguing the case
47:31
Speaker 3: with this preparation. I mean, did you feel like the
47:34
Speaker 3: originalist arguments were clear? Did you feel resistance in places
47:37
Speaker 3: that you were surprised by?
47:39
Speaker 5: Yeah?
47:40
Speaker 6: So, you know, I think we went into this argument
47:44
Speaker 6: very confident in our arguments, not only because you know,
47:47
Speaker 6: we had written a brief that reflected, as you said,
47:52
Speaker 6: the plain words of the fourteenth Amendment and also, you know,
47:56
Speaker 6: the English.
47:57
Speaker 5: Common law context.
47:59
Speaker 6: For American citizenship right, which the Supreme Court explained in
48:03
Speaker 6: the Won cam Work decision in eighteen ninety eight.
48:06
Speaker 5: But we also had confidence.
48:07
Speaker 6: Because we had such a broad array a Friend of
48:12
Speaker 6: the Court briefs that were submitted on our side, including
48:16
Speaker 6: very conservative legal scholars and lawyers who all joined forces
48:22
Speaker 6: to say, look, the original public meaning of the fourteenth
48:26
Speaker 6: Amendment is really clear. The other thing that gave me
48:29
Speaker 6: a lot of confidence, and really not just confidence, but
48:34
Speaker 6: I felt, Corey, like I was channeling the voices of
48:37
Speaker 6: millions of Americans who like me, are Fourteenth Amendment citizens
48:42
Speaker 6: born when our parents weren't yet naturalized, and our ancestors
48:47
Speaker 6: all you know, most Americans, unless you were a descended
48:50
Speaker 6: from someone who was an enslaved person of African origin,
48:53
Speaker 6: or if you are descended from people, or if you're
48:56
Speaker 6: an Indigenous American, all of us have some ancestor at
49:00
Speaker 6: some point in our family's history who's been in this situation.
49:04
Speaker 6: And I really felt that I was standing there at
49:08
Speaker 6: the lectern in the Supreme Court channeling all of those
49:12
Speaker 6: voices of people living and our ancestors to really stand
49:18
Speaker 6: up for that original public meaning of the Fourteenth Amendment.
49:22
Speaker 6: You know, you've mentioned a few times that the President,
49:25
Speaker 6: I think, in a really cynical move that's meant to
49:28
Speaker 6: try to divide people, says look, Fourteenth Amendment citizenship was
49:32
Speaker 6: only for Black Americans. And there was a really wonderful
49:37
Speaker 6: Amekus brief front of the Court brief filed by the
49:41
Speaker 6: historian Martha Jones, who's written the definitive history of Black Americans.
49:47
Speaker 6: Free Black Americans struggles for birthright citizenship both before and
49:53
Speaker 6: in the wake of the Dredge Scott decision. And what
49:57
Speaker 6: her brief made absolutely clear is that free black Americans
50:04
Speaker 6: who were responding to the Supreme Court's dread Scott decision
50:09
Speaker 6: that excluded all black people based on race from birthright
50:13
Speaker 6: citizenship in the United States and responding to that free
50:15
Speaker 6: black Americans weren't trying to win birthright citizenship only for
50:21
Speaker 6: Black Americans. They wanted universal birthright citizenship. And those efforts
50:29
Speaker 6: by Black Americans, you know, fed into the radical Republicans
50:35
Speaker 6: who framed the fourteenth Amendment. You know, there's nothing in
50:38
Speaker 6: the words of the fourteenth Amendment that say this is
50:42
Speaker 6: just to give citizenship to Black Americans and to overturn
50:46
Speaker 6: dread Scott. If that was what the framers of the
50:49
Speaker 6: fourteenth Amendment meant, they would have written.
50:52
Speaker 5: Very different words.
50:53
Speaker 6: And the beauty of the fourteenth Amendment and the first
50:57
Speaker 6: sentence of it, the citizenship clause, as a reconstruction document,
51:02
Speaker 6: you know, after a first abolishing slavery thirteenth Amendment, then
51:05
Speaker 6: you get the fourteenth Amendment. I started out by wanting
51:08
Speaker 6: to provide for equal rights for all people in the
51:12
Speaker 6: United States. But then they added this sentence at the
51:15
Speaker 6: beginning that dealt with citizenship, and it was centrally about
51:19
Speaker 6: completing the project of free black Americans who were fighting
51:25
Speaker 6: for universal birthrights citizenship. And there was so much history,
51:30
Speaker 6: such rich history behind this argument in those Amikas briefs,
51:36
Speaker 6: not only Professor Jones's historical brief, but a really lovely
51:40
Speaker 6: brief filed by Professor Tyler Ambinder and Professor Garrett Epps,
51:45
Speaker 6: which I actually referred to during the argument. When you know,
51:50
Speaker 6: Justice Alito was asking, you know, well, the framers of
51:54
Speaker 6: the Fourteenth Amendment in eighteen sixty six, as they were
51:57
Speaker 6: writing those words, there was no such thing as an
52:00
Speaker 6: undocumented immigrant at that point, because Congress only enacted restrictions
52:04
Speaker 6: on immigration a few years later. The first one was
52:07
Speaker 6: in eighteen seventy five. So you know, it can't be
52:10
Speaker 6: that the Fourteenth Amendment encompasses the children of undocumented immigrants.
