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July 21, 2021 - Dinesh D'Souza
58:15
DO AS I SAY Dinesh D’Souza Podcast Ep136
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How the Texas Democrats illustrate the problems with the party as a whole.
They're hypocrites on COVID and they're obstructing democracy in precisely the manner they accuse the January 6th protesters of doing.
This is the Dinesh D'Souza podcast.
The times are crazy and a time of confusion, division, and lies.
We need a brave voice of reason, understanding, and truth.
This is the Dinesh D'Souza podcast.
Are you are you laughing your head off at these Texas Democrats?
I mean, I am. I'm enjoying this show so much.
It was supposed to be, you know, a brilliant masterstroke, the working kind of in coordinated fashion, two private planes.
50-plus Democrats.
They're having a great time on the airplane.
They're taking selfies.
They're triumphant. They're treated as media heroes when they arrive.
They've got all these meetings with the White House, meetings with Kamala Harris, with Pelosi.
They're lobbying for federal legislation.
They've sort of, you know...
Thumb the finger, if you will, at Governor Abbott and the Republicans.
Go ahead and meet without us.
You don't have a quorum. And now, who's laughing, guys?
First of all, kind of reminds me, actually, of an old...
Well, it reminds me of all these videos you see on social media of the stupid criminals.
You know, the guy who, like...
Runs into the getaway car after robbing the bank and the getaway car won't start, you know?
Or the guy who's like the criminal who likes arsonist who sets himself on fire.
It's that kind of thing.
I remember seeing once a comedy...
I've got it all figured out.
I've got all these mirrors set up throughout the house.
I'll see their reflection over here, their reflection over there.
They won't have any idea where we are.
And so the bad guys come in and they start shooting.
And then in the closing scene, Sherlock Holmes and Watson appear and both of them are riddled with bullets.
In other words, this brilliant scheme completely backfires.
And that's what's happened with these They've become super spreaders.
They've given COVID to someone at the White House.
They've given COVID to someone on the Pelosi staff.
So you've got all these COVID-ridden Democrats.
By the way, all of them pretend we're fully vaccinated.
Vaccinated? Well, what the heck does that say about the vaccination?
All of you are fully vaccinated?
All of you have COVID? Really?
So, I wonder if these guys are lying about being fully vaccinated.
Either that, or it suggests that the vaccination itself may be a problem, may not make us quite as invulnerable as we are led to believe by the CDC, because this is not a case like one person got COVID-19.
It's kind of like a whole bunch of them got COVID, and they've apparently been transmitting it left and right to each other.
Now, here's Jen Psaki, the press secretary, being asked about this, and she sort of decorously tries to avoid the topic.
Here we go. More than 10% of the traveling party with these Texas Democrats now claim to have a breakthrough case.
Is there any concern that this trip that was intended to advocate for voting rights is now a super spreader event in Washington?
Well, I would say that's not a characterization we're making from here.
That's not the way we'd put it.
We don't like to blame our own team for being super spreaders.
I mean, the point is, these guys are massive hypocrites, right?
I mean, they're lecturing everybody, you must wear a vaccine, you must wear a mask, you must...
And then when they're on the private plane, this is when you get a little window into how they behave in their own world.
They don't care. None of them are wearing a mask.
And they're taking selfies.
They're hugging each other.
So you can see here that it's do as I say, not do as I do.
But the problem is beyond that.
I was kind of curious.
Debbie and I were talking about, you know, is it actually legal to go maskless in a private plane as opposed to, say, a commercial plane?
So I looked it up. And here it is.
Federal law requires wearing a mask on board private aircraft and failure to comply constitutes a violation of federal law.
So again, you get this idea, you know, is anybody even looking into this?
Are these guys going to be held accountable?
Probably not. And this is how Democrats are.
They're unaccountable and they know it.
They know that they can do stuff and no one's going to call them on it.
So what you have here is on the first big issue of American politics, which is COVID, you see how the hypocrisy of the Texas Democrats mirrors the hypocrisy of the party.
But there's a second issue, and that's this.
While the media lionizes these guys as champions of democracy, they're fighting for a federal law about voting rights, What is being ignored is a simple matter in which they are subverting democracy, the democratic process, in their own state.
Let's remember, they're elected to represent Texas.
