How the Supreme Court Is Likely to Rule on Trump’s Tariffs | Dr. John Yoo

Summary

Podcast Summary: Victor Davis Hanson: In His Own Words

Episode: How the Supreme Court Is Likely to Rule on Trump’s Tariffs | Dr. John Yoo
Host: Jack Fowler (pinch-hitting for Victor Davis Hanson)
Guest: Dr. John Yoo, constitutional scholar
Release Date: February 5, 2026

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Overview

This episode dives deep into major constitutional questions before the Supreme Court, focusing on Trump’s use of tariffs under emergency authority, birthright citizenship, and recent rulings on gender-affirming care. Guest Dr. John Yoo, a renowned constitutional law scholar, offers insight into legal arguments, his own views, and the broader atmosphere in higher education, especially relating to the emerging movement for civic education.

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Main Topics & Discussion Points

1. The New Civic Education Movement & The Civitas Institute

(05:18–14:19, 31:40–33:41)

• Growth of Civic Institutes:

  • Yoo outlines the emergence of civics-focused educational institutes at universities in Texas, Tennessee, Ohio, Florida, North Carolina, and Arizona—restoring focus on the Western tradition, political theory, and American constitutional history.
  • At the University of Texas at Austin, the new School of Civic Leadership aims to hire up to 60 faculty, with a paired think tank, the Civitas Institute.

• Purpose:

  • "It is restoring education to what it used to be for thousands of years... wrestling with the great ideas of Western civilization..." (John Yoo, 08:25)
  • Emphasis is on exposing students to original texts: Socrates, Plato, Aristotle, Adam Smith, Milton Friedman, The Federalist Papers, and more.

• Notable Quotes:

  • “If you wanted to destroy one of the country's greatest strengths... you could not have come up with a better way to do it than infecting it with the idea that there has to be racial and gender diversity... in higher education.” (Yoo, 41:50)
  • “Reading the great minds through their own writings... That's part of the civics moment I didn't reflect in my answer was reading the great minds through their own writings, through the basic texts.” (Yoo, 31:51)

• Cultural Critique:

  • Yoo, as the son of immigrants, expresses "shock" at the degree of doubt and criticism of Western Civilization within the US compared to the admiration seen in Japan or Korea.

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2. Supreme Court on Trump’s Tariffs

(16:50–21:08)

• Constitutional Delegation:

  • While the Constitution gives tariff authority to Congress, Congress has broadly delegated this power, particularly in emergencies, to the President.

• Statutory Debate:

  • The statute (IEEPA) allows drastic measures in a declared national emergency, such as embargoes or halting commerce. The question: Can it authorize tariffs across all countries, or only targeted measures?
  • Arguments For: Trade deficits can be a national security threat—providing the executive broad power to act.
  • Arguments Against: “The trade deficit isn’t a national emergency... and the statute doesn’t say the word tariff." (Yoo, 18:25)

• Predicted Outcome:

  • Yoo speculates the Supreme Court will not uphold Trump’s broader tariffs on all countries, but may allow targeted tariffs on nations like China or Mexico based on specific national security threats.
  • “The court’s not going to say you can do it all at once, every country in the world simultaneously. That's the message I heard at oral argument last month.” (Yoo, 20:56)

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3. Supreme Court Case: Birthright Citizenship

(22:26–28:59)

• Background:

  • Trump’s executive order seeks to bar birthright citizenship for children born to parents in the U.S. illegally or temporarily.

• Legal Arguments:

  • The 14th Amendment clause—“subject to the jurisdiction”—is at issue.
    • Pro-Order Argument: The phrase implies only those legally present qualify.
    • Against: Supreme Court precedent (Wong Kim Ark, 1898) upholds broad birthright citizenship; this has been “the unquestioned practice… since 1868.” (Yoo, 23:56)

• Yoo’s Take:

  • “I think the better reading is that birthright citizenship is the rule. But I think it's a really close question.” (27:33)
  • Predicts the Court will likely uphold current birthright citizenship practices, but acknowledges new scholarship has made it a live controversy.

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4. Gender-Affirming Care and State Authority

(33:41–38:15)

• Recent Ruling:

  • The Supreme Court upheld Tennessee’s law banning “gender-affirming care” for minors, ruling such policy decisions are left to states.

• Principles:

  • No constitutional right to such medical treatment; mirrors reasoning in Dobbs (abortion).
  • “The key to the holding was that the decision for this issue, like so many issues in life, are up to the states.” (Yoo, 34:39)
  • Predicts a similar rationale in upcoming cases regarding transgender athletes in sports.

• Federalism:

  • Reinforces that the US system lets states experiment and reflect divergent views: “If you want to live in a state where boys and girls all participate in each other's sports, move to California.” (Yoo, 37:34)

• Civil Rights Expansion:

  • “The issue of rights is the Constitution really only recognizes a small set of groups… It’s a policy question for the states.” (Yoo, 38:15)
  • Warns against courts “adding or subtracting” from rights democratically debated and adopted.

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5. DEI (Diversity, Equity, Inclusion) in Higher Ed

(41:19–45:53)

• Entrenched Ideology:

  • Yoo argues that DEI ideology has so permeated academia that efforts to curb it will be a long process, akin to “trench warfare”—as was desegregation post-Brown v. Board.

