← Hold These Truths with Dan Crenshaw
Hold These Truths with Dan Crenshaw
Why the Founding Documents Still Matter, 250 Years Later | Randy Barnett
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We hold these truths to be self evident, that all men are created. As a member of Congress, I get to have a lot of really interesting people in the office, experts on what they're talking about.
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This is the podcast for insights into the issues.
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China, bioterrorism, Medicare for all. In depth discussions, breaking it down into simple terms. We hold.
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We hold.
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We hold these truths.
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We hold these truths. With Dan Crenshaw, the eagle has landed.
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Hello. Welcome back to hold these Truths. My guest today is Professor Randy Barnett, one of America's leading constitutional law scholars. He's the author of more than a dozen books on constitutional law and the founding, including Our Republican Constitution and Restoring the Last Constitution. His latest book, Felony Review Crime and Corruption in Chicago, recounts his experience as a prosecutor in Cook county during a tumultuous period in the city's history. So that'll be interesting to talk about. Professor Barnett actually has joined this podcast before for you listeners who pay attention to every episode and somehow memorize it. This was back in 2020 when we were discussing the const. Commonality of COVID lockdowns and. But now with, you know, with America's 250th coming up, I think there's few people that are equipped to help us understand the Constitution, the founder's vision. You know what the Declaration of Independence means? You know, it's the 250th of the declaration. But of course, all of these are intertwined and we're gonna, we're gonna talk about that and how we've evolved since then and maybe how we evolve over the next 250 years, so. Professor Barnett, welcome back.
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Well, thanks. Thanks for having me back. It's good to see you again after. I didn't realize it had been six years, but that's, that's, it's a pretty healthy chunk of time.
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Yeah, Yeah. I can't believe it's been six years since, Since COVID Those were the days, huh? A lot of zoom calls. Let's get, let's get into it. And glad we're approaching the 250 is not under lockdown. So that would be quite frustrating. Let me just start with the most basic of questions, which is, you know, the evolution of the Constitution in the minds of the American people. And because there's this, like, there's always a debate over what the Constitution intends and what it means. And it'll. I think it'll forever be a debate because there's a lot of vague clauses in the Constitution, maybe on purpose, and then there's, you Know, I think a division in America about how faithful we should be to it. You know, there's certainly plenty who think that, you know, it's, it's, it's just some old document written by men in the, in the, in the 1700s. Like, why. Why are we so infatuated with it? There's others who, of course, carry it around in their breast pocket because it's that important. I would probably include myself in that category. But what do you think, you know, as you study this more than. More than most, what do you think of the public's perception of it and how it's evolved?
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Well, it's a little hard for me to gauge because I'm a law professor. I teach law students, and by the time students come to me at Georgetown, they're already pretty educated about the Constitution, about our history. On the other hand, there's no question there's been a cultural assault on the Constitution, which is one of the reasons why there's been a cultural assault on our history. It's not enough to know what the Constitution means. It's another thing altogether, which is what you're asking me about. To love the Constitution, to like the Constitution. In fact, the center that I head up, that I founded at Georgetown is called the Georgetown center for the Constitution. The for is deliberate. We're in favor of the Constitution. I have colleagues who have written books against the Constitution. And the way you undercut a Constitution that's getting in your way is. Which is the reason why most people would oppose it is because it's getting in their way. The way you would undercut that is by undercutting our history, the narrative, the American narrative that we were once very, very proud of. And hopefully at the 250th anniversary, we should still be proud of. But I think there's a lot of pride that's been drained away deliberately by attacking our narrative. And it's the narrative of the Constitution itself. It begins with the Declaration of Independence. And the Constitution should be remembered to be the second crack of government after the adoption of the Declaration of Independence, because first we had the Articles of Confederation and then we had a Constitution. So our founding document is not the Constitution, it is the Declaration. And the Declaration states the American theory of government, which is, first comes rights, the natural rights of inalienable rights of the people. And then comes government. It says, we hold these truths to be self evident, that all men are created equal, that they are endowed by the Creator with certain unalienable rights, among which are life, liberty, and the pursuit of happiness. And the next sentence is to secure these rights. Governments are instituted among men, deriving their just powers from the consent of the governed. It is the securing of these individual natural rights that we form government to do. And the Constitution is the means by which we do it. And a lot of that has been forgotten or openly questioned as being untrue in some fundamental way.
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Yeah, yeah. There's a real issue with appreciation and gratitude and, and I, I often say, kind of simplifying exactly what you just said. The Declaration is, is the why of government. It's why we have it, it's why it exists. And then the, and then the Constitution is how we do it. And yeah, and you're absolutely right that you know, to, to undercut a, and, and let's, let's say the Constitution can be identified as an, as an institution in and of itself. To undercut it, you got to undercut its foundations and the, and the stories and narratives that, that built it and surround it. And they do this by sort of, you know, you know, picking apart imperfections of maybe the men who wrote it or, or you know, the three fifths clause, which I always think that one's like a strange one because correct me if I'm wrong, but that, that was, that was designed to take power away from slave owning states, not giving them more of it. That of course is an easy talking point to help, you know, to, to get people to believe. And look, there was of course a terrible racist culture back then. But like, you know, get them to believe that the Constitution itself is, is, must be completely undermined because of the inclusion of such a thing later taken out. Of course.
