Latest / Revisionist History / Divide and Conquer

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Divide and Conquer · Revisionist History

• 0:15
  Speaker 1: Pushkin.
• 0:19
  Speaker 2: Not long ago, I had a dinner party at my house.
• 0:23
  Speaker 2: My friend Michael Ryan came. He's a lawyer, and I
• 0:26
  Speaker 2: was talking to him about my love of law review articles,
• 0:30
  Speaker 2: which is genuine.
• 0:31
  Speaker 1: By the way.
• 0:31
  Speaker 2: Here's a profession trained to find meaning in the particular,
• 0:34
  Speaker 2: in the arcane, to make the implausible plausible, to defend
• 0:39
  Speaker 2: the indefensible. I mean, how are those not the perfect
• 0:42
  Speaker 2: ingredients for a good read. Plus, law review articles have
• 0:47
  Speaker 2: epic footnotes, scores are settled, subtle loyally, jokes are made,
• 0:52
  Speaker 2: and the really outrageous arguments are slipped in just for
• 0:55
  Speaker 2: the benefit of the reader who wants to wait. In
• 0:57
  Speaker 2: Denote one thirty six on page eighty seven. I go
• 1:01
  Speaker 2: on like this until Michael Ryan kind of rolls his eyes,
• 1:05
  Speaker 2: because that's what lawyers do. I never know whether it's
• 1:08
  Speaker 2: modesty or self hatred, but as you can imagine, I persist,
• 1:13
  Speaker 2: and finally Michael says, well, you're right, there are moments
• 1:17
  Speaker 2: of genius in law review articles. Let me send you
• 1:21
  Speaker 2: two of my favorites. The next morning, in my inbox
• 1:27
  Speaker 2: is an email from Michael Ryan with two attachments. I
• 1:31
  Speaker 2: read the first, and I think that's pretty cool. And
• 1:35
  Speaker 2: then I read the second and my jaw drops, and
• 1:38
  Speaker 2: I say out loud.
• 1:40
  Speaker 1: What.
• 1:44
  Speaker 2: My name is? Malcolm Gladwell. Welcome to season three of
• 1:47
  Speaker 2: Revisionist History, my podcast about things overlooked and misunderstood. The
• 1:55
  Speaker 2: definition of a shaggy dog story is an extremely long
• 1:59
  Speaker 2: winded anecdote characterized by extensive narration of irrelevant incidence and
• 2:04
  Speaker 2: terminated by a pointless punchline. Halfway into this episode, you're
• 2:09
  Speaker 2: going to think that this is a shaggy dog story.
• 2:12
  Speaker 2: It's not. This dog is not shaggy. You wrote this
• 2:22
  Speaker 2: paper how many years ago? Fifteen years ago?
• 2:25
  Speaker 3: Yeah?
• 2:25
  Speaker 1: What is it?
• 2:25
  Speaker 3: Published? Two thousand and four, two.
• 2:27
  Speaker 1: Thousand and four.
• 2:28
  Speaker 2: Yeah, this is Professor Michael Stokes Paulson, co author of
• 2:32
  Speaker 2: the Law Review article in question. Within days of reading
• 2:36
  Speaker 2: his essay, I was in his office at Princeton University.
• 2:39
  Speaker 2: Took the train down because it seemed urgent. In an
• 2:43
  Speaker 2: email where he gave me directions, Paulson wrote, I'm always
• 2:47
  Speaker 2: grateful to have anyone read my obscure, idiosyncratic Law Review
• 2:51
  Speaker 2: articles exclamation point idiosyncratic.
• 2:56
  Speaker 1: Sure.
• 2:57
  Speaker 2: At least half of his piece dwelt on the meaning
• 2:59
  Speaker 2: and interpretation of semi colons, but obscure. This is something
• 3:05
  Speaker 2: with the potential to turn American politics upside down. Way
• 3:09
  Speaker 2: could this article be obscure? So what was the reaction
• 3:14
  Speaker 2: to it at the time?
• 3:17
  Speaker 3: Thundering silence as far as I know. I mean, I
• 3:20
  Speaker 3: haven't been trolling the internet for it, but I've never
• 3:23
  Speaker 3: seen anything to suggest that anybody is remotely interested in this.
• 3:26
  Speaker 3: Maybe you can convince them.
• 3:28
  Speaker 2: Wait, am I the first journalist to call you an
• 3:30
  Speaker 2: interview you about this?
• 3:32
  Speaker 3: Yes, I'm trying to remember if anybody did back in
• 3:35
  Speaker 3: two thousand and four, two thousand and five. No, people
• 3:40
  Speaker 3: are inclined to view it as a wacky idea. Right,
• 3:44
  Speaker 3: You're taking a legal concept of something that's one hundred
• 3:48
  Speaker 3: and seventy years old, and you're saying it's still operative.
• 3:52
  Speaker 3: If you think about it, logically, it is still operative.
• 3:56
  Speaker 3: But people's intuitions are that that can't be right and
• 4:02
  Speaker 3: so or that it can't be taken seriously. So, Malcolm,
• 4:05
  Speaker 3: you've got to get people who take it seriously.
• 4:07
  Speaker 2: You take it seriously. I don't think this is wacky
• 4:10
  Speaker 2: as at all. I read this and I'm thinking this
• 4:12
  Speaker 2: is dead serious. Paulson is fair haired, glasses composed, an
• 4:19
  Speaker 2: intellectual author of serious books on the US Constitution. When
• 4:24
  Speaker 2: we met, he was a visiting scholar at Princeton University
• 4:27
  Speaker 2: hold up in one of those gorgeous old mansions on
• 4:30
  Speaker 2: the outskirts of campus. But don't get the wrong impression.
