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Episode 431: The Republic Fails · Words & Numbers

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Hi, I'm James and I'm Anthony. And this is words and numbers
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brought to you by the good people at Polyhymnia.
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Thank you. I was afraid you were going to
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ask me to say it. Polyhymnia.
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You can do it. Go ahead, try.
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I can now. Don't ask me next week.
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You're on the board of directors.
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You should probably be able to pronounce the name of.
0:28
The khaki. Was easy.
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Do you even know what khaki stood for?
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No, let's not. Center for American Culture and
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Ideas Well. How about you?
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You were paying attention at all those meetings.
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Right. Both.
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Both of them. Anyway, what's new?
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And, well, we should stop for just a second.
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Because what's new and exciting in all of our lives is that
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today, literally hours ago as we record this, a new Pope has been
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selected. Yeah, and an American.
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I was claiming there's no way an American would be elected.
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And I didn't think I would see an American Pope in my lifetime.
1:02
Yeah. And yet here we are.
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Now I have nothing reasonable to say about him.
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So unlike every other podcast host, I'm not going to say
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anything, right? You know, this is maybe the
1:14
approach we should all take. But the next few weeks are going
1:18
to be interesting is he figures out how to sit in that big chair
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and what he wants his papacy to look like.
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And I was no fan of the last one, so here's to hoping this
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one is better. A few.
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Come on man, let let me do what's new and exciting in your
1:36
world this weekend. You already said, I have to say
1:39
a few episodes ago, I believe we talked about the direwolf that
1:44
has been de extincted. Building on that, there are a
1:48
couple of companies, the Organoid Company and Lab Grown
1:52
Leather have gotten together and they are working to create
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quote, the first cruelty free biodegradable handbag made from
2:05
T Rex skin. They've gotten hold of some DNA
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and they're trying to grow this lab grown T Rex skin and make
2:16
leather handbags out of it. I'm just left here scratching my
2:20
head. I've known what we've all known
2:23
for decades, that scientific technology has been growing
2:29
exponentially. And I guess up until this point,
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what that is meant, at least what it meant to me, is that,
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you know, we're going to get more and more stuff and faster
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and faster. But now I'm noticing something
2:41
interesting. The the technology is growing at
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such a remarkable pace that occupying the same planet are
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things out of science fiction stories that would have before
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been set 1000 years into the future.
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And within the same country, I'm talking about America now,
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people who believe that the world is 6000 years old to have
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people living and interacting on those different planes.
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And I'm not picking on anybody in particular.
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I'm just saying that as technology grows this
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exponential rate, we're going to get this weird kind of, I hate
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to use the word inequality, but I guess that's what I I mean,
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this weird kind of space where some of us are thousands of
3:27
years into the future compared to others of us.
3:30
It is interesting, right? You know, the wolf thing is
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fascinating, and I try to keep current on that sort of thing,
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as you know, but I love dogs and I wouldn't have mind a wolf dog
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combination. And everybody's going to send me
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hate mail telling me not to do it.
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But they're wild animals. I get it.
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But I can dream, can't I? And what I really want, Aunt,
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And I've said it in my private life many times.
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I don't know that I've ever said it on words and numbers.
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I want woolly mammoths to come back.
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I want the genetic engineers to get on this and reintroduce
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woolly mammoths, and then I want them to give me a miniature
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woolly mammoth that I can keep in my house as a pet, but
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roughly the size of a German Shepherd.
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If you're out there thinking how big should this be?
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So if you're a scientist listening, get on it, man.
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That's $1,000,000 idea. You're going to sell woolly
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mammoths coming and going. Well, if they can do that, I
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imagine they could make little pocket ones.
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You know, like those pocket whatever those little squirrels
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were that were popular with college students some years
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back. Yeah, I don't want anything I
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can squish by mistake. I want something to be able to
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live through my rough treatment, and a pocket woolly mammoth,
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while excellent and cool and perfect for the desktop, is
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probably not what we're looking for.
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But anyway, I'm going to sadly get us off this topic and on to
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something else. Here's something I don't say
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very often. I read something great in the
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Wall Street Journal, and I don't say it very often because of
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their paywalls. I almost never read anything
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from the Wall Street Journal, because who the hell can afford
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to pay them what they asked for? But this piece was left open for
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all to read in front of the paywall.
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And let me just read you the headline because you'll see
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right where it's going. The high school juniors with
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$70,000 a year job offers. High.
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School juniors, High school juniors.
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These are 15 and 16 year olds. Being offered more than the
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median household income. Being offered more than the
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median college graduate salary. What are they doing?
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Exactly what you would think. It is one step beyond an
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internship program in the trades.
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Now employers are going to high school saying this is what we
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need. Can you teach them this?
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And the high schools, having sent people to college
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unnecessarily for decades, are saying, yes, we can do it.
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And in Philadelphia, it's taken root and it's so good that
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there's some that are paying 6870 thousand on day one, but
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there's another who pays 50. And he says within five years,
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you could be in six figures if you just take this jump.
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Wow. That is more than almost every
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college graduate is ever going to make.
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Yeah, I remember the last class I taught.
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Somebody was making snarky comments about income, and I
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said, how much do you fools think you're going to make first
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year out after college and one after the next?
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They said $200,000. Wow.
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Good luck with that. That's never going to happen.
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Reality has this way about it, of wising people up, and yet
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here we see people looking around and reacting to some
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clear incentives and they're doing a great job.
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I'll leave the article in the show notes and people can check
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it out. It's well worth reading, it's a
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great story. This makes me so happy having
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spent years seeing students just wasting their money, their
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parents money, the taxpayers money, studying nonsense that
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isn't going to provide value to anybody.
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And all of their time. Their time.
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Yeah, and the universities happily taking their money and
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pretending to be educating them. Yep.
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Which brings us to the foolishness of the week.
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And this was. That wasn't foolish.
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No, that wasn't foolish at all. But this was one of the weeks
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where everywhere I look, it was a target rich environment.