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B
Let's talk a little bit about this narrative of slavery, which is all we can talk about these days. And so therefore I spent a lot of time talking about it. At the time the country was founded, slavery was the historic norm. The United States was on the cutting edge of the movement against slavery, on the cutting edge of anti slavery. When the Declaration of Independence was adopted officially and declared that all men are created equal, every state in the Union at that point had slavery. By the time the constitution was enacted 11 years later, a mere 11 years later, six states had abolished slavery and two more states, New Jersey and New York, were on their way to abolishing slavery. That's an enormous amount of progress towards the goal of abolishing slavery entirely in a mere 11 years. It's hard to imagine that kind of progress. And then the 14th state that enters the Union, Vermont, the Vermont Republic, had its own Constitution. It was the first constitution in the history of the world that formally abolished slavery. And they were taken into the Union as the 14th state. The universal assumption at the time the Constitution was enacted was that slavery was on a path to its abolition, to its ending. That the only place where slavery would continue to exist is in the states that continue to have it, not in any new states that might be formed to the West. That changed later. At the time of the founding, we were on the leading edge of the anti slavery movement. The first anti slavery society in the history of the world was founded in Philadelphia in 1775. What happened, what happened to Arrest that? What happened to Arrest that was a technological development, the invention of the cotton gin, as well as the promotion of the invention of the steam engine. And what the cotton gin did was it made slavery, which up to that point was dying out as being, because it was an economically inefficient system into an extraordinarily profitable system because you could raise a lot of cotton. And what the cotton gin did was allow you to inexpensively separate the cotton from the seeds, which used to be a laborious, by hand mechanism. And it was only with the invention of the cotton gin and the making of slavery extremely profitable did a pro slavery ideology first arise in the country. Now, the cotton gin was invented two years after the Constitution was adopted. And so up until that point, the slavery was considered to be on the road to extinction. We were on the leading edge of abolishing it, but it was with the invention of the cotton gin and the steam engine allowed you to bring cotton upriver, the Mississippi river or up the coast without having to rely on wind power. And with those two things, an enormous pro slavery movement began. Ideology began in the south, which was then matched by the growth of an anti slavery movement, a vociferous anti slavery movement in the North. And we all know what happened after that. What happened after that is something like 300,000Americans on the Northern side gave their lives to ending slavery in the United States. And it has been ended ever since. Although we did enter into a very bad period called Jim Crow, which was abetted by the fact that the Supreme Court did not follow the Constitution that was amended by the Republicans in Congress after the Civil War. So our history is one that we can be proud of. Of course, we, we all know what happened that led to the Civil War. But the Civil War was the denouement of that slavery question. And Americans are the ones that put that question, took that question off the table. Now the fight for Civil Rights did go on, but that's because the south was recalcitrant about accepting their defeat, which we've seen, for example, in the Middle East. We've seen people being defeated militarily and being recalcitrant about accepting the fact that they'd been defeated. And then it took a while, quite a while, unfortunately, too long for the entire Constitution to be enforceable. But let me just make that point. In the wake of the Civil War, the Republicans In Congress passed three constitutional amendments. The 13th amendment that abolished slavery. The 14th amendment that extended Congress's power to protect the rights of each of its citizens from being violated by their own states, as well as to provide the equal protection of the law against private violence, not just public violence. And then the 15th Amendment, which eliminated restrictions on voting based on race. All three of those amendments were gutted by the Supreme Court after they were enacted, shortly after they were enacted, and it took another hundred years to finally implement the provisions of the Constitution that were put there by Republicans who were bound and determined to not only end slavery, but end the racial subordination of the freed people, the. The enslaved people. This is a part of our history. I go through the story because this is.
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That's not even a part of history. Like, I'm super aware of both, Both the, The. The. The implications of the cotton gin. I mean, we all learned about the Eli Whitney, the cotton gin, in, like, second grade. That is fascinating How. How. How you explain that. And these amendments, like you're talking about. Yeah, this is. This is. This is lost on most people. And then the, you know, the. The bad Supreme Court that maybe. I'd love for you to maybe expand on that a little bit. Like what decisions. Exactly. The Supreme Court did that. That. Yeah. That basically forced us not to follow our own Constitution for 100 years.
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Well, two things about that. Number one is, yes, the narrative is unknown, but there isn't a single fact that I just mentioned that is in dispute. So if anybody's wondering what, you know, whether they should believe what I'm saying or not, Nobody contests any of the facts I've just stated. I'm just talking about, in some respects, the spin that could be put on the facts. And this is a very American spin. All right, so tell. So, and secondly, it's not the Constitution that is to blame here.
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The.
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The original Constitution was defective in that it inadequately protected the rights of people from their own states, because at the time of the founding, people feared the power of the federal government, and they did not fear the power of their own states.
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Yes.
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Yeah, Slavery. The slavery experience taught us that the states can be an engine of injustice as well, and the federal government can actually come to the rescue of individual rights as well. And, and the 13th, 14th and 15th Amendments adjusted reallocated federal power accordingly and could be considered in some respects, the third crack at government. First crack was the article. Second crack was the unamended Constitution plus the Bill of Rights, which came in two years later. And the. And the third crack was the Constitution after the Reconstruction Amendments. Now let me give you an example of what happened, what the Supreme Court did. They did many things that were. That were objectionable and to be condemned. Here's the 1. The 14th Amendment has the following sentence in it, and it sounds very important when you listen to it. And that is, it says, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United states. That's the second sentence of the 14th Amendment. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Now, your listeners and viewers might be surprised to know that that clause has only been invoked by the Supreme Court one time since 1868, when it was adopted until today. And that was for a case that it, you know, was not all that significant a case. Justice Thomas actually relied on that provision in, in saying that the right to keep and bear arms applied to the states, but he was the only one on the Supreme Court who was willing to do that in the case of McDonald versus City of Chicago. So what happened to that provision? That sounds really important. No state shall it.
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And it's what we talked about in 2020. We talked about the 14th Amendment a lot with respect to COVID lockdowns.
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So what happened? What happened was a Supreme Court decision called the Slaughterhouse Cases, which was decided in 1873, five years after the adoption of the 14th Amendment. And the court, a majority, a 5 to 4 majority, there were four dissenters, vociferous dissenters, a 5 to 4 majority ruled that the privileges or immunities which that provision refers are some trivial rights, like, for example, the right to be free in life, liberty and property when traveling on the high seas, as though the Civil War was fought over people's rights on the high seas or the right to go to the capital of the state. These are trivial rights. That's not what that amendment was there for was to protect fundamental rights. And it took a long time for the protection of these fundamental rights to come in to come back after the gutting of the 14th of the privileges immunities clause. Once again, there's a consensus of constitutional scholars, left, right and center, who believe that the slaughterhouse cases, which is the name of the case in which that provision was gutted, was wrongly decided. And yet the Supreme Court even to this day, will not restore the original meaning of the, of the privileged immunities clause. Only Justice Thomas has had the courage to do, to devote that way up until this day.
