Flowers, Crosses, Clauses and Oaths

Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: "Flowers, Crosses, Clauses and Oaths"
Date: June 22, 2019

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Episode Overview

This episode explores the final days of the Supreme Court’s 2018 term, focusing on several consequential decisions and their implications for American law and constitutional interpretation. Host Dahlia Lithwick is joined by Slate’s Mark Joseph Stern to unpack the cases of Flowers v. Mississippi, Gundy v. United States, and American Legion v. American Humanist Association. The episode then pivots to a scholarly discussion about the Take Care Clause and the faithful execution of the presidency with law professors Andrew Kent and Jed Shugerman, dissecting their much-discussed Harvard Law Review article on Article II's historical meaning and its current relevance.

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Key Discussion Points & Insights

1. Recent Supreme Court Decisions: Analysis and Significance

• Flowers v. Mississippi ([01:29]–[03:38])

  • Case concerned prosecutor's repeated exclusion of Black jurors in trials of Curtis Flowers, a Black man tried six times for murder.
  • The Supreme Court, in a 7-2 decision by Justice Kavanaugh, reversed Flowers’ conviction, finding clear prosecutorial racism.
  • Quote: "[T]he same one white prosecutor struck 41 of 42 prospective black jurors, clearly trying to build all white juries. [...] this was a case of prosecutorial racism." — Mark Joseph Stern [02:53]
  • Decision seen as reviving the 1986 Batson decision, giving it "teeth" and strengthening barriers against racial discrimination in jury selection ([03:38]).

• Gundy v. United States and the Nondelegation Doctrine ([04:33]–[07:28])

  • The case challenged congressional delegation of authority to the Attorney General regarding sex offender registries.
  • Main concern: Reviving nondelegation doctrine could endanger much of the administrative state built since the New Deal.
  • Justice Alito, siding with liberals, flagged the uniqueness of the case, but indicated he might vote to limit delegation if circumstances changed ([06:45]).
  • Quote: "Give me Kavanaugh's vote... and I'm willing to go whole hog with all my conservative pals and destroy the entire administrative state." — Mark Joseph Stern [07:22]

• American Legion v. American Humanist Association ("Maryland Cross" case) ([07:28]–[10:00])

  • Concerned legality of a large cross-shaped WWI memorial on public land.
  • The Court (7-2) allowed the cross to remain, citing its age and evolving meaning.
  • There was confusion and disagreement among the majority on what the new standard now is, with a general trend away from the "Lemon test."
  • Quote: "Not even the justices who purported to lay down the new rule actually know what the new rule is." — Mark Joseph Stern [09:36]

• Looking Ahead to Blockbuster Cases ([10:00]–[11:06])

  • Anticipation of major decisions on partisan gerrymandering and the addition of a citizenship question to the 2020 census.

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2. Deep Dive: Supreme Court Decision-Making and Shifting Precedent

• Gamble v. United States and Dual Sovereignty ([13:38]–[24:03])

  • Terence Gamble was prosecuted by state and federal authorities for the same conduct.
  • The long-standing "dual sovereignty" doctrine allowed both prosecutions, not violating Double Jeopardy.
  • The majority invoked uncertainty in the historical evidence and deference to precedent, with dissenters (Ginsburg, Gorsuch) focusing on fairness ([17:09]–[19:56]).
  • Discussion also addressed public paranoia about implications for Trump associates’ legal exposure, noting state double jeopardy rules and prosecutorial strategy ([20:40]–[24:03]).
  • Quote: "When history is so thin that that should not be the primary determinant in a decision." — Andrew Kent [18:28]

• The ‘Faithful Execution’ Clauses: Constitutional Meaning and Presidential Power ([35:14]–[62:43])

  • Law professors Andrew Kent and Jed Shugerman discuss their article on the Take Care Clause and Oath Clause of Article II.
  • Historically, "faithful execution" imposed concrete duties and restraints, not expanded presidential power.
  • Oaths were significant in eras with sparse administrative oversight, serving as both a religious and legal check on officials ([37:35]).
    • Quote: "In an era that was much more religious than our own and took oaths extremely seriously, the oath was something that was turned to as a real powerful bind on a man's soul." — Andrew Kent [38:13]
  • The clauses are often (mis)used as justification for expansive executive authority or as “kitchen sink” arguments by administrations, despite their fiduciary, limiting origins ([44:04]–[46:38]).
    • Quote: "I think one of the big challenges of our paper... is you can either be an originalist or you can be in favor of super expansive presidential power. But it's very, very hard, if not impossible, I think, to be both." — Andrew Kent [46:33]
  • Their analysis identifies three duties embedded in "faithful execution":
    1. Not to exceed statutory or constitutional authority.
    2. To act in good faith, impartiality, and diligence.
    3. Not to profit personally or self-deal ([50:44]).
  • The paper notes that current events make the original understanding of these obligations especially salient, as President Trump’s actions often raise questions about personal versus public interest ([53:12]–[53:55]).
  • The authors discuss the potential for these historical meanings to influence contemporary debates about limits on presidential removal power, pardons, and the growth of the administrative state ([47:10], [57:53]).

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3. Oaths, Originalism, and the Modern Court

• Thoughtful engagement on whether we should all be "originalists" in interpreting the Constitution ([57:53]–[62:43]).
  • Andrew Kent expresses an "ecumenical" approach; Jed Shugerman advocates for "modest originalism" that values both text/context and precedent.
  • Shugerman argues that the historical constraints of the Take Care clause should appeal to progressives as a curb on the current conservative judiciary.
    • Quote: "A sincere commitment to originalism is something that would limit the discretion of a new conservative majority." — Jed Shugerman [61:58]

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Notable Quotes & Memorable Moments

• On Batson's renewal:
  “There can't just be endless pretext to the point that you have an awful, obviously racist prosecutor asserting obviously racist challenges, and everybody pretends like it's fine because it's Mississippi.” — Mark Joseph Stern [03:20]

• On administrative law and Gundy:
  “If this law had fallen and the non delegation doctrine had been revived, then I think a bunch of those agencies would get stripped of their power and a ton of other federal laws would fall with it.” — Mark Joseph Stern [06:32]

• On historical context for oaths:
  "There was a real question about how are we going to get, get the sheriff who's out there on his own in his jurisdiction without really Anyone effectively able to control him, how are we going to keep that person from abusing his office...?" — Andrew Kent [38:02]

• On the risks of broad presidential power:
  "You can either be an originalist or you can be in favor of super expansive presidential power. But it's very, very hard, if not impossible, I think, to be both." — Andrew Kent [46:33]

