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Ben Shapiro
And we're live on matchday as Doug
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Justice Neil Gorsuch
reaches for a buffalo wing.
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Ben Shapiro
He's got it. Oh, and he's gone for a can of Pepsi, too. What a finish. There's no doubt about it. It just tastes better. Matchdays deserve Pepsi. So good, so good, so good. New summer arrivals are at Nordstrom Rack stores now. Get ready to save big with up to 60% off brands like Rag and Bone, Levi's, Adidas, and free people. Join the NordicLub to unlock exclusive discounts. Shop new arrival first and more. Plus, buy online and pick up at your favorite Rack store for free. Great brands, great prices. That's why you rack. The Supreme Court has ruled if you are born in the United States, you are a citizen. And if your parents traveled here to drop a baby, you are still a citizen. And if you spend five minutes here your entire life after your parents drop you here and then take you home, you are still a citizen. Will dive into one of the most important rulings in the history of the Supreme Court in just one moment. Plus, we'll get to major Supreme Court rulings on the weed killer roundup, whether boys can play against girls in sports and campaign finance. Spending a huge legal day here at the Ben Shapiro Show. Let's get into it live. Alrighty. So the the decision is in Trump versus Barbara. It's a birthright citizenship case. Six to three with Thomas Alito and Gorsuch in dissent. Justice Brett Kavanaugh sort of split the baby. He was sort of in dissent, sort of in concurrence, concurring in part. Dissenting in part. Justice Roberts, again, a horrible pick for Chief Justice. I warned you of this when he was selected by George W. Bush. I was maybe the only conservative columnist in America who said that Justice Roberts would not be good. This makes yet another terrible Chief Justice Roberts decision because again, remember, he's the guy who said Obamacare was totally legal. Now, he, along with the liberals on the court, is claiming that the Constitution of the United states under the 14th Amendment mandates, mandates that if you are born in the United States under pretty much any circumstances, you automatically become a citizen. Now, I understand that we've been living with that rule in the United States for a very, very long time. That is how the legal authorities have interpreted citizenship in the United States. But the real answer here is that the Constitution never, never contemplated that. The 14th Amendment never contemplated that. The equal protection clause never contemplated that. The birthright citizenship clause, the citizenship clause never contemplated that. The reality is that again, because what has happened with illegal immigration is Absolutely unprecedented over the course of the last few decades in American life. It just underscores how much this bad legal take on what citizenship amounts to has totally screwed America. Congress abdicated, multiple presidents abdicated. And so when you let in literally millions, maybe tens of millions of people who then have babies in the United States who are then citizens, you totally, radically change the composition of the country because of bad legal interpretations like birthright citizenship. All right, so let's get into the actual opinion. The opinion by Justice Roberts here, which again is joined by the liberals on the court, is a bad opinion. It is a bad opinion because it is rooted in a really bizarre interpretation of the 14th Amendment to the Constitution and its history. It's rooted in a bizarre interpretation of how citizenship has worked historically in the United States. It's a narrative that starts in Britain and then takes a weird detour in the Reconstruction era and then goes back to the British view after Wong Kim Ark in 1898. It doesn't make a lot of legal sense. So to start at the very beginning, the governing law when it comes to citizenship in the United states is the 14th Amendment. It provides, quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Okay, now, the key phrase we'll talk about in a moment is subject to the jurisdiction thereof. It seems superfluous, does it not?
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Ilya Shapiro
Right.
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Ben Shapiro
If we just wanted to say that if you are born or naturalized in the U.S. you are therefore a citizen, then you don't need the phrase and subject to the jurisdiction thereof. It's totally unnecessary. I already said, if you're born in the United States, you're a citizen. But then it says, and subject to the jurisdiction thereof. So what exactly does that mean that is the subject of the case? Well, on January 20th, on his first day in office, President Trump issued executive order number 14160. It was titled Protecting the Meaning and Value of American Citizenship. And the order provided that children born of persons unlawfully or temporarily present in the United States are not subject to the jurisdiction of the United States and do not qualify for citizenship under the 14th Amendment or the Immigration and Nationality Act. Okay, so here's where we get into the very weird history told by Justice Roberts. So he is trying to ground his version of birthright citizenship in sort of ancient practice. And as you'll see, Thomas Alito, they just rip him stem to stern on this. They just take him absolutely apart. Again, the reason that we're going live about an Hour after the release of all these opinions is. Yes, I did read through every single Supreme Court opinion this morning, which amounts to. There are three major opinions. It amounts to something like 275 pages of text. So, yeah, that's the thing we do here. We actually read the opinions when we break them down. So Justice Roberts says, quote, the story of citizenship in the United States, begin with the English. Begins with the English common law. Before the Revolution, the American colonists, colonists, like all in the British Empire, were considered subjects of the sovereign because the sovereign's power, and thus his duty was limited in various respects. So, too, was the scope of this rule. He could not demand allegiance from, for he could not protect those born in lands he did not control. In all other respects, however, the sovereign's power and his claim to the people's allegiance was complete. A foreign mother could enter the British Isles, give birth, and leave with her child the very next day, and that child would remain a British subject. Okay, there's one problem with this. As Justices Thomas and Alito note, pretty obviously the American Revolution does not believe in the idea that the king has dominance over his subjects, because, again, we are citizens, not, in fact, subjects. And the. The basic idea of being a subject of the British Empire is a different thing than American citizenship. We had a whole revolution that we fought in order to not be British. But back to Roberts's opinion, he says, no, no, no, no. We actually imbibed from the British, well, and we took their rule and then we applied it here at home. He says this view crossed the Atlantic with the colon colonists and was adopted with little fanfare after the Revolution, as soon as subjects of the sovereign became citizens of the state. He says it's the same thing. Being subject of the king, meaning the king's property, essentially is the same thing as being a citizen of the state. That is totally wrong. It is absolutely wrong. This common law of citizenship, known as julie, or the right of the soil, prevailed in, quote, each and all of the states after American independence and continued to emphasize reciprocal allegiance and protection. And he says, in a nation of immigrants, an asylum for mankind. In Thomas Paine's words, jus solis, that means rule of the soil. Broad scope, took on particular importance. Okay, fast forward to Dred Scott versus Sanford. So Dred Scott versus Sanford, one of the most famous cases in Supreme Court history, maybe the most famous case in Supreme Court history. The darkest case in Supreme Court history. That is the case in which Justice Taney, prior to the Civil War, said that black Americans born on American soil were not in fact citizens, because the Constitution didn't mean black people, right? That is Dred Scott. According to Justice Roberts, in the odious decision of Dred Scott vs Sanford, this court imposed the Southern states beliefs onto the nation. Chief Justice Taney, writing for the Court, concluded that the words people of the United States and citizens had an unexpressed racial component, one that excluded all those descended from slaves. The Court had overruled the common law, but the people eventually would overrule the Court. It took more than a decade and the Civil War, but Frederick Douglass's vision of our common humanity would be fulfilled. Okay, so again, the idea here is that there was this rule of jus soli, if you're born on American soil, you're a citizen. Dred Scott cut against that because it wrongly said that didn't apply to black people. And then the Civil War was fought to re establish the idea that it belonged to everybody. And then in the aftermath of the Civil War, two key pieces of legislation, one a piece of legislation and one a constitutional amendment. The key piece of legislation was the Civil Rights act of 1866 and the 14th Amendment to the Constitution of the United States, which was originally passed in 1868. So says the Court and Justice Roberts, the act, like the act, the Civil Rights act, the 14th Amendment was intended to repudiate Dred Scott. The goal was grand, to put the great question of citizenship beyond the legislative power altogether, to settle the issue once and for all. The clause starts, like the common law with territory. A child must be born in the United States, not elsewhere. And the clause ends again, like the common law with sovereign power, a child must be subject to the jurisdiction of the United States, unlike, say, the families of foreign ministers, a child born on American soil and subject to American law was made an American citizen. Okay, so the question becomes, as we said right at the top, what does it mean subject to the jurisdiction thereof? What does it mean to be subject to American law? So he says, to be subject to the jurisdiction of the United States is to live under its dominion. The citizenship clause uses jurisdiction in its ordinary sense, referring to the power of the United States to govern those within its territory. But that of course is really a silly interpretation. It becomes completely like, who living in the United States would not be subject to the jurisdiction thereof? Aside from maybe foreign diplomats? What would happen with say, people who are born into Native American ancestry? Like, these are real questions. What would happen if you were temporarily here? Were you subject to the jurisdiction of American law? Like, what did that mean? What did it add to born here. Because if you just mean born here, just say born here. You don't need subject to the jurisdiction