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This week, I almost went with Cash Patel, the FBI director in
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the Trump administration, who showed up for a budget meeting
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in front of the Senate without a proposed budget.
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That that doesn't even get close to where we are with the actual
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foolishness of the week. Because I want to draw your mind
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back to a time when Donald Trump, here we go again, right?
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It's always Donald Trump. His lips move and bad things
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happen. Do you remember when he released
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his meme coin and you could buy Donald Trump crypto?
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Right. Yes, yes.
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Did you buy any? Oh, no.
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Yeah, no, me neither. It turns out.
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And this is from our good friends at CNBCA place that I
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actually rely on to get the story right way more often than
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not. This is a very good source for
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all things financial, and as a matter of fact, if you want to
8:48
get the best news available on American TVCNBC might be the
8:53
correct answer. Even though it's financially
8:56
driven, the news peeks through and it's almost always correct.
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58 Crypto wallets have made millions on the meme coin. 58
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How many people do you think have lost money?
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Oh, probably. I'm guessing hundreds of
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thousands. 764,000. OK, right. 764,000 rubes lined
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up to line the pockets of people who knew better.
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And does it say anything about how much the 58 made?
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Yeah, millions. Millions.
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Yeah, Yeah. Millions.
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So if you're looking for thievery, here it is.
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But the thievery that we get at this point very typically
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involves people lining up asking to be ripped off.
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I mean, how do you look at this and not know better?
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And yet 764,000 people didn't. For One Stop shopping for all
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things James and Aunt, visit our website wordsandnumbers.org.
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We give a special shout out to our Patreon sponsors who help us
10:09
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10:12
to patreon.com/words and Numbers.
10:16
This week, Clark Neely joins us. Clark is senior vice president
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for Legal studies at the Cato Institute and author of Terms of
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Engagement, and a frequent guest on Words and Numbers.
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I've lost count, but this is got to be at least your 5th or 6th
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appearance. 5th or 6th? It must be 10th or 12th.
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Come on. And you know, one good Mealy
10:39
deserves another. We had your wife on just a
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couple of weeks ago, so it must be time to turn to you,
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especially in these difficult constitutional times that we've
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got ahead of us. I mean, I'm just going to throw
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you the biggest softball you've ever been thrown.
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What the hell is going on? Well, nothing we've ever seen
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before. I think that where we are now is
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we have a president with an extraordinarily broad conception
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of the powers of that office. And frankly, I'm being a bit
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euphemistic here. A Congress that has abdicated
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essentially all of its constitutional responsibilities
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and a judiciary that is doing its level best to sort of keep
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the whole, you know, process going forward without going off
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the rails. And I'd say it's about an even
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money chance whether we pull through it.
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It's interesting you say that because in at least an episode
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ago, I said to James, just kind of off the cuff that I haven't
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noticed Congress do anything since Newt Gingrich in the
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Contract With America. And as soon as the words left my
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mouth, I realized, Oh my God, that's true.
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This is like the 1990s and Congress hasn't done anything.
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Well, I mean, you know, of course it passes laws, but you
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don't hear it taking any leadership role.
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Yeah, and I think there's, with the possible exception of the
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run up to the Civil War, there's probably never been a more
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urgent time for Congress to bestir itself and actually do
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something, not just passing laws, but participate in
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democratic government, which it's just totally AOL.
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It is an open question how long we can sort of limp along with
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only two branches of government when one of them is controlled
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by, I'm just going to say it, a fundamentally authoritarian
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personality. Yeah, I want to draw people's
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attention to what's going on with tariffs right now.
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My understanding from conversations with you is that
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tariffs are being attacks. They're within the purview of
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Congress, but Congress at some point just handed that off to
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the executive branch and said do whatever you want.
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Nope. That's how the president,
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President Trump has interpreted it.
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But actually, the delegation of tariff power from Congress was
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supposed to be fairly narrow and only applied to emergencies.
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And it's not just President Trump.
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Presidents before Trump have pushed the bounds of the term
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emergency so that everything from a mild disturbance to an
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actual emergency or a declared war gets lumped into that
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category. But no, the original grant of
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power to the president to impose tariffs was meant to be and was
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worded much more narrowly than it's been being conceived now.
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You know, Clark, we've been at this, and by this, I mean
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Congress deferring all of its authority to the executive
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branch. This is not a new thing.
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It's a process, and it's a process that's been ongoing at
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least since Woodrow Wilson, right?
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So this goes back a very long time.
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And there have been people like us who have been screaming from
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the rafters. Don't do this.
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It will come to no good if you keep walking down this road.
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And here we are, right? The balance of power is utterly
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fouled at this point. I don't know that we're ever
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going to really get it back. We've had many discussions about
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how the Constitution conceives of a federal government of
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enumerated meaning specifically spelled out and therefore
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limited powers. And under the FDR, Franklin
14:24
Delano Roosevelt administration, you know, they essentially
14:27
wanted to nationalize the economy to try to pull us out of
14:30
the Great Depression. The Supreme Court initially
14:32
resisted those efforts, but then finally threw in the table
14:35
between 1937 and about 1944. And, you know, essentially just
14:39
said, hey, you know what? We're not really going to be in
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the business. Well, let me not qualify that.
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We are not going to be in the business at all of requiring
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that Congress only exercise those powers that were
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constitutionally delegated to it.
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And they came up with a number of preposterous and government
14:56
empowering legal doctrines to essentially rationalize the
15:00
exercise of congressional power in almost any setting.
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And I think you're right, James. I mean, I think to, to the
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extent implicit in your comment is that we're sort of reaping
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the bitter fruit of that initial mistake.
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I think that's exactly right. You were on a roll, James.
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I'm just holding back well. I was hoping Clark would do what
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he usually does and says, well, that's almost right, James, but
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you forgot this, this and this, and he didn't do that.
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And now I'm left as the optimist in the room.
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I don't know how we got here, but here we are.
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I want to go back to one of you said that we've ended up with
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two branches of government. That's striking to me.
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I'd never thought about that, but it sounds exactly right.