• On the idea of ‘faithful execution’:
  "We do have, based on the history that we found, think that there are sort of three elements... One is a duty not to act beyond the authority of one's office; a second is to act in sort of a good faith, impartial, honest...way; and then the third piece is a restraint on taking unauthorized profits or engaging in financial self dealing with the office." — Andrew Kent [50:44]

• A call for modest originalism:
  "When the framers used vague language, they understood what they were doing in the 1780s and in the 1860s to allow for the principles to be a legacy handed on to others." — Jed Shugerman [60:37]

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Important Segment Timestamps

• Intro and Theme ([00:31])
• Flowers v. Mississippi discussion ([01:29])
• Batch of major decisions: Batson and nondelegation ([03:38]–[07:28])
• American Legion (Maryland cross), Lemon test ([07:28]–[10:00])
• Upcoming blockbusters: gerrymandering and census ([10:00]–[11:06])
• Gamble v. U.S.: dual sovereignty and Trump context ([13:38]–[24:03])
• Nondelegation and Gundy ([25:50]–[30:39])
• Justice Alito and court restraint ([30:58]–[33:15])
• Faithful Execution in Article 2: Historical dive ([35:14]–[47:10])
• Implications for modern presidency: duties, self-dealing ([49:55]–[53:55])
• Originalism: necessity or tool? ([57:53]–[62:43])

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In Summary

This installment of Amicus underscores how the Supreme Court’s seemingly technical legal decisions have deep and far-reaching effects on American law and society—from the promise of a fair trial to the foundations of administrative government. The discussion around the “faithful execution” of the presidency highlights not only the historical constraints embedded within the Constitution but also their pressing relevance in today’s polarized and turbulent political climate. The episode concludes with a thoughtful reflection on originalism, arguing that, ultimately, historical wisdom and textual fidelity offer valuable—if not complete—guidance for modern constitutional interpretation.

Transcript

[A]

I think the reason this historical work is catching some people's attention is that we're presented maybe really for the first time in American history with a president who so often seems to act in a selfish or private interest rather than being kind of true to the oath to act for the benefit of the public and the public good.

[B]

Hi, and welcome back to Amicus. This is Slate's podcast about the Supreme Court and the courts and the rule of law and the Constitution. I'm Dahlia Lithwick and I cover many of those things for Slate. And we are creeping up on the last days of the Supreme Court's 2018 term. It's a term that's been marked by a controversial hearing for Brett Kavanaugh and then an absence of a lot of really big ticket cases, but a steady drift to the right, a willingness to strike down precedent, and in recent, some really interesting departures from the standard 5, 4, left right narrative we've been using about this court. We're gonna talk about all that. But first to the flurry of decisions handed down just in the past few days. I'm joined by Slate's Mark Joseph Stern. Mark covers the courts and the law for Slate, and it's always a pleasure to have you here. Welcome back, Mark.

[C]

Oh, thank you so much for having me back on. Always such a delight, especially in June, our favorite month of the year.

[B]

First, Mark, let's talk about Friday's big ticket case. This is Flower versus Mississippi. It's a case we covered earlier this year on the podcast and also a case that was the subject of the award winning podcast in the Dark. So lots of folks know about it. And this essentially involves a sixth attempt by the same Mississippi prosecutor to get a conviction for a black man accused of murdering four people in a furniture store. Maybe somewhat surprising, the court reversed Flowers conviction, kicks him back for if the state wants to try him for a second seventh trial. And it's a 7 to 2 decision written by Brett Kavanaugh that essentially says, no, no dice. This is just way beyond the bounds of what can be a constitutional jury pool. Mark, is this surprising to you?

[C]

Well, I don't think this is a wacky or unpredictable lineup. You have Justice Kavanaugh writing for the court and only Justices Clarence Thomas and Neil Gorsuch dissenting. The other conservative justices joined Kavanaugh's opinion, so did the liberals. And I think that is a fairly predictable outcome. If there's any surprise, it's that Justice Samuel Alito joined Kavanaugh's opinion, but he also Wrote separately to say, look, this case is really weird. It's kind of a once in a lifetime thing. So don't think that I'm suddenly going to be voting against racist prosecutors just because I'm voting for flowers here. And it is such a crazy case. Like you said, six trials. Right. And throughout those six trials, the same one white prosecutor struck 41 of 42 prospective black jurors, clearly trying to build all white juries. Uh, it is just undeniable, if you look at the evidence here, that this was a case of prosecutorial racism. Uh, and it's not surprising that even Chief Justice Roberts and Brett Kavanaugh said, look, we aren't just totally blind to racism here. This is where we'll draw the line. And I actually think Kavanaugh's opinion is pretty good in saying there's a line in the sand, and you guys down in Mississippi crossed it.

[B]

So, Mark, at minimum, can we say that this gives some teeth to the 1986 Batson decision? That was the decision that essentially said, yeah, go ahead, use your peremptory challenges, but you may not use them to exclude jurors on the basis of race. Does Batson get new life because of this?

[C]

Yeah, this definitely bolsters Batson and says if a prosecutor is striking a juror who happens to be a minority and can still provide some kind of ostensibly neutral reason for doing it, under Batson, the defendant gets to come forward and say, wait a minute, this is suspicious. This seems race based to me. And there has to be a full and fair airing of that. There can't just be endless pretext to the point that you have an awful, obviously racist prosecutor asserting obviously racist challenges, and everybody pretends like it's fine because it's Mississippi.

[B]

The other case that came down on Thursday, Mark, and it was another, I think, that had enormous potential to disrupt the entire landscape was Gundy versus United States. We're gonna talk about it a little bit later in the show, but can you just describe what the challenges we're trying to do here in terms of this, quote, non delegation doctrine that was gonna be used to kind of blow up the administrative state as we know it?

[C]

Yeah, I mean, that's exactly it. To blow up the administrative state and specifically the New Deal. Right. So in 1935, the Supreme Court struck down these two New Deal laws on the grounds they delegated too much legislative power from Congress to the executive branch and said, look, you can't give all of your power away. Congress, you're the ones who are supposed to Legislate, you have to provide some intelligible principle when you delegate power. And since 1935, the Supreme Court has not never struck down a law on the non delegation doctrine. And Gundy was an attempt to sort of revive it. It was targeting the sex offender law. That I will not defend on the merits. I think it's a terrible law. But as the liberal justices pointed out in their plurality decision, it does provide that intelligible principle to the attorney general. It has the attorney General decide when and how to apply the sex offender registry that it creates to everybody who was convicted before the law was pass. Look, I think that's a terrible outcome. I think it's really unfair and probably an ex post facto violation. But I agree that there is an intelligible principle here. And more importantly, I think that if the court found otherwise, it would open the door for pretty much every federal statute passed since the New Deal to get struck down. Because that's how Congress works these days. Congress delegates its power to federal agencies. The epa, the Department of Labor, the Consumer Financial Protection Bureau. It tells these agencies, you figure out what to do. We're gonna give you goals, and you fill in the details. If this law had fallen and the non delegation doctrine had been revived, then I think a bunch of those agencies would get stripped of their power and a ton of other federal laws would fall with it.