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Strange. And I wonder why is it maybe unnecessary now just because we've, we had another hundred years of fighting for those, those rights to be enforced? So maybe it seems unnecessary now, but it's one, it's one, it's one of the problems. You know, this just comes from a, this is the legal question. You know, there's so many words in, in, in the Constitution and in law generally that seem very vague to the layman, like immunities and privileges. These are very vague words and they're open to interpretation. But do they have very specific legal meaning? And you know, is there a mistake made in drafting that amendment and not being more specific?
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Well, as to the why they have wanted to bring it back, I think there's a one particular, there's two. One is the necessity of it. Many of the most all the privileges or immunities or many of the privileged immunities have already have been protected by using the Due Process clause of the 14th Amendment, for which the Court gets criticized because they're going beyond the original meaning of the Due process clause. But in part, they're doing that to make up for the gap that's been created in the 14th Amendment by the redaction or the elimination of the privileges or immunities clause. So one of the reasons is why do we bother to do it? We're reaching the right result anyway, that justices have said as much. That's what Justice Scalia said. Why do we want to do it now? What are they afraid of? There's something. They're afraid of something. And I think that something was way more significant before the Dobbs decision overruled Roe versus Wade. And what many conservatives they seem, they
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seem less afraid these days.
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Well, I think what happened was, was that anything that would Roe versus Wade was based on an unenumerated right of privacy, a right that was not in the Constitution. And anything, any anything that would seem to legitimate the judicial enforcement of an unenumerated right like privileges or immunities would seemingly also help legitimate Roe versus Wade. And anything that delegitimated a fundamental protecting unenumerated rights would boost the case against Roe versus Wade. So as long as Roe was looming on the horizon, conservative judges did not want to do anything that would somehow be used to validate Roe versus Wade. In fact, so, and so that is
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some 4D chess legal thinking, I suppose. Hard for me to see the connection, but I can, Yeah, I can see where, you know, lawyers don't like risk. Right. So that's, that's. I guess that makes sense.
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So at any rate, we should be in a better position to revive it. But actually the, the thing that is when, when, when Alan Gura, who represented Otis McDonald in the McDonald case, that was the gun rights case, applying this right to keep bear arms to the states when he was being questioned by the justices. And I listen to this, I make my students listen to this argument every year so they understand where the justices are coming from. They're coming from, in many respects, the same position you just came from. And that is, what are these privileges or immunities? How do we know what they are?
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Yeah, yeah, I wanted to go back to that question. I mean, what is the legal meaning of those words? Why were they chosen in that amendment?
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They were chosen. The most immediate reason they were chosen is they were chosen to constitutionalize the provisions. Provisions that were. In a statute that Congress passed called the Civil Rights act of 1866, Congress passed this. It included both the citizenship clause, which you might call a birthright citizenship clause, although it was more than the one that is now being enforced by the Supreme Court, interpreted by the Supreme Court, but also it protected various rights of free blacks. Of really, it wasn't limited to free blacks. All Americans, including free blacks, to the rights to make an enforce contracts, to sue and be sued, to lease, sell real and personal property. These were considered to be the essential privileges of citizenship.
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So it had been established in a law already.
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So there is.
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Okay. So, yeah, that's helpful.
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So here's what happened. Andrew Johnson, who was the president that succeeded Abraham Lincoln after he was assassinated, he vetoed the Civil Rights act of 1866, and he said Congress had no power to pass it. Why not? What power did Congress use to pass it? Well, they used Section 2 of the 13th Amendment. The 13th Amendment abolished slavery. Section 2 of the 13th Amendment gave Congress the power to implement Section 1, abolishing slavery. And Congress said, we need this power because what the south is doing, we're using that power because what the south is doing is basically reviving slavery by another name using all kinds of other Language to deprive African Americans of their economic liberty, which is epitome of what slavery is against slavery takes away all your economic liberty. The Civil Rights act of 1866 was an effort to restore economic liberty. Having said that,
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did it pass the veto?
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Congress overrode the veto.
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They were able to override the. So Republicans had very strong control of Congress. Yeah, yeah, they did.
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And they over. They overrode the veto with super majorities. However, there were some Congressmen in particular John Bingham of Ohio, very, a very noble figure in our history, who thought Johnson had a point that maybe this was too much of a stretch for the 13th Amendment to bear. And so just to be sure that Congress had the power. And also the other thing is the Democrats who were going, who were then out of Congress and were coming back, they hated the Civil Rights act of 1866 and all of them vowed to repeal it as soon as they got back into power. So what they did is they decided to pass a new amendment, the 14th amendment that would be sure, absolutely, positively to give Congress the power to pass the Civil Rights act of 1866 and other comparable amendment, other comparable statutes. And so not only did they enact the 14th amendment for that purpose, and the Privileges or Immunities clause was supposed to be doing that job of giving them the power to do that. Section 5 of the 14th Amendment gives Congress the power to enforce Section 1, where the privileges Immunities clause lives. Not only did they do that, but after the 14th Amendment was enacted, they repassed the Civil Rights act of 1866 just to be sure that everybody knew they had the power to do it. They passed it again because now they had the power to do it. The content of privileged immunities is not an impenetrable mystery that cannot be discovered by faithful originalist investigation. And it has been.