• Optimism Due to Supreme Court Rulings:

  • ---“The Supreme Court announced… you cannot use race in schools. It took more than ten years… to force people to live up to that ideal. Unfortunately, that's what's happening now.” (44:59)

• Personal Reflection:

  • Yoo was hired to be a conservative voice among mostly liberal faculty and emphasizes value in intellectual diversity: "They wanted to have at least one crazy... and so they hired me, and I've probably caused more trouble than they even hoped I would." (Yoo, 46:40)

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Notable Quotes & Memorable Moments

• “I like to tell people I'm what Victor Davis Hanson would have become if he had gone to law school. I'm the law professor version of Victor.” (Yoo, 06:59)
• On being a conservative academic: “I don't… I feel kind of odd when I'm in situations where everyone's conservative. I like the company of liberals too… it makes you stronger.” (Yoo, 47:00)
• “You could not have come up with a better way to do it than infecting [universities] with the idea that there has to be racial and gender diversity... that your ideas don't just count on their own merits, but it's the skin color or the identity of the speaker that should be taken into account.” (Yoo, 41:50)
• “Effectively, what the transgender community wants to do is bypass democracy, bypass the Constitution, and just say, you judges, impose it on the country… The Supreme Court, I think, to its credit, said, no, we don't want to do that.” (Yoo, 39:25)

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Timestamps for Key Segments

• Civitas & Civic Education: 05:18–14:19, 31:40–33:41
• Trump Tariffs SCOTUS Case: 16:50–21:08
• Birthright Citizenship Case: 22:26–28:59
• Gender-Affirming Care & States’ Rights: 33:41–38:15
• DEI in Higher Ed: 41:19–45:53
• Personal Academic Experiences: 45:53–48:40

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Conclusion

This episode provides a rich exploration of contemporary constitutional questions, the vitality and controversy surrounding civic education, and candid reflections on the state of higher education and law. Dr. John Yoo’s mix of legal analysis, institutional critique, and personal anecdotes make this a must-listen for anyone interested in the intersection of law, policy, and academia.

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For further discussion, find John Yoo’s latest piece at Civitas Outlook and his regular podcasts on Ricochet and Law Talk.

Transcript

[A]

Back when you guys first started it and no one was listening to you, you had no advertisers, and Victor would still say Greek words on the podcast, and you had no idea what he was talking about.

[B]

Still don't.

[A]

And also, part of it is I like to tell people I'm what Victor Davis Hanson would have become if he had gone to law school. That's my. That's my role in life. I am the law professor version of Victor. If people, you know, the critics of Trump's foreign policy in South America, do you want to explain how that's really any different than what Jefferson did in the Mediterranean? And in fact, I argue that Trump in many ways, has a stronger grounds to take action in South America than waging some covert regime change offensive all the way over in the Ottoman Empire in the early 19th century, which is what Jefferson did. I'm getting too old. But one of these days, I'll tell you the story about how President Trump offered me a seat on the Supreme Court, but I turned it down. True story.

[B]

Hold my honor. Me. Okay.

[A]

The Constitution gives the power over tariffs and taxes to Congress. No one disputes that. Trump doesn't claim that he has the constitutional power to impose tariffs. Congress has given the power its power and transferred it to the President very broadly in the trade area. And so the question is, did Congress give President Trump the ability to impose worldwide tariffs simultaneously on every country?

[B]

Well, hello, ladies. Hello, gentlemen. Welcome to Victor Davis Hansen in his own words. No Victor today. As you know, folks, he's recovering. I'll tell you about that in a second. But pinch hitting. Man, oh, man, we got. We got a great guest here, and that's John Yoo, the great constitutional scholar and National Review crew speaker. I love John. He is so kind. He wrote me, said, hey, let me. Let me help out here. Let me. And I. I'd love to have him. And we do have him. Victor's a big fan of John, so what could be better? We're recording on February 2nd, Groundhog Day, and I. I'm in Milford, Connecticut. John is somewhere. I know John. Are you California? Are you in Texas? Where are you today?

[A]

I. I am in Austin, Texas.

[B]

You are.

[A]

I'm in Austin, Texas. But you. You know, people may not know, but I did live in Milford, Connecticut, for my third year of law school. I was gonna still afford. I am pretty sure I was rented an apartment by a distant relative, Michael Corleone, based on the way he ran the rental. I think I had a great year.

[B]

I loved it. You lived on East Broadway Correct. Down near the water.

[A]

Right on the water. Right on the water.

[B]

Well, I think I might have mentioned this to you. That same house that you lived in as a Yale Law student, right? Yep. Was also lived in by Bill Clinton when he was a Yale Law student. No. I hope he didn't have his actual bed, John.

[A]

Well, that would mean that Hillary was in that bed, too. That's what really bothers me.

[B]

There were scraps of Astroturf from his truck in the driveway, so.

[A]

All right, I'm gonna give this. I could have sworn there were Billy records. I was sleeping on it. So cushy.

[B]

It was not like paper or underpants had not yet been turned in for Goodwill. All right, let me tell you about John Yoo. John Yoo is a senior research fellow at the Civitas Institute. He's a distinguished visiting professor at the School of Civic Leadership at the University of Texas at Austin. That's why he's in Austin right now. And he's also the Emanuel Heller professor of Law at the University of California at Berkeley, and he supervises the Public Law and Policy program there, among other programs at the Berkeley Law School. And he's a non resident fellow at the American Enterprise Institute and Yale Law School graduate. You've got a podcast yourself, Ricochet with Richard Epstein, and it's hosted by my former National Review colleague, Charles C.W. cook. Yes. Do you know Charlie's first son is named Jack? And name Jack for me. Do you know that?