• 4:34
  Speaker 2: There's also something subversive about the man, a certain look
• 4:38
  Speaker 2: in his eye. He's someone who likes to make mischief,
• 4:43
  Speaker 2: like on page six hundred and eighteen of the journal
• 4:46
  Speaker 2: containing his law review article, when he briefly addresses the
• 4:50
  Speaker 2: question of why he has just spent tens of thousands
• 4:53
  Speaker 2: of words descending down this particular rabbit hole, and his answer,
• 4:58
  Speaker 2: because it's there, I don't know about you. That makes
• 5:03
  Speaker 2: me nervous. There was a part of me that just
• 5:05
  Speaker 2: wanted to walk out of his office and not say
• 5:08
  Speaker 2: another word to anyone one. Let's sleeping dogs, lie, I'm
• 5:12
  Speaker 2: running a podcast here, not starting a revolution. You're not Jewish,
• 5:16
  Speaker 2: are you? Because let's say we could do a none
• 5:19
  Speaker 2: of us are Jewish. What we can do? What do
• 5:21
  Speaker 2: they call it? A mid rash? Is that what they
• 5:22
  Speaker 2: call a mid Yes? Right, let's let's do a little
• 5:25
  Speaker 2: bit of a midrash on Let's start with it. Start
• 5:28
  Speaker 2: with Article four, Section three, and go th So I
• 5:32
  Speaker 2: guess we're trying to answer the question of of why
• 5:35
  Speaker 2: it is the case that that this article on its face,
• 5:40
  Speaker 2: Section three, on its face does not prohibit subdivision. That's right,
• 5:45
  Speaker 2: that's the issue at hand, right right. So let's I'll
• 5:49
  Speaker 2: have you if you read it and then us break
• 5:51
  Speaker 2: it down grammatically.
• 5:52
  Speaker 3: Let's do the I'll do in dramatic reading. New states
• 5:56
  Speaker 3: may be admitted by the Congress into this Union semi.
• 5:59
  Speaker 2: Coleman Paulson carries a small copy of the US Constitution
• 6:03
  Speaker 2: in his jacket pocket. This is what he's reading from.
• 6:06
  Speaker 3: It's first clause. New states maybe admitted, you know, some
• 6:09
  Speaker 3: powered tomit new states. But no new state may shall
• 6:13
  Speaker 3: be formed or erected within the jurisdiction of any other
• 6:17
  Speaker 3: state semi.
• 6:18
  Speaker 2: Colon the second semi colin pay special attention.
• 6:23
  Speaker 3: Nor any state be formed by the junction of two
• 6:26
  Speaker 3: or more states or parts of states, without the consent
• 6:30
  Speaker 3: of the legislatures of the states concerned, as well as
• 6:34
  Speaker 3: of the Congress.
• 6:35
  Speaker 2: Where you left at some comments I left out.
• 6:37
  Speaker 3: I didn't read all the comments. Yeah, okay, let me
• 6:40
  Speaker 3: let me do it again.
• 6:41
  Speaker 2: Outrageous for you that I've read so much about the
• 6:45
  Speaker 2: grammar to leave out.
• 6:45
  Speaker 3: A common Okay, new states may be admitted by the
• 6:49
  Speaker 3: Congress into this Union semi colon, but no new state
• 6:53
  Speaker 3: shall be formed or erected within the jurisdiction of any
• 6:55
  Speaker 3: other state second semi nor any state be formed by
• 7:01
  Speaker 3: the junction of two or more states comma or parts
• 7:04
  Speaker 3: of states comma, without the consent of the legislatures of
• 7:08
  Speaker 3: the states concerned, as well as of the Congress period.
• 7:13
  Speaker 3: That's the whole precussion.
• 7:15
  Speaker 2: So question one, as I understand it from reading you,
• 7:17
  Speaker 2: is what is the sense of the second semicole?
• 7:21
  Speaker 4: Right?
• 7:23
  Speaker 2: This is about to get very serious, I promise. Right
• 7:33
  Speaker 2: across the Texas border. In Ardmore, Oklahoma, there is a
• 7:37
  Speaker 2: quality in on West Broadway Street, two stories courtyard, Big Pool.
• 7:42
  Speaker 2: It used to be a holiday inn until a few
• 7:45
  Speaker 2: years ago. Just to be clear, the Ardmore holiday slash
• 7:49
  Speaker 2: quality in has nothing to do with Michael Paulson's law
• 7:52
  Speaker 2: review paper, not directly anyway. It's context. You have to
• 7:56
  Speaker 2: know about Ardmore if you want to understand where Paulson's
• 7:59
  Speaker 2: argument begins. The very first line of his article, in fact,
• 8:03
  Speaker 2: which is, and I'm quoting Texas Republicans have been thinking
• 8:07
  Speaker 2: way too small, that's way with five a's. It's the
• 8:14
  Speaker 2: early two thousands. Results from the national census are in,
• 8:18
  Speaker 2: which means state legislatures around the country are redrawing the
• 8:22
  Speaker 2: boundaries of congressional districts based on the new population numbers.
• 8:26
  Speaker 2: It's a ritual power struggle that happens in America every
• 8:29
  Speaker 2: ten years. In Texas, the legislature is controlled by Republicans.
• 8:34
  Speaker 2: They want to redraw the congressional map so Democrats get
• 8:37
  Speaker 2: fewer seats, but it doesn't work. Even with the new borders,
• 8:41
  Speaker 2: the Democrats hold on to their seats. So in two
• 8:44
  Speaker 2: thousand and three, the Texas Republicans introduce a bill to
• 8:47
  Speaker 2: draw the boundaries all over again, and the Democrats are furious.
• 8:52
  Speaker 2: If you can keep redrawing the boundaries of electoral districts
• 8:56
  Speaker 2: over and over until you put your opponent out of business,
• 8:59
  Speaker 2: then you're not really in a democracy, are you. The
• 9:02
  Speaker 2: organizer of the revolt was Jim Dunham. He's now a
• 9:05
  Speaker 2: lawyer in Waco. Back in two thousand and three, he
• 9:08
  Speaker 2: was chairman of the state House Democratic Caucus.
• 9:11
  Speaker 4: I had members coming up to me and say, you know, Jim,
• 9:14
  Speaker 4: you got to do something right, And I was like, well,
• 9:16
  Speaker 4: what are we going to do?
• 9:17
  Speaker 1: So I will can bust a quorum.
• 9:19
  Speaker 2: There are one hundred and fifty legislators in the Texas Assembly.