52:15
Speaker 6: And there are many responses to that based on the history.
52:19
Speaker 6: First and foremost, there was a debate about the citizenship
52:24
Speaker 6: clause where senators, you know, were all acknowledging that the
52:30
Speaker 6: children of immigrants would be citizens under this language.
52:35
Speaker 5: And there were those.
52:36
Speaker 6: Senators who opposed that and said, we don't want the
52:39
Speaker 6: children of people they called gypsies, roma or Chinese immigrants.
52:44
Speaker 6: We don't want their children to become us citizens. And
52:47
Speaker 6: that's exactly what these words do. And then you saw
52:51
Speaker 6: other senators, including really movingly Senator John Conness, who was
52:56
Speaker 6: an Irish immigrant himself, Senator of California, who responded directly
53:03
Speaker 6: to the views of the opponents of the Fourteenth Amendment, saying, yes,
53:08
Speaker 6: the children of so called gypsies, the children of Chinese immigrants,
53:13
Speaker 6: much as they are reviled right now and a disfavored
53:16
Speaker 6: minority in my home state of California, their children are
53:20
Speaker 6: all going to be citizens. And that's exactly why I'm
53:22
Speaker 6: voting for this amendment. And there's all that rich history.
53:28
Speaker 6: You have the brief that I started to mention. The
53:31
Speaker 6: Anne Binder Epps brief also talked about the fact that
53:34
Speaker 6: in right before then, the ten to fifteen years before
53:39
Speaker 6: the Fourteenth Amendment was framed in eighteen sixty six, there
53:43
Speaker 6: were millions of Irish immigrants who came to the United
53:48
Speaker 6: States because of the famine in Ireland, and the No
53:52
Speaker 6: Nothing Party, which was ascended in the eighteen fifties in Congress,
53:57
Speaker 6: you know, was just virulently zenobic and anti Irish, anti Catholic,
54:02
Speaker 6: and they believed that these Irish Catholic impoverished immigrants were unassimilable.
54:08
Speaker 6: The No Nothing Party members felt that these Irish Catholic immigrants.
54:12
Speaker 5: Were less than human.
54:13
Speaker 6: And yet even they Know Nothing Party believed that the
54:17
Speaker 6: US born children.
54:18
Speaker 3: They didn't want to go Trump, even the No Nothing
54:21
Speaker 3: Party didn't want to go as far as Trump.
54:23
Speaker 2: That's an amazing detail, exactly.
54:25
Speaker 6: And so there was such a rich history about the
54:29
Speaker 6: movement of free black Americans for universal birthright citizenship and
54:34
Speaker 6: the experience of Irish Catholic immigrants and the experience that
54:40
Speaker 6: incredibly moving colloquy between Senator Cowan of Pennsylvania, who opposed
54:45
Speaker 6: birthright citizenship, and Senator John Conness of California, who spoke
54:50
Speaker 6: as an immigrant himself, saying, this is the beauty of
54:54
Speaker 6: birthright citizenship, this is the beauty of these words. We'll
54:57
Speaker 6: all be Americans. And that's what I' voting for all
55:01
Speaker 6: of that, you know, I was, I was trying to
55:03
Speaker 6: channel all of them while I was standing there in
55:07
Speaker 6: front of the Supreme Court.