[A]

Really? Jack Fowler Cook.

[B]

Yeah. Well, I don't know about Fowler.

[A]

Sounds like the owner. I think that was also the name of the owner of the Redskins for a while. That was close.

[B]

Close. Jack Kent. All right, well, John, you know the format here. As we're doing the pinch hit, we're going to. I'm going to ask you five questions. I might even ask you six questions. And the first one, we're going to talk about Civitas. And we're going to do that when we come back from these important messages.

[C]

Since the founding of America 250 years ago, many things have change, but some things never do. The commitment of husband and wife. The importance of passing along our values to our children. The faithfulness of God. Some wonder how we can ensure America will continue to thrive as long as we keep first things first. We've only just begun. America the Beautiful.

[B]

We are back with Victor Davis Hanson, in His Own Words, guest starring the great John Yoo. John, I'm going to pick your ample legal brain shortly. We have a few SCOTUS Supreme Court questions for you, but I first want to take advantage of this. What's a relatively new experience for you. And that's a Civitas Institute. It's part of a burgeoning effort to create civic education based outfits in state university systems. Texas, Tennessee, Ohio, Florida, maybe North Carolina. Also, there may be another one or two. This is all within the last, I think, three or four years these programs have emerged. So there's two parts here to this question. John, would you tell us about. I mean, look, you were full time at Berkeley and you clearly made a change to do something significant here. So tell us why you believe this civic movement at higher ed level is important. And tell us, please, then, about Civitas, where you are explicitly and how this actually happens at a college, how that civics effort plays out.

[A]

Jack, first, thanks very much for having me on the podcast. And I couldn't think of a better thing to do than to try to help out Victor in his recovery. And I'd like to say I have probably listened to every single episode of the Victor Davis Hansen podcast when you guys first started it and no one was listening to you and you had no advertisers and Victor would still say Greek words on the podcast and you had no idea what he was talking about.

[B]

Still don't.

[A]

And also, part of it is I like to tell people I'm what Victor Davis Hansen would have become if he had gone to law school. That's my role in life. I am the law professor version of Victor. I bring all of his because I was. I read Latin and Greek in high school, and I was an ancient history minor. And I actually thought about going into graduate school to study what Victor studied. Military strategy, ancient history. And my professor said, don't do it. You'll never make a living at it. You'll never have a hit podcast listened to by millions every week. You'll live in obscurity of poverty. And so I went to law school. But I'll tell you, I remember as a young graduate student reading Victor's first book, the Western Way of War, when it came out. I mean, I've, you know, I've probably read everything Victor's written. So this is a real honor for me to be sitting across from my friend Jack. I also say, Jack and I, we've been on many National Review cruises where he is a big hit with the elderly set, as is my mom. My mom is a geriatric psychiatrist. So as I always said, I bring her on cruises with me because it's good for the family business. We meet a Lot of clients, future and current clients on these cruises.

[B]

Dr. Yu is. She's such a sweet. She's such a sweet lady, John.

[A]

And once she got goes to sleep that me and Jack hit the craps table. I have photographic evidence of this, although Jack doesn't actually do any betting. He just watches. I do all the betting. So, anyway, let me talk a little bit about civics. So to me, and you know, it's a growing movement. There's new schools being founded at University of Texas at Austin, where I am. University of North Carolina, Chapel Hill, University of Florida, I think, is the first and leading program. Ohio is now starting a whole number of these. Arizona has them. To me, it is restoring education to what it used to be for thousands of years, and used to be until the 1960s, befell America. And that is wrestling with the great ideas of Western civilization and defined in a very broad way, which is the best, as one professor put the best that has been thought and written. And that's all it is, exposing students to the best ideas. And I think here at Texas, that focuses on political theory. You know, we're talking about Victor in ancient Greek. People here, students here are going to wrestle with Socrates, Plato and Aristotle right out of the box, but also teaching them American and constitutional history so they understand our country and for all its goods and the bad things it's done. But to me, I'm a. I mean, I wouldn't be doing it if I did not believe that America is an exceptional country and that our young people, the future leaders of Texas and the United States, need to understand their country. We're also going to teach them political economy. So rather than reading these, you know, dense course books with graphs and charts, they're going to read Adam Smith and they're going to read Milton Friedman. And then we're just introducing. And I really, once Victor gets out of the hospital, I want him to come down to Texas, leave Stanford and move to Texas, because we're starting up a new program in strategy and statesmanship. And Texas is making a commitment to hire 15 professors of strategy and statesmanship. And when they told me that, I told them, you'll have a bigger department of strategy than West Point if you hire that many. And so Texas, the other thing about these civics programs is, as you can tell, they're all in red states. They were all in conservative states with a supportive state legislature that has made a commitment to restoring education back to the study of Western civilization. And these great thinkers and minds from all perspectives, not just rah, rah support also being critical of those ideas. But that's the central core. And let me tell you, Jack, as someone who. And you know this, you talk to my mom, you've talked to me. You know, we're an immigrant family. I'm still shocked as an immigrant family how much doubt and criticism, even hatred of Western civilization there is in America, the country to me, where it's reached its greatest flower, where all the other countries, like where we're from, Korea, Japan, they all want to find out what is best in Western civilization and adopt it and incorporate it into their own societies because they've seen what a success it is. So it's so weird. There's so much self doubt in America where everyone else around the world understands it has been the most remarkable success and great achievement, one of the greatest achievements in human history.