[B]

And I think it's worth just flagging that Alito joins with the liberals in this case for the first time. Yeah. And he's really careful to say, I'm not doing this today. There's only eight justices because Kavanaugh's not yet on the court when this is heard. I don't think this means that Alito is in love with the administrative state as we know it, correct?

[C]

No, not at all. Alito just says it would be freakish to revive the non delegation doctrine in this case. Basically, I hate sex offenders more than I love the non delegation doctrine. But give me Kavanaugh's vote, give me a case that he sat on, and I'm willing to go whole hog with all my conservative pals and destroy the entire administrative state.

[B]

The other big case that we covered on this show but you wrote about so well on Thursday, Mark, was American Legion versus American Humanist Association. This is the big old Maryland cross case. Can you just quickly help us understand how this came out as a 7 to 2?

[C]

Yeah, I mean, big cross on public land in Maryland. It's a World War I memorial, but it's also, it's a, you know, It's a symbol of Jesus. Right. Like, no one can really deny that a cross is a symbol of Christianity and of Jesus Christ. But the courts in this zone sort of splintered decision says, well, yeah, it was originally Christian, but it's old and it's big and it's taken on new meaning. And five justices in the majority, which are kind of an odd lineup. You have Roberts, Kavanaugh, Alito, who wrote the opinion, and then Kagan and Breyer saying, we're not going to decide if this would be constitutional if it were built today. Right, but it was built in 1925. It's old. And it has on this new kind of secular meaning ever since then. So whatever the merit of putting up cross is today, in 1925, it was fine. And because of all this time that's passed, we're gonna let it be.

[B]

And I think I have struggled to try to figure out what the new rule is post this. It seems to be we all hate the Lemon test, right? Which is the traditional test we use to figure out, particularly these religious symbols on public lands. We don't know what the new test is. I think the new test is some version of what you just articulated, which is a bunch of people hate Lemon, but if it's old, we're not gonna squawk. Is that a fair articulation?

[C]

I think that's right. But what's funny is that you have Kavanaugh and Kagan and Breyer, who all ostensibly joined the majority opinion. They sign onto it, or almost all of it, writing separately to interpret it differently. Kavanaugh seems to think that if the federal government built a 100 foot cross on the National Mall today, that would be perfectly constant constitutional. If they called it a war memorial. Kagan and Breyer disagree. They think it matters that it's old. So not even the justices who purported to lay down the new rule actually know what the new rule is. This may be a kind of ticket, good for one ride only situation where the Bladensburg cross is constitutional. The next cross up, we'll have to figure it all out again.

[B]

Sounds like fun. Mark, what's coming down? We got 12 cases, three days next week, I assume is the end of term. Tell us what we're looking for.

[C]

I mean, all eyes right now are on two major cases. Both implicate voting rights in different ways. There's the partisan gerrymandering case, in which the court's going to determine if drawing district lines due to partisan affiliation to, you know, dilute certain votes is constitutional. And whether courts can put a stop to it. And then you have the big census case where the court will decide whether the Trump administration can add a citizenship question to the 2020 census. Both almost certain to be five, four decisions, both going to be hugely important for the future of voting rights and enfranchisement in the United States. I think those are the remaining major blockbusters. And if both of them come out in a conservative 54 split, I think it's gonna be a really bad day for the court's legitimacy and prestige. And I think we're gonna see a lot more Democratic 2020 hopefuls talking about court reform.

[B]

Will you come back next week, Mark, for the end of the term and just big bottle of bourbon. We'll talk it all out.

[C]

I will come back for you anytime. You don't have to bring bourbon. You can bring one of those little mini airplane sized liquor bottles. We'll make do with whatever we need to.

[D]

Mark.

[B]

Joseph Stern covers the courts and the law for Slate and has been incredibly astute court watcher, particularly this term. Mark, thank you so very much for being with us.

[C]

Thanks so much.

[B]

Mark will be back for our next show where we'll be joined by some of our favorite Supreme Court commentators. And we'll talk about the end of the term, including this census question and the gerrymandering cases. But for now, let's turn to the bigger, bigger picture. And that means a look at the actual words of Article 2 of the Constitution, the words we sometimes gloss over when we read them. And it means another peek at the take care clause. We looked at it a few months ago when Ian Bassin of Protect Democracy was a guest. And we want to do it again through the lens of a new Law Review article much discussed in the Legal Wonka sphere by three law professors, Andrew Kent, Ethan Lieb, and Jed Sugarman. Their paper, faithful execution in Article 2, published in the June 2019 Harvard Law Review, is an original historical analysis of a part of the Constitution we don't look at that much. The double invocation of the president's duty of quote unquote, faithful execution in the take care clause and the presidential oath clause. The paper starts from the proposition that the president has to do more than just not do crimes under Article 2. He or she actually has affirmative responsibilities as mandated in the Constitution. Their article's been referenced by no less a person than George Conway, writing in the Washington Post last April. And as I say, it's created a little bit of a buzz because it's reimagining the affirmative obligations of the president. Andrew Kent teaches law at Fordham University School of Law. He writes about constitutional law, foreign relations law, federal courts and procedure, and a whole bunch of other things. He joins me here in studio. And Jed Sugarman is a Fordham law professor as well, the author of the People's Courts and Sugar blog, and he's a frequent Slate contributor and Amicus guest. Jed joins us down the line. Jed and Andrew, welcome to Amicus.

[A]

Thank you.

[D]

Thank you for having us.

[B]

Okay, before we do executive oath taking, can we do a quick moment on this week's big decisions?

[A]

Gentlemen, of course, sure.

[B]

Okay, so let's start with Monday's case Gamble. We'd done shows on this. This got a lot of attention. This is about dual sovereignty. And I think it got very, very tangled up with people's feelings about Paul Manafort and Donald Trump. And then it was covered that way. The decision was covered that way. And I think you both, certainly, I know you, Jed, think that it needs to be unbraided from that framing. So can we talk about it just as a case before we talk about it through this paradigm of what it means for Trump? Does one of you want to set the table and tell us about Terence Gamble? Do you want to start us off, Chad?