Now, it's one thing if they had some legitimate pretext.
Had they gotten COVID somehow in Texas and said, we can't show up because we're sick, we have to quarantine.
But no, they made a getaway, which was, if you had to describe what they're doing, it's, quote, obstructing an official proceeding, right?
The official proceeding here meaning the special session of the Texas legislature.
They're obstructing that, and they're proud of doing it, and they're boasting about it.
Well, how does what they're doing, the Texas Democrats, how is it different fundamentally from what the January 6th protesters are accused of doing?
Remember, for the nonviolent protesters, the vast majority of them, they're accused of trespassing, unauthorizing a federal building, but I mean, that's nothing, right?
That's a fine of 50 cents.
So in order to try to ramp up the charges, make it more serious, the government is accusing them of obstructing an official proceeding.
And by obstructing, they mean obstructing for what?
Delaying it for like three hours?
Now, look at the way the Texas Democrats are delaying the democratic process in Texas, unlawfully.
They're breaking the law no less than the January 6th protesters, and they're obstructing it for days, and it's becoming, it'll be soon weeks, and who knows if it'll turn into months.
So once again, you see the Democratic Party here, although they portray themselves as champions of democracy, they don't hesitate to undermine, halt, and subvert the democratic process when it benefits them politically.
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The cases of the January 6th protesters are one by one moving to final adjudication.
And as we look closer at them, we can see in them the face of American justice, or perhaps I should say injustice.
The injustice not merely of the Biden administration, but also of these judges.
In this case, I'm going to be talking about an Obama appointee named Randolph Moss, Judge Randolph Moss.
The defendant whose case I'm focusing on is Paul Hodgkins, 38 years old, from Tampa, Florida.
And I'm going to read from the court documents talking about what this man actually did.
Paul Hodgkins entered the U.S. Capitol building at approximately 2.50 p.m.
on January 6. Around 3 p.m., Hodgkins entered the Senate chamber, walked among the desks, and then removed his eye goggles.
He took a selfie-style photograph with his cell phone and walked down the Senate well, the Senate pit, where, a few feet away...
Several individuals were shouting, praying, and cheering using a bullhorn.
Hodgkins walked toward the individuals and remained standing with them while they continued commanding the attention of others.
At approximately 3.15 p.m., Hodgkins exited the Senate chamber and the U.S. Capitol building.
So that's what this guy did.
He was wearing a Trump t-shirt, he was carrying a Trump flag, and he took a selfie.
He's a nonviolent guy.
He came unarmed.
He didn't harm anyone.
And as far as we know, he didn't touch anyone.
And yet he's portrayed by the prosecutor with the ultimate acquiescence of the judge as a dangerous threat to democracy.
Now, the judge at one point does ask the prosecutors, He says, this guy is not a violent guy.
He didn't do anything violent.
And the prosecutors basically say, well, yes, he did.
That's because he was standing in a group that was generating or causing an intimidating influence.
So the group that is supposedly shouting and praying is, according to the prosecutor, exercising intimidation.
And this guy was just standing there, but he's found, in a sense, culpable for the actions of the group.
And then the judge says, was anyone actually, you know, hurt, harmed in any way by this man?
And the prosecutor goes, yes, of course.
Who? Well, he says, well, think of all the people.
He says, think of all the lawmakers, the staff, the law enforcement who were trapped inside the building and hiding.
It was the collective influence of this crowd that made them do that.
And the prosecutor says many of them will bear, quote, emotional scars, end quote, for the rest of their lives.
Now, you might think that the judge at this point would be like, are you serious?
But no, the judge himself gets caught up in this and he goes along with the frenzy.
I'm not going to quote him. This is Obama appointee, as I say, Randolph Moss.
And you get an idea of what's really bothering him.
It comes clearly out in what he says, and I'm quoting him.
To make matters worse, Mr. Hodgkin stood next to the days of the United States Senate, in the well of the Senate, and raised the red flag that said Trump 2020 in large white letters.
The symbolism of that act is unmistakable.
This is the judge talking. He was making a claim on the floor of the United States Senate not with an American flag, but with a flag declaring his loyalty to a single individual over the nation.
How does the judge know that? How does the judge know that he is somehow choosing the individual over the nation just because he thinks that Trump really won the election?