[B]

The last great hope of Earth, as Lincoln Lincoln put it. Yeah, John, by the way, Civitas is not only an educational institution and platform, it also has a pretty significant, a good new emerging media platform, I think. I don't know that any other. The civic schools do, but Civitas Outlook, I want to recommend folks Google, search it, find it. And it's kind of like in a way like maybe like Law and Liberty somewhat, but it publishes important essays. And actually, just before the show started, popped up that you had written something today for Civitas Outlook on Trump that. What is it? Trump's Jeffersonian foreign policy.

[A]

Was that. Yeah, the Jeffersonian roots of Trump's foreign policy. I just wrote that to really tick off all those Jefferson worshipers out there. Well, no, but actually I wrote the. You're right. So for the. Just the piece itself is a comparison of Jefferson's treatment of the Barbary Pirates with Trump's intervention in Venezuela and how similar they are. As I basically say, if people, you know, the critics of Trump's foreign policy in South America, do you want to explain how that's really any different than what Jefferson did in the Mediterranean? And in fact, I argue that Trump in many ways has a stronger grounds to take action in South America than waging some covert regime change offensive all the way over in the Ottoman Empire in the early 19th century, which is what Jefferson did.

[B]

Yes, but the first effort against Islamo fascism in American history. Right, exactly.

[A]

But the larger question about Civitas that you asked is that Texas's commitment to the civics movement is so strong that they create a new department. It's a new school. It's not a department, it's a school. School of Civic leadership, which will teach the classes, have the faculty and already there's about 20 faculty. I think the aim is to hire 60 full time faculty in this. So it's a big commitment. And then Civitas Institute is like the Hoover Institution think tank that's going to be paired with the school and it's going to be part of the mission of not just educating the students but conducting the research and disseminating it out to the broader public.

[B]

Terrific. Well, John, you know, we gotta pay the bills here. We're only a few weeks into winter and already brutal cold, huge snowstorms, 20 inches here in Milford. I'm sure you had nothing down there in Austin or if you're out in Berkeley. And of course power outages. And think about it, if the power goes out when it's really cold, you want to keep yourself and your family warm, huh? This is a real problem. Winter power outages can even be life threatening. Like Texas a few years ago had those horrific ice storms. That was just a horror show. That's why so many Americans are getting a Vesta off grid heater from my Patriot Supply. It's a space heater that doesn't use electricity or propane. It runs on something called canned heat, which is an indoor safe fuel. With a Vesta stashed in your closet, you know you can keep warm no matter what. It even doubles as a stove to cook your food on. That's pretty cool. The best part is right now you can get the Vesta and a bunch more preparedness gear as free gifts. When you order the winter survival kit from my Patriot Supply, just go to mypatriotsupply.com VDH which stands for Victor Davis Hansen to see everything that's included. This offer won't last long, so go to mypatriotsupply.com VDH today. That's my mypatriotsupply.com vdh and we thank the good people from my Patriot Supply for sponsoring Victor Davis Hansen in his own words. Happily carried, by the way, by the Daily Signal. John, I'm going to start some Supreme Courty kind of questions. Corty C o r T hype tonight. Courtney here. John, President Trump has reminded Americans there is a thing called tariffs. And the Supreme Court held hearings on their constitutionality three months ago. They've not yet rendered a ruling of his use of an emergency law to impose tariffs, which we are, I think we're required to call them as sweeping tariffs, whether his use of that law is constitutional. So John, playing both sides here Would you give us the spitball, the rationale for the rationale against and explain, please, your own stand as a constitutional scholar as to the merits of the president's actions.

[A]

Well, the Constitution gives the power over tariffs and taxes to Congress. No one disputes that. Trump doesn't claim that he has the constitutional power to impose tariffs. The question is Congress has given the power its power and transferred it to the president very broadly in the trade area. And so the question is, did Congress give President Trump the ability to impose worldwide tariffs simultaneously on every country? That's the real question. And so the pro argument is there's a statute called iipa, which I've heard you discuss on the podcast before. You guys did a great job reading the statutory language. It says in a time of national emergency, the president, and this is Congress speaking, the president may. And then it gives a long list of powers involving international economics, which include the power to embark, place a complete embargo on another country, to cease all traffic, all commerce with another country if that country poses a national security threat. And so the pro side is right. The president has said the size of the trade deficit is such a threat to our national security because we're losing the national industrial base. Other countries are manipulating trade, particularly China, to try to increase our dependency on them, to reduce our ability to make our own weapons, our own machinery, even grow our own food. And so because of that, President Trump, the Trump administration said, we're going to impose a tariff worldwide on all products to get that trade deficit down and to restore the American industrial base. And we're going to increase some more than others because those countries are really cheating at international trade or the way they're manipulating trade, for example, in high tech areas like rare earths are harming our national security. So that's the pro side. The contrary side is one, the trade deficit isn't a national emergency. The trade deficit has been with us roughly in the same size for the last 20 years. It may fluctuate up and down, but it really hasn't gone up. But more importantly, the trade deficit's not like an emergency, like the kind we've had when we're attacked on 911 or when we've had the Iraq war or when we've got this war going on with Venezuela. Second argument then is even if it's a national emergency, yes, the statute allows you to impose an embargo, but it doesn't say the word tariff. And if it doesn't say the word tariff, then the Supreme Court will say, we want to see the specific grant of tariff power. So, look, I think this is a hard case, much harder than what many people might suggest in the media based on the oral arguments I heard. I listened to them pretty closely. I don't think the court's going to uphold the tariffs, but it's going to give President Trump the ability to go back and impose tariffs, but he has to do it country by country. So I think what they're going to say in the end is we don't think the trade deficit worldwide is a sudden event or a national security threat by itself. What I think they're going to say is specific countries like China could be a national security threat, and then you can levy a tariff on China, but you got to say this is specific to China, what the number is going to be and why, or against Mexico because of the drug trade. What is a specific tariff and why? So it's going to take Trump more time, and he's gonna have to be more sensitive to the individual countries. But in the end, given another, I bet a year from now we will have something similar to the tariff regime in place. It's just gonna take Trump a little longer to do it. But the court's not gonna say you can do it all at once, every country in the world simultaneously. That's the message I heard at oral argument last month.