thereof. He says the ordinary legal meaning of the text of the clause captures the common law rule with its broad reach and narrow exceptions. The groups included and excluded by Jussoli were included and excluded by the conventional understanding of jurisdiction. Excluded by both were the children of foreign ministers because presumably they were not subject to American law and members of 19th century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign or quasi sovereign. Okay, but here's where the Court's theory runs into a bunch of trouble. During Reconstruction, right in the aftermath of the of the Civil Rights act of 1866 and the 14th Amendment, courts for several decades interpreted this to mean that you actually had to be domiciled in the United States, meaning that you had to be a subject of the United States. You could not be, say, a foreign citizen in the United States and also an American citizen, or drop a baby and that baby would now be considered an American citizen. So what the Court has to claim is that basically there was a consistent through line from British citizenship, British jus solly all the way up until Reconstruction. And then there was sort of a detour. And then in the late 19th century with Wong Kim Arc, we went back to the British rule. So quote the new theory after Reconstruction focused on the parents status, not the child's. Now again, as Justice Thomas is going to point out, this is nonsensical. Every immigration status question focuses on the status of the parents. Quite obviously, for example, if you are born a children of a child of a foreign ambassador, we are not focused on your status. We are focused on your parents status. So this is a nonsensical critique. But he says it was only if a child's parents were domiciled in the United States. They argued that the child was internationally subject to the jurisdiction of the United States. As the citizenship clause in Wong Kim Ark's is a very, very famous case. Wong Kim Ark, kind of the most prominent precedent in terms of birthright citizenship. The Court rejected that view, concluding no rule of international law had qualified. The ancient rule of citizenship by birth within the Dominion. Justice Gray, who wrote that decision, explained the 14th Amendment was merely declaratory of the fundamental rule of citizenship by birth that prevailed at common law. That same rule, he wrote, was a force in all the English colonies and continued to prevail under the Constitution. What the Court held, according to Justice Roberts in Wong Kim Ark which is supposedly the governing precedent here was simple. The citizenship clause incorporated the common law and granted citizenship to nearly all children born in the United States. Not surprisingly then, in the 128 years since, we have repeatedly understood the rule of Wong Kim Ark to guarantee citizenship to all children born in the United States and subject to its power. Okay, so the dissent written by Justice Thomas says, no, no, no, no, no, no. The whole idea here is that you have to have allegiance to the United States. When it says subject to the jurisdiction thereof, you have to be what we'll get to in his dissent, domiciled in the United States. You have to owe your allegiance to the United States, no foreign allegiance. So at some point, according to Thomas, the idea of citizenship broke from that of Great Britain. Robert says no. He says the trouble is there is scant evidence for this dramatically revisionist view. Certainly no one said that such a change had occurred. For a Congress intent on putting the question of citizenship once and forever to rest, a domicile based qualification would have introduced significant uncertainty. Unlike the easy to apply common law, it would be difficult, if not impossible, to lay down any general rule of domicile based citizenship, as domicile often depends upon the circumstances of each case, the combinations of which are infinite. The Civil Rights act made citizens of all person born in the United States and not subject to any power. And the principal descent says that a person is not subject to any power only if he is domiciled in the United States. Because if you're domiciled in the US Then you are not subject to the law of your home nation. Justice Alito says a person is not subject to any foreign power if and only if no other country would automatically make him a national. Justice Robert says no, actually you can be subject to two governments at once. Okay, so that is the, that is the opinion of the court. The opinion of the court is that essentially you born, you're born in the US that means that you're a citizen. And that goes all the way back to the British Empire because we basically just picked up the British idea of citizenship and dumped it wholesale into American law. Now, as we'll see in Justice Thomas's dissent, this is just a terrible take on the history and it's a terrible take on the law. It is a bad take. We'll get to Justice Thomas's dissent in just a second, which is masterful and quite lengthy. We'll get to that in a moment because it really explains where everything is going wrong, because it absolutely is. Well, speaking of things going Wrong. Here is the reality. 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It's better for you, it's better for your business, and it makes sure you're not vulnerable to things you didn't know that you were vulnerable to or that you're spending too much money on insurance. Super Short takes care of all of that for you. It's a compliance agent, essentially. It makes sure that everything is what it needs to be in terms of your insurance. Check them out right now. Super Sure.com Shapiro. That's Super Sure.com Shapiro. One super agency, one powerful platform. All your policies in one place again@super sure.com Shapiro paid for by Super Sure Insurance Agency, LLC, a licensed insurance agency. Okay, so let me get to Justice Thomas's dissent, because Justice Thomas's dissent is 91 pages long and it is the heart of the issue. Justice Thomas is obviously super ticked off and for good reason. He says, listen, your interpretation here is just crap. This Roberts majority opinion is rooted in ahistorical nonsense. And this thing is a stem winder and it is an absolute excoriation of Roberts as well as the people who concurred in this decision. So here's what he says. He says essentially the 14th amendment, the citizenship clause, the 14th amendment was created to rectify one issue and one issue only. And that was the question of blacks born in the United States States as slaves. That the Dred Scott decision had said. Black people born in the United States who had no other domicile right, who had allegiance to the United States, they were not subject to a foreign power, nothing like that. Were they citizens or were they not? Dred Scott said no. And then the Civil Rights act of 1866 and the 14th Amendment of the Constitution were designed to make sure that blacks were treated as citizens as they should have always been. So, he says blacks were entitled to citizenship because they were Americans. They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority. They fought and bled in the same battles, gained and gloried in the same victories, and were liable to be called upon to defend America in a time of war alongside every other citizen. The citizenship clause thus guaranteed them the dignity and glory of American citizenship so as to ensure they would never be treated as second class under the law. He says the same could not be said for the children of foreign temporary visitors. Foreign temporary visitors were attached to their home country. They lacked similar bonds to this country. They would not be called upon in time of war. Americans, consistent with their settler ethos, believed that citizens were the people who called a place home. Accordingly, domicile, a person's legal home, played a key role in both state and national citizenship. In America, a person was a citizen of the state where he had his domicile. So none of this, you're born here, you're here for five seconds, you leave, and you're an American citizen, no jus soleil, because you're not subject to the king. The way that you become a citizen is you are born here in the United States or naturalized here in the United States, and you are subject to the jurisdiction thereof. You have domicile in the United States, according to Justice Thomas. He says a person born here but domiciled in a foreign land, meaning that you are a Mexican citizen, you come across the border illegally, you drop a baby, well, you are considered as much a stranger to the country as the father the baby is, because on what basis are you American, precisely, other than you were just born here? And again, born is not enough and subject to the jurisdiction thereof, is the phrase in the 14th Amendment, he points out. The Civil Rights act, again passed before the 14th Amendment and saying the same thing because it was passed by the same Congress, guaranteed citizenship to persons who were both born in the United States and, as relevant here, not subject to any foreign power. The phrase not subject to any foreign power excluded from citizenship. Children of foreign temporary visitors were subject to the power of their home nation, says Justice Thomas. The citizenship clause was consistently interpreted not to apply to the children of foreign temporary visitors who were by definition not domiciled in the United States, regardless of administration or party. The federal government, for decades after ratification, regularly denied claims to citizenship by children who were born in the United States but not domiciled Here, when a child was born in the US to parents domiciled abroad, he was not, therefore, under the statute and the Constitution, a citizen of the United States by birth. Again. So that is the case. The case is that actually the United States never adopted the Ju soli British common law rule of citizenship. It never adopted that it had a failing with regard to its perception of citizenship with regard to black citizens because of slavery. That was rectified by the Civil Rights act of 1866 and the 14th Amendment. And then the court just got it wrong in Wong King, Wong Kim Ark. But even there, they didn't really get it wrong. They actually are just being misinterpreted is the case that Justice Thomas is going to make. And he rips into the court, he says with due respect, which is always a sign that he's going to now give no due respect. The court's account is not historically accurate. The Court says the citizenship clause incorporated the English feudal principle that subjects owed lifetime servitude to the king who owned the soil on which they were born. But Americans unsurprisingly rejected this feudal principle. The Court's theory of American citizenship is based on the opinion of a New York assistant vice Chancellor in an inheritance dispute called lynch vs. Clark, 1844. But the assistant Vice Chancellor's reasoning, whatever it was worth, was not even followed in New York by the time of the citizenship clause. Finally, the court reasons that dikta in Wong Kim Arc that means stuff that's not