The judge goes on, that act captured the threat to democracy that we all witnessed that day.
What's the threat to democracy?
Trump is one of the candidates running for election of one of the two major parties to believe that he won and to go to Washington, go to the Capitol to demand accountability.
That's a threat to democracy?
Or is that an exercise of democracy?
Is it a threat to the Constitution or an exercise of your First Amendment rights under the Constitution?
And the judge gives this guy, Paul Hodgkins, eight months in prison.
He's going to be a lifelong felon.
As he himself told the judge, I'm going to lose my job at the auto shop.
I'm going to be moved out of my rental apartment.
So you're ruining this man's life for doing what?
And then, of course, on social media, you have these leftists.
Here's Amy Siskind.
Eight months for trying to violently overthrow our government.
No, Amy, this was not a violent man.
He didn't do anything violent.
Why don't you kind of harness your commentary to actual facts?
So, the bloodlust of the left, the lies of the prosecution, and the emotional blindness of the judge, either he's a willing accomplice, or he is, in a sense, a kind of...
Someone who just can't see.
He's so removed from reality that he can't understand what would motivate a man like Paul Hodgkins to do what he did.
And so here's a guy who is facing, you may say, he's a political prisoner of sorts.
And for just speaking his mind and showing a little bit of daring and hurting no one, here's a man who sees the rest of his life ruined.
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Just a little while ago on the podcast, I discussed in some detail a Revolver magazine article suggesting that January 6th might have been, might have been, an FBI orchestrated operation.
Part of the evidence for this claim was the idea that a number of the most serious Organizers of violence on January 6th.
There were some who did engage in violence.
And some of the people who were the leaders of that remain to this day unindicted.
They're unindicted co-conspirators.
They're apparently being let off.
Their government is not going after them.
And of course, Revolver was smart to ask the question, why not?
Could it be that these are...
CIA guys or FBI guys or deep state guys?
And could it be that they were the instigators of January 6th?
Now, one little tidbit that I noticed, there was recently CPAC in Dallas.
And who was wandering around CPAC in Dallas?
We see it in the pictures on social media.
Stuart Rhodes, the head of the Oath Keepers.
By the way, this is supposed to be the most dangerous militia organization in America.
It is, of course, front and center in the whole investigation of January 6th.
A number of these Oath Keepers are not only locked up, some of them in solitary confinement, but here's their leader roaming free and showing up at CPAC. How is this possible?
And the question raised by Revolver, I think a very legitimate one, is, is this guy not really an Oath Keeper per se, but an FBI informant or an FBI operative, somebody who infiltrated the Oath Keepers?
A second important line of evidence in the Revolver article had to do with a previous effort to kidnap Governor Gretchen Whitmer of Michigan.
And Revolver pointed out that five people, there were five FBI agents or operatives involved in that kidnapping.
And there was some indication that those five people were instrumental to the kidnapping, that the kidnapping would not have happened without those five.
Well, as it turns out, we now have information that in the Whitmer kidnapping, there were 12 FBI agents or informants.
Think about that. So 13 people have been arrested in that plot, and...
12 informants or FBI people are also involved.
So out of 25, you could almost say half the operation is the FBI. Now, there's an article in BuzzFeed, of all places, pretty interesting.
It's called Watching the Watchmen.
And it's a pretty in-depth investigative look at what happened in the Gretchen Whitmer kidnapping.
Some pretty good reporting in the article.
And the article stunningly confirms the Revolver magazine thesis and, in fact, adds more fuel to the fire or gives you more fodder to think that Revolver was, in fact, a pioneer and on the right trail.
Here is the thrust of the...
Of the BuzzFeed article.
It is that the government has documented at least 12 confidential informants.
These informants were actively involved in the Gretchen Whitmer kidnapping plot from the beginning.
In fact, it looks like one of them, a veteran named Dan, they're kind of concealing his last name, drove the whole plot.
He was the guy who put the group together.
He overcame the objections of people who didn't want to do it.
He provided logistical support.
He provided, quote, military training.
So at every stage, in fact, the very first meeting where the plotters first met one another organized by the FBI.
So again, and I've said this before, there is a difference between the FBI infiltrating a group that has a preexisting plot or that concocts its own plot.
