Latest / Words & Numbers / Episode 504: Privileges & Immunities

Transcript

Episode 504: Privileges & Immunities · Words & Numbers

0:00
Coming up next on Words and Numbers, Jimmy Kimmel.
0:03
The balance of power and congressional numbers.
0:06
United States passports. And Clark Neely joins us to talk
0:10
about privileges and immunities. Hi, I'm James.
0:14
And I'm Anthony and. This is words and numbers.
0:21
Our comments on words and numbers reflect our own thinking
0:24
and are of no reflection of our employers.
0:27
But my comments, unlike Anthony's, should be
0:30
everybody's. So, Aunt, what's new and
0:34
exciting in your world this week?
0:37
Two things came across my desk within an hour of each other,
0:42
apparently different but interestingly linked.
0:46
The first one was Americans approval rating of Congress.
0:50
This is from Gallup, just came out.
0:53
Have they gotten over that 20% hurdle yet?
0:57
Oh, James, sweet child, no. Well, they try and.
1:05
Try and try the The fraction of Americans who approve of
1:10
Congress is 10. Percent.
1:13
That makes that 32% approval rating Donald Trump has look
1:17
astronomical. He's literally three times a
1:21
number of Americans, right? Three times.
1:24
But what's interesting here, I'm looking at at Gallup's numbers
1:27
and they go back to looks like 1974 and it looks like Congress
1:33
had a lower approval rating only once.
1:36
That was in November of 2013 at 9%. 9 Good God.
1:43
Of course, Congress, Congress, no doubt I can hear them saying
1:46
hold my beard, just come back next month and we'll see what
1:49
they can do. But that's, that's one of the
1:51
two articles that came across. And it's it's kind of not, it's
1:54
not surprising that Americans hold Congress in contempt like
1:58
this. I was a little bit surprised at
2:00
the extent to which, but nonetheless.
2:02
Contempt. Here's Congress actually has 2
2:04
completely different meanings. Here's the other article.
2:08
The other article is highlighting that Prince
2:12
Charles, of course, is here in Washington this week.
2:15
King. Charles.
2:16
Oh, I'm sorry, King Charles. Yeah.
2:19
In Washington this week, he addressed Congress.
2:23
And in his address to Congress, he's pointing to EU KS own
2:29
Declaration of Rights from the 1690s and the Magna Carta, both
2:35
of which were documents that that expressed ideas that the
2:39
founders drew on when they wrote our founding documents.
2:43
And the interesting thing was King Charles underlined the need
2:49
for the checks and balances amongst the various branches of
2:54
government, which of course people took as a slap at Donald
2:58
Trump. Oh, that's a slap at Congress.
3:01
It's a slap at Congress exactly because the the problem, Of
3:05
course we don't have functioning checks and balances now.
3:09
It's not because Donald Trump is doing more than he should, which
3:13
I don't disagree, he is doing more than he should.
3:15
Donald Trump is doing Donald Trump is doing exactly what the
3:20
framers of the American Constitution predicted
3:23
presidents would do. He is.
3:26
That's not to, that's not to defend what he's doing, but it
3:30
is to say that we anticipate, we the founders anticipated this
3:34
and built in checks and balances, 1/3 of which is
3:38
failing. Here's Congress.
3:40
Congress stood up and applauded when control said, yo, you
3:45
should have checks and balances. Well, they can find their hands
3:48
to applaud. Why can't they find their hands
3:50
to to censure, or to impeach or to do whatever, simply pass a
3:54
law? That is that.
3:58
Constrains the executive branch. I want Danny to get his bleeping
4:01
finger ready because it would have been hilarious if King
4:06
Charles had said and you, dopey mother, you're the problem.
4:11
Yes, yes, that would exactly. Alas, it was not to be.
4:18
But. But let's talk about something
4:20
that might end. Up.
4:22
Being a just outcome, Jimmy Kimmel again, running his mouth
4:29
at a time when he really shouldn't be right at every now
4:33
and again he says something boneheadedly stupid.
4:36
And I don't think Jimmy is the sharpest knife in the drawer.
4:39
But, you know, be that as it may, he's got quite the pulpit.
4:43
Every night he's on ABC hammering away and he referred
4:48
to Melania Trump. And as we record this, I think
4:52
we're what, 3-4 days out from the assassination attempt of
4:56
Donald Trump. He referred to Melania Trump as
5:01
an expectant wiggle 00. And, you know, Jimmy ran afoul
5:08
of the the Trump crowd previously.
5:11
And I thought they had a point then.
5:13
I know they have a point now. This was too much, too soon, too
5:19
far, and I do hereby predict Jimmy Kimmel will be fired for
5:24
it and we will never have to look at him on late night TV
5:28
again. Well, that's the kind of thing
5:30
that that attracts the attention of the Secret Service.
5:33
They start doing checks what it is you actually mean by what
5:36
you're saying. The Secret Service is not his
5:39
concern. The advertisers and the network
5:43
executives are his concern. Sweep Sweep is coming up and
5:47
they got a real problem now and they're going to they're going
5:49
to dump him as fast as they would dump a red hot coal.
5:53
If if he's still here when we record next week, I'll be
5:57
shocked. But given that we're recording
5:59
next week's episode in 5 minutes, I won't have anything
6:03
to say about this next week. Which of course, aunt, brings us
6:06
to the foolishness of the week. Do you have a passport?
6:11
I do just got my renewed. You have to have a passport
6:14
because you like to go for long idiotic walks in Spain.
6:17
That's right. And when you open your passport,
6:20
what do you see? Picture of me?
6:24
Yeah. Yeah, it's not what I'm talking
6:25
about, you narcissist. I.
6:29
Don't know shining papers. Stuff typically the Statue of
6:32
Liberty, right? Things like this.
6:34
Oh, the stuff in the background, yeah.
6:35
Yeah, now, aunt, you're, you're going to be able to get a
6:39
passport for the 250th anniversary of the United States
6:43
of America. Don't kill me.
6:46
Oh, no. No, please.
6:47
No, Please no. With Donald Trump's.
6:50
Picture on it and you called me a.
6:54
Narcissist There can be more than one narcissist in the
6:59
world. There are lesser and greater
7:02
degrees of narcissism. The passports will only be
7:08
available at the Washington Passport Agency.
7:12
I wasn't aware there were other passport agencies, but OK.
7:16
And any American citizen, quote, UN quote, who applies for a
7:19
passport when the rollout happens will be entitled to one
7:23
of the special Donald Trump 250th anniversary passports.
7:30
You know, I, I kind of want to get one, not because I want it
7:34
for itself, but I can imagine 20 years from now that's going to
7:39
be a collector's item. It could be, but given the use
7:43
that a passport serves, you would go to a European country
7:46
and flash that and then all the back on the plane, you know,
7:52
they bring you into the special bad boy room and they make you
7:55
open up all your bags. You don't.
7:58
You don't want this, but but here we are.
8:01
It's at least a benign foolishness of the week.