[D]

Sure. So Terence Gamble in 2015, was pulled over in Alabama, pulled over for a broken taillight. An officer discovered a gun. So first the state of Alabama prosecuted Gamble for illegal possession of the firearm, served a year in prison, and then the federal government came back and charged Gamble with the same crime, illegal possession of a firearm, same crime, same offense. And then he served another prison sentence. And so this is one might think that this would violate the double jeopardy provision of the Fifth Amendment. No person shall be subject for the same offense to be twice put in jeopardy. But there's a doctrine, long standing precedent of a doctrine called dual sovereignty, which treats the federal and state governments as two separate entities and allowing federal and state successive prosecutions, even if federal prosecutors can't go twice or state prosecutors can't go twice on the same offense.

[B]

And Andrew, can you explain if we lived in a world without Donald Trump and Paul Manafort, this would be a very different we'd be having a very different conversation about whether it is just and fair to prosecute people twice for the same crime. Right?

[A]

I think we would. And there's arguments on both sides from a policy perspective. Some of the famous examples where there's subsequent prosecutions are civil rights cases where a state prosecution failed for some reason in often crimes involving unpopular racial or religious minorities, and the federal government then decides to prosecute Subsequently, a lot of people applaud those as the federal government being a backstop for kind of insufficient state justice systems. And then on the other side, we see cases like Gamble's where there's not an argument that state governments are in some way kind of failing to take gun crime seriously. There's no allegations of discrimination. It's not a question of the incompetency of the states in any way. And this raises very different policy questions, really, about justice and fairness, about why for the exact same conduct, where there's not an argument that kind of one of the levels of government failed or should have priority or anything like that, just simply the federal government decided they wanted more jail time and they got it here. That's a different and much harder case.

[B]

So, Jed, tell us this is a kind of improbable 7 to 2 split. This is not any kind of usual split. And we've got a 7 to 2 decision here saying we're cool with continuing to have dual sovereignty and then fairly angry dissent from, again, an improbable match. Ruth Bader Ginsburg and Neil Gorsuch each filing dissents. What's the logic of the majority first?

[D]

Well, the logic of the majority is, with the Justice Alito majority opinion for seven, is that there is historical evidence on both sides. Alito says there's a balance of evidence. There's slightly more historical evidence that favors the dual sovereignty. But he says given that you've got evidence on both sides, we have to make sure that we need more clarity from the original meaning before we're going to overturn what is basically 150, 170 years of supreme Court precedent. And I think Alito should be commended for what could be called a kind of originalism with restraint here in this case. One interesting piece of evidence Alito pulls out of the history is from the Declaration of Independence, where the revolutionaries complained about King George III protecting British troops by a mock trial from punishment for any murders which they should commit on the inhabitants of these states. And the implication is the concern of having a show trial in one jurisdiction that would then prevent another jurisdiction from seeking justice. So given that there was a lack of clarity, I think the seven justices got it right.

[B]

Andrew, what are the dissenters saying and are they wrong?

[A]

So they're relying, especially Justice Gorsuch, a lot on English legal history and arguing a lot about a relatively small number of cases that are somewhat ambiguous. And I tend to agree with Jed there that when history is so Thin that that should not be the primary determinant in a decision Justice Ginsburg is much more concerned about. She uses the word fairness and the unfairness of, of this. And obviously in a gamble type situation, it's quite obvious that there could be a real unfairness. I think the question is, is the unfairness here or in cases like this, is that significant enough to drive someone to want to overturn very long standing precedents? It apparently is for her, but I'm not sure that there's other members of the Supreme Court who are as convinced as she is there's any kind of significant problem with this. I haven't seen statistics on it, but I would imagine the gamble kind of situation is pretty rare. Prosecutorial resources are expensive. Law enforcement resources are expensive. And generally speaking, if someone's already been punished for the exact same offense, that's probably going to be it in the vast majority of cases. And so kind of the gamble type unfairness might actually not be such a significant problem.

[B]

So now let's throw the cloak of the present day over it and all the ways in which, for I think a lot of Americans, this was a huge sigh of relief because it means that even if Donald Trump pardons some of the folks who are at the top of both convicted misconduct and alleged misconduct, that states can still go after them. I know you, Jed, have said pretty pointedly A, in Politico that that's not quite the right framing and B, that New York has a lot to answer for and it's going after Paul Manafort. So do you want to just give us the quick and dirty on why you think this second lens has distorted what this case is really about?

[D]

Right. I mean, this is actually part of the remarkable paranoia about this case. Initially, there were many people who were spreading a kind of paranoid conspiracy theory that Kavanaugh was being appointed to the court and Gamble was taken as a case in order to create a new double jeopardy rule to protect Trump's co conspirators. And this was always a misperception, a misunderstanding of the underlying case. First of all, it's important that many states already have their own double jeopardy rules that do what Gamble could have done if it had come out the other way. And prosecutors have been making sure, strategically that I think we can speculate that they were preserving enough charges or that there were enough other outstanding charges that could have been brought by the states because prosecutors weren't bringing every kind of claim they could. So, for example, Manafort is still facing indictments. He faces potential charges in California And Illinois, as well as in New York, and other defendants in the Trump cases, like Flynn, could face state charges. Flynn and Manafort were convicted of some crimes that were only prosecutable on the federal level. Flynn was pleaded guilty to lying to the FBI. There's no state crime that could have been brought on that offense. So this was a lot of paranoia, and really, it didn't change the prospect of these defendants still facing some state charges. But that brings us to, I think, a legitimate question about what's happening with the New York State prosecutor, the Manhattan da, Cyrus Vance, who is actually violating New York State law on double jeopardy. Right after Manafort was sentenced and his federal sentencing was finished that same day, Vance brought 16 charges against Manafort for New York State crimes. Twelve of those 16 charges seem pretty clearly and flagrantly a violation of Manafort's civil liberties under New York State. And of the four other charges that are not duplicative of what he was already convicted of, those four are for a relatively minor felony of a single bank transaction. And that leads, I think, to the controversy this week of Manafort being sent to Rikers for this essentially one transaction, one set of charges under New York State law, and then the DOJ intervening to make sure he didn't go to Rikers. I think one can look at partisanship on both sides, but ultimately, Cyrus Vance has never answered, has never adequately answered why he's not violating Manafort civil liberties and why Vance has a lot to answer for for delegitimizing some of the efforts to hold Trump's, some Trump associates responsible for their crime.

[B]

I want to give Andrew a chance to respond, if he would like to, to this claim that the state prosecution is overzealous. And this is not vindication of kind of the kind of justice that we're talking about when we talk about the underlying facts of at least gamble.