the decision. Whenever you have a decision, you have the decision itself. And then you have a bunch of sort of reasoning and other extraneous ideas. That's called dikta. That's what that means. He's saying that a bunch of sentences that have nothing to do with the final ruling in Wong Kim Ark do not govern the citizenship clause, he says. The court reasons that Dikta in Wong Kim, Arkansas settled the meaning of the clause. But Wong Kim Ark itself emphasized that its holding was limited to persons domiciled in the United States. Scholars and government officials continued to agree after Wong Kim Ark that the citizenship clause did not extend to the children of foreign temporary visitors. The rule remained what it always was. A child born on American soil of a stranger or traveler passing through the country or temporarily, temporarily residing here was not a citizen. He says, in America, you were generally a citizen if you were born here and this was your home. The legal word for home was domicile. The concepts were so linked as to be taken as effectively synonymous, such that Justice Bushrod Washington Would say citizenship means domicile, home, permanent residence. Citizens were not the people who were temporarily passing through a territory or who happened to be born within it. Citizens were the permanent members of the body politic, the people whose roots were in a place, who called that place home, and who would, if necessary, go to war for that place. The law of both state and national citizenship reflected this principle. The court stated that when a person acquires a domicile in a nation, he becomes a member of the new society, at least as a permanent inhabitant. Domicile played a role in determining someone's national character. And that could change if he removed to a foreign country and settled there with an intention permanently to reside there. So the United States, says Thomas, did not claim as a citizen every child born on its soil. Instead, pursuant to the principle that children followed their parents domicile, a child was a citizen of the place where his parents were domiciled, because any person incapable of establishing his own domicile had the domicile of that person on whom he depends for support. It followed. The generally minor children had the settlement of their father. So in other words, you follow your parents. And he points out, in the 19th century, dual citizenship was considered highly undesirable, if not a contradiction in terms. A temporary visitor whose homeland was somewhere else, although he had legal rights and was entitled to dignified treatment, lacked the ties to this country that would make him fit for citizenship. And as he points out, the Civil Rights act explicitly said this. Representative Bingham described the Civil Rights act as simply declaratory of pre existing law, which required that a citizen be both born and domiciled in the United States. And when he says Wong Kim Ark, the point that he makes on Wong Kim Ark, which ruled that essentially a child of Chinese laborers here in the United States was a citizen, he says that's because the parents were effectively domiciled here. Why? Well, because it turns out that in America, if you were a Chinese citizen, you could not get citizenship at the time because of the Chinese Exclusion act of 1882. So let's say you were a Chinese immigrant. You couldn't renounce your citizenship at home because if you went back home, they would behead you if you did that. And also you couldn't get citizenship in the United States. So essentially you were kind of stateless, but you were domiciled in the United States. That's what Thomas says. He says that case, Wong Kim Ark, concerned only persons already domiciled in the United States. And then he points out that again, forever and always the phrase subject to the jurisdiction meant always what it said, complete jurisdiction. And then he rips into the Court. He says the Court's account makes no sense. First, he says the post ratification evidence against the Court's view begins not nearly two decades after the 14th Amendment's ratification, but immediately, well before the Court had any explanation for a departure from its view. All three branches of the federal government had already rejected this birthright citizenship view. He points out that there are lots of other indicators of original public meaning supporting the domicile requirement. He said, first, if the Court were right about birthright citizenship, then there would have been a huge increase in dual nationality, which nobody would have accepted in the 19th century. Second, domicile rules, meaning citizenship on a national level, mirrored state citizenship. You are a citizen of the state in which you are domiciled here in the United States, and domicile means you call it home. And then third, the domicile rule would make the citizenship clause accord with America's treatment of its own domiciliaries abroad. Again, America itself has long taken the position that children of American citizens born on temporary visits abroad are still American citizens. How could that be? Why aren't we, if you're born in France, why aren't you a French citizen if you're an American? And the answer is because you are still domiciled here in the United States. So again, that is the, that is the Thomas dissent, which I think is dispositive. It is very clearly correct. Justice Alito follows hard on all of that. He has his own dissent in which he points out that basically the Court, what they're really doing here is they don't want to take up the real problem here, which is illegal immigration, because what they're afraid of, the Court, is that if they would rule that birthright citizenship is not in fact, the way, you'd end up with millions of people in limbo. But Alito says in his dissent that that is not a reason to leave bad law in place and make the law worse in the process. We'll get to that in just one second. First, as you know, America turns to 50. This Fourth of July daily Wire is celebrating with the best deal we have ever offered. Three months of daily wire plus for 17 bucks 76 cents. 1776. You get it? Like the year we're not being truly subtle about any of this. That means full access to all the Daily Shows editorial articles, our documentary and entertainment library, plus a ton of American history content we have coming in July. All that for less than six bucks. A month. The math on that is pretty embarrassing. I'm going to have to call marketing. Not not a fan of this. Look, if you've been sitting on the fence about Daily Wire plus the fence is gone. Now would be the time. Head on over to dailywire plus.com sign up right now. Happy 4th to everybody. Okay, back to this Alito dissent. So Alito joins in and he is just raging mad. Alito points out in his dissent, this is one of the most important decisions in the history of the Court and in my judgment, the Court has made a serious mistake. As interpreted by the court today, the 14th amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of birth tourists, women who come here solely for the purpose of giving birth to a child and and then promptly return home. Careful analysis of the text of the 14th Amendment and the process that led to its adoption shows it does not degrade the concept of the United States citizenship in this way. Instead, the 14th Amendment confers citizenship on only those children who at birth owe allegiance solely to this country. He says the original meaning of the 14th Amendment does not require inhumane results. Congress, in other words, should solve the problem. If you don't like the way that citizenship is done, Congress should can add additional citizenship capability. It could amnesty the dreamers, for example. Congress can do lots of things. The Constitution doesn't decide sort of the minimum standard or the max. The Constitution doesn't say who may get in. It says who must get in. Okay, so when it comes to May, Congress can step in, Alito says, before saddling the nation with a medieval rule, we had better be certain the Constitution requires it. The Court's account of the birthright citizenship rule in American law is roughly as follows. After American independence, the British rule of birthright subjecthood was modified in just one way to take accounts of Indians, but otherwise the rule was transplanted intact to American soil. As modified, the rule is that a child born in this country is automatically an American citizen unless the child is born to tribal Indians or to a diplomat with immunity from legal process. During the period before the Civil War, the rule's status was firm. After the war conviction Congress codified the rule in Section 1 of the 14th Amendment. And in United States versus Wong Kim Ark, this court issued a binding precedent confirming what Congress had done. Alito says, quote, every step of this story is incorrect. The Declaration of Independence repudiated the foundation on which the British rule was based. From 1776 until the eve of the Civil War, the status of the rule in this country was unsettled. There is no evidence establishing that the Constitution's references to citizens incorporated the British rule. And again, he goes along, you know, he goes on and on in this way. Again, very convincing dissent here. And he says, in the end, as a result of the events of the past 50 years, the United States now has a huge contingent of people who enter to remain in this country illegally, as well as a large group of people who are born here. To such parents, the Court's interpretation of the 14th amendment makes all the members of this latter group citizens. Many of those who have grown up here now have a strong moral claim to be allowed to remain. But that is a matter that the 14th amendment, when properly interpreted, leaves to Congress. So he's saying to Roberts, listen, I understand that you are trying to evade responsibility for what's going on with dreamers and such by basically saying that anyone who's born in the United States has to stay here, but that is not what the Constitution mandates. So again, it's a terribly decided case here. From Chief Justice Roberts and the rest of the liberals on the court. There's sort of a concurrence in part dissent, in part from Justice Kavanaugh. He says that the, that the 14th Amendment does not require birthright citizenship, but that there is a law, a federal statute that sort of does and you can amend that law. Bottom line, though, is this, as always and forever, the outcome of this, the Congress and the presidency must, must, must handle their business on immigration. It just makes the immigration issue that much more pressing. That's all that has to happen here. Because for the foreseeable future, birthright citizenship will be the law of the land. Okay, I want to take a step back for just one second and talk about another case that got decided a couple of weeks ago before I get to the other ones decided today, because this case, I've been getting tons and tons of mail about and lots of mail about this case regarding Monsanto. So this segment is sponsored by our friends over at Balance of Nature. By the way, Monsanto vs. Durnel was