• 9:23
  Speaker 2: Quorum is one hundred. If Dunham can get fifty one
• 9:27
  Speaker 2: Democrats not to show up, the vote can't happen.
• 9:30
  Speaker 4: Well, the bill was coming up on a Monday, and
• 9:32
  Speaker 4: I think it was the preceding Wednesday that I had
• 9:34
  Speaker 4: in the first meeting, and I'll tell you, I thought
• 9:37
  Speaker 4: I was totally wasting my time.
• 9:38
  Speaker 1: I told everybody, this is foolish. Nobody's going to do this.
• 9:41
  Speaker 4: It's because you had to go across state lines because
• 9:45
  Speaker 4: the Speaker of the House has the authority to issue
• 9:47
  Speaker 4: arrest warrants and if you're in Texas, they can grab you. Now,
• 9:50
  Speaker 4: if you're outside of Texas, that then you know it
• 9:54
  Speaker 4: doesn't have jurisdiction.
• 9:57
  Speaker 2: Oh, I see, that's why you had to go to Oklahoma.
• 9:59
  Speaker 5: Yeah.
• 9:59
  Speaker 4: Actually, you have my arrest warrant on my wall. It's
• 10:01
  Speaker 4: it's pretty cool and it says, go you were directed
• 10:05
  Speaker 4: to go arrest and detain Jim Dunham and bring him.
• 10:07
  Speaker 1: To the Texas House.
• 10:08
  Speaker 2: So when'd you guys leave?
• 10:12
  Speaker 1: Left on Mother's Day Sunday?
• 10:16
  Speaker 4: And you know, about Thursday, when I figured out we're
• 10:19
  Speaker 4: going to actually get enough people to pull this off,
• 10:23
  Speaker 4: I was like, good Lord, where we're.
• 10:24
  Speaker 1: Going to go? You know? And I will tell you.
• 10:27
  Speaker 1: I had some members say, well, let's go to like Charles.
• 10:29
  Speaker 4: Louisiana or Shreeport, Louisiana. And I said, well, we're not
• 10:32
  Speaker 4: going to go there because the casinos there, and in
• 10:35
  Speaker 4: no way we'll keep the Democrats out of the casinos
• 10:37
  Speaker 4: if we're in Shreeport.
• 10:39
  Speaker 1: And I'm serious, you know.
• 10:42
  Speaker 4: And so my wife's family is Marmore, Oklahoma, and God
• 10:48
  Speaker 4: love Ardmore, but there's nothing to do in Ardmore.
• 10:52
  Speaker 2: Dunham Hire's buses gets everyone to meet at a hotel
• 10:55
  Speaker 2: in Austin, does a head count fifty plus himself, doesn't
• 11:00
  Speaker 2: tell anyone where they're headed or when they're coming back.
• 11:03
  Speaker 2: Need to know basis only. It's an undercover operation. It
• 11:09
  Speaker 2: comes and when the Republicans are ready for their triumphant vote,
• 11:12
  Speaker 2: they suddenly realize that they don't have a quorum. They
• 11:15
  Speaker 2: launch a manhunt for the missing Democrats. Texas Congressman Tom
• 11:19
  Speaker 2: Delay gets involved. He's the House Majority leader in Washington
• 11:22
  Speaker 2: at the.
• 11:23
  Speaker 4: Time, one of the members showed up in a plane
• 11:26
  Speaker 4: and delay evidently called Homeland Security and reported the tail
• 11:30
  Speaker 4: number was missing, and in an effort to figure out
• 11:34
  Speaker 4: where that plane had gone, and it was I don't
• 11:37
  Speaker 4: know what to say, but Homeland Security couldn't find us.
• 11:39
  Speaker 1: But the Dallas Morning News good.
• 11:43
  Speaker 2: To recap. The Texas Republicans want to increase their numbers
• 11:47
  Speaker 2: and influence in Washington, so they try a jerrymander, then
• 11:50
  Speaker 2: when it fails, do a re gerrymander in violation of
• 11:54
  Speaker 2: every state norm, leading to a full scale state constitutional crisis,
• 11:58
  Speaker 2: causing the states Democratic caucused to flee in buses to
• 12:01
  Speaker 2: a holiday and in Oklahoma, leading to a statewide manhunt,
• 12:05
  Speaker 2: convincing the House Majority leader to call in Homeland Security,
• 12:09
  Speaker 2: triggering an international media frenzy.
• 12:12
  Speaker 6: What is the situation like in ard More for the
• 12:15
  Speaker 6: Texas Democrats right now?
• 12:17
  Speaker 7: John, Here at the holiday inn, I've been witnessed to
• 12:19
  Speaker 7: a courageous scene of defiance. Texas Democratic legislators hunkered down,
• 12:24
  Speaker 7: trying to conduct the people's business while subsisting only on
• 12:27
  Speaker 7: the contents of their mini bars.
• 12:33
  Speaker 8: Homeland Security officials attempting to find some missing state legislators
• 12:39
  Speaker 8: who hung out at the Holiday Inn for a couple
• 12:41
  Speaker 8: of days. You know, we got a lot of deserters
• 12:44
  Speaker 8: down there, guys that are afraid to stand and fight
• 12:48
  Speaker 8: like our arm services do.
• 12:51
  Speaker 6: The legislative process was so broken that they had to
• 12:54
  Speaker 6: leave for Ardmore.
• 12:56
  Speaker 8: Thank god we didn't have those democrats at the Alamo.
• 13:01
  Speaker 8: God bless you.
• 13:04
  Speaker 4: I will tell you, probably most of the time was
• 13:08
  Speaker 4: dealing with the ten or eleven satellite news trucks that
• 13:11
  Speaker 4: showed up after a dire or two.