And then the FBI observes the plot and then busts it up or arrests the perpetrators right before they're able to pull this off.
But no, in this case, it appears that this was an operation designed to cause the plot and to move the plot forward.
And of course, the question then becomes, what is the FBI doing if it's driving a plot forward that would not have gone forward on its own?
Is it not the case that in that situation, the FBI is in fact the engineer of this operation?
In fact, some of the defendants are making the point that the FBI assembled the key plotters, So, if all this is true, and the details, I'm not getting into them here, but they're in the BuzzFeed article, of all the concrete actions taken by the FBI itself...
And then, of course, when they bust up the operation, there's thunderous applause.
The FBI, of course, pats itself on the back.
Here is, by the way, after the plot was busted, Democratic Representative Elisa Slotkin, a Michigan Democrat, she goes, I'm so thankful to federal, state and local law enforcement for taking the threat seriously and getting to the perpetrators before they could act.
No word, of course, from Slotkin about whether the plot was generated by the FBI, what role the FBI played in moving the plot forward itself.
And then, of course, Republicans who often pile on and jump in themselves.
Here is Mike Shirky, Republican leader of Michigan State Senate, a threat against our governor is a threat against us all.
So, again, you have here the...
The deep state, playing with dirty hands.
And I found interesting that just recently, a couple of days ago, one of the FBI operatives, a guy named Richard Trask, The FBI arrests its own man.
Why? Well, the case is apparently unrelated.
It's a domestic violence case, but he's arrested for apparently having the intent to do serious bodily harm.
He's facing years, I think 10 years in prison.
And so you have here, I think, the FBI using these informants and operatives and then in some cases going after those guys too on unrelated charges to kind of move them out of the picture.
In any event, what we need to know, both about the Whitmer case, but also about January 6th, is to what degree this was an FBI operation, or to put it in its bluntest terms, to what degree the most powerful domestic terrorist organization in America is not the Three Percenters, it's not the Proud Boys, it's not the Oath Keepers, but is it the Federal Bureau of Investigation?
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Make sure to use discount code AMERICA. Conservatives these days are asking a lot of questions about the Supreme Court.
Notably, why the Supreme Court appears, at least from the conservative side, a little unreliable.
Why is it that on critical cases like Obamacare, some of the guys that we see as being on our own team can't be counted on?
Now, I've talked about this on the podcast, and I was contacted by an old friend of mine, Randy Barnett, who is a professor of constitutional law at Georgetown Law School, an eminent scholar with a remarkable set of books.
The latest one that's out, I believe, is this one.
It's called Our Republican Constitution.
And he has a new one out coming in November.
It's called The Original Meaning of the 14th Amendment, which you can preorder now.
It's coming out from Harvard University Press.
And Randy Barnett has, gosh, you've written, Randy, I believe, 11 books and you've got innumerable articles.
You are a scholar's scholar.
You just testified, I believe, before the Presidential Commission that's looking at the Supreme Court.
Welcome to the podcast.
I've been looking forward to this.
Thank you for joining me.
Let me dive right in by getting to, you know, I I hadn't read your book, and when I dived into it, I was just astonished at its beauty, its clarity of argument, the way in which it spells out what the sort of real two sides of this debate really are, because it hit me almost with a sense of astonishment that it appears that the left and the right...
Are kind of both on one side, and you're offering a kind of real alternative that even conservatives haven't really considered.
Now, you build your book around two conflicting ideas.
The first is the idea of what you call the democratic constitution, small d democratic.
And the other is the rival idea, which you advance, of the Republican Constitution, the small r Republican Constitution.
Let's start by talking about the Democratic Constitution.
How would you define the philosophy that advances the Democratic conception of constitutional reasoning?
Well, thanks for having me, Dinesh, and I'm thrilled that you like my book.
And I know that we're thinking along the same lines here.
What differentiates the Democratic from the Republican Constitution are two competing notions of popular sovereignty.
The United States was founded on the theory of popular sovereignty.
It was uniquely so, replacing monarchical sovereignty.
Parliamentary sovereignty. No, we have popular sovereignty.
But what's underappreciated is there really were two different conceptions competing with each other, even at the founding.
So the one that underlies the democratic constitution is what you might call collective popular sovereignty, which views we, the people, as a group.