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And in fact, from the little bit I understand about the Roman
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Empire, that was the prelude to its perhaps protracted fall when
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the Senate basically became a rubber stamp for whatever the
15:59
Caesar wanted. And then all of a sudden you
16:01
went from being a Republic to a dictatorship.
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Yeah. I mean, I don't think that
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history is destiny, but I do think that a system that was
16:10
carefully designed to divide power among three separate
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branches, and of course, also vertically between federal and
16:19
state governments, it's difficult to see how that
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continues to work properly if one of the branches refuses to
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take any meaningful role in governance.
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And I think that's a fair characterization of what we've
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seen from Congress over the past.
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You know, James, you might have a different date than I would.
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But certainly since the Obama administration and we're kind of
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inter Incognito, I don't know how any of this works with a
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Congress, for example, that refuses to impeach a president
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who very clearly, in my view, tried to overturn the results of
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a lawful election. And if President Trump has
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concluded, as I suspect that he has, that he is now effectively
17:01
unimpeachable, which I suspect that he is, then, you know, in
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some sense all bets are off. And it comes down to essentially
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a game of chicken between a president who conceives of both
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his powers and the so-called referendum that he received from
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the electorate, which he didn't really, but he thinks that he
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did, playing chicken with a judicial branch that lacks both
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the power of the person, the power of the sword.
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We have not run this simulation before.
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We've come up to the edge of it before, but we're about to run
17:29
the simulation, find out just what happens.
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I think we are. Let me ask you a question
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following up on that. Clerk, why do you think he's
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unimpeachable? I think that Trump is
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unimpeachable because there's a lack of integrity among
17:47
Republicans in the Senate. Many of them simply have their
17:50
eye on who is going to be the anointed, the anointed by Trump
17:54
as the presumptive Republican nominee to run in the next
17:58
presidential election. I think that's what several
18:02
Republican senators are clearly there in the Senate to do.
18:04
They're not all that interested in legislating and they're not
18:07
good at it. So they're there essentially as
18:09
a sort of a long precursor to a run for president.
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And you know, when you fail to convict and remove a president
18:15
from office who has not only tried to overturn the results of
18:19
a lawful election, but stirred up people to go over the capital
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and engage in acts of violence to try to disrupt the lawful
18:28
transfer of power, and you can call that an insurrection or
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not. I know that that's a
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controversial term. I don't think we need to get
18:34
hung up on terminology. Trump was very clearly
18:36
supporting the people that went over to the capital and engaged
18:39
in violence there. So he pardons all those people,
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notwithstanding the fact that they did try to prevent the
18:45
peaceful transfer of power. He was not removed.
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That's a pretty big green light. And I would say he's committed
18:51
at least three and maybe as many as 8 or 10 impeachable acts
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since he's been president, just since January 20th, the
18:58
inauguration, more than any president I think we've ever
19:01
seen in such a short period of time with zero response from
19:05
Congress. I think there are a number of
19:07
acts that President Trump has taken in the last 100 days that
19:11
if any other president had taken just one of them, there's a high
19:14
likelihood that that president would have been impeached and
19:17
removed. And the fact that we haven't
19:18
even seen so much as a raised eyebrow from Republicans in
19:22
Congress suggests strongly to me that President Trump is now
19:26
effectively unimpeachable. Why don't you give us a
19:30
highlight reel of the 8 or 10 or 12?
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They can give us the top two or three.
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So I would say that he is in defiance of the courts.
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He's kind of playing at Cagey. For example, his administration
19:41
is under orders to facilitate the return of Kilmar Abrego
19:45
Garcia, who they admitted should not have been sent to El
19:48
Salvador but was anyway. And it's been ordered by the
19:52
courts in a decision that was affirmed by the Supreme Court a
19:55
couple weeks ago to facilitate the return of that person.
19:59
At first, you know, there was this sort of game of I can't do
20:02
it. Maybe the president of El
20:03
Salvador can. And then he said, well, I don't
20:05
have the power. It would have to come from
20:06
America. But recently, President Trump
20:08
blatantly said, Yep, I could get him back, but I'm not going to.
20:11
So I would say that counts as open defiance of the courts.
20:14
That should be impeachable. The assault on large law firms.
20:17
More than a dozen firms received letters or were the subject of
20:21
executive orders in which simply because they took positions that
20:24
the president found uncongenial. Or employed people who were
20:27
opposed to Trump in some way. Lawyers had their security
20:30
clearances arbitrarily withheld. Some of those firms, their
20:33
employees are not allowed to set foot in federal buildings.
20:37
And there's the executive order in some cases also says that the
20:41
federal government would no longer do business with
20:42
companies that are represented by these firms.
20:45
That is a absolute dagger at the heart of the rule of law.
20:48
That is a blatant effort to try to discourage lawyers from
20:53
taking positions that are adverse to the current
20:56
administration and administration.
20:57
By the way, that is engaging in a tremendous amount of legally
21:03
dubious and in some cases blatantly unlawful behavior and
21:07
attempting to cow the entire legal profession into not
21:11
opposing your administration in court, I think is clearly an
21:15
imitable act. I recognize that Harvard, for
21:18
example, has a lot of red in its leisure, and I'm not going to be
21:20
1 to defend things that happen at Harvard.
21:22
But threatening to remove nonprofit status of the nation's
21:28
oldest and in perhaps in still most prestigious university for
21:34
essentially refusing to knuckle under when the administration
21:38
comes along and tells them how to reorder their shop, I think
21:41
that's impeachable. I could go on.
21:43
But bottom line, I think the manner in which the
21:46
administration has flouted the rule of law in many of these
21:49
deportation cases singled out not only law firms but also a
21:52
couple of individuals in what some people have started calling
21:56
orders of attainder and making it clear that a college's
22:02
ability to continue to have nonprofit status depends on its
22:05
willingness to accede to demands that the federal government has
22:08
no legitimate basis to impose. Those are all deeply, deeply
22:13
concerning assaults on the rule of law, in my view.
22:18
I get why even reasonable Republicans would be loath to
22:24
take action for fear of backlash from their own constituents.