[B]

Well, maybe we'll get to see the sensitive side of Donald Trump. Well, John, a SCOTUS question to ask you. And I'm going to ask it when we come back from these important messages. We are back with Victor Davis Hansen in His Own Words, guest starring the great John Yoo. We are recording on Groundhog Day, February 2nd, and this episode should be up on Thursday the 4th. Maybe that tariff decision will have come in by then. By the way, I forgot to mention, John, you did clerk for Clarence Thomas. As a Supreme Court justice, you want to. You've been in the. Technically, then I guess you've worked in the judicial branch. You've worked in the legislative branch. You were counsel for Senate, was it Judiciary Committee?

[A]

Yes, under Orrin Hatch as chairman.

[B]

And you worked for W in the State Department. You're one of those rare Americans who have served in all three branches of government.

[A]

If any listeners have other branches of government they're in charge of, I'm ready and willing. There are some sanitation departments I still haven't worked for.

[B]

All right. Another SCOTUS case deals with birthright citizenship hearings. That's going to happen April 1, with the challenge being against President Trump's executive order. That would bar automatic citizenship for babies born physically the United States if their parents are in this country, either illegally or temporarily. So, spitballing again, John, what's the rationale for in favor of President Trump's executive order rationale against it? And how would justice you someday? You never know. How would justice you rule on that?

[A]

I'm getting too old. But one of these days, I'll tell you the story about how President Trump offered me a seat on the Supreme Court, but I turned it down. True story.

[B]

Oh, my God. Not me. Okay, what's on the show with that?

[A]

I think he offered it to the head of the People's Court, too, on tv. But actually, I think he thought that's who I was. So I'm not saying that it was.

[B]

He didn't look like Judge Wapner.

[A]

All right, so on birthright, the pro argument, and first of all, it's a harmful policy. If you were writing the citizenship clause of the Constitution right now, you probably would not include include birthright citizenship in it because it encourages people to come to the country on a tourist visa, have a kid, just to have their kid get American citizenship and then leave. Or people with no loyalty or attachment to the United States just wanting to get this talisman of American citizenship. It's not just a talisman, it has enormous benefits to it. But just getting that through place of birth rather than through any kind of real relationship with the country and the American people. And I think that's because of the way immigration flows have changed since the time the Constitution was written. So the pro side, all this has to do with just a very small provision in the 14th amendment. It's the 14th amendment which says if you're born in the United States, you become a citizen. But it says if you're born in the United States, and then the phrase is and subject to the jurisdiction of the United States, all this comes down to what does that weird phrase subject to the jurisdiction mean? So Trump's best case is, well, it already says, if you're born in the United States, comma, subject to the jurisdiction, this means something other than just being born in the US it's an exception to it. What does that phrase mean? So he says it means you're here legally, you're not here illegally. That's a simple argument. And then he says, otherwise, that phrase means nothing. Because if you have birthright citizenship and you don't have that provision for being in the country legally, then you're allowing people into the country who will have citizen children who broke the laws of the country to come in in the first place. That's almost a rejection of this kind of relationship to the American people that I was talking about before would be the best policy for the foundation of citizenship. The contrary argument is this has been the way citizenship has been understood since the 14th Amendment. The Supreme Court upheld this understanding of the 14th Amendment in a case in the late 19th century called Wong Kim Ark versus United States. And so it's been basically the unquestioned practice of the government and the United States since 1868, that this is how we determine citizenship. I can't tell you. I have to say, first of all, every lower court has disagreed with the Trump administration. Now, if the Supreme Court were content or of the justices, all the justices of the Supreme Court were content that Trump was wrong, they would not have agreed to hear the case, I think. So. I think there are some justices on the court who agree with the Trump administration. And there has been a huge burst and flurry of scholarship and arguments just in the last year making the case for Trump's position that 10 or 20 years ago would have what has seemed like the work of kooks, but they've actually restored, I think, a lot of historical understandings of the 14th Amendment that we didn't know about. And to me, it's a much closer case than I had ever thought it was. I probably was like most lawyers who said, this is just something we don't even talk about or question anymore. It's just been the practice for over 160 years. Why would we doubt it or change it? I still think, and this is why you have oral arguments. Oral arguments are good to listen to because it tells you the justices don't announce how they're going to vote at those oral arguments. But what they do is they voice questions, they have the things they doubt, problems they have. And so when you listen to the questions they have, you can hear the justices talking about, well, I can't figure this out, or this would help me decide on your side. So we haven't had oral arguments, so we can't tell what individual justices are asking about or thinking. It's always hard to overthrow a precedent that that's old. You know, understanding of 160 years is a difficult thing to overturn. On the other hand, the Supreme Court, rightly, I think, overthrew segregation, which was 60 years old when they did it. So just because something's old doesn't mean it's right. I've argued that even though it's a close case, I think the better reading is that birthright citizenship is the rule. But I think it's a really close question. And if I had to flip a coin or predict because I had money at stake, you know, Jack, I do like to gamble. If I had money on the craps tape on this, I would vote that the court leaves this alone and doesn't change the traditional rule and that Trump may lose.