[A]

It does seem to me that there's a double jeopardy problem given New York statute that goes, you know, beyond what the Constitution, as the Supreme Court just reaffirmed, does in terms of its protection. But I guess I think the important point here is just to remember that quite oftentimes, the federal government and state governments are prosecuting very different types of crimes and federal interests and things like obstruction of justice in federal proceedings, lying to the FBI, failing to register as a foreign agent that's lobbying the federal government. There's all kinds of federal crimes, including some seemingly committed by Trump's associates, that have no state analogs at all. And so for kind of the broad swath of things that we're talking about with regard to the Mueller report and related investigations. These double jeopardy concerns just are entirely absent. So this is really a conversation about Paul Manafort and his particular ability to violate both federal and state laws because taxes and banking are things that both the federal government and the state governments regulate. And he seems to have tried to defraud in both of those settings.

[B]

There's a through line between gamble, which we've just talked about, Gundy, we're about to talk about and in your paper, which is they're all about sort of deep dives into history. And it is interesting that, and I think you flicked at this Jed in your answer that the different justices are thinking about history in really different ways and not necessarily in ways that we might expect. But it brings me to Gandhi, which was going to be the harbinger of what we all thought was gonna be a mass massive shift in the constitutional order and the beginning of using the non delegation doctrine to change everything. And it didn' happen on Thursday. So I wonder, Andrew, can you just sketch out what the issue was in Gundy and how this is much bigger than just a sex offender law?

[A]

Sure. I mean it does, you know, narrowly, as you said at the outset, Dolly, it does concern the Sex Offender Registration and Notification Act. But this federal statute was kind of layered on top of prior federal and state regimes for sex offender registration. And Congress seems to have basically kind of had a hard time coming to a decision about what would happen with regard to sex offender registration for people who had committed their sex offenses prior to 2006 when this law was enacted. And so the way the dissenters here read this was Congress just entirely left this huge question open. What do we do with 500 something thousand sex offenders who committed pre act crimes and delegated to the Attorney General of the United States the ability to decide what they should have to do in terms of registration and failure to register as criminal penalties. So a very significant decision. The majority reads the statute a little more narrowly saying Congress made the policy decision here and just kind of left it to the Attorney General to fill in the details. But if it's right that this really big policy choice was kind of left up to an agency, to the Department of Justice, then that's a very significant issue and really implicates a huge swath of what Congress and the federal government does. Because Congress in all areas in telecommunications and the environment and just sort of run across the board in areas where Congress regulates primarily by giving authority to administrative agencies. Congress's Statutes are often quite open ended and leave a lot of policy discretion in the agencies. So if the majority of the court here kind of wanted to say Congress has not made the policy choice, they've been too open ended and given too much authority to an agency, this could have been a case that had huge ramifications for a large amount of administrative regulation at the federal level.

[B]

And Jed, can you just explain what the non delegation doctrine is and how it sort of went out of fashion and then back in. And I think Andrew's laid the table. But help us understand what was at stake if this had been given the sort of robust interpretation that folks thought was coming. Right.

[D]

So the stakes of this case were huge. So just to take a step back, the Constitution says in Article 1 confers on Congress legislative powers. And so the question is, what happens in our modern administrative state over the last century when Congress creates a bureaucratic administrative state, sets out some jurisdiction or some powers to agencies, and how much guidance, how much lawmaking should Congress be doing or how much lawmaking authority can it delegate to the agencies that then make rules about the environment, about labor, health, safety? So this really could impact all of our modern governance in the administrative state. What the Supreme Court has done as a matter of doctrine is that it allows Congress to delegate tremendous authority to these agencies, but as long as they provide those agencies with, quote, an intelligible principle. And there is a lot of controversy about how much clarity has to go with that intelligible principle, how intelligible must it be? And I think that there is significant questions now. And this goes back to some of our other concerns in this era about the delegation to the executive branch, about emergency powers. Is there an intelligible principle there? It really cuts both ways, right? How much discretion and power Congress has given to the executive branch can cut in both ways politically. And so this case was potentially a vehicle for the Court to require more clarity, more obvious and limited intelligible principle to limit the discretion of the executive branch.

[B]

So in a profound way, I guess if I was explaining this to a seventh grader, in some ways this was kind of of another one of those cases about who gets to decide. And Alito sides with the liberals. He's not willing to go there. Why Andrew?

[A]

Well, he wrote an interesting concurring opinion where he says he is willing to go there as long as a majority of the court is with him. But today there's only eight justices participating. Kavanaugh did not. And today there was not a majority of the court that was willing to revisit the majority's approach here. So he said, I'm going to go along with the liberals for now.

[D]

But.

[A]

He explicitly said, give me another case in the future and four other justices who agree that we should revisit this. And I'm there.

[B]

How much do the two of you see Gamble, Gundy, some of the dodging the Baker case surprising all of us? How much of this is the court just trying to stay under the radar before a big election? Jed?

[D]

I think that there is a lot of restraint we've seen in the last year, this year, and in some of these cases, certainly trying to avoid some of these abortion cases. And I think looking at Justice Alito himself, I think I was surprised to read these two opinions. And I'll say a word about the case, about the cemetery cross. There's a lot to commend for Justice Alito in what I might describe as originalism with restraint. I think this is a good sign that as opposed to Justice Thomas who I think is a little bit aggressive with his approach of originalism and doubting precedent, Alito in the Gamble case about double jeopardy said, look, you know, the history isn't clear, so let's defer to 170 years of precedence in Gundy on non delegation. Alito writes a half a page basically saying, you know, it would be freakish for a, quote, unquote freakish to single out the provision at issue here for special treatment and is emphasizing the importance of the rule of law, of having five justices set out a clear standard. I think that's to be commended. And I think, to be clear, I think this case, Gundy was exact, was an example, example of a lack of clarity. As Andrew said, 500,000 people were going to be affected by this statute. Congress should, even if it delegated some of this authority over how to handle those past offenders, should have given some more guidance to the Attorney General, some limitation on just such an impactful kind of a decision. And finally, just to say a word about the case, about the cross, on the one hand you have Justice Thomas basically saying let's get rid of a 50 year old precedent on the establishment clause, the Lemon test, and just overturn it. Whereas Alito is much more cautious in valuing precedent and makes what would be, I think, a relatively moderate decision with Kagan and Breyer agreeing with the outcome. So this is caution, maybe it's just political, but I think, I think we should at least commend the Court for I think these three decisions that I think reflect a certain amount of balance.

[B]

Let's just also flag for a moment that on Monday, Clarence Thomas just overtly wrote that a demonstrably incorrect judicial decision should be reversed. So he's really kind of bearing down on the burn it all, burn it all, precedent doesn't matter. And that, and that's really an interesting counter programming of what you're describing as the rest of the Court trying to at least preserve, I don't want to say the appearance, but I think preserve the actuality that precedent matters and they're bound by something. Andrew, do you have any further thoughts on whether this is the Court just trying to stand down when everybody is screaming?