22:28
But what about the Democrats? Why aren't the Democrats writing
22:32
up impeachment after impeachment here?
22:35
I mean, of course it's not going to go anywhere, but why aren't
22:37
they in the news pushing back? Well, that might be a question
22:40
for James as much as me. I think the most charitable
22:42
answer, I think, would be that they may be keeping their powder
22:44
dry until the midterms to see if they can take back the House,
22:47
possibly also the Senate, and then actually do something more
22:50
than just, you know, wave their hand and shriek from the
22:53
sidelines. I tend to agree with that
22:58
because the only competing answer is that they're all
23:02
cowards and they're terrified of him.
23:04
And I think there's a fair amount of that, don't get me
23:07
wrong. But these people are
23:09
politicians. They're used to shoving back
23:11
when it suits their needs, and they will do so.
23:14
I wonder where we're going to be at the midterm election.
23:19
I don't think there's a way in hell the Republicans are going
23:22
to hold on to the House in the current situation.
23:24
But what happens in the Senate will be very, very interesting.
23:28
And remember, we're talking about the midterms.
23:30
We're only 100 days in. The midterms are another, what,
23:34
600 days away? The midterms started the day
23:38
after the last election. James I can think of one very
23:42
scary way in which the Republicans could hang on to a
23:44
majority in the House, and that's if there was an effort to
23:48
interfere with the midterm elections.
23:50
And I would not rule that out. I wouldn't rule it out either,
23:54
but I think in the end it would backfire so spectacularly that
23:59
they would think twice, maybe even three times before doing
24:02
it. I'm not saying that we're going
24:04
to be immune from that. I don't think we are.
24:07
Yeah, we're in very uncharted territory.
24:10
I think that's right, because two things are true.
24:13
I think, first, it is much more difficult to change the results
24:17
of an election than most people really appreciate, and second, I
24:20
think this may actually be the most incompetent administration
24:23
in the history of the United States.
24:25
They're just not good at anything, and I suspect they
24:27
won't be very good at interfering with elections if
24:29
they were to try. I'm glad to hear you say that.
24:34
You know, you think that this might be the most incompetent
24:37
administration. Of all time.
24:39
I am stumbling to that conclusion every time I turn on
24:42
my television, and I wonder how long they can go without
24:46
shooting themselves in their collective foot so badly that
24:50
people are just unwilling to keep putting up with it.
24:54
I'm running through my head a comparison between this and
24:58
Biden and how we went from perhaps the one administration
25:02
in history that did the least to this one that's now doing all
25:08
manner of things it's got no business doing.
25:13
Yeah, it's an interesting question.
25:14
If the Biden administration had tried to do as many things as
25:17
the Trump administration or the second Trump administration, it
25:20
might have proved to be even more incompetent.
25:23
But whether you know intentionally or just a
25:26
byproduct of President Biden's senescence, they seem to have
25:30
set their sights much lower and just essentially tried to get
25:32
across the finish line, which they just barely did.
25:35
Ultimately, I don't think we need to decide.
25:37
And exactly like if we put them through a decathlon of
25:39
incompetence, which one would have scored higher?
25:42
It's an interesting question. It's a theoretical question, but
25:45
in terms of actual performance, I've never seen and I've never
25:47
even heard of a more incompetent administration than Trump. 2
25:50
point O. Well, that's just it, right?
25:54
It's the incompetent administration that we now have
25:57
versus the incompetent president that we had not too long ago.
26:01
His administration wasn't nearly as incompetent as he himself.
26:05
Was Clark? Given that Congress is
26:10
apparently not interested or unable to execute its check on
26:15
the executive, is there anything the courts can do?
26:21
Yes, and they're doing it so people can continue to bring
26:25
cases and controversies to the courts.
26:28
And boy, this administration is selling a fertile crop of cases
26:32
and controversies. Forget what the count is, I
26:35
think it's over 200 cases that have been filed against various
26:38
administration actions since the inauguration, and the courts
26:41
churn through those. And, you know, I think of, by
26:44
and large, doing a pretty good job, especially given the very
26:46
compressed time frame that many of these cases are on.
26:48
Courts generally don't do their best work on a tight time frame,
26:52
but they're doing their best. My colleague Wally Olson just
26:55
published a piece in the Dispatch about this that I
26:57
really commend. And maybe we can put it in the
26:58
show notes about the contempt power of the courts, because
27:02
that's the last chip that courts have to play if the executive
27:06
branch chooses to defy a court order.
27:09
And that has happened before, not a Supreme Court order.
27:12
They've come close. But in my view, we haven't
27:14
actually seen open defiance of a Supreme Court order.
27:16
But if an executive branch official refuses to comply with
27:20
a court order, the courts do have the power to hold that
27:23
person in contempt or even that agency in contempt.
27:26
And there are two kinds of contempt.
27:27
There's civil contempt, sometimes known as coercive
27:30
contempt, which is where you either impose fines or actually
27:33
lock people up until they comply, and once they comply,
27:38
they have to be released or the fines have to be terminated.
27:41
That's civil contempt, AKA coercive contempt.
27:44
You're trying to apply pressure to induce the executive branch
27:50
official to take a particular action, which is to say comply
27:52
with a court order. But then there's criminal
27:54
contempt when the open defiance of the court order or doing
27:58
something in the presence of a court, such as telling a blatant
28:00
lie. So offends, you know, sort of
28:03
the integrity of the judicial process that the person is then
28:06
held or the agency is then held in criminal contempt for the
28:09
thing they did. And then some punishment is
28:12
imposed, usually in the form of a fine, but it can also be
28:14
incarceration. It is a really scary question.
28:19
What would happen in the current environment if a court were to
28:25
hold a member of the Trump administration and perhaps even
28:28
President Trump himself in contempt?
28:30
Because what is the enforcement mechanism?
28:33
Some people would say, oh, well, then you just have the Marshall
28:35
Service go impose whatever the court orders.
28:38
Well, guess what? The Marshall Service doesn't
28:41
work for the courts. They work for the Department of
28:43
Justice and the Department of Justice works for the president.