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Its history is fascinating. And look, as a Republican and most people involved in Republican politics, we generally know this history and the lies told about the Republican's role in slavery and civil rights and Jim Crow that so many Americans believe, you know, that, that Democr. Like. But the reality is, and I don't even know half of the history you're talking about right now, that's why it's so fascinating. I don't think most people do. It was the Republican Party that, that truly set the, the stage for civil rights. It would, could not have happened otherwise. And I would go back further and I would say it's the Declaration of Independence that first set the stage, you know, and, and you know People look at Jefferson as this. You know, he was a slave owner. Well, yeah, but yeah, he was, he was in a time where that was normal. But you know that that Declaration was written very carefully and I, I believe my history is correct on this. You know, he, he was, he was, he was taking words from John Locke who talked about life, liberty and property as these natural rights. Right. But Jefferson doesn't use the word property. And maybe, and maybe that was a John Adams, I don't know because I know Ben Franklin and John Adams helped him edit it. So I don't know who exactly changed it or decided this change, but it's not life, liberty and property in the Declaration. It's life, liberty and the pursuit of happiness. Because I think, because they knew that property would be interpreted as people meaning slaves and they didn't want that. They were pretty clear all men are created equal. Did they live up to it? Personally, no, but they are the ones who created, created the stage for it, for getting rid of it.
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Let me correct it. Some did, some didn't. To say that they didn't do this.
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Yeah, that's true. Yeah, you're correct. Yeah, of course.
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They didn't do this or they didn't do that. Some did. How, how do we think we went from all slave states in 1776 to half slave, half free by 11 years later in 1787? That's because some people were vociferously, ardently working the anti slavery side of this equation. And there were anti slavery societies throughout the south.
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Even people. Frederick Douglass was. His main argument was that the Constitution and the founding documents are. What does he call them? The glorious liberty documents. And like. Because that's how he made his arguments and eventually won.
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He just, he, he explained. Douglas explicitly distinguished between the Constitution as it is and how the Constitution has been treated after it was adopted. That those were two. The Constitution as interpreted by the courts or the government is one thing. How. But the Constitution for what it says is another thing. And it's, it's because the founders gave us a Constitution that was good, although imperfect, and had to be rectified and improved by the Reconstruction Amendments in a very important way.
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And that's kind of what makes the Constitution perfect, is the fact that it was amendable through a process. Right.
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Here's another thing, Dan, about the narrative. We today who love the Constitution. We don't have to defend the original Constitution. I'm an originalist. I don't have to defend the original Constitution. I have to defend the original meaning of the Constitution. As it's been amended 27 times. That's the Constitution we have. That's the. That's the Constitution. The original meaning of which originalists have to defend, not the original one.
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Yeah, yeah, I would agree with that. Want to ask you a quote I think is really interesting. You said the Constitution begins with the words we the people, but there have been two competing notions of the people which lead to two very different visions of the Constitution. I wanted you to expand on that. I think you've got some interesting thoughts.
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Thanks for that. I mean, that's the subject of my book, Republican Constitution Securing the Liberty and Sovereignty of We the People. And there is where I discover. That's where after I discovered there were not one, but two competing conceptions of popular sovereignty, we do. The country was founded on the theory of popular sovereignty, that it was the people who are sovereign, not the rulers, not the government. Who is sovereign. That was a fundamental shift in political theory that we innovated here in the United States. The people are the sovereign. Are the sovereign. But what does that mean? On the one hand, if you think, well, the people are the sovereign and then the people rule. The only way the people rule as a. As a group is by majority vote. I mean, because it can't be. People don't rule on the basis of unanimous. Unanimous vote, there's no such thing. So if popular sovereignty means the people themselves are rulers, then a majority is the. And a people as a group, I should say, then it has to meet. That empowers the majority. And who pays the price for that? The minority. Because the majority. And then violate the rights of the minority. Well, that's one theory of popular sovereignty. The other theory of popular sovereignty is really the one that's in the Declaration, and that is we the people as individuals. We the people of individuals, each one of us who has unalienable natural rights. The governments are not us. We don't rule directly. We don't rule at all. We are the beneficiaries of the rulers. The governments are instituted among us, instituted among men to secure our rights. And under this individual conception of popular sovereignty, the governments are our servants. We are the masters, we are the agents. We can ultimately displace the governments if we're unhappy with them, which we've done, or amend the Constitution if we're unhappy with how the government's acting. But the whole point here is, is that under the individual conception of popular sovereignty, the government exists to protect the rights of we the people, each and every one of us, not just the majority.
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A
That makes sense. And you know, and you're right, I suppose there are people who believe in what we would refer to as a pure democracy where, you know, 51% can vote to take the incomes of the other 49%. And I think people would be surprised to know how common that pure democracy model is among Western societies. I mean that's basically the parliamentary system in the uk it's winner takes all and they've got full power. Their committees don't control the power of the purse. It's wild. We have checks and balances and this federalist system that just makes up our idea of a republic. And, and I think also what you're getting at with that popular sovereignty idea is I try to, I try to simplify that in my own mind. It's more than just this idea, I think of pure democracy versus a republic that protects individual rights. It kind of maybe also gets to this idea of the purpose of a representative. Maybe I'm too far afield here, but the purpose of a representative either being a delegate or a trustee. And so if you think of the people running the government, well then what's the point of representatives if every issue is just decided by popular majority? And that's kind of where populism really comes into play, which I am not a fan of because I describe populism as well, telling people what they want to hear instead of the truth and people. And someone so populist will be like, well if it's popular then it's the will of the people. And I'll say, okay, well let me give you policy idea. How about everyone gets paid $5,000 a month. Do you think that will be a popular policy idea? Yes, of course, of course it'll get a majority. But do you think it's a good policy idea based on good governing principles and the idea of trade offs and limiting principles? Because why not 10,000? So what is popular is not exactly always correct or good. And it's, that's why we elect representatives to, to do that serious thinking about trade offs on our behalf. I'm not sure if that is related at all to what you're talking about as popular sovereignty.