[A]

I wouldn't deny that the Court can respond to the pressures like what some folks have suggested with thinking about an election coming, but that's not usually the first place I go to for an explanation of a decision. And I think these cases that we've been talking about today, Justices voted the way that I think makes sense given their prior views and what we know about their jurisprudence and their views about history and precedent and policy views about criminal justice and all these other things. So I'm not seeing examples in these big end of term cases of justice kind of doing something that I find surprising that we could then attribute to some kind of external motive. I think we just have a conservative majority that has members that have very different instincts about precedent, about the role of the courts vis a vis the legislatures. Thomas is an extremely different kind of conservative than Alito, who's a very different kind of conservative than Kavanaugh in a lot of ways. And so I think going forward we probably will see kind of intra conservative majority sort of splits about things like the role of history and the role of precedent, how aggressively to overrule older precedents, how much they're going to worry about unsettling very settled institutional arrangements. I think those differences are going to persist.

[B]

I want to take a moment to talk to you about our membership program, Slate Plus. If you're hearing this, you are listening to the regular version of our show, which is is awesome and we thank you. But if you were to sign up for Slate plus, you could enjoy this show commercial free, and you would get access to bonus segments and extended versions of all your favorite Slate shows. It's only $35 for a year, a year, I tell you. And you can sign up free for two weeks to check it out first. And that's not all. This is the important bit. By signing up for Slate plus, you'd be supporting this show and all the journalism we do here at Slate. We know you value our work and you know how urgent it is right now. We do need your help to do it. Sign up for Slate plus and help secure Slate's future. To learn more and to begin your two week free trial, go to slate.com amicusplus and now back to our conversation with Jed Sugarman and Andrew Kent of Fordham Law School. And we're gonna get to their paper on the take care clause in Article 2. It's got everybody talking. Well, everybody who counts in constitutional wonk world. Let's turn given that we're talking about the role of history to faithful execution in Article 2, because we don't do that many shows about a law review article, but this one warrants a show and it warrants a show because I think the three of you tried to do a really, really deep dive. I was telling Andrew before the show, I learned a lot about Tudors and Stuarts and the Magna Carta. Reading this, it's not something we always talk about and probably on the left talk about even less. But I want to start from the proposition that oath taking is kind of weird, that your whole paper is about the oath clauses in Article 2. And we'll get there, but we don't think super hard as a constitutional matter about the swearing of oaths and the force that that has. So I, I wonder if we can just start almost from this quasi theological or religious question that I had reading the paper, which is what oaths? What, what's up with that? Can you just answer that part of it before we dig in on the language? Andrew?

[A]

Yeah, it's quite interesting and I think probably one way to get our heads around it is to kind of go out to the proverbial 30,000ft view here and think about sort of how government would work in an era much earlier than ours, going back hundreds of years when government has very few resources, government is very small. Travel and communications are extremely difficult. You do not have anything resembling modern bureaucracies. And so all the strategies that we use today to keep government officials doing their job, constant bureaucratic monitoring by superiors, oversight by a free press, people being able to check up on what you're doing just with an email. Frequent access to the courts to test the legality of things, most or all of these structures are either just entirely non existent or only very thinly available in the pre modern period. And so there was a real question about how are we going to get, get the sheriff who's out there on his own in his jurisdiction without really Anyone effectively able to control him, how are we going to keep that person from abusing his office, from taking unauthorized profits, from just misusing it in some way? And in an era that was much more religious than our own and took oaths extremely seriously, the oath was something that was turned to as a real powerful bind on a man's soul. I mean, I say man because government officials were always male at the time, and falsely swearing was something that could send you to hell. I mean, it was a big deal in a religious age. It's not to say people didn't violate their oaths. I mean, of course they did. But it did have a power that I think is a little hard for us to imagine in a time that's both more secular and also just kind of. It's a little head scratching to think why anyone would imagine that that would be an effective method of controlling the discretion of government officials. So we do have to kind of transport ourselves to a very different world, I think, to understand the centrality of the oath.

[B]

I love that it's sort of what you're saying is that you have to start from the predicate that God's watching, which is really hard for us to, you know, God is a check, but that is certainly where this grows up from. Jed, can you talk a little bit about the language that you all were drilling down on that take care and the faithful execution language in Article 2?

[D]

Sure. So this is really about two clauses of the Constitution that have often been misunderstood. So the first is part of Article 2. The Take Care clause in its explicit wording is that the President shall take care that the laws be faithfully executed. And the oath clause is that the President will take an oath to faithfully execute the office. And what's interesting in studying these two clauses is that they're often used by scholars and by judges to expand the power of the President or of other officers that to faithfully execute means to go beyond. And these clauses have often been used to create powers and extend powers. And as we dug into the history, it was clear that the use of the phrase faithful execution was meant to limit discretion, limit. Limit officers to stick within their statutory assigned responsibilities, to serve the public interest and not to serve themselves and to act with loyalty, duty and care. And so that, I think, addresses a whole line of cases that I think would at least be treated differently given this history. And keep in mind that the officers of this era all took oaths and understood the meaning of these oaths to limit their discretion as whether Revolutionary War officers or as public servants in the 18th century. And the language of faithful execution was in state constitutions before this and many statutes that they were referring to this body of law. It wasn't just a kind of ecumenical hortatory, just think about God. It's interesting. With the advice of another scholar, William Nelson at nyu, we dug into. And he showed us a case in his book. And we went back and dug into the archives and we found that there were judges in the colonial era who would think about. There's an example in Philadelphia of a recorder of deeds whose office was reportedly too messy and everything was chaotic. And this was an incredibly important office in the colonies. And the judges said, well, let's go visit the office. And they walk in, they see a mess, they see he's not there, but he left someone else in his place. And they ask three questions. Has this person he left in his place, the deputy, had he taken an oath? He had not. Had he given a security? And had he given a security for his faithful discharge of the office? And he had not. And the judges looked at this and said, this is not acceptable. They removed the recorder of deeds and they named his replacement. So this language of oaths and the language of faithfulness were something relevant to judges in the 1760s as a matter of resolving officers duties.

[B]

So, Andrew, I want to ask this question carefully because I think this is the radical piece of this. There has been a presumption, you say, among scholars to read these faithful execution clauses and these oaths as being useful for bolstering really expansive ideas of presidential power. And I want to. I'm curious about that, what that symbolizes. But then I think you also make this really important point that Jed just made, that actually these oaths and the framers thought about these oaths as these were middle manager oaths. These were right. You quote the town constable, the weigher of bricks, the taster of ale, the inspector of flax. That was the oath they were taking. There was a different oath that monarchs would take. And the framers wanted nothing to do with that oath. So I guess I'm curious who read all this and said, huh, this must shore up a really expansive view of executive powers.