[B]

We'll see what the betting mark. Are there Supreme Court betting markets? You can bet on anything in America anymore?

[A]

Oh yeah, I've had people call and say, I want to place a bet in the prediction markets. What do you think is going to happen in this case? And I said, why would I tell you I'm going to place the bet? Actually, I've never bet on the prediction markets, but no, there's a lot of betting now on Supreme Court cases and their outcomes.

[B]

I'm curious, John, you yourself are an immigrant. Yes. And were you a baby when you came or do you remember coming?

[A]

Yeah, I was three months old. So I tell people I loved every second I was in Korea, but thank God my parents brought me to the United States. So I'm a naturalized citizen. This is my parents, but my brother was born. My brother was born here.

[B]

Okay, well, I have question four is going to be on, oh, gender affirming care. But before that, before that, folks, if you've studied enough history, you start to see a pattern. Nations don't lose, lose their way overnight. They drift through debt and division until one day you realize the foundations you thought were permanent were never permanent at all. And today America is spending at levels once reserved for wartime. We've normalized deficits that would have stunned earlier generations. And policymakers now debate whether the only path forward is more intervention, more printing, more distortion. But here's the historical truth. Every society that pushed its currency beyond discipline eventually paid a price. The wise never waited for collapse. They prepared for the correction. That's why so many thoughtful Americans, especially those nearing retirement or in retirement, are reallocating part of their wealth into something that has outlasted every paper experiment in human history. Physical gold not as speculation, but as insulation. Now reputation matters. And that's why the good people at the Victor Davis Hansen, excuse me, Victor Davis Hansen, in his Own Words and the Daily Signal are partnering with Allegiance Gold, a company better distinguished by integrity, reliability and an A rating with a Better Business Bureau. For years they've guided Americans through transparent education and long standing relationships built on trust. And right now, they're extending a special liberty offer for our listeners to help you get started with real gold, whether your funds are in a retirement account or sitting in the bank or even under your mattress. So if you believe that the best time to reinforce your position is before the storm becomes obvious, call 844-790-9191. Let me repeat that since I garbled it, 844-790-9191 or visit protectwithvictor.com 844-790-91911 one more time, 844-790- 9191 or visit ProtectWithVictor.com, history rewards those who take the long view. And we thank the good people from Allegiance Gold for sponsoring Victor Davis Hanson in his own words. So, John, one final hey, Jack, can.

[A]

I ask can I make a point, please? I just thought of a better answer to your question about what are these civics programs? So when parents or students out there trying to figure out whether it's for them, one way to think about it and to distinguish it from what goes on places like Berkeley or Harvard or Yale is to say, what do the students actually read? So I could say at Texas, what they'll read is Socrates, Plato, Aristotle in the political theory section, in the American history section, they'll read George Washington and Alexander Hamilton and the Federals papers and Abraham Lincoln and Dr. Martin Luther King. And in strategy and statesmanship, which I'm going to teach and they're going to read I'm going to make them read Thucydides and Clausewitz and Sun Tzu and, you know, we're going to so that's part of, I think, the civics moment I didn't reflect in my answer was reading the great minds through their own writings, through the basic texts. And I think we've gotten so far away from that in higher education, where students just read their professors books about. Right. Cicero or about Justinian or about, you know, about Napoleon rather than reading them in their own words. So it's like this is the Victor Davis Hanson podcast, in his own words. That's our ideas. Let's read the great minds through what they actually say themselves.

[B]

Who's the head of Civitas? Are there two heads? Does the institute have a separate head than the.

[A]

Yeah. So the head of school, the head of the institute is a fellow named Ryan Streeter, who's a very longtime dynamic leader at the American Enterprise Institute and worked in the Bush administration and the Domestic Policy Council and then the department. The chair of the school is Justin Dyer, who's Written some excellent books about the founding and natural rights. Actually wrote a very provocative book comparing the arguments of the slave owners to those who defended abortion rights.

[B]

Oh, yeah. Well, it's on target. Okay, well, John, thanks for that. So one final SCOTUS case to get your wisdom on. So last year, the Supreme Court upheld a Tennessee law banning what is called gender affirming care for minors, things such as hormone therapy and puberty blockers. What's your view on this ruling, John? And a little more broadly, how do you see the effort to mandate that civil rights, which we, I think commonly mean equal protection, Equal protection regardless of race, creed, gender, that it should apply also to all these plus plus components on the, you know, the flag that has more colors on it than a crayola box of 64. So your thoughts on the case and your thoughts about this expansion of civil rights?