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B
Well, it's related to it insofar as how do you implement a theory of popular sovereignty in practice? How do you actually protect the rights of we the people, each and every one of us, given the fact that you're going to create a government to protect our rights, that itself can be an engine of their destruction. So what are you going to do? How are you going to do that, number one, you're going to put checks and constraints on the government to try to protect your rights from the government. But you also want a government that's empowered to actually do the things that the people that will protect the people's rights and contribute to the pursuit of their happiness, their pursuit of their own individual happiness. That's the kind of policy judgments that you're talking about, Daniel. And that's not something. That's not something that everybody who does their own job, we go about our business, we do our own job. We do the jobs that are assigned to us. That doesn't make us experts on public policy. I'm not an expert on public policy. I know something about some. I know a lot about gun rights policy, because gun policy, because that's one of my specialties, but I don't know a lot about every other kind of policy. And you need to have a division of labor in which there are people who are responsible for adopting good public policy. And that's not simply a matter of putting it to a majority vote.
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Yeah, I try to explain that to people all the time, and it makes people really mad because I'll be like, look, they're like, why are bills so long? Why are they so complicated? I'll say, look, man, first of all, the margins are like 2 inches, and I'm on a bill, you know, it's like three spaces or three line spacing. But also, you're editing, like, you're literally editing US Code. So, you know, pages and pages can be, you know, replace clause A with the word the. I mean, so it gets a little complicated and also very hard to read. And so people feel like, well, I read it and I know what it means. I said, well, that can be true for some bills. They can be simple, but a lot of times they're not at all. You have to understand what the law already was, which was complicated to begin with, and then what this new law changes it to. And reading it won't necessarily tell you that, and it won't give you the background education you need to even understand it. And, you know, because, I mean, hell, I can read French, but I don't know what it means. So that frustrates people that, that truth. But I'm sorry, but it is true. And so you do exactly what you're saying. You need that division of labor. Like, we rely on that in Congress. We all kind of. I tell people, like, going to Congress is like going to college. You, you, you pick your majors and. And then we have to rely on other committees to kind of do that work. And we rely on their general philosophy to hopefully agree with it. And you know, I mean, I focus on my stuff. It was health care, energy, mostly national security and intelligence. That's, that's what I know the best. If you ask me about agricultural policy, I' I needed to defer. We can't be experts in it all. And this frustrates regular Americans. I've noticed it.
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B
God.
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A
I was on a podcast the other day and they're like, well, why the hell is immigration policy so complicated? It shouldn't be. And so I led him through this little thought experiment. It didn't take long. And I'm like, well, okay, Mike, let's name is Mike Ritland, podcaster, former seal. So like, come on, man, I take him through this thought experiment. I'm like, look, let's, let's start a new society right now and let's talk about our borders and who we're going to let in. There's certain questions we've got to ask or an answer which are like, okay, who do we let in? What age, male, female, how many, under what circumstances? Right away it gets super complicated right away. So how are you, how are you questioning why these laws are complicated? We live in a complex society and man, you know, I don't know how to make Americans less frustrated about that. Like, they're just frustrated. They think you're calling them stupid when you explain this stuff. And you know, I think that's, that's, that speaks to our lack of civics education. And I think part of civics education, by the way, last thing point I want to make here is people. People have been lied to about what Congress says. Congress people because, because people, you know, congressmen running for election love to promise things and they love to promise action. And Congress is not an action body. It's certainly not a short term action body. It is not an execution body. It is truly a long term decision making body. And I think if people understood that, they would understand better what Congress is actually for. It's making law for the entire nation, which should be really difficult, by the way. And it is really difficult. And it shouldn't be that frustrating because it's supposed to be frustrating. It was designed that way. You know, the executive branches is your action oriented branch and your local and state governments are also more your action oriented branches or elements of government. And I think if people just understood these basic civics facts, I think there'd be a lot less frustration and anger in American society,
- [35:28]
B
you get hit from two sides. Because if you were to mention, if you were to have the temerity to say or even to suggest or intimate that we have, that the country is a democracy, that we have a democracy, 90% of the people listening to your podcast would start screaming at their device and saying, we're not a democracy, we're a republic. And they would be 100% correct.
- [35:49]
A
Yeah, yeah, yeah. That's why I wouldn't say that.
- [35:53]
B
That's, that's why I wrote my book, Our Republican Constitution, because I want to recapture what it means to say that we're a Republican. One aspect of that you've already brought up, the representative nature of Congress, is these representatives are there as our agents to do public policy within the constraints of the Constitution and within the constraints of our rights in order to advance the general welfare. And that is going to require a division of labor and a delegation to these representatives of enough power in order to accomplish that. Because, you know, it's true that the government is a threat to our rights, but that, but, but we have government because it's necessary in order to pursue this, this common good. And that is going to require judgment, a division of labor, and as you mentioned. But, but what, what is the check on all of that? Well, one check is, should be the courts who are not going to allow states to make or enforce any law which bridges privilege or immunities of citizens, United States or Congress for that matter. They shouldn't do it either. But the other is simply popular elections. This is where elections come in. Elections come in not in order to express. So we get governed by the will of we the people and everything gets done according to that election. The checks on gov, the check on government power is if you end up doing a bunch of public policy that a majority of the people find problematic, usually because they have to pay the price for bad policy. They can kick you out and put somebody else in. So that popular check is an important part of republican form of government, which is not to be confused with a democracy or a pure democratic majority will type of government. So understanding how this works is. And understanding what a republic really entails. Everybody who criticizes this theory, this view that you have about the need to exercise judgment as representative, is also, I predict, going to be somebody who insists we're a Republican. And I would just say, well, tell me more about what you think a republic is and how you would think what, what's the difference between a republic and a democracy? And then at that point they might start to appreciate what the, the division of labor is supposed to be between the President and the executive, the executive branch in Congress. I mean, I'm having a similar response myself personally to the memorandum of understanding that the President has entered into in with the Iranian war, the war, the war in Iraq with Iran. And I'm somebody who has strongly supported the President's actions up until now. And he's come under enormous criticism for this memorandum of understanding. And also, you know, he's been from both sides, from pretty much every side. And my view, one of my views is, is I understand what the critics are saying, I get what they're saying. But the truth is I actually don't know the facts that he's confronting that leads to this memorandum of understanding. Then these facts come in two ways. What are the facts, what are the logistical facts on the ground that he has to deal with, including the threat that Iran poses to the infrastructure of the Gulf states and our maybe inability to fully protect the Gulf states from that threat? Maybe that's one of the facts. And what are the political facts that he's facing because he has to have an eye in mind to the election that's coming up in the fall and the ability to control Congress such that he can continue to engage in public policy? I'm, I think that I don't know enough to know what, what everybody on X knows. Everybody on X is an expert on.