[A]

Presidential powers sort of grown over time. But I think one of the things that's apparent to scholars who dive into this is they've grown over the time based on kind of felt necessities and political imperatives and things like the Civil War, but often with pretty flimsy intellectual and constitutional justification. And the examples of the clauses in Article 2 that we looked deeply into are classic in that respect. I mean, they are, we found, quite clearly intended to restrain discretion, to impose duties and restraints on office holders, not to enlarge powers. But you go and you look, some great presidents and some not great presidents have invoked these as power conferring Abraham Lincoln, Roosevelt, Harry Truman, when he famously seized steel mills. And one of the classic Supreme Court cases about presidential authority to act without statute. Presidents and their legal advisors have quite often made these sort of kitchen sink kind of arguments for trying to do something that it doesn't seem clear that they could because there wasn't any obvious part of the Constitution or any obvious statute that supported it. They would say, well, we're vested with executive power and the President is commander in chief, and the President has the authority to faithfully execute the laws. And lumping that all together somehow gives you this expansive presidential power. The Office of Legal Counsel, the Department of justice often does this kind of kitchen sink approach. They have some very aggressive opinions about executive power that just kind of lump all this stuff together and say it must add up to a whole big amount of presidential royalism. And I think when you kind of look individually at the building blocks of Article 2, and in the historical context of the time, it just becomes clear that that's just wrong. And there might be reasons why over time more presidential power makes sense or something, but that is not, not the original design of the document. I think one of the big challenges of our paper and related work by, for example, somebody named Julian Mortensen, a law professor at University of Michigan who has very terrific work on the executive power clause of the Constitution. I think one of the challenges we're laying down is you can either be an originalist or you can be in favor of super expansive presidential power power. But it's very, very hard, if not impossible, I think, to be both.

[B]

And Jed, am I right in characterizing the framer's choice? They could have borrowed from very, very sort of capacious oaths that monarchs would take. They made a deliberate choice to actually demand something. You talk about it in terms of, of fiduciary obligations or fidelity, but they made the decision to walk away from a very, very expansive view that we now map back onto the oath. That's right.

[D]

Well, it looks deliberate. We don't have any, we don't have a smoking gun. But it's surely the founders who wrote the Constitution knew of coronation oaths and they knew of the oath that they as middle level officers, as you described, described as sort of mid level bureaucrats or mid level officers. And they it looks like a deliberate choice not to not to have the president take a coronation oath or anything that borrowed from it. I mean that would have been the place to have easily turned if they conceived of the president as a king. And so the choice to use upper level or mid level oaths instead of the coronation oath looks like a conscious decision to reject a kind of royalist trapping or a royalist framing of the president. And so I think that says something important about the conception of the presidency as non royalist. And I think it's also important to look at how this relates to some of the issues that they were grappling with at the time that have come up today. So the question of pardons, the question of removal. So one other example, Andrew gave a lot of great examples of how the Take Care clause has been used too expansively by judges. Well, Madison himself relied on the Take Care clause that the president faithfully that the laws be faithfully executed as a silence filler. The Constitution doesn't say who gets to remove officers. And that was probably an oversight. But Madison in the first Congress says, oh well, wait a second. The Take Care clause is what gives the president the power to fire officers without the Senate's authority. And that may be right as a basic structural move. But then what many are now suggesting, and maybe this is something that Kavanaugh is going to pursue, is that the President has what's called the unitary executive power to fire anyone in the executive branch he wants, regardless of what Congress has, whatever protections Congress has created. And I think one way to understand the faithfully execute language is that that adds a limit to the President's firing power, the removal power, and maybe opens the door for Congress to create some extra protections for the president can't fire, for example, the chairman of the Fed Fed or Robert Mueller. If Congress were to create an independent prosecutor, a special counsel, could Congress create some protections against the faithless removal of an officer? So those are some other ways to think about how this constitutional language affects our current debates.

[B]

So Andrea, I want to be super precise. You're not just claiming that the oaths and the responsibilities baked into the oath in the faithful execution clauses cabin presidential power. You're also saying there's an affirmative duty of something that looks like, well, fidelity or some kind of fiduciary obligation, that it's not a nothing, that there is an affirmative duty to do something that looks like fidelity, whatever that means. You're going to tell me that also is kind of radical, right? Because we're now talking about the President in terms of obligations, obligations that he owes to us as opposed to constraints on his power. Can you explain? I know you have three different components of fidelity, but this is also, I think, worth unpacking.

[A]

We do have, based on the history that we found, think that there are sort of three elements and they overlap somewhat. I don't want to act like these are entirely distinct concepts. But you know, one is a duty not to act beyond the authority of one's office. Not to exceed statutory bounds would be sort of the primary way that that would apply to the President. A second is to act in sort of a good faith, impartial, honest, even handed and diligent way when executing the laws that Congress passes and executing the constitutional responsibilities of the office. So that does contain both some discretion limiting and some affirmative duties there. And then the third piece is a restraint on taking unauthorized profits or engaging in financial self dealing with the office. So I think the picture is what you say, Dalia. It's both a presidency that's limited by important duties owed to the Constitution, owed to Congress's duly passed statutes, and also I think duties owed to the public. And I think a sort of shorthand way that we talk about this is to say that the President is almost like what today we would call a fiduciary, somebody like a trustee who has a duty to act solely for their beneficiary, not to engage in self dealing, to enrich themselves, not to decide to exceed the terms of the trust, but they're supposed to faithfully follow it. And when you think about the presidency that way, it is interesting because it suggests who is the this beneficiary or who is the entity or the person to whom this fidelity is owed. And I think it's inescapable that it's kind of our constitutional system, but it's also the American public and the public good. And so in the paper we resist drawing too many contemporary conclusions. We kind of leave that to future work or to other commentators. But quite obviously and kind of self evidently is called to mind by our current president who so often seems to to act for private or selfish reasons. Sometimes that's financial self dealing, sometimes that's things like being apparently unwilling to try to protect our electoral machinery because that would in some way limit Russia's ability to help him again or stir up the pot with the 2016 election interference or whatever it is. But I think the reason that our work now, this historical work, is sort of catching some people's attention is that that were presented maybe really for the first time in American history with a president who so often seems to act in a selfish or private interest rather than being kind of true to the oath to act for the benefit of the public and the public good. And it's not a great place to be as a country. I mean, even past presidents that I've disagreed with politically very much, I never questioned that their actions were motivated by what they thought was, was for the good of the country and for the good of the public. But I think it sometimes feels kind of inescapable that those questions come up now. So I do think, even though we're going back to Magna Carta and stuff, that the paper does speak to the present.