• 13:14
  Speaker 2: And who's watching all of this? Michael Paulson and Vasan Casavon,
• 13:18
  Speaker 2: authors of the Law Review article that found its way
• 13:20
  Speaker 2: to my inbox. They're working on their article as the
• 13:24
  Speaker 2: drama unfolds in Ardmore, and they look at everything that's
• 13:27
  Speaker 2: happening norm violation, constitutional crisis, Ardmore, Holiday in homeland security,
• 13:34
  Speaker 2: media frenzy, and their conclusion is Texas Republicans have been
• 13:39
  Speaker 2: thinking way too small. Michael Stokes. Paulson's argument is about Texas,
• 13:53
  Speaker 2: but it's also more significantly about grammar. His Law Review
• 13:57
  Speaker 2: article spends far more time on grammar in fact than
• 14:00
  Speaker 2: on anything else. Specifically, the grammar of the US Constitution,
• 14:08
  Speaker 2: so much so that immediately after I visited Paulson at Princeton,
• 14:12
  Speaker 2: I realized that I needed an emergency session with Mary Norris,
• 14:16
  Speaker 2: author of the brilliant book Between You and Me, Confessions
• 14:20
  Speaker 2: of a Common Queen.
• 14:21
  Speaker 5: I wonder, lookie, I have a fresher racer.
• 14:28
  Speaker 1: Here.
• 14:29
  Speaker 2: We're in Mary's Manhattan apartment. Books everywhere, creaky hardwood floors.
• 14:35
  Speaker 2: I've known Mary for years. We worked together at The
• 14:38
  Speaker 2: New Yorker. The New Yorker is a good cop bad
• 14:40
  Speaker 2: cop operation. The good cops are the editors. They coddle, courage, soothe,
• 14:46
  Speaker 2: let you go on and on. The bad cops are
• 14:49
  Speaker 2: the copy department. For most of my time there, the
• 14:53
  Speaker 2: copy department was a murderer's row of three women. First
• 14:57
  Speaker 2: was Anne, who was a national caliber marathoner who gave
• 15:00
  Speaker 2: the impression that in any disagreement she would simply outlast you.
• 15:04
  Speaker 2: The second Carol, who reminded me of the proper West
• 15:07
  Speaker 2: Indian ladies I grew up with, who could silence you
• 15:10
  Speaker 2: with a disapproving glance. The third was marry If Mister
• 15:15
  Speaker 2: and Missus Santa Claus had an irrepressible youngest daughter, it
• 15:18
  Speaker 2: would be marry. I have written down here three sentences
• 15:25
  Speaker 2: from the Constitution. I just want to introduce listeners to
• 15:28
  Speaker 2: the proposition that frist of all, that punctuation in particular
• 15:31
  Speaker 2: really matters on a document like the Constitution. And two
• 15:36
  Speaker 2: they were a little bit sloppy with their comments and
• 15:39
  Speaker 2: seven caltons at times. We're sitting at Mary's kitchen table,
• 15:43
  Speaker 2: a handle a sheet of paper with my constitutional selections
• 15:46
  Speaker 2: on it. She takes out a black number two pencil sharp.
• 15:50
  Speaker 2: We start with the sentence that has driven Grammarians crazy
• 15:53
  Speaker 2: for two hundred and fifty years, the second.
• 15:56
  Speaker 5: Amendment, A well regulated militia being necessary to the security
• 16:00
  Speaker 5: of a free state, the right of the people to
• 16:02
  Speaker 5: keep and bare arms shall not be infringed.
• 16:07
  Speaker 2: A well regulated militia comma being necessary to the security
• 16:11
  Speaker 2: of a free state Comma the right of the people
• 16:15
  Speaker 2: to keep in bear arms comma shall not be infringed. Well,
• 16:20
  Speaker 2: first of all, that comma is wrong before shall so yeah,
• 16:24
  Speaker 2: they should be. That's the that's the third comma, right, Yes,
• 16:29
  Speaker 2: the other two commas that you're fine.
• 16:31
  Speaker 5: With, well, no, they don't make sense either. Because with
• 16:37
  Speaker 5: the two commas, the sentence in its essence would read
• 16:42
  Speaker 5: well regulated militia the right of the people to keep
• 16:45
  Speaker 5: in bear arms shall not be infringed, which doesn't make
• 16:48
  Speaker 5: any sense.
• 16:49
  Speaker 2: It's like they loaded a shotgun with commas and fired
• 16:52
  Speaker 2: it at the second Amendment. It's a mess.
• 16:55
  Speaker 5: So a well regulated militia being necessary to the security
• 17:01
  Speaker 5: of a free state, comma comma, the right of the
• 17:05
  Speaker 5: people to keep and bear arms shall not be in fringe.
• 17:09
  Speaker 5: That I would lose two of those comments.
• 17:13
  Speaker 2: Mary had covered up the two other sentences on my
• 17:15
  Speaker 2: list with the legal pad. She moved the legal pad
• 17:18
  Speaker 2: down just enough to expose sentence number two.
• 17:21
  Speaker 5: The right of Citizens of the United States who are
• 17:23
  Speaker 5: eighteen years of age or older to vote shall not
• 17:25
  Speaker 5: be denied or abridged by the United States or by
• 17:29
  Speaker 5: any State on account of age.
• 17:32
  Speaker 2: Twenty sixth Amendment the United States Constitution. It's a terrible sentence.
• 17:36
  Speaker 6: Oh, it's terrible.
• 17:37
  Speaker 2: Yeah, So what if you rewrite that sentence from me?
• 17:42
  Speaker 2: Mary has her pencil out. She's marking up the piece
• 17:44
  Speaker 2: of paper like a New Yorker galley, covering the page
• 17:47
  Speaker 2: with graceful number two pencil lines.
• 17:50
  Speaker 5: The right of citizens who are eighteen years of age
• 17:56
  Speaker 5: or older to vote. That's it. You should just say
• 18:01
  Speaker 5: they're right of the United States citizens who are eighteen
• 18:05
  Speaker 5: years of age?
• 18:06
  Speaker 2: No call to vote. No call, because by having no commas,
• 18:11
  Speaker 2: what it turns into is a defining clause. By putting
• 18:16
  Speaker 2: commas around it, it becomes a descriptive clause.
• 18:18
  Speaker 4: That's right.