55:08
Speaker 3: It's an amazing moment in American history. And you know,
55:11
Speaker 3: as I listened to it, I was thinking, you know,
55:14
Speaker 3: teaching the nineteenth century, teaching reconstruction, that this is an
55:18
Speaker 3: amazing drama because what's happening is you have an administration
55:21
Speaker 3: trying to essentially destroy the result of a war, what
55:25
Speaker 3: it took to create the idea of equal protection that
55:29
Speaker 3: everybody born in the United States as a citizen. Of course,
55:32
Speaker 3: this one case is part of, as we were talking
55:34
Speaker 3: about in the beginning, the wider fight for what Frederick
55:37
Speaker 3: Douglass long called equal protection and the words that make
55:40
Speaker 3: it into also the Fourteenth Amendment for a section equal
55:43
Speaker 3: protection under the law. And to hear that you were
55:47
Speaker 3: channeling thinking about this history, because in a way, you
55:50
Speaker 3: weren't just championing all of us. You were championing these
55:54
Speaker 3: long ago heroes fighting for democracy and fighting for multi
55:59
Speaker 3: racial demandsocracy specifically. And you know, so often the Trump
56:03
Speaker 3: administration brings up the people who lost that fight, the
56:07
Speaker 3: virulent races. I love the idea that even the no
56:10
Speaker 3: not that it's understood that the next generation you couldn't discriminate. There,
56:14
Speaker 3: come on, people, and Trump has gone too far. So
56:17
Speaker 3: what an amazing firsthand account of really living history, I guess,
56:21
Speaker 3: is what I would call it.
56:22
Speaker 2: That's what you were doing and channeling these voices.
56:25
Speaker 3: And you know, often when we talk about the text,
56:27
Speaker 3: it can sound very technical, very semantic.
56:30
Speaker 2: But what you've brought out I think in.
56:32
Speaker 3: This conversation is the text is there for a reason.
56:35
Speaker 3: And this text, in particularly the Fourteenth Amendment, for as section,
56:39
Speaker 3: is a realization, not just a symbol, but an encapsulation
56:43
Speaker 3: of the fight for multi racial democracy and literally on
56:47
Speaker 3: the heels of the most violent conflict in American history.
56:51
Speaker 3: So what an amazing thing for our listeners to hear
56:53
Speaker 3: that that was in your mind as you were doing it.
56:56
Speaker 3: Many of us would be thinking like, oh, no, are
56:57
Speaker 3: my notes in the right worder?
57:00
Speaker 5: Oh believe me, I was thinking that too.
57:03
Speaker 3: Can I ask Cecilia, what an amazing discussion? But I
57:07
Speaker 3: just as we reached the end of this amazing discussion
57:10
Speaker 3: wanted to ask you about of course, to me, anyway,
57:13
Speaker 3: this looks like a great moment, a moment where the
57:16
Speaker 3: Supreme Court is about to rebuke the President of the
57:19
Speaker 3: United States with his really racist and anti democratic executive order.
57:24
Speaker 3: But I just invite you to talk about where you
57:26
Speaker 3: see the Of course, as the legal director of the
57:29
Speaker 3: National ACLU, you are thinking strategically about how to stop
57:33
Speaker 3: all of these attacks on our democracy. So how does
57:36
Speaker 3: this fight fit in and what are you thinking about
57:38
Speaker 3: when it comes to the wider assaults on democracy if
57:41
Speaker 3: you wanted to. We've been talking for instance about the
57:43
Speaker 3: dj trying to revoke citizenship of naturalized people, the next step,
57:47
Speaker 3: and the war on democracy, But really, any thoughts about
57:51
Speaker 3: this wider assault on democracy and what you, as legal director,
57:55
Speaker 3: are in the midst of doing in this fight.
57:58
Speaker 6: Yeah, I would say, you know, this actually happens to
58:01
Speaker 6: be a tough moment. You and I are talking the
58:04
Speaker 6: day after the Supreme Court issued in order that vacated
58:09
Speaker 6: an injunction that we won through litigation against racially discriminatory
58:14
Speaker 6: congressional districting map in the state of Alabama. We'd won
58:18
Speaker 6: the case in the lower federal court and then one
58:22
Speaker 6: in the Supreme Court three years ago, and then, of
58:26
Speaker 6: course a couple of weeks ago, the Supreme Court issued
58:29
Speaker 6: a decision in Louisiana congressional redistricting case. We also were
58:34
Speaker 6: on with LDF called Louisiana versus cala and really undermined
58:40
Speaker 6: and gutted Section two of the Voting Rights Act, the
58:43
Speaker 6: crown jewel of the Civil Rights era, legislation passed by
58:49
Speaker 6: Congress in nineteen sixty five in order to give voters
58:54
Speaker 6: a tool to go into court and fight against race
58:57
Speaker 6: discrimination and voting laws. And you know, immediately over the
59:02
Speaker 6: next couple of weeks since the Calais decision came down,
59:06
Speaker 6: including last night, the ACLU and LDF and other partners
59:11
Speaker 6: around the country, but particularly in the South, have had
59:15
Speaker 6: to rush into court. I literally have lost count of
59:18
Speaker 6: how many emergency applications we filed in the last couple
59:21
Speaker 6: of weeks in some cases, you know, with the Supreme
59:25
Speaker 6: Court last night issuing this order that changes the rules
59:29
Speaker 6: when voting is already underway in Alabama in the primary
59:34
Speaker 6: election that where election day is May nineteenth, and people
59:37
Speaker 6: are doing early voting right now under the map that
59:39
Speaker 6: now has been vacated by the Supreme Court, and so
59:44
Speaker 6: there's a lot coming at us, you know. The Coup also,
59:46
Speaker 6: of course, is currently considering again the State of Louisiana's
59:50
Speaker 6: effort to block people's access to mifipristo and medication abortion nationwide.