[A]

So there's two cases. One, the one you mentioned is called Scurmeti, which was a ban on gender transition medical treatments for minors. And the court said states have a right to ban that kind of medical treatment. And the key to the holding was that the decision for this issue, like so many issues in life, are up to the states. The Constitution doesn't give any right to have transgender medical treatments. And so it's up to the states to decide. We leave so many questions of life and death up to the states. The death penalty itself is up to the states. Euthanasia is up to the states. They effectively use the same logic they did in Dobbs, which said abortion, life and death is up to the states. It's not a federal issue where the Constitution commands. There has to be a single right that overrides what all the states do, for example, which we do agree applies with free speech, freedom of religion, free to be free from unreasonable searches and seizures, where the Bill of Rights says clearly that there is a national right. Most everything else is up to the states. And then it said, and one reason that is is because the transgender themselves are not a minority group like racial minorities or religious minorities, where the Constitution does require us to give this kind of national protection. I think when you hear that description, it tells you, I think, pretty clearly how the Supreme Court's going to decide the case that's just been heard a few weeks ago, which was, can states also say transgender males cannot participate in women's sports? The exact same logic that I just described from Scremetti from last year gives you the answer here. States should be allowed to regulate how they want men and women's sports to Be organized. They can do it for reasons of safety. They can do it for reasons of integrity, of the sport itself. But the Constitution doesn't have any rule in it that says we, the Supreme Court, get to override every state legislature in the country. And I think you'll see the court maybe speak a little more about why it's important to let states decide these questions, because these are hard questions. How does the Supreme Court know what the right answer is? Federalism allows us to figure out the answer by letting the states decide. The states experiment. The states have a variety of policy views. Sometimes the states don't have a uniform view. And then people can move. We can sort ourselves and live in the states that we agree with. Right. I can move from California to Texas because I like having a zero income tax, for example. So that's the case if you want to live in a state where boys and girls all participate in each other's states and move to California.

[B]

Right.

[A]

And if you think that's wrong, move to Texas, Connecticut, too. Oh, my gosh.

[B]

Well, it's one of the cases originate here. Yeah. Jim Buckley would be so happy with hearing you talk about federalism in this way. So he was a great judge. Oh, yeah. Gosh. Well, anyway, but the other part of this question, the plus, plus, broadening of rights, I mean, it's pretty ideological or political. Is there any substance to it, any merit to it?

[A]

So the way I think about rights is that the Constitution sets out rights. And I think if states want to give more rights out, they can, or states want to stick close to what the constitutional standard is, they can. But it's a policy question for the states. The issue of rights is the Constitution really only recognizes a small set of groups to receive rights. And it's because race, religion, these are groups that have been long and historically has suffered discrimination in the United States to the point where we as a people decided to amend the Constitution. We had two thirds of Congress and three quarters of the states agreed that we should add those rights to the Constitution. What bothers me, and I think this is also part of the Court's decision with abortion and now with transgender rights, is the courts don't get to add or subtract from the rights that we, the American people, decided to create in the Constitution. Effectively, what the transgender community wants to do is bypass democracy, bypass the Constitution, and just say, you judges, impose it on the country. It's so easy to make law. If you could just bypass Congress, bypass the Constitution itself, and just get five justices of the supreme court, court to do your bidding. And the Supreme Court, I think, to its court said, no, we don't want to do that. We did it. Maybe in the Warren Court era, we might have done it with gay marriage, but we don't think that's the proper role for the judiciary in a democratic society.

[B]

Well, we have one more question for sort of offered Supreme Court Justice John, you. We'll get to that. That question. Final question when we come back from these final important messages, folks. We are back with Victor Davis Hansen in his own words. John Yoo, pinch hitting. Thanks, John, again, really appreciate this. So let's focus on your profession, not as a constitutional scholar, but obviously you're an educator. I want to get your take on dei. It seems that the Trump administration's efforts to break the back of higher ed DEI has run out of steam. I guess my question is, has it run out of steam or is there, in your view, an aggressive effort by Department of Education, Department of Justice attorneys to stop what many believe to be leftist reverse racism? And I guess a broader question is, isn't DEI whatever you call it or don't call it? Because frankly, it's been around for generations. Victor's talked about de facto DEI when he was himself teaching in the California system. Isn't the essence of much of the guts and torso of the American university? Isn't it that?

[A]

Isn't it dei?

[B]

And if that is the case, then isn't fixing it or eradicating it something that might be proved, like just extremely difficult? Like it's not like the straw man in the wizard of Oz? You're pulling all the straw out and putting new straw in. Anyway, your thoughts on Jack.

[A]

Jack, you should have clerked at the Supreme Court. I love all your metaphors. You could have stuck them in some opinions and made some great law. Where have you been? This, this journalism stuff you're doing was the wrong path for you.

[B]

Come on.

[A]