• 18:20
  Speaker 2: A defining clause in grammatical terms is a clause necessary
• 18:25
  Speaker 2: for the meaning of a sentence. The house where I
• 18:27
  Speaker 2: live is on fire. You don't put commas around the
• 18:30
  Speaker 2: phrase where I live because the fact that it's my
• 18:32
  Speaker 2: house is essential for understanding what I'm trying to say.
• 18:35
  Speaker 2: The house where I live is on fire. But in
• 18:38
  Speaker 2: the sentence the house comma built in nineteen seventy eight,
• 18:41
  Speaker 2: comma is on fire. We put commas around the phrase
• 18:45
  Speaker 2: built in nineteen seventy eight to mark it as descriptive.
• 18:48
  Speaker 2: It's not necessary for the meaning of the sentence, but
• 18:51
  Speaker 2: it helps us understand more about the house. So the
• 18:54
  Speaker 2: twenty sixth Amendment has commas around the clause who are
• 18:58
  Speaker 2: eighteen years of age or older?
• 19:01
  Speaker 1: Big mistake.
• 19:05
  Speaker 5: When was this one written?
• 19:07
  Speaker 2: Well, it was past in modern times.
• 19:10
  Speaker 5: Yeah, that's what I thought. But rus reads as if
• 19:16
  Speaker 5: all the citizens of the United States are eighteen years
• 19:19
  Speaker 5: of age or older.
• 19:22
  Speaker 2: American citizens are people either born here or who have
• 19:25
  Speaker 2: been granted citizenship, And what the twenty sixth Amendment means
• 19:29
  Speaker 2: to say is that a subset of that group, those
• 19:32
  Speaker 2: who are over the age of eighteen, have the right
• 19:35
  Speaker 2: to vote. But the authors of the twenty sixth Amendment
• 19:39
  Speaker 2: used commas interpreted grammatically, the twenty sixth Amendment says that
• 19:44
  Speaker 2: a citizen of the United States is anyone over eighteen anyone.
• 19:49
  Speaker 2: Canadians who crossed the border into Detroit to by gas
• 19:52
  Speaker 2: are citizens so long as they're over eighteen. Russians who
• 19:55
  Speaker 2: go apartment shopping in Miami with Duffel bags full of
• 19:59
  Speaker 2: cash are citizens so long as they're over eighteen.
• 20:02
  Speaker 5: Good Lord, clarity is of the utmost importance in a
• 20:06
  Speaker 5: legal document, right. I don't think lawyers have special rules
• 20:12
  Speaker 5: about semi colon's. I also don't know if there's such
• 20:16
  Speaker 5: a thing as a legal grammarian, but there probably should be.
• 20:20
  Speaker 5: You know, a US grammarian to take care of these things.
• 20:24
  Speaker 5: You should not volunteering.
• 20:26
  Speaker 2: Why you would be the perfect person to be the
• 20:28
  Speaker 2: grammarian in chief.
• 20:29
  Speaker 5: Only if I could wear one of those wigs.
• 20:34
  Speaker 2: And now we turn to the constitutional sentence at the
• 20:37
  Speaker 2: bottom of the page, the one I really care about,
• 20:40
  Speaker 2: the one that explains why Texans have been thinking way
• 20:44
  Speaker 2: too small, the big one.
• 20:48
  Speaker 5: New states may be admitted by the Congress into this
• 20:52
  Speaker 5: Union semi colon, But no new state shall be formed
• 20:56
  Speaker 5: or erected within the jurisdiction of any other state, nor
• 21:01
  Speaker 5: any state to be formed by the junction of two
• 21:03
  Speaker 5: or more states are parts of state without the consent
• 21:06
  Speaker 5: of the legislatures of the states concerned as well the Congress. Well,
• 21:12
  Speaker 5: that seems clear to me. You can't form any new
• 21:16
  Speaker 5: states without everybody agreeing that the new states can be formed.
• 21:22
  Speaker 2: I repeat, not a shaggy dog story. Michael Paulson first
• 21:30
  Speaker 2: became drawn to Article four, Section three of the US
• 21:33
  Speaker 2: Constitution when he was teaching a class at the University
• 21:37
  Speaker 2: of Minnesota Law School on the Civil War. The question
• 21:41
  Speaker 2: of West Virginia came up. As you may remember, Virginia
• 21:44
  Speaker 2: was a Confederate state during the Civil War, but a
• 21:47
  Speaker 2: number of counties in one corner of Virginia were anti slavery,
• 21:51
  Speaker 2: so they broke away and formed West Virginia, which was
• 21:55
  Speaker 2: admitted into the Union in eighteen sixty three. The question
• 22:00
  Speaker 2: Paulson had for his students was was that constitutional can
• 22:04
  Speaker 2: a new state be formed from a piece of an
• 22:06
  Speaker 2: existing state? What a trivial question? And Article four, section
• 22:12
  Speaker 2: three is the part of the Constitution that addresses this issue.
• 22:17
  Speaker 2: It was written in seventeen eighty seven. As with the
• 22:20
  Speaker 2: Second Amendment and the twenty sixth Amendment. However, it is
• 22:23
  Speaker 2: grammatically ambiguous, and as a result, it's precisely the kind
• 22:28
  Speaker 2: of matter that appeals to the baroque legal tastes of
• 22:31
  Speaker 2: Michael Stokes Pulsary. He gets together with the son Casavon.
• 22:36
  Speaker 2: They happily disappear down the Article four Section three rabbit
• 22:39
  Speaker 2: hole for god knows how long, and they emerge with
• 22:42
  Speaker 2: an exhaustive analysis of the question published in Volume ninety,
• 22:46
  Speaker 2: issue two of the California Law Review, pages two ninety
• 22:50
  Speaker 2: one to four hundred. This is not the Law Review
• 22:54
  Speaker 2: article that landed in my inbox and blew my mind.
• 22:56
  Speaker 2: It's the precursor the compulsory figures, if you will, before
• 23:01
  Speaker 2: the free skate.
• 23:03
  Speaker 3: Now there is this language, but no new state shall
• 23:07
  Speaker 3: be formed or erected within the jurisdiction of any other
• 23:10
  Speaker 3: state semichel. You could read that if it were just
• 23:15
  Speaker 3: that as a flat prohibition on carving out a news
• 23:20
  Speaker 3: state from within an existing state.