28:45
So we're really in, again, I hate to overuse the word, but
28:49
we're in Terra Incognito with this is a blank slate.
28:51
We've never been here. We don't really know what would
28:53
happen if a court imposed A contempt order and then the
28:59
executive branch said, well, that's your opinion.
29:01
We're not going to enforce that order.
29:03
That would be a real constitutional crisis, I would
29:05
say. And one would hope that members
29:11
of the what did you say? The judicial, not the judicial
29:16
branch. The marshals work for whom?
29:19
Oh, so the Marshall Service provides security for federal
29:23
courthouses and judges, but they don't actually work for the
29:27
judiciary? They don't work for Article 3?
29:28
They were. The Justice Department.
29:30
For the Justice Department, yeah, that's right.
29:32
So one would hope that members of the Justice Department would
29:36
take their oath to the Constitution seriously and say,
29:40
look, I owe my allegiance more to the Constitution than I do to
29:44
the person sitting in the Oval Office.
29:46
Therefore, I'm going to send the marshals per the court's
29:51
decision. Now, that's not going to happen.
29:54
And people are going to point to Republicans there, but I'm going
29:58
to point back to the Democrats when they should have been
30:01
invoking the 25th Amendment when Biden was clearly not mentally
30:06
competent. And yet there we got the same
30:08
thing of loyalty to the person being held higher than their
30:12
constitutional oath. Let me remind you of what
30:16
happened. I think it was last week, it
30:18
might have been the week before, when some crackpot member of the
30:22
press asked the president if he had to uphold the Constitution
30:27
and he claimed not to know. I quipped on Twitter that we get
30:33
so used to President Trump lying that it's kind of a shock when
30:36
he finally tells the truth. But I think he's probably
30:38
telling the truth there. I think he probably thinks
30:40
there's some question as to the nature of that oath.
30:43
I'm not even sure if he remembers taking one.
30:47
Yeah. You think he might have read it.
30:49
You think he might have familiarized himself with it,
30:52
but at this point, he gave the answer I kind of expected,
30:57
right? He's at that point where he
30:59
literally thinks he can do anything as president and no one
31:04
can stand in his way. And that is the exact opposite
31:07
conclusion one should draw in a functioning constitutional
31:11
Republic. But we don't have a functioning
31:13
constitutional Republic anymore. That's.
31:17
Yeah, I think that's the key. We have said probably all three
31:21
of us at one point or another that a system that depends on
31:26
the integrity of the individuals of poor system.
31:30
And so we have the checks and balances.
31:32
So in some sense he's acting the way that the founders, I would
31:37
have to say expected. He's running rampant with as
31:40
much power as he can. The problem is the checks and
31:43
balances aren't working. I would maybe amend that and I
31:46
wouldn't necessarily say expected.
31:48
I might say either feared or anticipated would be possible,
31:53
sure. And that's why they built in so
31:54
many guardrails, I think, what they couldn't have foreseen.
31:58
And here I'm going to name who I think are the real villains in
32:00
this whole mess, perhaps besides President Trump.
32:02
I know some people feel like, well, you know, Biden was just
32:06
as bad. And, you know, Trump's really
32:08
not that much worse. I don't want to have that
32:09
argument. I want to name the real,
32:11
indisputable villains in this. And that is the worthless hacks
32:16
among the Republican senators who refuse to stand up to Trump
32:20
and tell him, look, we'll have your back as long as you're
32:23
plausibly within what the Constitution permits.
32:25
And you're showing respect for the rule of law, including the
32:28
courts, and the correct process for challenging a court decision
32:32
you disagree with, which is to appeal it up the system and play
32:35
by the rules. That's not happening.
32:37
And this pack of quislings of spineless, worthless hacks in
32:43
the Senate who should have impeached and removed the
32:45
president already and should be at least making noises about
32:50
doing so again, I think are the true villains in this drama.
32:54
And as you can tell, I'm pretty worked up about it because I
32:56
tend to agree with James. It's not at all clear that we
32:59
still have a functioning constitutional Republican.
33:01
If you had to point to one group of people who bear more
33:04
responsibility for that than anybody else, you look to those
33:07
spineless Republican senators. And there's an interesting thing
33:12
here, Clark, right? I, of all people, am loath to
33:15
criticize the founders and the Framers.
33:17
I think they did a wonderful job with what they had.
33:20
But if you go back and you really plow through what was
33:24
going on in 1787, you get this idea.
33:28
And it really comes to the fore in federalist #48 where they
33:33
claim that there's this impetuous vortex of power and
33:38
Congress just gobbles up power everywhere we look.
33:42
Let me just read it out loud, 'cause it's really telling.
33:45
It is against the enterprising ambition of this department that
33:49
the people ought to indulge all their jealousy and exhaust all
33:53
their precaution. And I think the Framers set up a
33:57
government which stymied the legislative branch just a little
34:02
too much. Yeah, I'm not sure I'm going to
34:07
agree with that, but maybe we don't need to go too far down
34:11
that rabbit trail. I think what I would say is if
34:15
the founders had designed a system in such a way that it
34:20
would be capable of averting the crisis we have now, which I see
34:27
as a Congress that is insufficiently protective of its
34:31
own powers and prerogatives and insufficiently protective of
34:35
constitutionally limited government in the rule of law
34:38
and separation of powers. The collision of that body.
34:43
And a fundamentally authoritarian president who is
34:47
as vindictive, I think, and contemptuous of the system,
34:52
given the way that he's been treated.
34:53
And let's be clear, President Trump was treated badly.
34:56
And if he perceives himself to have been the victim of some
34:59
lawless attacks, I would agree with him in his first
35:02
administration. So he's not entirely wrong if
35:04
he's in a vindictive frame of mind.
35:06
But the way he's going about it is deeply problematic.
35:08
And I would say if the framers have tried to design a system
35:11
that could survive or overcome the collision of a feckless
35:15
Congress and an authoritarian president, we might not have
35:18
even made it to this point because that Constitution would
35:20
look a lot different than the one we have.