59:57
Speaker 5: Right.
59:58
Speaker 6: So for those of us who are fighting for civil
1:00:01
Speaker 6: rights and civil liberties, you know, these are tough times.
1:00:04
Speaker 6: We have a lot of challenges, including in the Supreme
1:00:07
Speaker 6: Court and in other federal courts. But you know, I
1:00:11
Speaker 6: want to just say that those efforts have really borne fruit.
1:00:14
Speaker 6: The ACLU has filed I think the count currently is
1:00:18
Speaker 6: at one hundred and eighty four lawsuits we have filed
1:00:21
Speaker 6: since inauguration day last year, and in cases that have
1:00:25
Speaker 6: already been closed, we've got about a sixty two percent
1:00:29
Speaker 6: success rate. And in the cases that we're still fighting,
1:00:33
Speaker 6: you know, we're winning many of those battles and getting
1:00:37
Speaker 6: real relief from federal courts for people who are harmed
1:00:42
Speaker 6: by this administration's policies.
1:00:45
Speaker 5: But that's just.
1:00:46
Speaker 6: One piece of the story. People in these states that
1:00:51
Speaker 6: are now fighting for democracy after the Supreme Court's decision
1:00:55
Speaker 6: in Louisiana versus Calais, you know, are packing the state houses.
1:01:00
Speaker 5: Louisiana voters, you know.
1:01:02
Speaker 6: Packed the state House in Baton Rouge a few days
1:01:06
Speaker 6: ago in order to express their views that we want
1:01:10
Speaker 6: to be able to vote and have our votes count equally.
1:01:14
Speaker 6: With everyone else's, regardless of our race. We want you,
1:01:19
Speaker 6: the legislature of Louisiana, to enact a fair map that
1:01:23
Speaker 6: gives black Louisiana voters the same weight as white Louisiana voters.
1:01:29
Speaker 6: People are marching in Tennessee, where just as we file
1:01:33
Speaker 6: a lawsuit and an application for emergency relief in the
1:01:36
Speaker 6: federal court, thousands and thousands of Tennesseeans are marching in
1:01:40
Speaker 6: the streets to say, we are fighting for the life
1:01:44
Speaker 6: of our democracy in the United States right now.
1:01:47
Speaker 5: And you know, in addition.
1:01:48
Speaker 6: To filing all those lawsuits, the ACLU has trained eighty
1:01:51
Speaker 6: seven thousand people in zoom meetings about their rights to protest.
1:01:57
Speaker 6: You know, what we can do to sustain in our
1:02:00
Speaker 6: democracy and the rule of law and equality under the Constitution.
1:02:06
Speaker 6: And there's so many places where Americans are making a difference,
1:02:11
Speaker 6: whether it's lobbying your city government to enact pro civil
1:02:16
Speaker 6: rights and pro civil liberties legislation, or taking into the
1:02:20
Speaker 6: streets to protest what the president is doing. There's so
1:02:23
Speaker 6: many things that we're all doing in this moment of
1:02:27
Speaker 6: real challenges, of real struggles, where it feels like the
1:02:31
Speaker 6: federal government of the executive branch is trying to push
1:02:33
Speaker 6: us backwards and undo Reconstruction and undo the civil rights we've.
1:02:37
Speaker 3: Been Yeah, so well said, and you know, I think
1:02:40
Speaker 3: it's also a sobering but importantly honest place to end,
1:02:43
Speaker 3: which is as great a moment as this was before
1:02:46
Speaker 3: the Supreme Court, to have the Presidents sitting there as
1:02:49
Speaker 3: essentially the justices, through their questions and through their analysis
1:02:52
Speaker 3: and through your arguments, we're rebuking him and his white
1:02:56
Speaker 3: supremacy and his attack on our democracy.