[B]

Also, Jed, I want to be really clear that the paper, as Andrew just said, is not a polemic about the current moment. That it is an incredibly fact bound historical dive into the meaning of language principally. And I know you guys used dictionaries and contemporaneous writing and I know there's a tremendous amount of just scholarly work here, but it is inevitable that people are going to read it to say we have a president who is not acting as a fiduciary and there seems to be all three of your components of fidelity, Andrew, are in play. And Jed, I wonder how one puts meat on the bones in a moment when we really are saying as long as the president doesn't commit crime, he's fit. When each of these duties that Andrew has just laid out seems to be, you know, self enrichment and acting in his own best interest, none of these duties are, I think you can't look at him and not see failures. How do we make salient something that is just all but disappeared from the discourse?

[C]

Right.

[D]

Well, yeah, let me just echo that first observation, which is that this article is a historical piece and it is written in a way that I think for anyone who's interpreting the Constitution, originalist or not an originalist, the text and context matter and getting the text and context right as a historical matter should be something significant to everybody. And let me also add that even though I think think this project was part of comes out of this era of a particular president, what we find really cuts in both directions politically in terms of looking around at presidents over the last decades. Even if I think Andrew's right, that we wouldn't question whether presidents had in the past the public's interest in mind, I do think that there are ways that we can look back historically and say, say for example, someone looking at this history might raise some questions about daca, the policy of non prosecution. I don't think that this history cuts clearly. I think there's some complications about prosecutorial discretion with immigrants who were brought and were born elsewhere but then grew up here and prosecutorial authority. But when Obama makes a decision category about how to handle a certain class of citizens that is inconsistent with existing congressional statutes, one has to raise the question about whether that's faithful execution of the law. When the ACA was implemented and Congress set certain deadlines and guidelines and then President Obama interpreted them differently at a step, those were some questions about the use of executive power that were not considered consistent with statutes. And then I think today I think this is about, not just about Trump, but I think this is actually a larger story about the growth of the executive branch and the growth of the power of a president with, with, with courts not giving signif sufficient oversight. I mean, this also ties back into Gandhi. It's a different issue, but it's a, or a different text. But I think that there are lots of historical lessons here about how the founders had a certain wisdom about limiting the discretion of a president because the presidency was a dangerous branch with the power of the sword to expand its power. And they made some choices in the constitutional language to limit that discretion, limit that power. And I think that we should see that as something that applies to this particular president, but something that should be taken to heart across the political specific spectrum.

[B]

So I can't let either of you walk away without asking you what's going to sound like a fatuous question. But this is a really deep dive into originalism, original public meaning, text and language. Are we all originalists now?

[A]

Andrew, I think Jed's going to tell you that he is and we all should be. I'm not. I look at our legal and constitutional landscape and I see, if you pardon the analogy, people speaking a lot of very different languages. Some people are very based on text and history and originalism. Some people care very much about precedent, some care very much about policy values and consequences. And I think our constitutional conversation is one where lots of people are speaking different languages, as I said. And so I think certainly lawyers and politicians and to some extent legal academics need to be comfortable speaking these different languages as well. I mean there is absolutely no agreement and I don't see a prospect of agreement anytime soon that one method of reading the Constitution is absolutely and in all cases superior to another. Even self proclaimed originalists like Scalia, for example, deferred a precedent that's clearly non originalist. At times for fear of unsettling long standing institutional arrangements and things like that. So I see myself as kind of an ecumenical or whatever. Now I'm mixing metaphors, I apologize, but someone who thinks it's important to address the reality of a multiplicity of constitutional languages and not say that we can.

[B]

Just choose one forceful rebuttal. Judge Sugarman.

[D]

Oh, no rebuttal. I think that I want to just second the idea that, well, if Justice Scalia could have called himself an originalist, he also called himself a faint hearted originalist. And Andrew mentioned one way that originalism isn't even in its most famous practitioners, sort of originalism against everything else. I mean, Thomas disagreed with Scalia on precedent. I'd say that one can be an originalist while balancing that emphasis on the text and context with other values. Especially if, you know, and this goes back to the beginning of our conversation about double jeopardy and also the case about the cross and gun, precedent can still matter. So here the big picture on originalism, just in a couple sentences, is, look, everyone, when we interpret the Constitution, everyone should value text and context. Originalists believe that the text and context should have much more value than other interpretive methods. I think that's important, but it's not a unitary kind of monopoly on interpretation. And I think also one should be a modest originalist in the way that I think Alito was, to recognize that unless the evidence is clear, to be modest about the claims of originalism. That's one point. A second point is that there is a lot of space under originalism to see the invitation with vague texts as purposely delegating. This is a different kind of delegation idea. But when the Framers used broad language like privileges or immunities and equal protection, faithful execution, they were inviting future generations to take those values. And they knew that, as Justice John Marshall said, it's a Constitution we're expounding and it shouldn't, quote, have the prolixity of a legal code, unquote. So when the Framers used vague language, they understood what they were doing in the 1780s and in the 1860s, 60s to allow for the principles to be a legacy handed on to others. And so I think that in this, I think that relates, I think, to a point that the founders understood, but that we should understand today. The text and context are important for judges to enforce, but it's also a limitation on judicial discretion. And I think this is my plea to progressives out there, recognize that originalism became a movement in the 1980s as a reaction to liberal justices on the Court. If it was true, then that originalists embraced this doctrine to limit the discretion of liberal justices, I think there's some historical wisdom for today's progressives to see how a sincere commitment to originalism is something that would limit the discretion of a new conservative majority majority. And it's not just about the politics here. I think originalism is an important concept for judges to do their jobs, but to do their jobs carefully, with a certain degree of restraint, and to limit their discretion rather than just sort of implementing whatever their policy preferences are.

[B]

The paper is faithful execution in Article 2, written by Andrew Kant, Ethan Lieb and Jed Sugarman. It's worth a read and I think thank both of you so very, very much for taking time to help us understand it. Thanks for being here, Andrew.

[A]

Thank you very much, Dalia.

[B]

And thanks, Jed.

[D]

Thanks, Dalia.

[B]

And that is a wrap for this episode of Amicus. Thank you so much for listening. If you'd like to get in touch, our email is, as ever, amicuslate.com we love your letters and you can always find [e-mail] amicus podcast and the next show will be the biggie. End of term Blockbusters, other blockbusters. Stay tuned. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is senior managing producer of Slate Podcast. We'll be back with another episode of Amicus soon.