• 23:22
  Speaker 2: If it stops there, If it had stopped there and
• 23:23
  Speaker 2: there was nothing that came after, we have no arguments here.
• 23:26
  Speaker 2: No new state shall be formed or erected within the
• 23:29
  Speaker 2: jurisdiction of any other state. No ambiguity there.
• 23:33
  Speaker 3: Right, it would say, you can't do.
• 23:35
  Speaker 2: It, you can't, so West Yugrainia would not be right legitimate.
• 23:38
  Speaker 3: But then it goes on after the semi colon. And
• 23:42
  Speaker 3: this real question is is that semi colon more like
• 23:45
  Speaker 3: a period that ends one prohibition and then another prohibition
• 23:49
  Speaker 3: picks up, or is it more like a pause, Is
• 23:52
  Speaker 3: it more like a comma. After that semi colon, it
• 23:55
  Speaker 3: goes on to talk about well, let me read it again.
• 23:59
  Speaker 3: Nor any state be formed by the junction of two
• 24:02
  Speaker 3: or more states or parts of states without the consent
• 24:05
  Speaker 3: of the legislatures of the states concerned, as well as
• 24:08
  Speaker 3: of the Congress.
• 24:09
  Speaker 2: Article four, Section three would be crystal clear if the
• 24:13
  Speaker 2: founders had used a period in the middle of it.
• 24:17
  Speaker 2: A period would mean you can't subdivide a state. Ever,
• 24:22
  Speaker 2: on the other hand. If you want to combine two states,
• 24:25
  Speaker 2: you can, so long as everyone consents, And it would
• 24:29
  Speaker 2: be equally clear if they had used a comma. A
• 24:32
  Speaker 2: comma would mean that the consent provision applies to everything.
• 24:37
  Speaker 2: Both subdividing and combining are legal so long as Congress
• 24:40
  Speaker 2: signs off on it. But they don't use a period
• 24:43
  Speaker 2: or a comma. They make a punctuation decision guaranteed to
• 24:47
  Speaker 2: tie generations of constitutional scholars in knots. They choose a semicone.
• 24:54
  Speaker 3: When it says, without the consent of the legislatures of
• 24:58
  Speaker 3: the states concerned as well as of the Congress, does
• 25:01
  Speaker 3: the consent qualification apply also to carving a small state
• 25:07
  Speaker 3: out of an existing new state? And it all turns
• 25:10
  Speaker 3: on whether the semi colon is read as a full
• 25:13
  Speaker 3: stop separate prohibition or is just one in a series
• 25:18
  Speaker 3: of things to which consents can be given.
• 25:22
  Speaker 2: Does the Constitution say you cannot break off a piece
• 25:25
  Speaker 2: of an existing state ever, or does it say you
• 25:28
  Speaker 2: can so long as Congress says okay. Paulson and Casavon
• 25:34
  Speaker 2: spend ninety pages on this question in their California Law
• 25:37
  Speaker 2: Review article ninety pages, and it's riveting reading because the
• 25:42
  Speaker 2: whole time you're thinking, good lord, West Virginia is hanging
• 25:46
  Speaker 2: in the balance. If that semi colon from seventeen eighty
• 25:52
  Speaker 2: seven is meant as a full stop, then someone has
• 25:54
  Speaker 2: to go down to the State House in Charleston and
• 25:56
  Speaker 2: break the news to everyone there that the party's over.
• 26:03
  Speaker 2: Paulson and Cassavon comb through earlier drafts of that clause,
• 26:07
  Speaker 2: the legislative history of the Constitution, the records of the framers,
• 26:11
  Speaker 2: and they conclude West Virginia is constitutional. Everyone involved the
• 26:19
  Speaker 2: sign off. That's their concern, right. So once you so,
• 26:22
  Speaker 2: in other words, that makes it quite clear that the
• 26:26
  Speaker 2: last clause modifies everything.
• 26:30
  Speaker 1: Everything.
• 26:31
  Speaker 2: Yes, But once it's clear that the last clause modifies everything,
• 26:35
  Speaker 2: then the semi colon cannot be functioning as a period.
• 26:39
  Speaker 3: It cannot be.
• 26:42
  Speaker 2: Forgive me if I'm going on and on about this,
• 26:45
  Speaker 2: but everything depends on this interpretation of Article four, Section three.
• 26:51
  Speaker 2: For years, people have been dismissing the implications of that
• 26:54
  Speaker 2: sentence because they've assumed that it's ambiguous. It is not ambiguous.
• 27:03
  Speaker 2: And here's what clinched it for me. Mary Norris, the
• 27:07
  Speaker 2: comic Queen, agrees.
• 27:09
  Speaker 5: Okay, well, I think that hinges on this nor. In
• 27:14
  Speaker 5: spite of the semi colon, the nor connects this to
• 27:19
  Speaker 5: the butt. To the butt.
• 27:22
  Speaker 2: The Constitution says, but no new state shall be formed
• 27:26
  Speaker 2: or erected within the jurisdiction of any other state semi colon,
• 27:31
  Speaker 2: nor any state be formed dot dot dot. I've read many, many,
• 27:36
  Speaker 2: many commentaries on this. You're the first person to talk
• 27:39
  Speaker 2: about this butt nor being significant.
• 27:44
  Speaker 5: Well, you don't have a nor unless you're referring to
• 27:47
  Speaker 5: something before it. You know, neither nor nor. One of
• 27:52
  Speaker 5: the things that copy editors look for is a nor
• 27:56
  Speaker 5: standing alone.
• 27:57
  Speaker 6: It doesn't make any sense.
• 27:59
  Speaker 5: We try not to let sentences begin with nor. We
• 28:02
  Speaker 5: try not to have a nor where there's not a neither,
• 28:07
  Speaker 5: So that nor has to can to something, And I
• 28:10
  Speaker 5: think it connects to the butt, so I think they're related.