And if popular sovereignty says we the people as a group is supposed to rule, then the only way we the people can rule as a group is by majority rule, because each and every individual member of we the people can't rule.
So popular sovereignty means popular rule.
Popular rule means rule by we the people as a group.
We the people as a group means democratic majoritarianism and so that leads to a democratic constitution which is an effort to try to empower the majority to rule because that's what popular sovereignty requires.
So anything that gets in the way Of majoritarian rule, of what's called democratic rule, is criticized.
In our constitutional order, that would include the Senate, which is not allocated by population.
It would include the Electoral College, which mirrors the Senate in some ways.
It also includes the role of judges, because judges are not elected.
And when they exercise what we call judicial review, it looks as though they're thwarting The will of we the people and that's suspect and conservatives bought into that idea starting in the 1950s and 60s and only in the last decade or so have more and more conservatives come to question the idea that somehow judges are doing something improper when they thwart the will of we the people.
The word that's used to describe that thwarting is judicial activism.
Judicial activism is a pejorative referring to when it is that judges obstruct the will of we the people as reflected by the majority.
So that's the Democratic Constitution.
So that's a beautiful summary.
In fact, it sounds very familiar.
It sounds like what we hear all the time today.
One of the reasons that Biden set up this commission on the court is that you had a chorus of voices on the left Basically saying the court is is not reflecting the will of the people.
The court is reflecting this kind of narrow right wing majority on the court.
And and so we need to have more members of the court that are more reflective of the country as a whole and the and the electoral majority that Biden seems to have assembled last November.
Now, let's talk about the Republican alternative.
Before we dive into some specifics, what is the Republican conception of constitutional jurisprudence?
Right. Well, it's based on a different conception of popular sovereignty, based on a different conception of we the people.
It doesn't view we the people as a group.
It views we the people as individuals.
We the people includes each and every one of us.
And that conception of popular sovereignty is actually found in the Declaration of Independence, which is where it says, Rights of life, liberty, and the pursuit of happiness.
Those are each individual rights.
Those are not collective rights.
The individual right to life, the individual right to liberty, the individual right to pursue happiness.
And the next sentence states the American theory of government, which is to secure these rights.
Which rights? The individual rights.
To secure these rights, governments are instituted among men deriving their just powers from the consent of the governed.
So, this view of we the people starts with the notion that first come rights, and then comes government.
And governments are there to secure the individual rights of we the people, each and every one of us.
And the Declaration also distinguishes between the people and the governors, because it says the consent of the governed Which presupposes that there's going to be a government that is not the same as we the people.
And the reason why we need a constitution is to provide the law that governs those who govern us.
To what end? To the end of securing the rights of individuals, the securing the rights of we the people, each and every one of us.
So what this leads to is a Republican constitution, small r, Republican constitution, Which reflects this individual popular sovereignty, and this is a constitution which is designed to secure the rights of each and every one of us from all kinds of abuse, from abuse from our fellow citizens, but also from abuse by a majority of the population exercising their power through the legislature.
So we need a constitution.
So the popular will and majoritarian rule is not the answer to constitutional legitimacy on this view. It is the problem that you need a Republican constitution to address. How do you empower majority rule and still constrain it so that it will respect the rights of we the people, each and every one of us? That's what we need is a Republican constitution. That's why the counter-majoritarian institutions of the Senate and the Electoral College and an independent
judiciary serve very important functions within a Republican constitution that those who believe in a democratic constitution want to override.
When we come back, I'm going to dive into this some more and ask Randy Barnett to apply these two ways of looking at the Constitution to a specific case, namely Obamacare.
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I'm back with Randy Barnett, legal and constitutional scholar at Georgetown Law School, author of Our Republican Constitution.
Randy, when Benjamin Franklin was asked what type of government the founders had sort of put together, he said famously, a republic if you can keep it.
Would it be accurate to summarize by saying that the founders, as a group, embraced the Republican Constitution and saw, as you said, majoritarian rule as not being the kind of glorious remedy, but in some senses, the problem that the architecture of the Constitution was designed to deal with?
Exactly. During the convention itself, several delegates, as I mentioned in the book, complained about the democratic excesses that they had been experiencing in their state legislatures under the Articles of Confederation.
So originally, we started off with more or less a democratic constitution state by state.