1:02:58
Speaker 2: As great a moment as that is. In the end, right, it.
1:03:01
Speaker 3: Has to be a multifaceted strategy that we're using to
1:03:04
Speaker 3: stop this, because when it comes to the Court's decision
1:03:09
Speaker 3: in the nineteen sixty five Voting Rights Act and interpretation
1:03:12
Speaker 3: the Louisiana cases, you say it's doing the opposite of
1:03:15
Speaker 3: respecting the text. It's really undoing what was also a
1:03:19
Speaker 3: monumental second Reconstruction, a fight for our democracy, and taking
1:03:23
Speaker 3: a law that took a mass.
1:03:25
Speaker 2: Movement to create and ondoing it.
1:03:28
Speaker 3: And we've been covering that on the Oath in the Office,
1:03:30
Speaker 3: alongside your important argument in the birthright citizenship case. And
1:03:33
Speaker 3: I guess as we wrap up what I'm hearing you say.
1:03:36
Speaker 3: And I know, of course the ACLU has a multifaceted
1:03:39
Speaker 3: way of defending democracy, but that litigation is part of it,
1:03:43
Speaker 3: and that can inspire what is also a fundamental part,
1:03:46
Speaker 3: which is citizens rising up, defending our own rights and
1:03:50
Speaker 3: in various strategies, using politics and democracy to defend democracy.
1:03:55
Speaker 6: Yeah, and using stories, using history, using the arts, using comedy,
1:04:02
Speaker 6: comady this time to tell a story about not just
1:04:08
Speaker 6: what the constitution says, but you know, the country that
1:04:12
Speaker 6: we are hoping to build towards and always trying to
1:04:17
Speaker 6: do better and to you know, ensure that freedom inequality
1:04:21
Speaker 6: are lived reality for everyone.
1:04:24
Speaker 3: What a great place to end, Cecilia Wang, Thank you
1:04:26
Speaker 3: for your efforts, thank you for your amazing argument before
1:04:29
Speaker 3: the Supreme Court, and thank you for your words about
1:04:32
Speaker 3: history the way that our historic fight for democracy inspires
1:04:36
Speaker 3: our current fight. It's really been a pleasure to have
1:04:39
Speaker 3: you on the oath in the office.
1:04:40
Speaker 2: Thank you for joining us.
1:04:41
Speaker 5: Thank you Corey, thank you for all your work.
1:04:44
Speaker 2: Thanks so much.
1:04:46
Speaker 1: I want to thank Cecilia Wang for coming in and
1:04:48
Speaker 1: being so brilliant and professor. I want to thank you
1:04:50
Speaker 1: for talking me off a ledge. What is the best
1:04:52
Speaker 1: way for our listeners to follow you, Corey and keep
1:04:54
Speaker 1: up with your work.
1:04:55
Speaker 3: Well, we have the oath in the office substack, we
1:04:58
Speaker 3: have all over you can review us. Be sure to
1:05:01
Speaker 3: subscribe wherever you're listening to us right now. You can
1:05:03
Speaker 3: watch us on YouTube. And I've got to just add
1:05:06
Speaker 3: a note of thanks. The ACLU, of course, has been
1:05:08
Speaker 3: a sponsor of this podcast repeatedly, and to have this
1:05:11
Speaker 3: amazing litigator, Cecilia Wang join us and talk about what
1:05:15
Speaker 3: it was like to be in the courtroom with Donald
1:05:17
Speaker 3: Trump watching her and pushing back and arguing on behalf
1:05:22
Speaker 3: of our rights, on behalf of the text of the
1:05:24
Speaker 3: fourteenth Amendment, it's first section guaranteeing that anyone born in
1:05:27
Speaker 3: this country is a citizen.
1:05:29
Speaker 2: It really was a special.
1:05:30
Speaker 1: Episode, Amen, And I want to thank everyone who puts
1:05:33
Speaker 1: the show together, especially Beowulf and Wendy. And I want
1:05:36
Speaker 1: to thank you Professor as always. You guys can hear
1:05:38
Speaker 1: me every night on Sirius XM Progress or in the
1:05:41
Speaker 1: mornings on the John Fiegelsang podcast and my book's called
1:05:43
Speaker 1: Separation of Church and Hate. Professor, thank you so much.
1:05:46
Speaker 2: I'm being a pleasure John.
1:05:47
Speaker 1: We will see you guys next time. Bubby Oath and
1:05:49
Speaker 1: the Office