35:22
And they had to try to find kind of an equilibrium, which I think
35:25
they did. And I think that's one of the
35:28
reasons why the Constitution has lasted longer than any other
35:30
major constitution in the world. We might get through this.
35:33
I began the conversation by saying, I think, you know, we're
35:35
close to even money for me about whether we we get through this
35:38
without some substantial RIP or tear in the fabric of civil
35:43
society and constitutional government that doesn't fully
35:45
repair. I still think we'll be
35:47
ostensibly A functioning democracy in eight or ten years,
35:50
but we might be 1 whose, you know, fabric has been so badly
35:53
torn that the cake is baked, and it's just a question of how long
35:56
we limp along. Is it that Clark, or is it that
36:01
the voters, the Congress wakes up and realizes, OK, we've got
36:04
to do things differently, this has to not happen again.
36:09
Are you saying could that still happen?
36:11
Yeah. I think it could still happen,
36:12
but maybe I'm overworking the metaphor of the torn fabric.
36:15
But I think that our system depends to a greater extent than
36:19
maybe we realized. Unspoken norms respecting things
36:23
like the filibuster even though that's not in the Constitution,
36:26
and obeying court orders that you disagree with even though
36:31
the court has no power to enforce them.
36:33
These are norms. There's no enforcement mechanism
36:35
for any of this. And my guess my point is that if
36:37
those norms are sufficiently stressed, some of them will tear
36:42
and I'm not sure they repair real well.
36:44
And I would say the one I'm the most concerned about would be
36:46
open defiance of an order from the US Supreme Court, or more
36:51
accurately, a decision of the Supreme Court affirming the
36:55
enforceability of a lower court order.
36:56
And I would say open defiance of that might be a breach of norms
37:01
that we never entirely recover from.
37:03
I'm not saying that's impossible.
37:04
I'm just saying that would be one that I would not be
37:06
surprised to find out we never came back from that if it were
37:09
to happen. Why do you think the American
37:13
people have been so willing to abandon the tradition of limited
37:19
government? That's really what it comes down
37:23
to, right? They're willing to elect people
37:25
who say, well, I don't care what we've done before, we're going
37:28
to do it my way now. And people line up behind it and
37:30
say, well, OK, let's do that. Yeah, James, that's such a great
37:34
question. I don't know if I know the
37:35
answer to that, but I'll get the ball rolling.
37:36
Maybe we can all sort of chip in.
37:39
You know, I do think that when Congress started exercising
37:45
powers that were clearly forbidden, I mean, think about
37:49
enumerated powers, the founders decided that not only do they
37:52
have to say that Congress had the power to create post
37:55
offices, they said, oh, and also post roads, post roads, post
38:00
roads. Right.
38:03
That's awfully detailed if you also met.
38:05
Oh, yeah. And also, of course,
38:06
nationalized healthcare and make people buy government approved
38:09
health insurance. Well, of course that, I mean, we
38:11
didn't think to put that in there.
38:12
Oh, and a $30 billion federal Department of Education, sure,
38:16
of course that comes along too, even though we didn't mention
38:18
it. So you get this really granular
38:21
level of detail with things like post roads, right.
38:24
But then there are some people who seriously take the position
38:27
that, well, yeah, of course they meant the federal role in
38:31
education and, you know, healthcare and a universal
38:34
retirement system that's also not mentioned in the text.
38:38
I think that once the Supreme Court decides that it has to
38:41
rationalize the existence of those programs and legitimize
38:46
the naked usurpation of power by Congress that is manifest in
38:51
those programs, maybe there's no coming back from that, right?
38:56
Because now you've got this kind of homogeneous polity, you can
39:02
get a little bit of difference if you move from California to
39:04
Texas, but you're supposed to be able to get a lot of difference
39:08
when you move from California to Texas or New Jersey to Florida,
39:10
whatever it might be. And so in effect, they took a
39:14
whole bunch of people with radically different values and
39:17
ideas about what government should and shouldn't do.
39:20
And instead of letting them dispersed to the different parts
39:23
of the country where they feel most comfortable and kind of
39:25
leave each other alone, they effectively cooped us all up in
39:29
one cage and put us at each other's throats.
39:32
There's no way to get away from somebody who thinks that we
39:34
ought to tax the billionaires into the poor house.
39:36
You can't get away from that person anymore.
39:38
But if we had a system of federalism and localized
39:41
government that the framers envisioned and baked into the
39:44
Constitution, all those billionaires could go down and
39:47
set up shop down there with Elon Musk outside of Austin, TX, and
39:50
not get taxed at a whatever marginal rate of 36 or even 95%,
39:55
which it was at one time. And be safe.
39:57
But man, there's nowhere to run now.
40:03
That is about the best way I've ever heard that argument put.
40:08
That was superb. It was superb, but it's also
40:12
very sad. Yeah.
40:15
Right. We take that thing that made us
40:17
what we were and we just threw it out the window.
40:21
Yeah. And what the framers appreciated
40:23
that I think we didn't sufficiently appreciate, is the
40:27
inevitability of what our philosopher friends would call
40:29
incommensurable values, right? So one person might put a lot of
40:33
value on equality or the distribution of resources and
40:38
wanting to make sure that there's never an excessive,
40:41
whatever that means, you know, income gap because they
40:45
fundamentally feel that like, you know, everybody should have
40:48
a minimally decent life. And then other people might say,
40:51
well, you know, that's important.
40:52
But what's even more important is ensuring that people are able
40:57
to enjoy the fruits of their own laborers and their smart risk
41:02
taking and their willingness to invest and their productivity.
41:05
And in some sense, neither of those two people is wrong,
41:09
exactly. But it may be that they just
41:12
need to be able to live apart in places that prioritize those
41:17
values differently. And so, you know, again, like
41:20
California is kind of a an equality of outcome state,
41:24
whereas Texas might be an equality of opportunity state.
41:27
And some people prefer one environment, some people prefer
41:30
the other environment. And again, I don't want to beat
41:32
a dead horse, but if we had a properly operating system of
41:35
federalism, your life in California would look radically
41:40
different than your life in Texas.