And then the new constitution, which is basically there to countermand majoritarianism, was essentially a new form of republicanism that had just been invented.
And so when Franklin said that on his way out of Independence Hall, he was labeling the new form of government, which was different than the old form of government, republican.
So I say that so it's fair for me to describe it as republican if Franklin could describe it as republican.
I want to fast forward to Obamacare because I think people can see more clearly in concrete form the two kind of different lines of argument you're developing and also see a little bit of what seems to have gone wrong with modern American conservative Now,
you were one of the architects of the argument that Obamacare is unconstitutional because it involves a mandate requiring people to do something that our Constitution does not allow the government to require them to do.
Say a word about why Obamacare, this idea that That American citizens could be forced by the government to buy insurance or pay a fine if they didn't.
Why would that be unconstitutional?
What's unconstitutional about a mandate of that sort?
Right. Well, the power that was being exercised was the commerce power, which gives Congress the power to regulate commerce among the several states.
And what I think the court, what five justices agreed with us about was that that power, the Necessary and Proper Clause, which allows Congress to make all laws which shall be necessary and proper laws, To carry into execution the commerce power allows Congress to prohibit commerce.
It allows Congress to regulate or make regular commerce.
But what it doesn't allow is Congress to make you engage in commerce.
The reasons for that are long.
We would take a separate segment.
But basically, to do so, as Justice Kennedy recognized an oral argument, and Chief Justice Roberts said in his opinion, would fundamentally change the relationship of the citizen to the state.
If anything that was convenient to the regulation of interstate commerce could be forced upon you, then essentially we would no longer be citizens but we would be subjects.
I mean, to quote Justice Roberts, and this is right from a quotation in your book, he says in effect that, you know, he gives the example that Congress cannot solve the diet problem by ordering that everybody, let's say, eat broccoli or eat more vegetables, that this would be an infringement on people's liberty to be able to choose what you want to eat.
So in that sense, you can't require people to do something under this sort of a mandate.
Now, as you say, Justice Roberts...
When along with that reasoning, he agreed with you, and yet in the end, he voted for Obamacare.
In fact, he was the decisive vote.
And you make the argument, I think ingeniously and correctly, you say how we lost, we lost precisely because of the conservative philosophy of judicial restraint.
So explain how Roberts, in making his decision, wasn't in a sense betraying conservative principles, but living up to them.
Right. Well, you know, normally when you win on the law, you expect to win the case.
And winning on the law at the Supreme Court means getting five votes.
And after two years of being told that our arguments were frivolous and ridiculous, we ultimately got five votes for our substantive argument.
But then something happened, and that is the fifth vote of Chief Justice Roberts changed, we understand, during the course of writing the opinions, which is perfectly okay.
That does happen.
And he changed from invalidating the individual mandate to upholding it, and he used what's called a saving construction.
And what he said is that I am obligated to what he said, defer to the statute.
He should have said defer to Congress, but he says in his opinion, defer to the statute if I can.
And even though an individual insurance mandate is the natural reading of the statute, which says requirement enforced by a penalty, I can read this as though it was a tax.
It's not the best reading, but it's what he calls a reasonably possible reading.
and because I can do that, I am obligated by principles of judicial restraint to do so.
And judicial restraint is what Republicans and conservatives had been asking for, for decades. And they got it this time, but they didn't like it. So I actually think that 2012, when that case was decided, became an inflection point within the conservative legal movement. And at that point, originalism started to play a bigger role, and judicial restraint started to play a diminished role within the conservative intellectual movement,
resulting in Trump nominees who emphasized originalism over restraint.
But restraint is still there.
And you saw it a lot during COVID, for example.
This conservative idea of judicial restraint, which they got from the political progressives, is still there.
Well, I remember going back to the 80s, for example, Judge Bork was a great champion of the idea of deferring to the legislature, that in a democratic society, the argument went, the legislature makes the laws and a judge should, in a sense, be humble in the face of what the legislature is trying to say.
Now, the point I want to make, and I think this is, is that when you outlined at the beginning the democratic and the republican kind of ways of reading the Constitution, you We're now discovering that the right, like the left, is on the democratic side of the bandwagon.
And what I mean by that is that both of them appear to see a constitutional legitimacy arising out of popular majorities and out of the electoral majority that is determined through election.