a 7, 2 case in favor of Monsanto. So basically, in this case, Monsanto is the producer of Roundup. A lot of people are very, very upset about Roundup, including my wife. By the way, Roundup is scary. And glycophosphates are definitely questionable. The evidence, shall we say, is very, very mixed. So the EPA ruled in 1974 that Roundup, another glyphophosphate based pesticides, do not actually need to carry a Cancer warning. But in Europe, there are lots of countries that ban Roundup or restrict roundup. In 2015, the international agency for Research on Cancer classified glyphosate as possibly carcinogenic to humans based on evidence of cancer in humans. Largely what people have been worried about is particular forms of cancer like non Hodgkin's lymphoma. More than a hundred thousand plaintiffs have filed cases against Roundup. In 2017, there was a lawsuit that uncovered emails from Monsanto suggesting the company had actually helped to go strike a scientific paper that ended up being sort of the basis for the EPA approval and then was retracted. In 2020, the EPA again announced that there were no risks of concerns of human health when glyphosate was used in accordance with its current label. But then the EPA withdrew those findings and said it would revisit the claims. Okay, so again, a lot of people are worried about Roundup. We live near a golf course. One of the ways that you regrass a golf course, you kill all the current grass and you use Roundup Unmasked to do that, like huge quantity, elephantine quantities of it. So a lot of people are deeply worried about this. So in this case, what happened is that somebody at the state level sued Roundup based on lack of warning on the warning label, saying that the warning label should have included some sort of cancer warning. And Roundup, its parent company, Monsanto, defended by saying, well, we have an EPA mandated label and that EPA mandated label does not include a cancer warning. So you can't tell us at a state level we have to include something that the EPA says we don't have to include. That really is the question. So it is not a question about the safety of, of Roundup. The question of the safety of Roundup is a question for the EPA. And if you have IER, you really should direct it at the EPA. Basically what this case found 7 to 2, is that federal law gives the power to the EPA to regulate the warning labels on products. And you cannot force every federal warning label to then be superseded by a state warning label or you destroy entire industries. That's basically the idea. So this decision was written by Justice Kavanaugh and he said, as relevant here, EPA regulates Roundup, a glyphosate based pesticide manufactured by Monsanto, because EPA has repeatedly concluded that glyphosate is not likely to cause cancer. The agency has not required a cancer warning on Roundup's label. The law expressly preempts state claims because it says that the warning labels are to be done at the federal level, essentially. Now, the dissent written by Ketanji Brown Jackson and joined by Justice Gorsuch. Actually, it's kind of a weird pairing there. They basically say that the EPA approval is not the entire requirement. You should still be able to sue based on state claims that there is no preemption and that the actual solution would be for Monsanto to stop sales of Roundup entirely. Okay, but bottom line here is I'm not sure this, this decision is wrong by the Supreme Court. However, I think that people's worries about glyphosate are. Are quite right. And by the way, it doesn't remove all causes of actual lawsuit. Right. Insufficient warning is not. You'd have to show more causality. Insufficient warning would not be the only basis for a tort lawsuit in this particular case. But the bottom line is that the court essentially ruled on the basis of legal preemption, not on whether Roundup is safe or not. That is a question for the epa. Now, listen, we. We don't have control of our environment. We worry a lot about the stuff that's in the environment. Again, my wife deeply worried about things like Roundup, but you actually should worry a lot more about the stuff that you actually put in your body. 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So it goes right back to Congress and the presidents who actually enforce immigration law. Good luck there. All right, two other major decisions coming down from the Supreme Court today. One is titled West Virginia vs. BPJ. This is a decision about whether states can legally ban, quote, unquote, trans athletes like a boy who thinks he's a girl from participating with girls in sports under Title 9. And whether Title 9 is violated by saying, by the way, totally incoherent. Title nine says there should be women's sports and men's sports. The lawsuit was, can a boy who claims to be a girl claim discrimination as a girl for not being allowed to play with the girls. Okay, so There are basically two questions in this decision. One is whether Title 9 allows there to be women's and girls sports for biological females. The answer, of course, is that's what it was designed for. And then question two is, does it violate the equal protection clause to say that boys and Girls should play separately. The answer, of course, is no. That's incredibly stupid. But what's hilarious is that the Court has to go through all of these pretzel interpretations. Justice Thomas has always the best Justice. Justice Thomas goes straight to the heart of the matter. He goes like, there's this thing, it's called a boy, and there's this thing, it's called a girl. And they are not the same thing. And of course, boys and girls are different. And you can draw legal distinctions between categories based on reality. And sure, there might be exceptions, people who aren't intersex, or people who have blocked puberty, which means that the effect of their puberty not as great as it normally would be on a boy. But that doesn't mean that you can invalidate entire swaths of law based on lone exceptions to a sort of utilitarian rule. That's stupid. If the law is good that boys and girls are different, then a boy who says he is a girl remains a boy. That is Justice Thomas's position. That is not the majority opinion. The 6:3 majority opinion basically tries to, I don't know, tiptoe its way through choppy waters here. To mix a metaphor, Justice Kavanaugh writes the majority opinion. He says the question is whether Title IX permits schools to maintain women's and girls sports for biological females. The answer is yes. Title 9 prohibits discrimination on the basis of sex. Title 9's implementing regulations expressly permit schools to maintain separate teams for members of each sex. The term sex in the 1972 Title IX statute and the 1974 Javits Amendment and the 1975 Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex. The ordinary meaning of the term sex at the time of enactment was biological sex and not gender identity, particularly in the sports context. Now, at this point, we should point out it always means sex. What the hell are you talking about? Why are we pretending that the meaning of the term sex changed over time? It didn't. This is dumb. In addition, the Title IX regulations allowed separate sports teams precisely because of the biological differences between the sexes, namely the inherent physical differences between biological women and biological men. And he says, of course, duh. Separate sports teams for biological males and biological females are reasonable. Title seven. Okay, so then. Then there is a question that's raised by the plaintiffs, and that question is, there is a case that you'll remember written by Justice Gorsuch. A bad case. I like Justice Gorsuch a lot. This is a terrible case. The Bostock case which essentially said that the. That the Civil Rights act mandated that transgender women be protected by non discrimination law in some way. So if a. If a man comes into your office, having applied for a lawyer's position, then walks in the next day in a dress, you're not allowed to fire him because that'd be a Violation of Title 7 Discrimination on the basis of sex, which is incredibly silly. Bostock is an income is an incomprehensibly bad decision in my opinion. In any case, the court here says no, no. Title seven is about employment. Title nine focuses on sports. They say the two factual contexts are vastly different. In the workplace, Title VII generally requires that men and women be treated without regard to sex. In the sports context, Title 9 authorizes separate men's and women's sports teams. Why? Well, because men and women are different. By the way, we should point that that is also true in a wide variety of employment contexts. I'm not even sure. How would you enforce the Bostock decision, Title 7 with regard to, say, working at Hooters? How would that work? Can a man walk in and be like, this is sex discrimination. You won't hire me at Hooters. How does that. In any case, the court finds, quote, not every biological male athlete is bigger, stronger, faster, or otherwise more athletically able than every biological female athlete. Some percentage of biological males who identify as male possess physical and athletic capabilities that fall within the range of typical female and athletic capabilities. But the plaintiffs acknowledge that states may still exclude those biological males from women's and girls sports, given general physical differences between males and females. The equal protection clause does not prohibit the states from applying that same principle to all biological males, including those who identify as females. Now, Justice Thomas says the quiet part out loud. He's like, what are we even talking about here? What the hell are you talking about? Why are we talking about whether you had hormone treatments or surgery? And this makes you more similar to a woman in terms of sports performance? Like, what the hell? Thomas says, first, transgender status is not a suspect class requiring heightened equal protection scrutiny. The class of people who claim transgender status could more accurately be described as people who are experiencing gender dysphoria that is not a discrete group, because gender dysphoria is a mutable mental state that is the object of psychiatric treatment. It does not resemble the immutable characteristics on the basis of which our precedents have applied heightened scrutiny. Race, sex, or national origin. Right. So he's saying, like, what. What are you. What are you talking about? Basically, like, we're Supposed to pretend that you are part of a protected class that requires heightened scrutiny. So in the law, there are a bunch of weird rules the Supreme Court made up that are nowhere in the Constitution that talk about heightened scrutiny, intermediate scrutiny, or rational basis scrutiny. Basically, should you look hard at a law, super hard at a law, or super duper hard at a law to determine whether it ought to uphold your standards? And what he's like is like, we don't have to look very hard at these laws because there is no protected class that is somehow being targeted here. This is men and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable biological characteristic. It is binary. Man, woman, boy, and girl are terms that correspond to adults and children of each sex. To use language to obscure reality, to show indifference regarding the truth is to lie to the public and cease to treat our fellow citizens as equals. Well, yes, And Justice Sotomayor was very ticked about this decision. She read part of her dissent from the bench, which is a sign that you're really mad. And what she says here is that basically she has sympathy for the boy who thinks that he is a girl. Quote, her sex was identified as male at birth, but she has known from the time she was very little that she is a girl boy. And then she basically comes up with the idea that if a state includes a discrete subclass as an in an over broad classification, when exempting them would not unnecessarily jeopardize the government interest the state wishes to further that can show that the state's choice to use the classification is not actually in service of those interests, but rests on discriminatory generalization. So she's saying that you're discriminating against trans people because you could have a subclass of trans people who are allowed to play, but you're not allowing it to happen. And Thomas is like, that's not a discrimination. That's not a class. Transgender is not a class. Those are men who have a mental condition, which obviously is true. Justice Ketanji Brown Jackson. Same kind of thing. She dissents to. She says Title 9 makes room for individuals to live in the gender they choose. It cares not just about sex assigned at birth, but also the individual's ability to match or not their gender presentation to their gender identity. Again, this is just incompetent and incoherent. How do you have separate leagues for men and women when you can't define man and you can't define women? So in Any. So the court got this one right. The court totally blows the huge decision today, which is the birthright citizenship case. Totally blows it. Then you have the transgenders in sports case. The court gets that right, but only six, three, demonstrating once again that President Trump being president changed the timeline of American history when it came to the law. And then finally we have a third major decision coming down from the Supreme Court having to do with campaign finance. So basically the question here is whether there can be limits on campaign contributions to parties, those contributions being used to coordinate with candidate contributions. So the Federal Election Campaign act limits a political party's campaign spending is a 6, 3 decision that basically frees up campaign finance some more. Justice Kavanaugh writing for the court, the Federal Election Campaign act limits a political party's campaign spending. Those spending limits necessarily abridged political parties freedom of speech, okay, under the First Amendment. And so that's a problem. But you can sometimes allow it fa, which is the name of that law, the Federal Elections Campaign act limits a political party's coordinated expenditures. What are, what are coordinated expenditures? It means that if you're the Republican Party, you are only allowed to spend a certain amount of money where you are coordinating with say a Republican representatives candidacy. So Republican candidate Ted Cruz is running for office, okay? And you have received money as the National Republican Senatorial Committee. How can you coordinate with the campaign to make sure that you're essentially not spending money in the same places? So the law prevents a lot of this coordination. The primary current justification for those limits is to prevent what's called circumvention, that is to prevent a donor from from circumventing the statutory limit on contributions to candidates by making a huge contribution to a party the party then uses to support a particular candidate. So under federal law, you are limited in how much you can give directly to Ted Cruz. So instead the idea is give the money to the Republican Party. The Republican Party and Cruz will coordinate. So if you give half a million bucks to the Republican Party and then you give seven grand to Ted Cruz, it's essentially the same as giving 500 grand to Ted Cruz. And so the law wanted to stop that. So says the court, the question here concerns fika's limits on spending by political parties in coordination for candidates. For example, a political party may spend money to produce and place a television advertisement in support of a candidate after consulting with the candidate's campaign about the content, timing or placement of the advertise of the advertisement. So traditionally, parties and candidates obviously coordinated for 200 years. This was totally fine. So here they say you're allowed to do it again, basically of like, duh, this is stupid. That stupid sort of Chinese wall existing between a candidate and the party so that you're duplicating efforts is inefficient and silly. The First Amendment question in this case says the court ultimately boils down to whether limits on political party coordinated expenditures are permissible in order to prevent circumvention of the base. Limits on contributions to candidates via large contributions to parties that are earmarked directly to a candidate, because you're not supposed to earmark. So you're not supposed to give to the Republican Party and say, this 500 grand is for Cruz's campaign. And they say, well, that's already illegal, so you can't earmark. And so what are we even talking about here? Now, again, were it, I, I would just eliminate all of these laws. I think these laws are ridiculous. I think campaign finance regulations are incredibly stupid. I think the people find ways around them all the time. And all of the people who spend their days yelling and screaming about campaign finance and gigantic spending are perfectly happy when it's public sector unions dumping a billion dollars into an election cycle, or when it is George and Alex Soros, or when it's Neville Roy Singham or whomever else. It's just nonsense. And by the way, the very premise, which is that if you limit money in politics, you limit corruption in politics, is not true. It turns out money in politics and corruption in politics, they go all the way back and they will never be eliminated. And also, you supporting a candidate by giving money to a super PAC does not mean you are bribing the candidate. It means you are supporting a candidate who agrees with you. If you want to show evidence of bribery, you have to show somebody changing their position because they wanted the cash, is always the question. I would love to ask Bernie Sanders how much. How much would it cost for me to buy Bernie Sanders? He says, like, money corrupts in politics. So how much money would I have to spend on Bernie in order to get him to endorse capitalism? Is there amount? Okay, so bottom line is those were the three big cases that came out today. Are you one of those media strategy people clicking through slides, scrolling spreadsheets?
- [50:17]
Ilya Shapiro
Yes.
- [50:18]
Ben Shapiro
Good. This is for you. Because on Spotify, there's an audience that's different. Locked in, loyal, invested. They're called fans. Fans don't just listen to music. They feel seen by it like it belongs to them. So when your brand shows up on Spotify that's who you're talking to. And you're right next to artists like me, Lizzo. So are you ready to talk to fans? Spotify advertising, you're among fans. And of course, that follows hard on a few major cases that came out yesterday. There's a case that came out yesterday dealing with the question of mail in ballots and when they can be counted. If a mail in ballot arrives after the actual election day, can it still be counted? The court found yes. Now, President Trump used this as impetus to say that we should pass the SAVE act, which would limit all of this. Now, again, he is right. The SAVE act should pass. As I pointed out before, the question here really is not about the late counting of ballots. I understand that there's a lot of worries about late counting of ballots providing an open window for election fraud. I promise you, if it's early counting of ballots, you're worried about, most of the election fraud, if it is taking place, is taking place on the basis of ballot harvesting. It's not that the people counting the votes on the other end are cheating. It is that the people who are gathering the ballots together and then sending them in or bringing them to an officer. Ballot harvesting is the single worst thing. And that's the thing that honestly, we should really concern ourselves with. It seems to me. President Trump, of course, remains very concerned about this. He said yesterday that all of this gives people more time to vote illegally, which, again, I'm not sure that that is technically the case. Well, because of the mail in ballot ruling, which was a little bit surprising. Gives people more time to vote illegally, let's say. Okay. So again, you know, I don't think this is the biggest issue that people ought to be worried about, but I certainly understand the consternation and concern that is quite real, obviously. Okay. Other big decision that came down yesterday was a decision that basically gave the President plenary power to fire people in the executive branch. So there was a case that was called Humphreys Executor versus United States that was decided some decades ago that essentially said that there can be limitations placed on who the President can fire at various executive branch agencies. This case said, no, enough of that. That's nonsense. The case commented, quote, independent agencies today hold tremendous sway over the nation's affairs. They regulate our businesses and our financial markets. They set the rules for Internet and airwaves. They decide how we light our homes, how we run our elections, the manner of our employment. They determine what toys our children will play with, how we interact with each other at work. And as the dissent explains it, so much more, he says basically that the, the goal here is to allow the, the President to actually run the executive branch. Right. That is what this is about. It's about running the executive branch. The theory of the unitary executive that originally started as a dissent position from Justice Scalia has now become the law. And the idea here is that if you are in the executive branch, you work for the President. The President can fire you at his, at his, at his pleasure. Justice Roberts delivered the opinion of the court. The other conservatives on the court joined. The only people who voted against were the left of the court. And again, the basic idea here is that protection from removal is contrary to the separation of powers enshrined in the Constitution. So the President gets to fire people who work for the Executive branch. You would think that that would go without saying, but it absolutely does not. Now, the President said yesterday, and he is correct, that this gives a President the right to do what he should.
- [54:09]
Ilya Shapiro
The Supreme Court just affirmed your right
- [54:11]
Ben Shapiro
to fire the heads of independent agencies.