41:43
And now it only looks moderately different.
41:45
So I think that's really the problem.
41:47
And what happens is we become contemptuous of each other.
41:50
When I say each other, I mean, Americans have kind of roughly
41:52
divided into two different camps, one of which is a
41:55
fundamentally, I would say social justice camp that the
41:59
most important thing that government can do is ensure
42:02
equality of outcomes. And then the other camp is more
42:05
of a, you know, sort of entrepreneurial and free market
42:08
camp that essentially as long as everybody starts in roughly the
42:12
same place, we let the chips fall where they may.
42:13
And if some people end up billionaires like Steve Jobs and
42:16
other people end up unemployed, then that's just the way it is.
42:19
Perhaps we all kick in a little something so that we don't have
42:22
to watch our fellow citizens starve or step over anybody.
42:25
You can't get enough medical care just because they don't
42:27
have any money. But that's it.
42:28
Social safety net and no more. And I think our ability to kind
42:32
of, you know, I hate to use the word, but self segregate into
42:36
communities that are more consistent with our values is
42:40
why we're so angry at each other right now.
42:41
And I do think we're angry at each other.
42:42
I think we are as polarized as we have ever been since the
42:45
Civil War. And, you know, sort of each side
42:48
feels so aggrieved that there's nothing that its leaders can't
42:52
do to the other side that they would feel like is unwarranted
42:55
and unfair. And we shouldn't do that.
42:57
Think about all the whataboutism that you encounter because I'm
42:59
sure you encounter as much as I do.
43:01
You say anything bad about what's Trump's doing.
43:03
And and you've probably got friends who the first thing they
43:05
will say is, well, wait a minute, wait a minute.
43:07
Let me tell you what the Biden administration did or let me
43:09
tell you what Obama did. And of course, response to that
43:12
is, yeah, that was bad, too. We should be upset about all of
43:16
it. But very few of us can actually
43:19
see through our partisan differences.
43:21
Like when I think about Barack Obama, the first thing that
43:24
comes to mind, the very first thing that comes to mind is that
43:27
he used drones to kill American citizens.
43:32
Now, if we're going to let that slide, then how on earth are we
43:37
going to scale back deportations which stop way short of drone
43:42
strikes against your own people? Yeah, and James, it's, it's even
43:45
worse than that. We're not just letting it slide,
43:47
right? We've got people who would have
43:50
to 1st know. Who?
43:52
Authorized that drone strike to know whether they should be
43:55
outraged by it or supportive of it.
43:58
Right. Oh, who was it?
43:59
Was it Bush? Oh, well, he's a war criminal.
44:01
That's exactly what I'd expect from that guy.
44:03
And you're like, no, just kidding.
44:04
It was Obama. Oh, well, tell me more.
44:06
Were these really bad guys? And I'm.
44:07
I'm sure Obama knew what he was doing, you know?
44:09
Yeah. So you get the point.
44:11
That's a really scary place to be, right, Where the exact same
44:13
action is either outrageous and intolerable or just the way
44:18
sometimes, you know, great powers have to be wielded.
44:20
And the only way you can know which one it was is you have to
44:22
know which president was the one who gave the order.
44:26
Yeah. And I would have pushed back
44:27
very strenuously on your assertion that this is the most
44:31
divided we've been since the Civil War until very recent days
44:36
because, you know, we've got 1968 in our history, and we
44:39
could point to it where, you know, political violence was
44:43
pronounced. There was a fair amount of
44:45
political violence, and we haven't really had any yet here,
44:49
but it's common. I don't think there's a way in
44:51
how we avoid it at this point. Yeah, I don't know if it's true
44:55
or not, but it maybe you guys have heard the same thing.
44:57
But supposedly a marriage counselors will tell you that a
45:00
marriage can survive almost anything except contempt, and
45:03
that when one or both spouses feel contempt for each other,
45:06
it's over. And I think to me, that's kind
45:09
of where I see us turning the corner because I do think that a
45:12
significant number of Americans are fundamentally contemptuous
45:16
of a significant number of other Americans.
45:18
And that goes both ways. I don't see very much good faith
45:21
anymore. I don't see charity anymore.
45:23
I think there's just mostly, you know, sort of a visceral
45:27
disgust. The woke is disgusted with MAGA
45:30
and MAGA is disgusted with woke. And those of us in the middle
45:33
are kind of disgusted with both of them.
45:35
And if that kind of contempt has set in, I want, if there is sort
45:38
of an analogy to this, what ultimately can destroy a
45:42
marriage is, you know, this contempt where you just think, I
45:45
don't even want to patch it up. You know what?
45:46
I'm done. It's interesting you say this
45:52
because I had this exact experience just this past week.
45:56
I got onto a discussion on actually on my sister's feed on
46:00
Facebook, and she had said something about the election.
46:04
And I made the point that along the lines that you're making,
46:07
the left and the right extremes make us look like we're at each
46:11
other's throes. We got a bunch of people in the
46:13
middle who are relatively reasonable that we're not
46:15
hearing from and are being pulled by these extremes.
46:20
And there were several people on this feed who for whatever
46:24
reason, thought I was a Trump supporter.
46:28
And immediately they're laying into me and assuming all kinds
46:33
of things behind what I said and denigrating and word name
46:37
calling the whole thing. And this goes on and on for a
46:39
bit until my sister steps in and says, you know, he didn't vote
46:43
for Trump. And all of a sudden I didn't say
46:47
a word. And all of a sudden people are
46:49
apologizing and rereading stuff that I wrote.
46:53
But it's this thing that we tend to all do.
46:55
I think social media just makes it worse.
46:58
You assume what's in the other person's heart and mind simply
47:03
on the basis of who you think they voted for.
47:06
Yeah, that's the spaying. But you know what I mean?
47:09
Let's sort of like take the devil's advocate here, right?