• 28:17
  Speaker 2: There in Mary's apartment, I had a flashback to the
• 28:21
  Speaker 2: final round of editing of The New Yorker, something I've
• 28:23
  Speaker 2: done many times. You're sitting in a room, you you're
• 28:27
  Speaker 2: good cop editor, and Carol Ann or Mary going through
• 28:30
  Speaker 2: your piece line by line, peeling away everything superfluous and confusing,
• 28:36
  Speaker 2: truly formidable intellect devoted to making words mean what they're
• 28:39
  Speaker 2: supposed to mean. If you've never had someone do that
• 28:43
  Speaker 2: for your words, you haven't written. But you're saying if
• 28:46
  Speaker 2: I have a bot nor construction. If I say I
• 28:49
  Speaker 2: like all kinds of animals, but I don't like horses,
• 28:56
  Speaker 2: and nor do I like dogs because they smell? Is
• 29:04
  Speaker 2: because they smell modifying horses and dogs?
• 29:10
  Speaker 5: I think so, Yes, I think the North Connecto.
• 29:14
  Speaker 2: Yes, that's crucial. Mary, you are you have entered into
• 29:20
  Speaker 2: a hugely significant constitutional today, which brings us to the
• 29:26
  Speaker 2: second case of on puls and paper. That's the one
• 29:28
  Speaker 2: my friend sent me. Texas Law Review, Volume eighty two,
• 29:33
  Speaker 2: the necessary and far more consequential companion to their constitutional
• 29:38
  Speaker 2: exoneration of West Virginia. The articles called Let's mess with Texas.
• 29:45
  Speaker 2: It begins with a quotation from the congressional resolution under
• 29:48
  Speaker 2: which Texas was admitted to the Union in eighteen forty five.
• 29:52
  Speaker 2: The relevant passage goes like this, new states of convenient
• 29:57
  Speaker 2: size not exceeding four in number, in addition to said
• 30:02
  Speaker 2: State of Texas, and having sufficient population, may hereafter, by
• 30:08
  Speaker 2: the consent of said state, be formed out of the
• 30:11
  Speaker 2: territory thereof. Congress gave Texas permission to form another four
• 30:19
  Speaker 2: states within its borders, which makes sense. Texas was an
• 30:23
  Speaker 2: independent country at the time it joined the Union, and
• 30:25
  Speaker 2: a very big country at that There were complicated political
• 30:28
  Speaker 2: considerations in eighteen forty five about the balance between slave
• 30:32
  Speaker 2: states and free states. That's a whole other story. What
• 30:36
  Speaker 2: matters is that, according to Casavon and Paulson's exhaustive constitutional analysis,
• 30:42
  Speaker 2: the offer still stands. New states of convenient size may
• 30:48
  Speaker 2: be formed. That's why their interpretation of Article four, Section three,
• 30:54
  Speaker 2: with its confusing semi colon and crucial nore, is so important.
• 30:58
  Speaker 2: It means that all that has to happen is for
• 31:01
  Speaker 2: the Texas legislature to sign off on division, and it's
• 31:04
  Speaker 2: a done deal.
• 31:06
  Speaker 3: When Congress pass that statue saying you could do this,
• 31:09
  Speaker 3: that's consent. They consented in advance, they consented on these terms,
• 31:14
  Speaker 3: and the consent has not been taken away.
• 31:19
  Speaker 2: That's as many as five states where there is now
• 31:22
  Speaker 2: only one ten US senators, where Texas now is only
• 31:25
  Speaker 2: two Texans in control of American politics for the next century.
• 31:36
  Speaker 6: We don't usually draw stages, but you've made me czar,
• 31:39
  Speaker 6: so I will do that.
• 31:43
  Speaker 2: If you ask around about who knows the most about
• 31:45
  Speaker 2: the political demographics of Texas. One name comes up a lot.
• 31:49
  Speaker 2: Michael Lee, studious guy, somber suit, glasses, loyally haircut, grew
• 31:54
  Speaker 2: up in Houston, went to the University of Texas, now
• 31:57
  Speaker 2: works at the Brennan Center for Justice at New York University.
• 32:01
  Speaker 2: It occurred to me that I'm potentially complicit in all
• 32:04
  Speaker 2: of this. I'm the one publicizing the Pulse in Casavon
• 32:07
  Speaker 2: manifesto for a complete makeover of American politics, so I
• 32:12
  Speaker 2: needed to find out what I'm getting everyone into.
• 32:15
  Speaker 6: I would create a district that or a district a
• 32:20
  Speaker 6: state that stretch that included Houston and the stretch to
• 32:25
  Speaker 6: the border with Louisiana.
• 32:27
  Speaker 2: Michael Lee and I met in a big conference room
• 32:29
  Speaker 2: near Wall Street. He brought with him a map of
• 32:32
  Speaker 2: Texas so large it covered the entire end of the table.
• 32:36
  Speaker 2: Lee started by drawing the borders of the new state
• 32:38
  Speaker 2: of Houston five million people.
• 32:41
  Speaker 6: And then on the western side, I would probably cut
• 32:43
  Speaker 6: it off somewhere in between Houston and Austin, which is
• 32:49
  Speaker 6: in central Texas.
• 32:51
  Speaker 2: The way he talked, he made it sound natural as
• 32:54
  Speaker 2: if Texas actually makes a lot of sense divided up
• 32:56
  Speaker 2: five ways. He saw a third state in Central Texas.
• 33:00
  Speaker 2: Set it around booming Austin, already the eleventh largest city
• 33:03
  Speaker 2: in the United States. The fourth state would be West
• 33:05
  Speaker 2: Texas Lubbock, Midland, Odessa, Flat and Dusty Oil Country. The
• 33:10
  Speaker 2: fifth state would run along the Mexican border, beginning with
• 33:12
  Speaker 2: San Antonio in the east and running all the way
• 33:14
  Speaker 2: to El Paso. When Paulson and Casavon published their law
• 33:18
  Speaker 2: review paper back in two thousand and four, the assumption
• 33:22
  Speaker 2: was that if Texas subdivided, this would be a net
• 33:24
  Speaker 2: wind for Republicans. Texas hasn't sent a Democrat to the
• 33:28
  Speaker 2: US Senate since the early nineteen nineties. It's the Republican heartland.