8:04
And I like the foolishness of the week to be rather benign.
8:07
Right. In a week in which we watch
8:10
somebody try to kill the president, at least this is
8:13
funny. Clark Neely joins us again this
8:16
week. Clark is senior vice president
8:19
for legal studies at the Cato Institute.
8:21
Clark, welcome back to WORDS and NUMBERS.
8:24
It's great to be back. I'm sorry you were.
8:27
Very nice to see you again. You were out of town last
8:31
weekend. My mother was in town.
8:33
And so I threw a bit of a party and had invited you over.
8:38
And of course, I told her that you're around town.
8:39
You couldn't make it. And she was, she was quite
8:43
disturbed. She was looking forward to
8:46
seeing you. There's like the high point.
8:48
You didn't care about me, but you wanted to see you.
8:50
She did get to see Phil Magnus. That was OK.
8:53
But she misses Clark Neely. So your mother and I have this
8:56
in common. I'm really thrilled to see Clark
9:00
and I, you know, whatever with you.
9:03
I, I, I hesitate to say something like this to you
9:06
because we've had conversations before, but what's going on?
9:12
You know, it's funny, I don't want to sound like a 1 trick
9:13
pony, so I'm going to, I'm going to ask you like, do you mean
9:16
like in the world with institutional law?
9:19
Well, me Kanwa is your thing and you know I've got one in the
9:23
chamber if you'd like me to, to fire it, but.
9:28
You know, I would say the president's relentless efforts
9:32
to persecute and prosecute his perceived political enemies
9:37
continues. We've just seen the second
9:39
indictment of James comedy. This one's even more
9:42
preposterous than the first one, if that's even possible.
9:45
Let's be fair, Clark. He did write 8647 in Seashells
9:51
in the Sand. I mean, who wouldn't take that
9:55
as a legitimate threat on the life of the president?
9:58
Well, obviously a grand jury in the Eastern District of North
10:01
Carolina found that to be an incredibly reckless and and
10:03
sinister act. I think that helps us, helps
10:07
remind us that a competent prosecutor can in fact indict a
10:12
ham sandwich. And these days of course, could
10:14
get the same ham sandwich to plead guilty to being a Turkey
10:17
sub. That's preferably right.
10:20
Yeah. So.
10:21
That happens in this case remains to be seen.
10:23
I think this, I think this latest indictment, just for
10:25
those who have not seen it, comedy took a picture of or at
10:30
least posted on Twitter, a picture of the, the the numbers
10:34
8647 spelled out in seashells on the beach and said, oh, I just
10:40
saw this out for a walk today. 86 Of course, for anybody who's
10:43
worked in the restaurant industry knows that's a term,
10:46
slang term for it. We're out of a particular dish.
10:50
So we can't let anybody else order that.
10:52
It's also slang for for throwing somebody out of a bar.
10:56
And in this case, it's being interpreted as a serious
11:00
suggestion to kill the 47th president of the United States,
11:05
which is, of course, Donald Trump.
11:06
This is, it's hard for me to believe I'm saying this, but
11:09
this might just be the most preposterous thing, the most
11:14
preposterous and malicious abuse of power we've seen this
11:17
administration perpetuate to date.
11:20
And this, this indictment is going to be laughed out of
11:23
court. And it might even be so bad that
11:25
it could be one of the the vanishingly rare cases that
11:28
actually gives rise to a a viable claim for attorneys fees
11:33
on the part of the exonerated defendant.
11:36
There is a provision in federal law that permits that to happen.
11:39
Courts almost never allow it, both because it's a stringent
11:43
standard and because a disproportionate number of
11:45
judges are former prosecutors themselves.
11:47
And that's a kind of a professional courtesy.
11:49
But this one I think actually might do it.
11:51
But wait, there's more, because comedy then took down the post
11:58
almost immediately and apologized on Instagram almost
12:03
immediately. Well, there's your men's Rea,
12:05
James. He knew what he was doing.
12:07
Wrong. That's exactly what they're
12:09
going to say. That's exactly what they're
12:11
going to say. Does does the 86 necessarily get
12:14
interpreted as as kill the president as opposed to impeach
12:19
and remove? It it's, I mean, it's an
12:23
entirely subjective, I don't know if you've heard, but some
12:25
language can be subjective. And I don't know exactly, you
12:30
know, sort of we might have to bring in an expert to see if
12:33
seashells are capable of of encoding inflection.
12:36
Maybe that matters here. But the idea that a former
12:40
director of the FBI, you know, even frankly, a kind of an
12:43
authoritarian nitwit like James Comedy, which I think frankly he
12:46
is, I don't have much regard for him, as you probably can tell.
12:50
But the idea that he would publicly call for the
12:53
assassination of a sitting president is, is preposterous
12:58
beyond words for a variety of reasons.
13:02
But, you know, I think rather clearly he just thought that was
13:05
sort of a clever, you know, almost kind of a, a numerical
13:09
Morse code of, of a sort. And but yeah, I think.
13:13
And you're, you know, none of us can get inside his head.
13:16
But it seems to me that's a much more plausible interpretation
13:19
basically that what he's really trying to convey is it's time
13:22
to, you know, it's time to get rid of this, this bumbling
13:25
fascist rube in the, in the White House.
13:27
I, I, I said a word that just came out of my mouth.
13:30
I, I don't, I hope that doesn't set off a whole, you know,
13:33
conflagration. I use the F word to describe
13:35
Trump. Others have as well.
13:37
I think we're past that point. I think you don't have to use
13:39
the word, but I don't think it's possible anymore to criticize
13:42
people who do. And and Clark, I think it's kind
13:45
of interesting actually the the timing of the announcement of
13:49
the prosecution coming so tight to the the attempted
13:54
assassination just a couple of days ago.
13:57
Well, yes and no. I mean this, this grand jury
14:00
would have to have been empanelled and considering
14:02
evidence almost certainly before the events at the at the the
14:06
dinner. But yeah, maybe.
14:08
Well, they, I mean, they, they could have waited two weeks.
14:12
Well, I suppose that's right. I suppose that's right.
14:15
Whether whether the timing is just, you know, entirely
14:17
coincidental or not, I think it's something that's not
14:19
transparent to us, but, you know, perhaps, perhaps it's more
14:23
than a coincidence. And given the God, can you even
14:28
call it news conference anymore? Given the news conference that I
14:32
saw this afternoon, they've apparently been investigating
14:36
this heinous act for 10:50. Months.
14:40
Well, that sounds about right for the feds.
14:42
I mean, it's it's one, it's one photograph posted briefly and
14:47
taken down from a social media site.
14:49
So I suppose nearly a year of investigations.
14:52
I mean, you may recall that I wrote about a case in my book
14:56
where the Hemingway Home and Museum in Key West, FL was
15:00
alleged to have been not providing overhead sleeping,
15:06
sleeping compartments for cats. They have about two dozen or
15:10
three dozen cats on the premises of that museum and they did not
15:14
have enclosed and covered sleeping areas for the cats.