My next is we've lost an Oliver Wendell Holmes here to the legal profession. What are you doing here on this podcast? So look, first, I agree with you. I've heard Victor's thoughts about DEI and the stories he's told as a faculty member. I regret to say I've seen almost exactly the same things happen where I've taught. And I think DEI is one of the most terrible and pernicious things that's happened to the American universities. If you wanted to destroy one of the country's greatest strengths, which is our higher education system, which for all its faults is still the class of the world People all over the world would rather go to college, university in the United States than anywhere else. I mean, and I've taught all around the world. Our universities are by far superior to what goes on in almost every other university in the world. But still, if you had wanted to destroy the American university system from the outside, you could not have come up with a better way to do it than infecting it with the idea that there has to be racial and gender diversity. Not ideological, not intellectual, but racial or gender diversity in higher education, that your ideas don't just count on their own merits, but it's the skin color or the identity of the speaker that should be taken into account. I think this has been the most destructive thing to higher education that I've seen. I think. And I have to say you mentioned I clerked for Justice Thomas. And it's, you know, sometimes you work or clerk for a judge or an employer you don't necessarily agree with. But I am proud to say I feel honored and fortunate to have clerked for a justice who's stood for that principle more than any other principle. I think he's always stood for the principle that race should not matter, that we're all individuals and that we should be judged, as Martin Luther King said, on the content of our character, not the color of our skin. And so what should be done about it? How can we. So I would not maybe be as pessimistic as your question suggested, Jack. It may seem like it's flagging, but I think what instead you're seeing, if you think about this as a military campaign, the first part of the war is over. The Supreme Court announced in the Harvard case that higher education cannot take race into account in any way. In there, it was the issue of emissions, but the logic would apply to hiring a faculty, organization of the university, and so on. So now is the hard part, which is. And it's trench warfare. Because as you also said, Jack, in your question, administrators, professors, they believe in dei, I think, more than they believe in the idea of merit or quality of thought. And so it's going to be trench warfare to take that Harvard decision, which is clear, and then force all these colleges and universities, and then secondary schools too, to obey. So I hate to say it, I hate to make this comparison, but it reminds me exactly of what happened in the south after Brown versus Board of Education. The Supreme Court clearly said, you cannot use race in schools. You cannot have school segregation. It took more than 10 years of this kind of trench warfare, school district by school district, university by university to force people to live up to that ideal. And unfortunately, I think that's what's happening now that we are now starting the trench warfare part where people have to sue every university, every school district, where they see administrators just refusing to obey the clear truth of the Harvard case, that we should all be treated based on our individual nature, not our skin color, not our groups, but ourselves.

[B]

Just personally curious. You're hired. You're an educator. And I'm not talking about at Austin, but at Berkeley. Was there drama when you were up for that position and hired or was it a slam dunk? Just curious. I don't know the story of Professor Yu.

[A]

Well, you know, I wasn't around for it. I mean, I wasn't on the inside as it were. But I have to say I was hired by a generation of faculty that has retired which were basically what I call old fashioned New deal liberals. When Victor talks about his mom, I think this is the kind of person we're talking about. People who probably voted Democratic, but they believed in merit. And so the people who hired me who've now, you know, left the stage, they were, I would say most of my best friends of that generation were card carrying, FDR loving Democrats. But they believed that in order to have a good education, in order to do research well, you needed to have people who were critical. They wanted, the people who hired me wanted to have a conservative now they wanted to have one conservative. Two would be an unfair imbalance in the faculty, but they thought there should be at least a be one crazy. And so they hired me and I've probably caused more trouble than they even hoped I would. But it's. For example when I, I have to say, Jack, I don't know how you feel, but I don't. I feel kind of odd when I'm in situations where everyone's conservative. I like the company of liberals too. Not just because they're very good at cooking and making handmade clothing, but you know, they actually have interesting ideas and it's interesting to hear their criticism and take on things. It makes you stronger. I say that to the conservative students at Berkeley who complain and they have lots of grounds to complain about the kind of discrimination they suffer and social stigmatization. And I say, look, you're going to come out of this stronger. This is Nietzsche. It doesn't kill you. Makes you stronger. If that's true, then conservatives who graduate from Berkeley are going to be some of the strongest conservatives known to man.

[B]

Maybe, maybe Supreme Court justices, you never know. Well, John, I've exhausted five and I even threw in a few extras. So you've been terrific with the.

[A]

You know, I'm going to charge you extra because I'm a lawyer.

[B]

I didn't know. I didn't know the meter was running. Oh, my daughter, me. Well, thanks for. Thanks for coming. Thanks for your love for Victor. And you've just been a great guy since you first come on a National Review cruise. You're just one of the true happy warriors. I want to encourage people that want to hear John every once in a while. I think it's weekly. Go to Ricochet. Right. And what's the name of the.

[A]

Well, actually, we have a weekly podcast called the Three Whiskey Happy Hour with Steve Hayward and the mysterious Lucretia, who goes by a pseudonym because she thinks she would be fired from her university if they figured out who she was. But that's. See, now, that's actually a point about minority free speech rights, because there I'm on a podcast with two conservative political philosophers, Straussians, if you know who they are. So I feel greatly outnumbered because I just bring reasonableness and moderate good sense, common sense to these people. All they want to do is argue about whether Aristotle or Socrates was right.

[B]

Well, I'm sure it has its audience. So there's that. And then there's the other pod. What's the name of the other podcast?

[A]

Law Talk with Richard Epstein and Charlie Cook, which is once a month. Because if you had to listen to Richard Epstein more than once a month, you would have a nervous breakdown like me.

[B]

I think you should have a weekly show so at least you could have a full sentence of contribution. Man, oh man, he makes. Well, I'm not going to make a comparison anyway. And check. Go to Civitas Outlook and find John's piece about Jeffersonian Trumpism, foreign policy. John, I want to thank you again. Thanks for the Daily Signal. Thanks to our viewers and listeners and our sponsors. And it's over, John. And we'll be back soon with another episode of Victor Davis Hansen in His Own Words. Bye. Bye.

[A]

Thanks, Jack. And get better. Victor, thank you for tuning in to the Daily Signal. Please like share and subscribe to be notified for more content like this. You can also check out my own [e-mail] and subscribe for exclusive features in addition.