- [39:21]
A
They know everything. Yeah. You know, I've been similarly cautious about stating any opinion on this exact subject for that exact reason because it's, you know, I don't want to try and spin it dishonestly. I want to absorb it for a little while and see what happens. But, but backing up, though, you know, you kind of started to answer the, the question that I was going to ask anyway, which is like, what we do talk about this quite often like we live in a republic, not a democracy. And the people who do say that again, I think they're right, but I really don't think they can articulate what they even mean, which you hit on a little bit. And so you hit on a few aspects of what makes it a republic. Vice a democracy, you know, and this
- [40:10]
B
confuses people for good reason.
- [40:11]
A
Like because we, we, we call ourselves a democracy still, just like as a casual reference, like we were, we lead the democracies of the world. Okay. Well, yes, we elect our representatives through democratic means, you know, with the majority rule. So that part is of course true. But what makes it a republic? And you mentioned a few things right like the checks and balances, the courts, the protection of individual rights, this idea that you entrust your representative to make these complex decisions on your behalf. Otherwise you'd have an AI bot who can literally just like take public opinion on a vote and vote accordingly as opposed to using their own judgment. And yes, you are completely right that the people who scream about how where a republic, not a democracy, will simultaneously give me a bunch of crap for not agreeing with them. And I hear this, I think this is one of the funnier things I heard of the rep is like, you know, somebody's mad about something, they're like, you know, we're the people and we're talking to you and we're telling you this. And I'm like, to be clear, you are, you are one person. Like you are not. You don't represent the people, you know, and you just hike.
- [41:26]
B
It's just not true.
- [41:29]
A
And by the way, like, even if a majority of people agree with something, our system is not designed and obligated to represent that now. And those are decisions that representatives have to make Sometimes there have been times where my own judgment is kind of on the fence. And so I might look at popular opinion. That's fair. That's one way to make a decision. I mean, and again, when we vote, it's yes or no. It's yes or no. There's no perfect button. It's just yes or no. And so that can happen. I'd say it's rare, but most of the time we're making judgments on what we think is best. And again, I'll use the crazy example. It's not that crazy of an example because it did happen. Let's just give everybody money. Of course that's going to be popular, but I am going to vote against it because there is no limiting principle to that policy. The trade offs are not well thought out and it's just not right. Just because it's popular doesn't make it right. Am I getting that right? Is that how we might describe the essence of a republic versus a democracy?
- [42:34]
B
Well, I think I tried to do the best I could. Which is basically a republic is one that exists where the people are sovereignty and what the sovereign that means is it's their rights that the government is there to protect that they are the, they are the ultimate beneficiary and the government are their servants or their agents.
- [42:53]
A
And you would say democracy does not protect that, at least in its definitional form.
- [42:58]
B
No, democracy is government according to the majority. And you put three people in A room and two people vote to take the property of the third person. You can't say, hey, well, you know, you're out of luck.
- [43:10]
A
That's a democracy. And you know, it's funny because I'm like, I tell people this too in my speeches. I'm like, you know, if you want to understand the difference between Democrats and Republicans, maybe just look at the names, Republic, Democracy. Because it feels to me that Democrats are always increasingly trying to get us toward a pure democracy. And they often talk about the will of the people and majority rules, and they talk about packing the Supreme Court, removing the filibuster. All of these things eventually turn us into a pure democracy, which they themselves,
- [43:43]
B
by the way, don't actually want, because they themselves actually want. Ruled by the elite. By them. And so they want the kind of elections that mean nothing. They want the kind of elections in which you go to the polls every four years and you cast a vote that's relatively meaningless. And in the meantime, we allow the managerial class, we allow the experts, the elite, the people in the administrative state, to essentially run things for their benefit. That's the actual system that they want. They're, they, they are fair weather many. There are conservatives who are fair weather originalists, and there are, there are a lot of Democrats who are fair weather Democrats, small Democrats. And I think that we have to realize that.
- [44:25]
A
Yeah, I think a lot of people in America sense that and it makes, that makes them very cynical. And that, that, that's understandable cynicism because. Yeah. And just something I've tried to avoid throughout my time, and I've been punished for it, is sticking to principles even though your party wants the short term gains that force you to leave those principles.
- [44:51]
B
Dan, let me, because I've been extremely agreeable in an agreement with everything that you've said up till now. But I want to say one thing on behalf of populism, which I'm also skeptical of, as you are, and that is that there comes a time in which ordinary people get fed up by the fact that they're being ruled by a bad elite, by a sort of a garbage elite, the ones that are responsible for the propaganda that we get. The ones that were responsible for Covid. Covid is a perfectly example of how both the cause and the cure were, which we were not allowed to talk about for many years, but we can talk about it now. Both the cause and the cure was an elite that wasn't a product of democracy, that wasn't a product of a republican form of government or that wasn't a republic of representative government. That was a product of having an infrastructure that's being driven by people that are not accountable to anybody and that secretly created programs in order to weaponize viruses, ostensibly to figure out how to create a vaccine against them, and then have their wisdom, in their fine wisdom, escape into the general population, causing trillions of dollars worth of damages and uncounted numbers of deaths. And then their solution to that problem was to suppress freedom of speech and then lock us all in our houses. Who is doing that? The pop populism, to some extent, is the basic common sense of ordinary people, which I. Which can basically go afoul all the time, but there's the basic sense of ordinary people that they shouldn't be ruled this way. They shouldn't be ruled by an elite class like that. And I think that we need to be somewhat sympathetic. I think we, and I consider myself as a law professor, part of the elite. You, whether you like it or not, are also. Are also part of the elite because you're a representative in Congress. And I do think that we need to be cognizant of the fact that we have. One of the things that has declined in this country is not only our. Our narrative, our constant, our belief in our constitutional history, but the quality of the people that are ruling us, the quality of their judgment. And I think people have a right to object to that.