15:17
And I believe the Department of Agriculture took something like
15:19
3 years to investigate that one. But it involved multiple trips
15:24
by multiple teams of investigators to Key West and
15:27
even rented a like an Airbnb with a room that overlooked the
15:30
compound so they could document what nobody disputed, which is
15:33
that the cats are sleeping outside.
15:35
So. But you know, this doesn't sound
15:37
like a a a an uncharacteristically long time
15:42
frame to nail down an undisputed fact.
15:46
All right, so we've gotten that bee out of your bonnet there.
15:50
There was something I wanted to bring up.
15:53
And and I don't know if it's a broader trend or if my
15:57
algorithms have simply decided to spit these things out at me
16:02
and no one else. But it it seems to to be the
16:06
case in in my digital experience that people are pushing back
16:11
awfully hard and courts are starting to agree on qualified
16:15
immunity. I would say I have that
16:19
impression to an extent. I, I don't, I, I think we'd be,
16:23
we want to be very careful about suggesting that we can or have
16:27
actually quantified this. So your impression and my
16:29
impression probably line up in some ways.
16:32
I think there is more skepticism in the last couple of years
16:36
about qualified immunity from courts than I've seen in the
16:40
past. But that might like be just
16:42
saying, well, hey look the needle on this thermometer moved
16:45
and I think we actually might be above absolute 0.
16:48
Yeah, I know, maybe it's just a warm summer, but it it's kind of
16:54
nice to see local courts saying things like, oh, no, no, no, no,
16:59
you don't get qualified immunity for that.
17:01
And you know, who knows where this might lead?
17:04
This might this might turn out to be something crazy.
17:08
Well, if you'd like to put a wager on it, I'd be happy to do
17:11
that. Or if.
17:12
No, no, no, no, no. I'm not that crazy.
17:17
Come on. Yeah.
17:18
Look, I don't want to throw cold water on it.
17:19
I do think that there's been a discernible shift in, in
17:24
judicial attitude towards qualified immunity.
17:26
But I, I doubt that it is showing up at, you know, in, in,
17:31
in more than barely discernible terms.
17:33
Let's say it like the Court of Appeals level, you know where
17:38
like it. Does this indicate an actual
17:39
change in in legal doctrine so that you're you're if if you, if
17:44
you do have a contested case involving an assertion of
17:47
qualified immunity, are your odds measurably better of
17:51
winning that in the past couple of years than they were, let's
17:54
say in the 10 or 20 years before that?
17:56
My guess would be a little bit, but not much.
17:59
For for people who are new to us, can you give a brief
18:03
definition of qualified immunity?
18:06
Yeah, you bet. So this is a legal defense that
18:08
the Supreme Court invented out of whole cloth in the between
18:11
1967 and 1983. It kind of evolved a little bit
18:15
between those dates, but where it stands now is that if you sue
18:19
a government official, including, for example, a police
18:22
officer under federal civil rights law, it's not enough to
18:26
have a meritorious case. In other words, it's not enough
18:29
to be able to show that your rights were in fact violated by
18:32
the defendant that you have sued.
18:34
You also have to demonstrate that the the specific
18:39
application of the law in your case, that it is clearly
18:42
established that what that person did to you violated your
18:46
rights. And the only way to do that is
18:49
to identify a pre-existing case in your jurisdiction at the
18:53
appellate level where essentially the identical same
18:56
thing has happened to somebody else.
18:58
And a court has already said, yes, that specific thing, you
19:03
know, punching somebody in the face while they're wearing
19:06
handcuffs behind their body on a Tuesday after they had a a meal
19:11
at Wendy's. OK, If that exact case is on the
19:14
books and all those things have happened before, then it's
19:17
clearly established they shouldn't have done that to you.
19:19
But if it's a Wednesday or if you had a meal at Taco Bell
19:22
instead, or the cuffs were cuffed in front, then they get
19:25
qualified immunity. Why?
19:26
Because it wasn't clearly established that they shouldn't
19:28
have done that to you. I'm exaggerating a little bit,
19:30
but only a little bit. And James, when you see these
19:35
these articles in your feed about pushback on immunity, is
19:39
this, this is the qualified immunity.
19:42
That's the version that police officers get, not the the
19:46
version on steroids that prosecutors get.
19:49
Is that right? Yeah, I'm only talking about
19:51
police officers and it's almost always at a very local
19:54
jurisdiction. Yeah.
19:56
So just to be clear, if you try to sue a prosecutor who has in
20:01
fact violated your rights, and that does happen from time to
20:04
time, you won't even have the opportunity to to overcome this
20:08
qualified immunity defense because prosecutors have
20:11
something called absolute prosecutorial immunity.
20:14
And it simply doesn't matter at that point how glaring the
20:18
rights violation was or whether there's any relevant case law on
20:22
the books. Your case will simply be tossed
20:25
out because the person who. Violated your rights is a
20:28
prosecutor. And the Supreme Court has held
20:30
in its infinite wisdom and again without a shred of textual basis
20:34
in federal law that prosecutors must not be sued no matter how
20:37
badly they behave. And that is not an exaggeration.
20:40
That is simply a faithful description and accurate
20:43
description of of what the Supreme Court has done in this
20:45
area. And it's, it's, it's an
20:47
abomination. So let let me push on that for a
20:50
minute. If let's suppose hypothetically,
20:52
a, a prosecutor is prosecuting someone for an alleged crime.
20:57
The prosecutor runs across evidence that that clearly
21:03
exonerates this person and the prosecutor destroys the evidence
21:09
that was clearly destroying evidence is a crime.
21:11
This would be even, you know, worse than that, at least in in
21:16
the gut level, because the prosecutor knows that that this
21:19
guy is now innocent, yet he's prosecuting him anyway, Destroys
21:22
the evidence. Does immunity cover him there?
21:25
Absolutely, absolutely. Because Ant, you have to
21:28
understand, as bad as what you described is, it's not as bad as
21:32
a world in which prosecutors could be sued for their rights
21:35
violating behavior. That's the view of the Supreme
21:37
Court, because if, if, if, if prosecutors could be sued
21:41
anytime they violated people's rights, nobody would want to be
21:43
a prosecutor. That's .1.
21:45
That's actually the Supreme Court's rationale.
21:47
And then second, there are all these other mechanisms for
21:51
accountability, including reporting the prosecutor to the
21:54
State Bar, criminal prosecution discipline with inside their
21:57
office. And the fact that none of those
21:59
things ever happen is not what's important.
22:01
The fact that is that they exist.
22:03
That's all that matters according to the Supreme Court.
22:07
And and this is this is an absolutely preposterous
22:10
judicially confected doctrine. Again, I hate to be a broken
22:14
record, but perhaps it's no surprise that a wildly
22:16
disproportionate number of federal judges were prosecutors
22:19
before they become judges. And so we see a willingness on
22:23
the the judiciary to simply invent A categorical defense for
22:28
for their, you know, former fellow former colleagues so that
22:33
they are not exposed to civil rights liability for their
22:36
rights violating conduct. Now, there is one sliver.