• 33:34
  Speaker 2: That's why they wrote that Texas. Republicans were thinking way
• 33:36
  Speaker 2: too small, why not quintupple their influence in Washington. But
• 33:41
  Speaker 2: in the years since then, the state's demographics have been
• 33:44
  Speaker 2: in upheaval. West Texas Oil Country would remain solid for
• 33:48
  Speaker 2: the Republicans two senators, but the new states of Houston
• 33:52
  Speaker 2: and Dallas and Central Texas, those are purple. They could
• 33:56
  Speaker 2: go either way. As for the state running along the
• 33:59
  Speaker 2: Mexican border, the one with its capital in San Antonio.
• 34:03
  Speaker 6: This is a heavily democratic state, and I think that
• 34:06
  Speaker 6: the state would be more Latino than New mexic Ago,
• 34:09
  Speaker 6: and it would elact not only Democrats, but probably Latino
• 34:13
  Speaker 6: Democrats to the Senate.
• 34:17
  Speaker 2: It's a whole new ballgame. Michael Lee and I did
• 34:19
  Speaker 2: the math for the ten new Texas Senate seats. Two
• 34:23
  Speaker 2: are a lock for the Republicans and they can probably
• 34:26
  Speaker 2: count on another from one of the toss up states.
• 34:29
  Speaker 2: So three in total.
• 34:30
  Speaker 6: Yeah, three, yeah, I think.
• 34:32
  Speaker 2: And it says like four are a lock for the
• 34:35
  Speaker 2: Democrats and three are up for grabs. Is that would
• 34:37
  Speaker 2: that be a fair I think so? Yeah, yeah, yeah,
• 34:42
  Speaker 2: which is a pretty big shift from the way things
• 34:44
  Speaker 2: are now. Right, all right, that's now. But if Texas
• 34:49
  Speaker 2: continues to grow and change, the three toss up states Dallas, Houston,
• 34:54
  Speaker 2: and Austin get even more democratic, especially the state of Houston.
• 34:59
  Speaker 2: So we'll say it's at the moment it's fifty to fifty.
• 35:04
  Speaker 2: But long term, if I said to you ten years
• 35:07
  Speaker 2: from now, you would not be prize if it elected
• 35:10
  Speaker 2: two Democrats.
• 35:10
  Speaker 6: That's right, that's right.
• 35:12
  Speaker 2: In a generation, could the five states of Texas send
• 35:15
  Speaker 2: eight Democratic senators to Washington against two Republicans.
• 35:20
  Speaker 6: It's amazing how many times you'll hear Republicans in Texas
• 35:22
  Speaker 6: say like, Texas is the Alamo of the United States. Right,
• 35:26
  Speaker 6: it's meaning like it's it's what homes like, you know,
• 35:29
  Speaker 6: the republic is in power. It's the wall against you know,
• 35:33
  Speaker 6: this like liberalism from places like New York and California.
• 35:37
  Speaker 6: I've always thought that was sort of a funny analogy
• 35:38
  Speaker 6: because everyone guided the almost you know, but you know,
• 35:41
  Speaker 6: that's the one that they use, and so.
• 35:46
  Speaker 2: An inadvertently talent analogy. Texas Democrats have been thinking way
• 35:53
  Speaker 2: too small. Imagine a governor of Texas reads your law
• 36:06
  Speaker 2: review article and said.
• 36:08
  Speaker 3: That's enough premises it is.
• 36:11
  Speaker 2: It says, okay, I want to well, I want to
• 36:14
  Speaker 2: trigger it. Okay, okay, So walk me through how triggering
• 36:19
  Speaker 2: might work in the real world.
• 36:20
  Speaker 3: Well, imagining a real world where people take law review
• 36:25
  Speaker 3: articles seriously, it's a it's a good it's a better
• 36:27
  Speaker 3: real world. All we know is that Congress has granted
• 36:34
  Speaker 3: its consent for the sovereign state of Texas to do
• 36:37
  Speaker 3: what it needs to do.
• 36:39
  Speaker 2: But the significant fact here is that given the Congress
• 36:41
  Speaker 2: has already granted its permission. The all that has to
• 36:46
  Speaker 2: happen is for Texas to get its act together.
• 36:48
  Speaker 3: It's up to Texas.
• 36:53
  Speaker 2: Let's say that as Texas is putting together this plan,
• 36:56
  Speaker 2: Congress is getting really alarmed and they don't want it
• 36:59
  Speaker 2: to happen. Can they revoke the permission that was granted
• 37:03
  Speaker 2: before Texas acts.
• 37:05
  Speaker 3: I don't see why not. I think they can.
• 37:08
  Speaker 2: Oh, I see it. So if Texas wants to do this,
• 37:10
  Speaker 2: they need to do it.
• 37:11
  Speaker 3: They got to get there, they get well, they just
• 37:13
  Speaker 3: gotta do it. Texas has to get its act together
• 37:17
  Speaker 3: quicker than Congress can get its act together to say no.
• 37:25
  Speaker 2: For the love of God, Texas, just do it. Revision's
• 37:35
  Speaker 2: History is a panoply production. The senior producer is Mei
• 37:39
  Speaker 2: LaBelle with Jacob Smith and Camille Baptista. Our editor is
• 37:43
  Speaker 2: Julia Bardon. Vlon Williams is our engineer. Fact checking by
• 37:47
  Speaker 2: Beth Johnson. Original music but Luis Kira special thanks to
• 37:52
  Speaker 2: Andy Bauers and Jacob Weisberg. I'm Malcolm, glad you don't
• 38:02
  Speaker 2: have any any bad memories of copy editing. A peace
• 38:06
  Speaker 2: of mind to you.
• 38:07
  Speaker 5: No, no, not at all. In fact, I use you
• 38:10
  Speaker 5: as the example of somebody who the pencil kind of
• 38:14
  Speaker 5: bounces off.
• 38:15
  Speaker 6: You do a very nice job.
• 38:17
  Speaker 2: My mother will be very pleased to hear that a
• 38:20
  Speaker 2: nice job