- [47:13]
A
Well, hold on, but which part do you. What did I say you disagree with, though?
- [47:16]
B
Well, you were. You.
- [47:18]
A
I didn't hear anything. You didn't.
- [47:20]
B
You had a problem with the word populism. See, I don't like populism. And to some extent, the populist instinct is an instinct to. In rebellion against a. An elite.
- [47:32]
A
Yeah, sure. Yeah, okay. I mean, fair enough. I mean, I mean, because I obviously agree with your take on. On the COVID situation. We, you know, do a whole podcast on that.
- [47:41]
B
Right?
- [47:41]
A
Yeah. It doesn't mean it's always wrong. Right. It doesn't mean it's. The popular sentiment's always wrong. It just means that it cannot be your governing philosophy. That's where I have a problem with it. Governing philosophy needs to be held in restrictive, limiting principles. I don't believe there's a liberal governing philosophy. It's just about compassion and helping and progressivism literally progressing. To what end? It never ends. I'd say conservatism lives in a box. It's about limiting principles. Populism. Yeah. Broken clocks are right twice a day. Populism, of course, can be Right. And the people were correct that they were being bamboozled. Now my only, my only retort to what you just said about COVID was just having lived it as a politician, it was actually not popular to be against the lockdowns and stuff. Like, there's a reason politicians did what they did. It was because the people were actually so scared they were demanding that. I mean, that's why it was so contentious. Even in places like Texas Governor Rabbit was like scared to death because when you actually looked at the polling, people were in favor of mandatory vaccines and like, so the populism was actually on the opposite side of that. Only later, only later did people really start to wake up. And I think, I think. And I think the government changed along with it.
- [49:03]
B
I accept that. I think that's a useful corrective of what I said because I totally agree with that. So what I really meant, and the point I was trying to make, and maybe I can make it clearer, and that is that who was leading the public down the path were an elite group. They were the elites that were. Both gave us the problem in the first place because they knew better than even the representatives. Representatives would never have authorized what they did. This all had to be done surreptitiously. It had to be done out of the view of democratically elected representatives.
- [49:36]
A
You're talking about the gain of function research that was weirdly funded, you know, their Wuhan lab.
- [49:42]
B
Yeah, exactly. So it's the elites that gave us the problem. And then it was the elites that formulated the response to the problem. And then if they ran it past a scared public, the public went, okay,
- [49:52]
A
sure, yeah, yeah, but so it was self reinforcing. Yeah, you're absolutely right. I mean, it's, it's a disastrous time in our history, like, and I, I think a lot of people are to blame the elites. And I think public, you know, the public goes like, you can't be scared of everything, guys. You know, like, it's just like, it's, it's. And look, there's a lot of people who put their fucking hats on and were like, you know, express that common sense. But they were destroyed publicly for it. You know, it's like it was. And you know, I think, I think they eventually were obviously now, I think, on the right side of history on a lot of those questions, you know, I mean, and there was those of us who were fighting, and I know you were, and I was, I was fighting it from the, from the beginning when it went. But I'm telling you it was against
- [50:40]
B
popularity, let's say from six weeks to eight weeks after the beginning. Because truthfully, during the first six, six to eight weeks we didn't know what the hell this was. We didn't know what it was now. And so once we fig. But we, we pretty quickly figured out what it was. I mean within months. And once it was figured out, that's when these policies became extraordinarily unjustified. In the beginning. When you don't know what the hell it is, then you can, I can
- [51:05]
A
only speak, I can only speak for myself. I was, I was out on a limb pretty early and I'm proud of that. I don't, you know, I was against, I didn't think lockdowns were, you know, again, also the seals of my high
- [51:15]
B
risk were not even on the table in the very beginning anyway. But anyway, we should, we can, we,
- [51:22]
A
we, we, we digress. We digress. All right. We're, let's, we're, we're coming up on the hour and you know, maybe we, we, we. I mean, let me ask you this. So we, we've gotten some extremely interesting history in the last 250 years and how we got here. You'd probably agree that you know, at least. Well, actually, I don't know if you'd agree maybe a two part question. Has the Constitution held up well, well enough, you know, are we in a good place?
- [51:58]
B
We're in a better place than we would have been without the Constitution. The problem is that there's so many other. There's so many features of the Constitution that have been systematically overridden by the progressive political movement over the last 150 years, 130 years done in, you know, with the. At least traced back to the Wilson administration before World War I that they've, they've been overridden. We're just trying one by one to get the pieces back that are missing. The name of my book that you mentioned at the opening was the Restoring the Lost Constitution. And the lost Constitution are the provisions like the privileges or immunities clause or the Ninth Amendment or the Second Amendment until 2008 or the Commerce clause and its limitations, the original Constitution, the lost Constitution. We would be much better if we had all that Constitution back again. Yeah, but the Constitution. Think of the Constitution like an airplane that has four jet engines on it and you lose one engine, you lose another engine. If the airplane's properly designed, it can fly on two engines. If you lose three engines, it can still fly on, on one engine, but it's not as good as it would be if you got all the engines back. We're flying on one or two engines of A4 engine aircraft and the Constitution is responsible for that because it had redundancy built into it. But on the other hand, we would be better off off if we could restore the whole Constitution.
- [53:24]
A
Yeah, I'm sure you have a long list of things we should do to do that. Maybe that's the next episode. And I'm sure you're probably in the category of believing that the founders would not have expected the executive branch and the President to be as monumental and powerful and the only politician in America that everybody knows. And it's, it's an unfortunate evolution of our times. But my last question is really, how do we make sure that plane that you, that you just referred to keeps flying for the next 250 years?