22:39
There is one sliver of of light here where you might be able to
22:43
sue a prosecutor, and that's if you can prove that when they
22:47
violated your rights, they weren't actually acting as a
22:50
prosecutor. So, for example, let's say that
22:53
you're being interviewed by a couple of detectives and a
22:56
prosecutor walks into the room and just starts beating the hell
22:58
out of you with a rubber trenching to try to get you to
23:00
confess. You would be able to make an
23:03
argument that in that instance they were not acting as a
23:06
prosecutor, they were acting as an investigator.
23:09
And that was not a fundamentally prosecutorial act.
23:12
When they when they beat the tar out of you with a truncheon and
23:15
you might maybe, I mean, they would absolutely come back with
23:19
prosecutorial immunity as a defense.
23:21
And I would say some judges would grant it, but there's at
23:23
least a sliver of a chance that you would prevail because they
23:26
were not acting as a prosecutor. They were acting as a more as an
23:29
investigator slash detective and trying to elicit a a confession
23:34
from you by beating the hell out of you.
23:36
You're being a bit of a downer here, Clerk.
23:39
Hey, listen, man, I got my brand.
23:41
I got my brain. You want to talk about
23:42
something, talk about something fun.
23:44
Well, like, you know, is there any good news at, at the AT or
23:50
near the Supreme Court at this point?
23:53
Yeah, I mean, I think we could talk about the the court's
23:56
ruling in the in the, in the tariff case, that was probably,
24:00
you know, Donald Trump's biggest, shiniest toy.
24:02
And they'd snatched it right away from him and stomped it
24:05
into pieces. And they're going to do the same
24:07
thing with with the follow up efforts to invoke the other
24:13
federal statutes to try to resurrect that tariff regime.
24:16
I think that's a pretty big deal.
24:18
I do. I do too.
24:21
Maybe it would be more fun to talk about the birthright
24:24
citizenship case. Sure.
24:26
Where do you think that's going? I think that is going to be 7
24:31
two, striking down or, or declaring that the the executive
24:37
order that purports to essentially invalidate or or
24:42
marginalized the 14th Amendment's birthright
24:44
citizenship provision is is doesn't have the force of law.
24:52
I mean, first of all, you can't trump, I hate to use that word
24:55
in this context, but it's, it's the most apt 1.
24:58
You can't, an executive order does not trump the Constitution
25:03
and it's, doesn't it, it, it can't contravene federal
25:06
statutory law either. And there's actually a statute
25:08
on point here too. So it, it's, you know, it's a,
25:11
it's, it's a, it's the weakest of those three.
25:13
It's, it's weaker than a constitutional amendment and
25:16
it's weaker than a federal statute.
25:17
And but, you know, I, I did the, I, I was surprised at the
25:23
receptivity or the apparent receptivity of at least a couple
25:26
of the justices to this argument.
25:29
And for those who don't know that the reason there's an
25:30
argument here is that the 14th, the language of the 14th
25:33
Amendment says that all persons born in the United States and
25:37
subject to the jurisdiction thereof are citizens of the
25:40
United States. And so there's been this sort of
25:43
nouveau scholarship that that purports to demonstrate that
25:51
that at the time of the ratification of the 14th
25:53
Amendment, subject to the jurisdiction thereof would have
25:56
been understood not simply to mean, are you subject to the
26:00
legal jurisdiction of of the United States, which of course
26:03
we know you are, because if you're an illegal immigrant and
26:05
you commit a federal crime, they are definitely going to
26:08
prosecute you for it. And so in that sense, you are
26:11
subject to the jurisdiction of of the United States.
26:16
But the question is, does it mean more like that, that either
26:22
you or your parents had some allegiance to another country at
26:26
the time you were born? And the reason there's there's a
26:28
little bit of wiggle room here, of course, is because that that
26:31
language must be doing something right.
26:33
And what, what I'd say the most credible arguments are is that
26:37
what that language is doing is making clear that the children
26:40
of a foreign diplomats are not U.S. citizens simply because
26:43
they were born while the one or more parents was serving as as
26:49
a, a diplomat, you know, in an embassy, for example.
26:51
Or if there's an invading army and, and you know, let's say one
26:56
of the female soldiers has a baby on US soil while they are
26:59
in the act of invading the United States, that child is not
27:01
a United States citizen. But the argument is that it's
27:04
much more expansive than that. Essentially, if you're here
27:06
unlawfully with no intent to remain, then you are not subject
27:10
to the jurisdiction of the United States in the sense of
27:12
the 14th Amendment means and and you're not a birthright citizen.
27:17
Again, I don't think that argument got any real traction
27:20
among more than let's say two or three justices.
27:23
But this somewhat disappointingly, I think it's a
27:25
decent chance we'll see that a non unanimous ruling in this
27:28
case, which I think it's too bad.
27:30
Can you can you speak to and? I honestly don't know.
27:33
I don't even have a hint of the answer to this question.
27:36
But can you speak of to to whether that language also was
27:43
crafted in a way to cover Native Americans?
27:48
It seems to be, although it's funny when, when I believe Chief
27:50
Justice Roberts asked the solicitor General John Sauer, or
27:54
maybe it was Gorsuch. I think it was, it would have
27:56
been Gorsuch because he's very interested in in Native
27:58
Americans. And he asked, well, what you
27:59
know, what significance does your theory have for for
28:03
American Indians? And so I hadn't really thought
28:04
about that, which is difficult to believe.
28:08
Yeah, impossible to believe, one might say.
28:11
Right. So, you know, but clearly there
28:13
was some consideration of the fact that at least some Native
28:19
Americans are, are born under circumstances where they are
28:23
subject to the jurisdiction of the, the, the tribal polity of
28:29
the reservation on which they were born.
28:32
And then there are others who are born and are subject to the
28:34
jurisdiction of the United States.
28:35
And we have to be able to distinguish between those two.
28:38
That that seems to me so reasonable as to defy
28:43
opposition, and yet I know that we're going to get pushed back
28:47
on this. Yeah.
28:49
I mean, I look, I mean, I think this has become a kind of a
28:51
cultural football. And what we've seen is that
28:54
there are plenty of people, unfortunately, who can talk
28:57
themselves into just about anything as long as it's the
29:01
preferred view at that given point in time of Donald Trump.
29:06
I mean, it's, it's kind of crazy, Clark and I, I wonder if
29:09
if you got this sort of education when you went to law
29:12
school. I got it in Graduate School
29:15
where I studied under Ralph Rossum of a very well known
29:19
constitutional scholar. And he said, and in his
29:22
textbook, it said when the constitutional text is clear,
29:26
there's your answer. When the text is somewhat
29:30
ambiguous, OK, some interpretation might be
29:34
necessary. And you go to secondary sources
29:37
and they you can go to the debates around the, the
29:40
amendment or the Constitution itself and arrive at a sensible
29:44
answer. And it's only when these things
29:48
don't apply that political answers can even creep in.