47:11
Like, I don't mean to legitimize, you know, sort of
47:15
retconning or what about ISM, But was anybody else rather
47:19
appalled when the Democrats came to the conclusion that Joe Biden
47:24
was not fit to run for president, but he was still fit
47:27
to be president? That's like, I would say rather
47:31
concerning. And I would say it was rather
47:33
clear to all of us that at least by the time of that debate, and
47:36
I think it was June of 2024, that this man was really not fit
47:41
to be the commander in chief of the world's leading superpower.
47:46
And to the extent I kind of feel that it was both irresponsible
47:49
and I maybe even unforgivable that you guys left this person
47:52
in office and left our country as vulnerable as it was and self
47:56
evidently turned over the job of being president to some, you
48:01
know, unnamed group of people who were very clearly calling
48:04
the shots at some point. To the extent people are still
48:07
angry about that and deeply resentful about it, I'm not
48:10
going to tell them they're wrong.
48:12
But I'm also going to say that if you're not outraged by at
48:15
least some of the things that President Trump has been doing
48:17
in his second administration, I'm not going to let you off the
48:20
hook either. You ought to be outraged.
48:21
You ought to be as outraged at some of the things that
48:24
President Trump has done in the past couple of months as you
48:26
were about the fact that they left a fundamentally senile and
48:30
incompetent president wasn't capable of discharging the
48:32
powers of the office in that office.
48:35
We were let down in both cases. So it's kind of funny, right?
48:38
Like, everybody's right and everybody's mad.
48:40
And, you know, again, I come back to I kind of get this
48:44
feeling almost that people are sort of like, yeah, I'm done.
48:46
I don't, I don't even want to patch it up with these people.
48:48
I don't want to be in the same country with them.
48:50
I'm not advocating for that, by the way.
48:52
I think that would be a real tragedy.
48:54
But it's getting harder and harder to say to somebody who's
48:56
really disgusted with, you know, those guys on the other side
48:59
that they are wrong. I feel like I'm down to my last
49:03
card, which is, yeah, you know what?
49:04
You're right to be disgusted. But, you know, we all have a
49:06
civic duty to extend as much charity as we can to our fellow
49:10
citizens. If nothing else, then for the
49:13
sake of trying to hold this incredible American experiment
49:16
together and not let it die. Because there's never been, I
49:19
think, a more powerful expression of everything that
49:23
is, you know, right, about good governance, about the protecting
49:26
liberty, about putting citizens and autonomy first.
49:29
I think we cracked that code. We've had a good run.
49:33
Boy, I hate in retrospect to find out that we let it go on
49:35
our watch. The interesting thing here is
49:41
that somebody has to step up and by somebody means some group of
49:45
people, some meaningful number of people have to stand up and
49:50
say we're better than that. We're not playing this game
49:53
anymore, we have to be better than that.
49:56
And I think that the odds of that happening are slim and none
50:01
given the present context. And I think in the end, where we
50:06
started with this, where you started, Clark, you started by
50:09
saying it's an impeachable offense, that Donald Trump is
50:13
ignoring court orders. Sooner or later, the Supreme
50:18
Court will dig in its heels and say, you will do this right now
50:22
and he will look at them and he's going to have a big choice
50:26
to make that day. And I don't think he has the
50:29
character to say, OK, that's what the system requires.
50:34
That's what I'll do. If we don't have people at
50:38
crucial times who are willing to do those sorts of things, the
50:42
experiment is lost. Yeah, I agree.
50:47
I don't think it is inevitable that Trump would defy a Supreme
50:50
Court decision. But if he chooses not to, it
50:52
won't be because of anything having to do with character or
50:55
patriotism or any sort of understanding of the importance
50:58
of the rule of law and how it's more important than any one
51:01
person or one administration. It'll be from some sort of naked
51:04
political calculus about either, you know, how his interests are
51:08
best served or his progeny. If he thinks it undermines the
51:11
chances of installing Donald Trump Junior as the next
51:13
president. And I don't know if that's on
51:14
his mind, but if it is, I would say that would be the reason why
51:18
he would choose not to defy a Supreme Court order.
51:21
But it ain't going to be because of anything to do with character
51:23
or commitment to the Constitution.
51:29
God I wish there was a different answer.
51:33
I mean, like try to tell a funny joke or, you know, we're just
51:36
going to let it end. Horrible.
51:39
Yeah. Well, Clark, I don't think thank
51:43
you is the correct thing to say right now, but thank you.
51:45
Well, you know, and I just want to share one thing with you in
51:47
particular and also James, I guess because you know, you
51:49
mentioned that nobody's out there trying to do this.
51:51
I don't know if you guys remember, but I'm on the board
51:53
of directors of a non profit called the One America movement
51:55
that was created eight years ago to actually tackle to fight back
51:59
against toxic polarity in society 8 years ago.
52:02
And we had a summit Monday and Tuesday and Wednesday morning in
52:05
Tulsa and was for faith leaders because it's a fundamentally
52:08
sort of faith oriented organization, which is kind of
52:10
funny. Some I'm sort of their token
52:12
libertarian atheist, but they keep me around anyway.
52:14
And I will say like the explicit mission of that organization is
52:18
to bring people together from across the spectrum, religious,
52:21
ideological, etcetera. And so I'm not suggesting that
52:24
it will be enough, but it was really moving to be in the
52:27
presence of a couple 100 people who are doing their level best
52:30
to set aside the animus, the mutual recriminations, and just
52:36
say, like this country is more important than any feeling of
52:40
resentment or betrayal. Will it be enough?
52:42
I don't know. But I'm here to tell you that
52:45
there are some really great people of good faith who are
52:47
trying their level best. Put it this way, if a
52:50
libertarian atheist can go hang out with a bunch of rabbis and
52:55
imams and pastors and priests for two days and come back
52:59
feeling better than when went down there, they're on to
53:01
something, I think. And that's all the time we've
53:05
got this week on words and numbers.
53:06
Until next time. Send us e-mail
53:08
wordsandnumberspodcast@gmail.com. Try to be nice to one person who
53:13
doesn't deserve it till next week.
53:15
Can't take it easy. See you next week, James.