- [54:13]
Justice Neil Gorsuch
Should we expect more firings as a
- [54:15]
Ben Shapiro
result of this rule? I don't think so. It gives me the right and not me. It gives a President the right to do what the President should have the right to do. And it's very interesting. It's a big ruling. It's been going on for almost 100 years. Years. They've been working on this. And you know that it comes down at my term is a very great honor. But it bestows additional powers or maybe the same power on the President. The President has the right to do this. Yeah, he is right about that. And of course this is correct. This is the. You don't want an unelected fourth branch of government that is unanswerable to anyone. It's not answerable to the President. It's not answerable to Congress. It's answerable to nobody. You don't want that. It's bad. It is wrong. It is the basis of Wilsonian power grab that began in the early 20th century. Okay. Then there was another case. And again, these cases, it is impossible to read these cases in tandem and figure that they are in fact in any way cohesive or that they make sense. Again, this is part of the problem with any sort of judiciary set of decisions is that you end up with people on different sides of the cases who ought to be on the same side and you end up with people switching their mind. So another case that came down yesterday was about the firing of Lisa Cook at the Federal Reserve So this case was also written by Justice Roberts. In this case he says you can't fire somebody from the Federal Reserve, which is weird. So he says you can fire somebody from the Federal Trade Commission, but you can't fire someone from the Federal Reserve. And he was joined in that decision by Justice Kavanaugh, which again is super weird. Justice Thomas is like, this makes no sense. What the hell are you talking about? Again, Justice Thomas is perfectly consistent. So in this particular case, Justice Roberts basically said the Federal Reserve is not like the Federal Trade Commission because the Federal Reserve does non political policy. Ok, that, that is a distinction that is not going to hold. To pretend the Federal Reserve is not a political body is really silly. But he says, quote, the Federal Reserve operates at a deliberate remove from the ordinary political process, including a budget free of congressional control and policies set not only by governors but also by representatives of the private regional banks. The fact of independence is the appearance of independent and the appearance of independence are key to the Federal Reserve's design. Justice Thomas is like, nah, like what are you talking about? He said limits on the President's ability to remove executive office officers are unconstitutional. Today's decision is an unprecedented incursion on the executive branch. Neither the parties nor the court can point to a single time in American history that this court has upheld an injunction against the President's removal of an executive office officer. In the 237 year history of our Constitution Constitution, this court has by all accounts never done so. So again, the, the idea that, that you can prevent the President from firing people, that is, that is a, that is a weird take by the Supreme Court. So again, incoherent. Yes, the President can fire everybody except for people at the Federal Reserve. I'm not sure that that dog is going to hunt. The President then put out a statement on Truth Social. He said the Cook lawsuit having to do with her suitability in sitting on the board of the Federal Reserve was sent back by the Supreme Court on a strictly procedural basis. We will take appropriate action immediately to make sure someone who has committed wrongdoing will not be making vital decisions. What he's saying is I will fire her for cause. They're saying that my, my cause determination was not proper. But don't worry, I'll find cause and then I'll fire her. That's basically what he is saying. Okay, so again, bottom line, this is a very, very mixed bag of decisions over the course of the last couple of weeks and particularly in the last few days. You have one decision that maximizes executive power and fire anybody and one that minimizes executive power. With regard to the Federal Reserve, you have one decision that says that laws that say boys and girls can play separate sports, that this is appropriate. And then you have another decision that says that by definition, if you're born in the United States, even if you're here for five minutes and your parents are Chinese citizens, then you are magically a citizen of the United States. And then you have a decision on campaign finance reform that leans more to the right. Now, again, this is why I try to avoid, I think if you hear dumb legal analysis, dumb legal analysis doesn't look at the arguments. It just looks of the identities of the justices who are ruling on particular issues. Now, I think that to be fair, you can usually do that with the members of the left of the court. The members of the left of the court are incredibly consistent in how they interpret the Constitution. The answer is they don't. They do not bother interpreting the Constitution. They're mostly concerned with just ensuring that their political point of view holds sway. But one of the reasons to read the decisions is to look at the actual logic that is utilized. So you will see Justice Roberts on the right side of the FTC decision, but the wrong side of the Federal Reserve decision. You'll see him on the right side of the trans decision, but the wrong side of the birthright citizenship decision and the kind of varying points of view that are brought to bear by the courts. That's not a terrible thing. Very often that's a good thing. You won independent judiciary. What it does mean is that Congress should have done its damned job. Congress has particularly to get back to the birthright citizenship. Congress should have done its job. Should have done its job. Congress has not done its job. The presidents have not done their job. The presidents have abdicated. They've decided that they just are going to allow this thing to percolate for years and years. And Trump is the first president in my lifetime who actually said he was going to stop it. And now I want to take a quick pause in the actual news of the day and go to Justice Neil Gorsuch, who actually has a brand new book coming out. Special guest on the show today. Joining us online is Justice Neil Gorsuch, obviously of the Supreme Court. He has a brand new book out, Heroes of 1776 the story of the Declaration of Independence. It is a children's book. Justice Gorsuch, thanks so much for taking the time. Really appreciate it.
- [60:05]
Justice Neil Gorsuch
Well, thank you. And happy 250th Ben.
- [60:07]
Ben Shapiro
Well, right back at you. So, you know, many people probably would not expect that your next book, after what was a pretty rigorous look at constitutional law and administrative law, would be a children's book about the Declaration of Independence. So what inspired you to do this?
- [60:21]
Justice Neil Gorsuch
Well, in some ways, me neither, Ben. But, you know, we're celebrating the 250th this year, and I know we're gonna have a lot of fireworks and it's gonna be a lot of fun, but it just struck me and my wonderful co author, Janie Nitza that perhaps we should take a moment to. To reflect on the Declaration itself, as you say, the most important document in American history, what's really in it, and the courage and the sacrifice of the people behind it. And I think there's a lot that the pages of history hold for us, if we're willing to open them and learn from them.
- [60:54]
Ben Shapiro
Well, justice, one of the things that you're focusing on here, you're not just focusing on the content, obviously, of the Declaration, but the heroes behind it. That's the inspiration for the book that obviously gets you into weirdly contentious territory. Now, when I was growing up, this was not contentious at all, that the people who wrote the Declaration were heroes who are risking their lives, fortunes, and sacred honor, as they literally say in the Declaration. That's obviously become sort of a controversial proposition. What do you. What do you think that particularly young people need to know about the people who wrote the Declaration and the kinds of sacrifices they were willing to make?
- [61:24]
Justice Neil Gorsuch
Well, first of all, they need to know why they were doing it. Right. And there are three big ideas in the Declaration. One, that each and every one of us is equal. Two, that all of us have inalienable rights given to us by God, not by government. And three, that the people have the right and the capacity to rule themselves wisely. And those were incredibly radical ideas at the time. Yes, political theorists had talked about them. Yes, England was struggling toward them, but those were really ideas that were completely at odds with the social and political order of Europe and the world and every democracy that had come before it failed. And yet here were these brave men, women and children who were willing to give it a go. And those individuals are incredible individuals, some of whom we know. Right. The amazing stories of Jefferson and Adams, though they disagreed on so much, came together during the Declaration and work together. And then people you don't know, like Caesar Rodney with cancer riding through the middle of the night to break a tie. You got to remember, this is a close run thing. There was nothing Inevitable about the Declaration, you had to break a tie by riding through the night in a thunderstorm. Or women and children who also contributed to it, like Emily Geiger, an 18 year old spy who we talk about in the book, who was essential in delivering a message during the Revolutionary War. They sacrificed tremendously. That last line of the Declaration pen you were talking about. When they signed the Declaration, they knew it was an act of treason, that they were subject to being hung for what they did. And they were hunted men. About a third of them lost their homes, they were burned. Many of them had children who were captured. Some of them were too. And many, many of them gave their fortunes to the cause. We talk about Thomas Nelson in the book, who died so poor that they, they buried him in an unmarked grave because his creditors threatened to bear to dig him up and use his body as collateral. Think about that and his deathbed. They had people asked him, do you have any regrets? And he said, I do it all over again. And there are, there are tales of virtue in those people that have something to teach us today. I know we look back at the framers sometimes and think, oh, what they didn't know. They didn't know our present world, but they did know a lot about humanity, human nature, and the virtues required to sustain a republic. And I think we, it would do us all well to spend a moment with them during this year.
- [64:00]
Ben Shapiro
I think one of the things that's really interesting about what you're talking about is the fact that the virtues of the, of the people who wrote the Declaration is the silent backdrop to the Declaration. One of the things that separates the American Revolution from, say, the French Revolution is not the aspirational tone. The French Revolution was also quite aspirational in tone, talking about the rights of every human being and universal declarations of rights and all the rest of this. But the Declaration of Independence was built atop a foundation of Anglo American virtue and common law that made the Declaration practicable and also made possible the emergence of the Constitution.
- [64:35]
Justice Neil Gorsuch
I completely agree with that. But these are virtues that all of us, anyone can admire and aspire to. I mean, think about George Washington. He led a successful revolution against incredible odds and then laid down his sword and retired. He could have become a dictator easily, and he may have been the first successful leader of a revolution anywhere to walk away. And then they elected him president many years later and after two terms, setting a precedent that stands to this day. With one exception, he did the same thing. Those kinds of virtues are things that each of us can think about and reflect on for our own lives. And those are the kinds of virtues that are essential, I think, if this crazy American experiment is to continue.