29:53
And I don't know that Ralph would still say this.
29:55
I hope to God he still would, but I'll still say it.
30:00
Yeah, I, I So that's one of those statements that's seems
30:05
eminently sensible on its face, and perhaps it is.
30:08
But the question of, of what exactly is clear in the
30:11
Constitution might be more challenging than we suppose.
30:14
I mean, I'll take it what I think is an easy example.
30:17
I believe that even if there comes a day when we begin
30:20
colonizing other planets, the the requirement that the US
30:25
president be 35 years of age will not give us very much
30:29
trouble. Even if somebody who was born on
30:30
Venus and is 35 Venusian years old, which I as I understand it
30:36
would be about 21 1/2 Earth years, that's not going to
30:41
present insurmountable interpretive challenges.
30:46
On the other hand, think about a provision like the 8th
30:49
Amendment's cruel and unusual restriction or limitation on
30:54
prohibition against cruel and unusual punishments on the
30:58
space. That might seem pretty clear.
30:59
On the other hand, it's, you know, there's one question is
31:02
the word and is it I think. I think the word and there does
31:07
some heavy lifting. It has to be cruel and unusual,
31:12
not cruel or unusual. Yeah.
31:15
And but unusual has at least a potential flavor of temper, of a
31:20
temporal flavor to it, right, In the sense that does it, what
31:24
point in time do we ask if it's unusual?
31:26
Right, Because back at the founding they were doing,
31:28
they're still doing things like mutilation, branding, cutting
31:31
off, you know, parts of your face.
31:33
The nose. Yep, Yep.
31:35
And look, I, you know, I hesitate to use the changing
31:39
mores of the, of the American people argument because you know
31:43
where that nonsense leads. But certain mores have in fact
31:48
changed. And I I think it would be very
31:50
difficult to make a cruel and unusual case in the time of the
31:56
founding that would be the exact same as it is now.
32:00
I think that's right, although there's some justices I think
32:02
would push back hard on that, believe the, you know, former
32:05
Justice Antonin Scalia took the position that the meaning of
32:08
those terms was fixed at the time.
32:10
I, I believe that's correct. I, I think I would have a hell
32:14
of an argument with Scalia, and I think it would be
32:16
extraordinarily difficult because he was not a stupid
32:19
person. But I'll.
32:21
I'll say this, I'm not sure anything that they did back then
32:23
was as cruel as executing somebody by electric chair.
32:26
I've never seen it myself and I never care to see it, but the
32:28
descriptions I read are truly horrific.
32:31
But you're, you're talking here about words that that may not
32:37
preserve their meaning over time.
32:40
And I I get that. But this, the phrase that we,
32:45
you led with subject to the jurisdiction thereof in
32:49
determining who is and isn't a citizen.
32:53
Am I missing something or could the founders have just written
32:56
in much more plain English? In other words, were there other
32:59
words available to them that would have communicated what was
33:02
in their heads better than this? Well, we're we're in 1868 by the
33:07
time we get to the amendment. So let's not pick on the
33:10
founders. Sure, sure.
33:11
Sorry, Yeah. Well, look, that's not even the
33:14
least clear terminology in the 14th Amendment.
33:17
You'll, you'll hopefully remember that one of the things
33:19
I used to litigate at the Institute for Justice was the
33:22
another provision that says that no state shall make or enforce
33:24
any law that shall infringe the privileges or immunities of
33:27
citizens of the United States. And the first time the Supreme
33:31
Court looked at that in an 1873 case called the Slaughterhouse
33:35
case, is they completely botched it and and interpreted the
33:40
privileges or immunities clause in a way that literally no one
33:43
thinks is remotely credible today.
33:45
And I would I would characterize that as one of those decisions
33:47
that was wrong the day it was decided.
33:50
So I think James is right here. I mean, I two things are true.
33:53
On the one hand, let's not throw rocks backwards in time.
33:56
On the other hand, yeah, there are certainly provisions of the
33:58
14th Amendment that that that could have been expressed with
34:00
greater clarity. But yeah, I think the 15th as
34:05
well. But you know, that's another
34:07
argument for another day. The the 14th Amendment has
34:11
caused more constitutional mischief than I think any other
34:17
single thing. I mean, we only get in court, we
34:20
only get in the doctrine of incorporation through the 14th.
34:24
So here's the thing. I've heard you talk about
34:25
incorporation before. So I think I, I, I'm going to,
34:27
I'm going to make AI don't care for that terminology and I don't
34:31
care for the, the, the, the sense of, of the constitution
34:35
that it conveys for those who don't.
34:36
Know before before you go here I I want to hear what you have to
34:39
say. But can you define what the
34:42
incorporation means? I was just about to do that.
34:45
Thank you. So it's, it's a term that that
34:48
describes a, a way of looking at the 14th Amendment and
34:52
specifically either the due process clause or the privileges
34:55
or immunities clause, or some number of clauses acting
34:58
together as making applicable against state governments the
35:05
substantive and procedural provisions of the Bill of
35:08
Rights. And to to make that into to say
35:12
that in just very simple terms, does the Supreme Court up until
35:16
1868 had always interpreted the the Bill of Rights, the 1st
35:20
Amendment free expression, 4th Amendment protection against
35:23
unreasonable searches and seizures, etcetera, as applying
35:27
only to the federal government. And that's probably a correct
35:31
interpretation for a variety of reasons we don't need to get
35:33
into. But what became apparent was
35:36
that their their hope and their belief that state governments
35:39
would would prove much less tyrannical than the federal
35:43
government was woefully mistaken.
35:46
And we know that in part by just look at some of the efforts that
35:50
state governments took to try to suppress abolitionist sediment
35:53
before the Civil War, including outlawing, and I believe at
35:56
least one case, making a capital offense to send abolitionist
35:59
literature through the mail. So the goal of 14th Amendment
36:04
was to fundamentally rejigger the allocation of, of, of power
36:09
between the state and federal government, at least in one
36:11
important regard, which is to prevent states from tyrannizing
36:16
individuals. And it wasn't just newly freed
36:18
blacks. They could have said just just
36:20
Friedman. And they didn't.
36:21
That's right. And the problem, of course, is
36:23
that that states, like all governments are kind of
36:26
endlessly creative in figuring out ways to oppress and
36:30
tyrannize. And so just to take a few
36:33
examples, in Southern states that were trying to hold newly
36:36
freed blacks in a state of constructive servitude, there
36:39
were laws against vagrancy and loitering that that were so
36:43
elastic that they would apply to kind of anybody who's just out
36:46
in public. And then you could you could
36:48
prosecute that person and convict them and put them on a
36:51
chain gang that was going to look exactly like plantation
36:54
work. There were laws that prohibited
36:58
black people from being off of their employer's property
37:01
without a note from the employer.
37:02
It was a deliberate effort to prevent them from going in
37:04
search of better economic opportunities.