- [54:04]
B
Well, I, I think it gets back to where we started. I do think that we have to improve our constitutional narrative, our Amer, the American narrative. We have to fight for our history. It is the memory of what came before that convinces people to continue to go forward. People are not convinced and people are not motivated by abstract arguments. It's my business to develop abstract arguments. That's part of what I do. That's what a theory, constitutional theory guy does. And it's important to do that because you need to know what's right and what's wrong. But that's not really what motivates people. What motivates people is their memory, their thought of what has happened before, before what's happened in the past. And that's the reason why our history has been under attack systematically for quite a long period of time, decades, if not more. And so the way we keep airplane flying for the next 250 years is we have to restore our historical memory by, for example, the stories I was telling during this podcast. And one of the ways we do that is through education. And one of the ways we do that are through the sorts of civics education that, for example, the University of Texas now has in the form of a special civic center, Civitas center in Texas and many other red state legislatures are doing that as well. So Tennessee has one, Florida has one, University of Florida has one. Ohio State has one. These are the ways by which we restore our knowledge, restore our knowledge of our constitutional history, not just our Constitution, our political history, warts and all. It's not a completely, but that's true of every society. And that's how we keep foregoing. If we forget our past, if we forget what makes America exceptional and what makes America special and what makes America a place that you would be proud to be an American. If we forget why we should be proud to be American, we will not have an America we can be proud of.
- [55:56]
A
That's a good answer, and hard for me to. To argue with it. It's about. Yeah, it's about appreciation for our past, a truthful appreciation for our past, and then a truthful education moving forward. You know, I always say, like, my. My greatest. People ask me all the time because of what I do, what's the greatest threat to America? What keeps you up at night, Dan? You know, expecting an answer, like cyber. Cyber attacks from China. Those do keep me over at night. Those are pretty bad. But there's a lot of things. But I'm like, look, but we're undefeatable, really. We can only defeat ourselves. And we'll defeat ourselves through what I have observed as a severe lack of basic critical thinking skills over the years. Social media somehow making it worse, the massive amount of information at your fingertips somehow making that worse. You know, and I think that's just maybe a subset of what you're talking about, about civics education, you know, critical thinking. You can be educated on something, but if you don't know how to think through it and, you know, filter bullshit from the media, understand what's true and what's not, it's. It's. We're going to have a hard time. We're already having a hard time. I think that's. That's the only way we lose it. And, you know, I hope we can fix it, and I think we can. Guys like you out there teaching will be okay.
- [57:31]
B
Well, thanks for having me.
- [57:33]
A
Yeah, thanks so much for being on. It was a fascinating discussion, as always.
- [57:37]
B
We should mention at least my book once again.
- [57:39]
A
Oh. Oh, sorry. Yeah, we never got to it. Yeah. Yeah.
- [57:43]
B
Felony Review, which is about my time as a criminal prosecutor in Chicago, which was an extremely colorful time in which to be a prosecutor, 1977-81, about crime and corruption in Chicago. But it's for people who, first of all, like true crime stories, because that's what it is, true crime stories. And it's what it's like to be a young prosecutor. I was in my 20s doing battle with crime and corruption in Chicago, and I think people will find it extremely entertaining as well. And I try to draw lessons from my experience as well, lessons about the criminal justice system, but that's something we really can't get into right now.
- [58:20]
A
Yeah. Okay. So interesting. So the book's, it's, it's like a true crime story. It's real cases you're talking about. And then, you know, adding that you're, you're, you know, decades of legal analysis to explaining that. I guess the question people probably have is, has much changed in Chicago when it comes to corruption and rhyme and all that?
- [58:41]
B
Well, yes and no. The. There's a kind of a. I can talk about corruption in, in the book because things did change. And unbeknownst to us, there was actually a federal investigation of corruption in Cook county which revealed that. Which basically showed all the people that I thought that I knew to be corrupt turned out to be corrupt. I can name names in the book. And so I think once that, that sting operation, and there were several of them actually, I do think the circuit court of county was, Was cleaned up. And it's not. Has never gone back to the way it was. On the other hand, we have what's called Soros prosecutors throughout this country that are not there to prosecute. And in fact, Chicago's had their share of them. Kim Fox is the one. Everybody's might know her name.
- [59:24]
A
And basically Houston has our. I mean, it's same everywhere, right?
- [59:28]
B
And these Soros prosecutors, it used to be it didn't matter if you were a Democrat or Republican, you wanted to prosecute crimes. And I was a prosecutor under Republican, then I was a prosecutor under Rich Daly, who was a Democrat. They both wanted to prosecute crimes. But if one side of our criminal justice system doesn't want to prosecute crime anymore, we're in big trouble. We're in big trouble. And so Chicago went through that period. The current prosecutor might be better than Kim Fox was, I should say. I don't really know because I'm not there anymore. But Chicago has its other problems as well. But in terms of the actual corruption that I saw, it was wholesale because everybody felt a system, a feeling of immunity. Nothing was ever going to happen to them. Oh, one other thing. It's the federal government that had to be called into play to and to attack that corruption because the state courts were pro. Were corrupt. And it was the federal government, the U.S. attorney there that was the one who led this investigation with the assistance of the Cook County State's attorney's office. We or my office helped that. But nevertheless, this is a good example of this post 14th amendment world in which the federal government is there to protect the rights of the people from their own states.
- [60:37]
A
Yeah, yeah. And that has come up a lot recently. You know, and important for people to know what the Constitution actually says about that and also the precedents that have occurred. Well, yeah. I'm sorry we didn't get to the book until last. I apologize for that, but I'm glad we got to mention it. Thank you so much, professor, for being on.
- [60:59]
B
My pleasure. I know you got to get going, and. And so do I. So I really. I appreciate you having. Maybe it won't be six years until the next time.
- [61:07]
A
Yeah.
- [61:08]
B
Yeah.
- [61:08]
A
No, I mean, we can always find stuff to talk about. I. I love these. I love the love of this. We both talked about the need to explore and. And teach more civics, so you can never do enough of these. Appreciate you.
- [61:20]
B
Very good. Take care.