- [65:26]
Ben Shapiro
So one of the things that you mentioned right at the top of the interview here is, is that people need to understand why the Founders did what they did, what they were rebelling against. And it is sort of an oddity when you look back historically at the grievances that the Founders were sounding off on the supposed government overreach. And then we look at the nature of American government now, which is, you know, in many nooks and crannies of our daily life. And we think to ourselves, okay, what would the Founders think about the nature of the expansion of American government and how large and intrusive American government has grown, obviously overstretching its boundaries in an awful lot of ways. What do you think was sort of the key component for the Founders and for the heroes of 1776 in determining that it was time to break away from the mother country? Because it wasn't just tax rates.
- [66:08]
Justice Neil Gorsuch
No, it wasn't just tax rates. It included the denial of the right to trial by jury. That was very important to them. It included things like quartering troops in their homes. It included things like duly enacted laws by colonial legislatures. Navigation not getting the ascent of Parliament. It was things like not being able to be represented in Parliament. All of those ideas were in the pot, but they really, in my mind, boil down to those three big ideas that were all equal. That there are no serfs, there are no lords, that each of us has inalienable rights. They're not things that government can give us or government can take away from us. They belong to us. And that most, maybe craziest idea of all, that people can rule themselves wisely. I know people look around today and say, oh, the world is difficult, Our country is facing troubles, and democracy in the world is a messy business. But I look at young people today, and I see the luckiest people to have ever lived in any part of human history and in any nation in human history ever. And it's not a perfect union. Union. Nobody promised you a perfect union. But what they did give you, what the Founders did give us, is an opportunity to work toward one centered around three perfect ideas that I don't think any governmental system or any political theorist has ever improved upon, nor do I believe they can.
- [67:33]
Ben Shapiro
One of the things that I think is important about this, obviously it is a children's book. It is not meant for adults. And so the question that's kind of Obvious here is what gap do you think you're attempting to fill here? Because obviously you wouldn't write the book unless you saw a need, unless you saw a rationale. I assume that you're pretty busy in your day job being a justice on the Supreme Court. And so writing children's books is definitely a sort of different approach. What is the gap that you see that you needed to fill here?
- [67:58]
Justice Neil Gorsuch
Well, my dear friend Janie has listened to me complain about the state of civic education in this country for a long time. And it's something that both Washington and Jefferson talk talked about that because we are a nation founded around those three ideas and open to all who want to participate in it. That's very different than a society based on race or religion. The pluralistic idea of our country is radical and it doesn't get passed on by DNA. It has to be relearned by each generation and each generation has to commit to to it. And so I'm distressed when I read things like 13% of 8th graders are proficient in American history at grade level. That makes me worry. And so I wanted to find a way to engage kids. And I think American history is rip roaring fascinating, full of people that any one of us can find a hero and a mentor in and maybe learn some lessons about what not to do. You do. And there are so many stories in our founding like that again about men, women and children that maybe you don't know about. Mary Catherine Goddard is one, for example. Ben the Continental Congress turned to her to publish the first declaration with the signatures of all, with the names of all of the signers on it for publication. Up to that point, people didn't know the names. They knew who they were, but they weren't on the document. And you can understand why you might not want your name to be out in public associated with this document. But it was time they decided and so they turned to her. She was a patriot publisher in Baltimore. Why Baltimore? Because Congress had been run out of Philadelphia by the British who were overtaking the town at the time. Things are very precarious. She had always published pamphlets under her with the name M.K. goddard, printed by M.K. goddard at the bottom. But when it came time for the Declaration, she put her whole name down, marking herself as a traitor too, and a patriot to the core. And I just think there are inspirational stories like that in our history that each of us can learn from and start to develop and think about those virtues. So I hope to engage little ones. But also maybe CS Lewis said a good kids book is one where the parents learn something too. So I hope the book accomplishes that.
- [70:28]
Ben Shapiro
Well, the book is Heroes of 1776, the story of the Declaration of Independence. Justice Neil Gorsuch taking some time off from deciding things that affect the fate of the country to actually affect the fate of a country in a different way. Justice Gorsuch, really appreciate the time. Thanks so much. And happy 250th you too. This episode is brought to you by Palmolive. Family time isn't just the big moments. It's weeknight dinners, sitting around the table, everyone talking all at once. So when the plates are empty and the sink is full, use Palmolive Ultra. Palmolive's most powerful formula removes up to 99.9% of grease, leaving your dishes sparkling clean. And the new convenient pump makes cleaning even easier so you can spend less time tackling dishes and more time together. Shop now@palmolive.com Alrighty. Well, now joining us online to discuss this wide spate of rulings, including this massive ruling on birthright citizenship, is Ilya Shapiro. He is Senior Fellow and Director of Constitutional Studies at Manhattan Institute. Ilya, thanks so much for taking the time. Really appreciate it.
- [71:30]
Ilya Shapiro
Great for with being with you. I'm still digesting these copious, important rulings this morning.
- [71:37]
Ben Shapiro
Yeah. So why don't we start with the one that obviously is making all the headlines? That, of course, is the birthright citizenship case. I would have been honestly a little shocked if they had overruled birthright citizenship, considering how sort of deeply embedded it's become in the consciousness of Americans. It would have meant that literally millions of people who consider themselves to be Americans and whom the law has treated as Americans for decades would have had their citizenship essentially stripped. So I'm not surprised that the court ruled this way. I'm also not surprised that Chief Justice Roberts did an enormous number of backflips, pretzels, and kickstands in order to ensure that he got to this goal. Justice Roberts has always been this type of justice. It's why I opposed him back in 2005. I may have been the only conservative columnist in America who opposed him back in 2005, pointing out that he would be precisely what he then became, the author of the Obamacare decision. Not a shock here from Chief Justice Roberts. With that said, what is the impact going forward? What can Congress do? Doesn't this basically just underscore that when it comes to you can't do anything about the people who are now considered citizens by the Constitution under the Supreme Court decision. But it does underscore that Congress and the president, over and over and over, not this president, but many presidents have failed in their fundamental duty to ensure that people don't take advantage of our immigration system.
- [72:51]
Ilya Shapiro
I think that's right from a policy perspective. And I think this illustrates why trying to change birthright citizenship through an executive order might not have been the best strategy. Because the court took this out of Congress's bailiwick. They ruled on the constitutional ground that birthright citizenship is guaranteed by the Constitution. So you need a constitutional amendment, not just an act of Congress to change it. That actually surprised me. I was expecting a majority to be cobbled together, kind of an interwoven majority around Kavanaugh's decision saying that I don't know about the, about the constitutional issue. Kavanaugh actually does just say that he disagrees with the majority, but on the law. And the latest Amendment was in 1940. That's relevant. Congress sets out who can and can't be a citizen. And Congress can change that. I was expecting them to take that off ramp, which would have thrown this back into the political branches, but they didn't. And, and so at this point we can debate it, but the only way to change it would be through a constitutional amendment.
- [73:53]
Ben Shapiro
And you see that Justice Kavanaugh actually tried to take that off ramp. He tries to split the baby by basically saying the 14th Amendment does not mandate that birthright citizenship be a thing. But under current law, birthright citizenship is a thing. Congress could theoretically change it. That did not end up being the majority opinion. And so instead you end up with this 91 page Thomas dissent, which for Thomas is shocking cause usually Justice Thomas's dissents are somewhere in the 5 to 10 page range and concise and brief. And in this one he just went at it with a howitzer. He decided to just blow up the majority's opinion. I will say that having read all of the opinions this morning that Justice Thomas, I mean he full scale Fisks. The majority opinion. The majority opinion is deeply flawed. It has a sort of read on American history and American legal history that I think is unsustainable. The basic idea that America just imbibed from the British royal idea of subjects and then made that rule the rule for citizens. And then somehow that sort of went into abeyance for some 30 years between reconstruction and Wong Kim Ark. And then it sort of came back strong with Wong Kim Arc. It makes no legal sense to me. What did you make of the actual legal reasoning from Robertson Crew?