37:06
And I could go on and on. But the and then of course,
37:09
there were more blatant laws, like just just disarming anybody
37:12
who's black, that kind of thing. So the challenge that the
37:14
framers of the 14th Amendment were faced with is this
37:18
endlessly creative ability of of Southern states in particular to
37:23
restrict newly freed blacks and their white supporters in ways
37:29
that defied any sort of bullet point list so that you can't do
37:32
this and then you can't do that and you can't do this other
37:34
thing. And so they they necessarily had
37:37
to speak and rather broad and sweeping terms.
37:40
And I personally believe that's exactly what they did and that
37:42
they did a pretty good job of it.
37:44
And what they basically said was that states must not enforce
37:47
laws that either make untenable distinctions between people
37:52
that's the equal protection clause, or that restrict their
37:55
freedom in ways that are inconsistent with being a
38:00
citizen of a fundamentally free country.
38:02
And that's what I think the privileges or immediate clause
38:04
should have been understood to, to protect.
38:07
But as I said, the Supreme Court essentially wrote that provision
38:09
out of the 14th Amendment, five years after the amendment was
38:12
ratified, and to their everlasting shame.
38:16
I like your interpretation, and clearly I like the world in
38:21
which let's just pick one off off the tree.
38:25
My free speech is guaranteed even as a resident of Arizona as
38:30
opposed to a resident of the United States.
38:32
Right? But the framers of the 14th
38:36
Amendment could have said, but did not.
38:39
We do hereby apply the Bill of Rights to the States.
38:44
Yep. And, and we don't have to guess
38:46
about this, James. We know that they intended to do
38:48
at least that much. There was extensive testimony
38:51
that the Congress received about how newly freed blacks were
38:54
being stripped of their weapons when they came home from
38:56
military service precisely to make them easier to tyrannize
38:59
and oppress. So to me, there's not the
39:01
slightest doubt of, of a, you know, not only a congressional
39:05
intent, but of an original public understanding that the
39:08
14th Amendment would prevent states from just take that, for
39:13
example, from enforcing what, what the substance of the Second
39:16
Amendment against state infringement.
39:19
And other ways that we know that is that there were explicit
39:25
statements on the, on the congressional record that they
39:27
meant to basically constitutionalized both the
39:30
Friedman Bureau Act and the Civil Rights Act of 1868, both
39:34
of which protected various freedoms found in the Bill of
39:37
Rights. So I, I understand your
39:39
skepticism. I'm here to tell you that there,
39:42
there wouldn't have been any point in, in ratifying the 14th
39:45
Amendment and the debates would have looked a lot different
39:48
about whether to ratify the 14th Amendment if it was a relatively
39:52
minor change in, in the, the constitutional status of
39:57
individuals vis a vis their state governments.
39:59
It was designed to be a, to work a sea change of, of, of the, of
40:04
the status of individuals versus state governments.
40:07
And it did. It happens to be that the
40:10
Supreme Court missed that basically because we, we'd
40:12
gotten, I think as a country, we just sort of lost our zeal for
40:16
reconstruction by 1870. But it's 3:00 or so.
40:19
But anyway. It's it's the second, that's the
40:22
second time you referred to the Supreme Court missing it.
40:25
What? What do you mean by that?
40:27
Oh well, so the the as cases were litigated invoking the the
40:34
newly ratified 14th Amendment that was ratified in 1868.
40:37
As James said, first case to reach the Supreme Court seeking
40:41
to apply the 14th Amendment against the state law was the
40:44
slaughterhouse cases out of Louisiana, where Louisiana
40:47
basically set up what amounts to a monopoly on the butcher trade
40:50
to where if you wanted to butcher cattle within some
40:56
radius of New Orleans, you had to go through this one state
40:59
chartered monopoly company and pay them for the privilege of
41:02
doing it. And, and let's be clear, that
41:04
was a legitimate health and safety law because there really
41:07
was a lot of a problem with people throwing, you know, awful
41:10
and, and guts and, and, and, and body parts into the Mississippi
41:14
River. But of course, you know, being
41:16
Louisiana, they went about addressing that problem in the
41:18
most corrupt possible way. But but in effect, the butchers
41:22
asserted a a right to earn a living free from unreasonable
41:26
government interference. I think there's not the
41:28
slightest doubt that that is included among the privileges or
41:30
immunities of citizens of the United States.
41:32
If you think about the institution of slavery, it is
41:35
precisely the the the whole point of slavery is to alienate
41:39
people's productive labor to yourself and away from them.
41:42
That what it what else is that besides the unreasonable
41:44
restriction of somebody's ability to to put food on their
41:47
own table? So I think no question
41:50
whatsoever that the 14th Amendment was designed to
41:53
protect at least that. And the Supreme Court looked at
41:56
that and said, no, this is this this the privilege of immunity
42:00
clause is really just about protecting individuals against
42:03
federal efforts to or or against state efforts to to deny people
42:07
access to to federal rights that exist only by virtue of the
42:11
existence of the federal government.
42:13
Like your ability to claim the protection of the federal
42:15
government went on the high seas or access federal sub treasury,
42:19
something I just happened to do make a real hobby of right.
42:22
This was a fundamentally preposterous interpretation of
42:25
the 14th amendment was designed to render it a dead letter.
42:29
If you ever want to see a majority opinion just completely
42:32
destroyed by the descent, they're actually 2 descents in
42:35
this case, Just pick up the slaughterhouse cases.
42:38
Read the majority opinion, read the dissenting opinions.
42:41
And it's not even close. I mean, the majority opinion is
42:44
truly an embarrassment. It's it's just a, a complete
42:47
intellectual shambles and a fraud.
42:49
And of course, we did not fight the Civil War and we did not,
42:52
you know, ratify the 14th amendment because an
42:55
insufficient number of people were able to have access to
42:57
federal sub treasuries or to claim the protection of the
42:59
federal government went on the high seas.
43:01
That is preposterous. In in fairness, that case is is
43:06
presented as a travesty everywhere it's taught right.
43:10
So it's this is not controversial what what Clark is
43:14
saying in the least. That's true, but when my Co
43:17
counsel in the Heller gun case, Alan Gura brought a follow on
43:20
case two years later, McDonald versus City of Chicago and gave
43:24
the Supreme Court the opportunity to reverse the
43:27
Slaughterhouse cases by writing on a blank slate as to not only
43:32
whether we have a a, a, a constitutional right of of gun
43:36
ownership that we can enforce against state governments.
43:39
Answer yes clearly, but through which provision of the 14th
43:43
Amendment and none other than Justice Scalia mocked Alan for
43:48
leading with the privileges or immunities clause, which
43:51
everybody now agrees was the provision designed to do what I
43:54
just described and instead told Alan, oh, you know, you should
43:58
be arguing under substantive due process, which even I have
44:03
acquiesced in that doctrine. Side note, when I'm not rabidly
44:07
mocking it every time somebody brings it up.
44:10
So I, I, I think that whole, it was a travesty.
44:14
It was a shambles. But people should know that the
44:17
Supreme Court was given a clean opportunity in 2010 to reverse
44:20
Slaughterhouse and to embrace the most textualist and
44:24
originalist reading of the privileges or Immunities Clause.
44:27
And not only do they not take that opportunity, only one
44:31
justice said they should have Justice Thomas.
44:33
And he wrote a wonderful concurrence in which he laid out
44:35
the argument. But but even the the the court's
44:38
staunchest, staunchest opponents of substantive due process, when
44:44
push came to shove, they embrace substantive due process, held
44:47
their nose and said, yeah, this is the doctrine that protects a
44:51
right of gun ownership against state infringement.
44:54
As you can tell, I'm pretty worked up about it.
44:55
Still. I think Alan was ill served and
44:58
I think the country was ill served by a Supreme Court that
45:01
did not have the integrity to undo 100 and and 30 something
45:06
year old decision that was wrong.
45:07
The day was decided and has engendered endless mischief
45:13
since then because we can't even agree whether the 14th Amendment
45:16
protects rights not expressly listed in the text of the 14th
45:21
Amendment. Of course it does because there
45:23
was no other way to prevent states from tyrannizing newly
45:25
freed blacks and their white supporters.
45:27
But we've never, the Supreme Court has never attempted an
45:29
honest interpretation of, of, of that, of that provision of the
45:33
14th Amendment. I think it's really depressing.
45:35
Why do you think that is Clark? So I think, I think there I
45:39
don't want to be reduction overly reductive.
45:41
I think there are a few things going on here. 1 is that you
45:44
don't get to be a justice on the Supreme Court by being somebody
45:47
who upsets apple carts or rocks boats.
45:49
It's very helpful to have at least some alignment with the
45:53
government. You are not going to be put in
45:56
the stream, you know, the sort of the the path towards being a
45:59
Supreme Court Justice unless you you are pretty well connected
46:03
with with senators and, and you know, sort of have won the
46:07
confidence of a president. And just as an institution, the
46:12
judiciary is extremely reluctant to open any new doors to the
46:17
enforcement of of unenumerated rights.
46:20
That means rights not specifically articulated than
46:23
text of the Constitution. They are much, much more
46:25
comfortable opening doors to the discovery of unenumerated powers
46:32
for government than they are opening the door to the
46:35
enforcement of, of unenumerated rights.
46:37
And so I think it's a combination of all those things.
46:39
And I, you know, I guess I would say the last thing is to, to
46:42
give them their due. It is difficult to know once you
46:47
open that door. OK, well, what rights are we
46:49
going to protect under this open-ended provision, this
46:51
privileges or immunities clause? And which rights are we not
46:54
going to protect? Right?
46:56
Does it protect your right to brush your teeth or not brush
46:59
your teeth when you go to bed to wear a hat or not wear a hat?
47:03
And, and I get that that's a concern.
47:06
I just don't think that that concern is as weighty as wholly
47:10
failing to protect rights unless they're specifically articulated
47:14
in a kind of a bullet point form.
47:16
And I explained earlier why I think that was would have been
47:18
impossible under the circumstances that prevailed in
47:21
the wake of the Civil War. I I've caught in the wind lately
47:25
and yeah, I don't know the details of a a new gun case kind
47:29
of working its way through this sausage making process.
47:34
Any chance that this can get revisited in a beneficial way?
47:38
No, not by the Supreme Court. Kind of figured it was worth
47:42
asking. Yeah, yeah.
47:44
I mean, I don't want to sound unduly cynical, but as I said,
47:47
if the justices are going to open a door to some boundless,
47:52
it's definitely going to be in favor of more power and not in
47:54
favor of more rights. That's just not something that
47:57
you're you're, you're not going to be the kind of person who
47:59
would do that. It will have been filtered out
48:01
of, of, of, of running to the Supreme Court.
48:04
You know, although I have to say to his credit, the most
48:06
libertarian justice on the court, Neil Gorsuch, you know,
48:11
he talks a good game. Whether he would ever actually
48:14
embrace privileges or immunities as the correct source of
48:18
individual rights. Protection of the 14th
48:20
Amendment, I'm less confident of.
48:21
But, you know, he, he I think he's got better sort of
48:26
libertarian instincts than any other justice on the Supreme
48:28
Court. I have high hopes for him still.
48:30
Yeah, I I kind of do too, but. We'll see what happens where the
48:33
rubber meets the road correct there.
48:36
There's a very sad. Asymmetry here as I'm listening
48:39
to you, the the amendment process is so onerous and you
48:45
finally get all the ducks in a row and you get an amendment
48:49
written and passed. And then you can have a Supreme
48:52
Court do what you're describing and say, oh, no, it doesn't mean
48:55
that It means something else. Oh, yeah.
48:57
And it's not just amendments, I mean.
48:58
Keep in mind that the, the, the original unamended Constitution
49:03
states that no state shall make or enforce any law which shall
49:07
abridge the obligations of contracts.
49:11
And they had a very specific situation in mind, which was the
49:15
effort of lenders, I'm sorry, borrowers in the wake of the of
49:19
the Revolutionary War to essentially rewrite the terms of
49:22
their loans because there are generally going to be more
49:25
borrowers than lenders. And so they have the, you know,
49:27
sort of the democratic numbers on their side.
49:30
And, you know, took in, in fairness, you know, many of them
49:33
have been off fighting the Revolutionary War instead of
49:35
home harvesting crops. And so they didn't have the
49:38
money to repay their loans, but that's, that's what that
49:42
provision is doing there. And in the in the early 20th
49:48
century, not too early, but you know, in the time of the Great
49:51
Depression, what do you think happened?
49:53
Well, farmers started trying to rewrite the terms of their loans
49:56
because they're a hard time repaying.
49:58
And I'm, you know, I think all of us probably have some
50:01
sympathy there, but they are trying to do the exact thing
50:04
that that provision was designed to forbid.
50:07
And the Supreme Court, in a case called Blaisdell said, well, you
50:10
know, this is a kind of a national emergency.
50:12
So we're going to pretend as if this provision doesn't really
50:14
have any substance. And the Court has never gone
50:18
back and, and, and overturned that case.
50:21
So even a provision that was in the original Constitution that
50:25
has a high degree of clarity and specificity to James's point, if
50:29
the language is clear, enforce it.
50:31
The Supreme Court is still capable of imbuing that language
50:35
with enough uncertainty or variability to meet the
50:39
government's preferred ends in any given case and to defer
50:43
reflexively to the to the contrary policy preferences of
50:48
of political actors. And as I like to say when I.
50:51
Taught such things in college campuses, and thus the federal
50:56
government found in favor of the federal government.
51:00
Well, that happened to be a case.
51:01
Placed out was the was the US Supreme Court finding in favor
51:04
of of a of a Minnesota law, if I if I remember correctly.
51:07
But of course, it was just a few years later, or I guess about a
51:11
decade later, that the Supreme Court decided that the Article
51:16
1, Section 8 power to regulate commerce among the states, among
51:21
the states, among the states. Empower.