- [75:05]
Ilya Shapiro
Yeah, it Seems like a law office history version of Emma Lazarus poem on the base of Statue of Liberty. You know, it's a lot of. Look, it's a close question. I'm not here to say that the, you know, Thomas dissent, which I ultimately agree with, is, you know, it's a slam dunk. I was on the opposite side of this question before all the scholarship was being produced and highlighted over the last couple of years as this case was progressed. I mean, I didn't have strong views, legal views, one way or another really, but I think I was convinced by my colleague Elon Wurman, Josh Blackman, Randy Barnett, all these other folks that have come and taken a look at this, seriously, which Thomas quotes. And so Roberts's opinion, I mean, the best you can say about it is that it's not as bad as his opinion in the Obamacare case. But you're right, it is a lot
- [75:55]
Ben Shapiro
of
- [75:57]
Ilya Shapiro
unsubstantiated stuff that makes leaps in historical logic.
- [76:04]
Ben Shapiro
And there are two other decisions that came down today. One of them was on trans girls, meaning boys, who believe that they are girls competing against girls in sports. This is a 6:3 decision from the Supreme Court. The fact that it's even a close call is insane. Like, purely insane. The only opinion here that I thought was any good, frankly, was Justice Thomas's, who basically was like, what the hell are we doing here? Boys are boys, girls are girls. Why are we pretending that boys with gender dysphoria are girls or constitute a special protected class requiring heightened scrutiny under the Constitution or some such nonsense? All of that, it seems to me, was the wave for that forward. The sort of bad logic that the Court then had to evade was paved by the Bostock decision by Justice Gorsuch a few years back, claiming that somehow the Civil Rights act mandated that men who believe they are women are protected from gender discrimination in the office. So if you hire some dude and he turns up in a dress the next day claiming he's a lady, you can't do anything about it under Title vii. What did you make of the court's decision in the trans case today?
- [77:01]
Ilya Shapiro
Yeah, I did think that Thomas's opinion there was very strong. I liked it perhaps even more than his birthright citizenship opinion, but because it does call a spade a spade and says, look, we're not playing Orwellian games here. There are two genders. And yes, there are exceptions for people with multiple XXXY chromosomes and all of that sort of thing, but we have to live in the world of truth and reality. And that was very powerful. This was utterly predictable. Nothing was surprising about this based on how argument went. It's, you know, it's also not surprising that the justice who couldn't say what a woman was at her confirmation hearing. Justice Jackson was dissenting here, and Gorsuch took the time to explain and distinguish Bostock, which I think is distinguishable. I think Bostock was wrong for various reasons that we don't need to get into. But employment law is not, you know, the difference between men's and women's sports. Obviously, both men and women do the same, can do the same job in most workplaces, but on the sports field, that's a different consideration.
- [78:07]
Ben Shapiro
Yes. Although I will say that, you know, without getting back into Bostock, I really look forward to Justice Gorsuch again. I like him. He was just on the show. But I do look forward to his explanation of why it is gender discrimination for a man not to be hired at Hooters. That'll be an interesting, interesting explanation. But the. The other big case of the day was this campaign finance reform case. Frankly, I find these cases entirely bewildering. It makes no sense to me whatsoever that Congress is. Is able to, under the First Amendment, create this massive thicket of campaign finance law that has no relation whatsoever to the First Amendment. It seems bizarre to me that we have to now have these very complicated decisions about you can give $7,000 to a candidate, but if you give $500,000 to the Republican Party, they can't court coordinate too closely with the candidate. Or maybe they can, but you can't earmark the money for the candidate. You just have to give the money to the Republican Party and hope that it uses it for the candidate and then coordinates. All of this seems like a mess to me. It seems to me that the best position here would be to say that the First Amendment is designed to protect core political speech. Spending money in order to foment your opinion in an election is core political speech done? I would hope that that's the direction the court increasingly moves.
- [79:13]
Ilya Shapiro
Well, you would have enjoyed the brief that I filed together with Brad Smith, the former chairman of the Federal Election Commission, which makes that exact point, that the original sin here, it wasn't Colorado 2, this case that was overruled today, imposing this ban on coordination between candidates and parties. But Buckley v. Valeo itself, rewriting and then upholding in part, much of feca, which is great as that acronym, because we get to talk about fecal matter and things like that, but it's. Yeah, the rule had Become outmoded. That was over rule today. And the majority opinion pays tribute to Justice Thomas, who had been in dissent in that five to four decision, Colorado two, 25 years ago. He has finally been vindicated.
- [80:00]
Ben Shapiro
Okay, so finally, I want to get to one thing that happened yesterday. There are a couple of decisions. One, I think that's being blown out of proportion, and then two that seem in almost direct conflict to me. The one that's being blown out of proportion to me is this ruling that of people very upset about it from Amy Coney Barrett and company, basically saying that you can count ballots that are received after an election, even if they. If they're postmarked before an election. The. That, that. Honestly, reading that case, that seemed like a fairly close run legal interpretation to me. I could actually see both sides of that particular case. And I think a lot of the sort of concern about election fraud is being placed on the counting of the ballots, when actually it should be placed up front on the ballot harvesting issue, how the ballots are cast, how they're gathered and all the rest of it. What did you make of that decision?
- [80:42]
Ilya Shapiro
I thought that Barrett's opinion was right on the law, and that's a bad policy. I think Congress should change that law to tighten it up, especially to prevent, you know, Mississippi has five days, you can count it, to allow a little leeway for the ballot to arrive. California, who knows? I mean, they're still counting ballots from the, you know, Bush v. Gore 2000 election or something. It's ridiculous. And as you alluded to, there could be a separate, unrelated, related challenge to California's ballot harvesting and other provisions. That fraud aside, which is a legitimate concern, but they decrease public confidence in the integrity of elections, regardless of whether there is actual fraud. That public perception of the elections being fair and transparent is just as important. And having all of these kinds of this kind of uncertainty, counting after ballots without postmarks, all of this sort of stuff really should be reined in. And this, unlike birthright citizenship, is an area that Congress can step into and fix.
- [81:40]
Ben Shapiro
And then there were two other cases that came out yesterday having to deal with executive power. I have no idea how we square the circle. It makes zero sense to me. But you have the Supreme Court, in which Justice Roberts is writing both opinions. And one of them, apparently, the President can fire people from the ftc, but the president cannot fire somebody from the Federal Reserve because the Federal Reserve is super, super duper special in some way, whereas the FTC is basically gum on the bottom of his shoe. This makes zero Sense to me if they exist in the executive branch there is no fourth branch of government. I'm confused why we are pretending there's a fourth branch of government that applies to the Federal Reserve. Again I think that there are good policies and bad policies at the Federal Reserve. I think there's a case to be made that the Federal Reserve was a bad idea in the first place given its massive and outsized control over the American economy. With that said the, the attempt to distinguish one from the other saying the President can fire anyone in the executive branch for any reason except for the Federal Reserve where he can't touch anybody unless he shows cause. I found the, the logic of the court in distinguishing the two shall we say unpersuasive.
- [82:39]
Ilya Shapiro
Well just to be clear, he can't fire everybody meaning you know, the lowest level clerk and all that. This, this opinion applies to principal officers. So because the, the logic is the President has to be able to control the executive branch they have to do his bidding. If he can't control his staff then we do are creating this fourth or fifth branch of government. That, that totally makes sense. Humphreys executor the 90 year old case has been eroded and it was good that it was overturned. It sounds like what the Fed there's First of all I think Alito and dissent and Barrett noted that the court shouldn't even have gone there in deciding the Fed's independence. They should have back in the fall just stayed just granted or denied the government's application for stay and let the fact find and continue in district Court which is what it's going to do now about whether Lisa Cook actually committed any fraud. And it looks like the distinguishing point is that rather than being a relic of the Progressive era or New Deal these Alphabet enforcement agencies monetary policy and the Fed harkens back to the founders and Alexander Hamilton's concern for political involvement in setting monetary policy something like that. But even to that point the Fed has gained a whole bunch of other regulatory and enforcement authorities that didn't exist at the founding during the first and Second bank of the USA and all of that ancient history. So I think the court did go too far and again Roberts was a gymnast.
- [84:04]
Ben Shapiro
Well that's Ilya Shapiro, Director of Constitutional Studies at Manhattan Institute. Ilya, really appreciate the time and the insight.
- [84:10]
Ilya Shapiro
My pleasure Ben.
- [84:13]
Ben Shapiro
All right folks, the show is not over. There is much more coming and if you're a Dailywear member you get that much more. So for example we are going to get into the insanity of the democratic socialists and we'll get into the Europeans, who are apparently dying by the thousands because it's super hot outside. And they continue to claim that they are somehow morally superior because they won't air conditioner. They won't use air conditioners for their elderly or something. But in order to watch all of that, you have to join us. You have to become a member. So go do that right now because there's more show yet to come. Use code Shapiro Checkout for two months free on all annual plans. Click that link in the description and join us.