51:23
The US Department of Agriculture to dictate to individual farmers
51:28
how much wheat they could grow on their own farm for their own
51:31
consumption. My my biggest complaint.
51:35
With that has always been the difference between the words
51:39
between and among. Right between is two among is 3
51:43
or more. But the the the Supreme Court
51:45
just threw all of it out and said no, no, no, even 1 little
51:48
parcel of land is just fine. Yeah, and and of course, the
51:52
word. Commerce is problematic there as
51:54
well because as Justice Thomas demonstrates with characteristic
51:59
power and clarity. In a concurring opinion, he
52:02
wrote in a 1995 case called USB Lopez.
52:07
This is the the famous gun within 1000 feet of a school
52:10
case where it was one of the only times the US Supreme Court
52:12
has struck down a federal law as as exceeding Congress's commerce
52:18
power. Just Thompson Clark.
52:22
Wasn't it the first time? That the commerce power had ever
52:25
been undermined in in any significant way well since the
52:29
New Deal. Yeah, yeah.
52:31
But I mean there. Were cases that.
52:32
Predated the New Deal or you know, in the run up to the to
52:35
what they told the go ahead. It had been.
52:38
It had been. Decades.
52:39
Yes, that's right. It had been about. 50 years,
52:43
about 1/2 a century, right? And so they get to Lopez and the
52:47
government's theory, and I kid you not, was that the, the
52:52
criminalizing the possession of a of a gun within 1000 feet of a
52:55
school implicates Congress's power to regulate commerce among
52:59
the states. Because if, if guns are near
53:02
schools, then students won't be able to concentrate on their
53:04
studies. They will be less intelligent or
53:06
less well educated, therefore less economically productive.
53:09
And and if you aggregate all of that diminished academic
53:12
performance, it'll have a net negative effect on on economic
53:15
productivity. And I'm not making that up.
53:16
That's not a character. That's their argument if
53:19
anything. You're not hacking at it badly
53:22
enough. It's the dumbest argument I've
53:26
ever seen at the level of the Supreme Court.
53:29
Well it got 4 votes. Yeah, so.
53:32
It was, it was a close call, but but Justice Thomas wrote a great
53:35
concurring opinion where among other things, he he went back
53:38
and looked at at at founding era dictionaries and case law,
53:45
etcetera. And he zeroed in on the word
53:47
commerce and he and he, he proved how even you know, pro
53:52
government types, a relatively pro government types like
53:56
Alexander Hamilton consistently distinguished between commerce
54:00
on the one hand and other productive activities like
54:03
agriculture and and and manufacturing on the other.
54:08
And, and so, so when they use the word commerce among the
54:12
states, they, they the best argument in my view is the one
54:15
Thomas makes, which is that they were specifically excluding
54:18
agriculture and manufacture. And the only thing that they
54:22
meant to include is when goods or money or some other, you
54:28
know, economic factor is actually moving among states.
54:31
And of course, as you know, James, it this this nonsensical
54:36
interpretation of the Commerce Clause did not stop with the,
54:40
with the, the Wickard case, which is the one we were talking
54:43
about the, the, the wheat farmer.
54:45
And just as recently as 2005, the Supreme Court held that the
54:50
commerce power, together with a nice dollop of necessary and
54:53
proper, which is another provision in Article 1, was
54:58
sufficient to empower the federal government to
55:01
criminalize the purely local cultivation and non commercial
55:06
distribution of a plant. And of course that plan was
55:11
canvas and and correct me if I'm wrong.
55:14
Clarence Thomas was on the wrong side of that one.
55:16
He was on the right side, Justice Scalia.
55:18
Was on the wrong side close. It was it was six to three.
55:22
This is the Gonzales V Rage case.
55:23
And, you know, I think if you want to sort of really see the
55:26
high watermark of disingenuousness and lack of
55:29
principle, just look at the ability of even a conservative
55:33
justice to say, Hey, you know what, I am, I yield to no one in
55:37
my commitment to the, to the, to the, both the text and the
55:40
structure of the US Constitution, but not if it
55:42
threatens the the federal drug war.
55:43
Can't, I can't go that far. And it's a it's a, it's a
55:46
fundamentally silly ruling. The idea that if you grow a
55:49
plant in your backyard and you don't give it to anybody and you
55:53
just, and it doesn't matter. It doesn't matter if it's a
55:55
marijuana plant, you know, or, you know, a grape Bush and
55:59
you're, you know, making your own wine from it.
56:01
It's not something the federal government has any ability to
56:04
regulate. I remember when that case.
56:07
Came up, we all thought finally there's going to be a little bit
56:11
of rationality around this issue and it wasn't to be for another,
56:17
what, 10-15 years before states just started saying, oh forget
56:21
we're going to do it anyway. Well, somewhat.
56:24
Speaking of which I was. Actually present in the
56:26
courtroom and Randy Barnett, Professor Randy Barnett argued
56:28
the Gonzalez free rage case. And I believe it was Justice
56:31
Ginsburg who had asked him a question, the essence of which
56:34
was, well, listen, you know, even if it's the case that, you
56:38
know, this particular marijuana was not bought or sold, it is
56:43
the kind of thing that some people would buy or sell.
56:46
So that that makes it an object of commerce.
56:49
And without missing a beat, Professor Barnett said, well,
56:52
you know, that would apply to a lot of things, including sex.
56:56
Does that mean? That the pro government has the
56:57
ability to regulate. That and, and I'll tell you
56:59
what, that's the thing. Our friends who embrace this,
57:02
the capacious interpretation of the Commerce Clause can never
57:07
answer when you ask them what is your limiting principle?
57:10
Tell me a thing or an activity that would not be reached by
57:14
your interpretation. Justice Breyer couldn't do it in
57:17
the Lopez case when he wrote the Descent and you and they threw
57:20
down the gauntlet, they said tell us a thing that is beyond
57:23
thorough power. So you've got this, this, you
57:26
know, you got this, this untenable position where Supreme
57:30
Court Justice says, well, clearly the, the, the the
57:33
federal government is one of the enumerated and limited powers.
57:36
But then I have this interpretation of those powers
57:39
that is not limited. And somebody asks a perfectly
57:42
fair question. OK, well, explain your position.
57:45
Tell me a thing. They can't regulate.
57:47
Well, you know, that's, that's a question for another day.
57:49
Well, you just gave away the whole game, didn't you?
57:52
And on. That.
57:54
Happy note, Clark. It's been really good to see
57:58
you. Again, it's been way too long.
57:59
This is great, too long. You can tell I had a lot of.
58:01
Pent up. Energy I needed to yeah so thank
58:03
you for the opportunity we're we're going to make sure we.
58:06
Get you back after somebody else does something really stupid and
58:10
the same basic thing can go on. I'll see you next week.
58:13
But I I for a yes, That's right. I have.
58:15
I for one, have been thoroughly amused and I enjoy every minute
58:19
of your cup. Same here.
58:21
Thank you, James. And Ed, thank you.
58:23
Thank you, Clark.