I take you to be saying that there's a Republican alternative, and the Republican alternative is...
The superior super law of the Constitution, which overrides in many cases these Democratic majorities, and the judge needs to be the custodian of that.
Is that an accurate summary of where you're going with this?
It's totally accurate.
Totally accurate. I mean, the conservative legal movement It has been committed to two different things, two different horses, judicial restraint and originalism.
And originally, when I started getting involved in the movement 35 years ago, restraint was way up here and originalism was way down there.
And over time, it started to go like this.
And I think with Obamacare decision, it started to move like this.
The Bush administration, they weren't picking originalist justices.
They weren't screening for originalists.
They were screening for restraint people.
But the Trump administration was screening for originalists.
And that makes a big difference.
It's questionable.
I don't know whether all their Supreme Court nominees actually really are originalist first and restraint people second.
They may not be.
Justice Barrett, for example, during her confirmation hearings, when asked by Ben Sasse about the declaration, she diminished the role of the declaration, said, well, it's a statement of our principles.
It's relevant to our history.
But it is not law, she said, which is what Justice Scalia used to say as well.
Well, she's right, it isn't technically law, but by diminishing it that way, I think she's signaling her discomfort with the philosophy that's in the Declaration that a judge might be called upon to uphold one day.
When we come back, I'm going to ask Randy Barnett whether there is a way going forward that moves beyond the distinction between restraint and activism, and whether the Republican Party can become once again the true home of a Republican way of understanding the Constitution.
We'll be right back. Do you appreciate a really good towel?
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I'm back with legal scholar and constitutional scholar Randy Barnett of Georgetown Law School.
We're talking about his book, Republican Constitution, but he has a new one out in the 14th Amendment coming out in November that you can pre-order now.
Randy, you mentioned the concept of originalism.
And let's explain what that is.
It's that when you're reading a provision of the Constitution, you read it in the light of the original understanding of the people who drafted that clause.
Is that a correct understanding of originalism?
Or spell it out a little bit.
Right. I would say original meaning as opposed to original understanding.
But I have a one-sentence definition of originalism.
And that is... That the meaning of the Constitution should remain the same until it's properly changed, which is by amendment.
That's originalism.
This means judges can't change it.
Congress can't change it.
Congress, the judges, and the President together can't change it.
Why? Because the Constitution is the law that governs those who govern us, and they can no more change the law that governs them without going through the amendment process than we can change the law that they make to govern us without going through the legislative process.
You discuss in your book the concept of both natural rights and natural law.
Now, when you mentioned the Declaration in our last segment, I think you would agree that the Declaration of Independence with its affirmation that it's a self-evident truth that all men are created equal, this is a kind of ringing declaration, you might say, of human equality, of human dignity, an affirmation of natural rights in that sense.
Notwithstanding what Amy Coney Barrett says, that this principle of equality should nevertheless inform the reading of the Constitution, one might almost say as the soul informs the body.
In other words, is there a kind of A spirit of the Constitution that is guided by natural rights that helps us to understand specific provisions of the Constitution that may be either ambiguous or it may be unclear how to apply them in a given circumstance.
Absolutely. And the title of my forthcoming book, The Original Meaning of the Fourteenth Amendment, the subtitle is It's Letter and Spirit.
And I do develop in that book and in articles what I mean by the spirit as opposed to the letter.
The letter is the meaning of the text.
The spirit refers to the functions, purposes, ends, or objects for why we have that text.
What problems was that text supposed to solve?
And when you deal with ambiguities or vagueness in the text, which do arise, or abstract Words in the text, which also exist, you must interpret them in light of the Spirit.
To be faithful to the text, and not your own views, you need to be faithful to the original purposes, the original ends, the original objects that that text was there for.
To address. And so, yes, it's the spirit.
Now, for some conservatives, spirit is fighting wars because living constitutionalists use the spirit of the law to trump and supersede the text.
So if the spirit of the Second Amendment was public safety, and now we think that guns are a threat to public safety, it's true to the spirit of the Second Amendment to ban guns.
Well, I don't think that's true.
An originalist thinks that the text takes priority, and you refer to the spirit as simply how you implement the text correctly.
Could it be, for example, that if you take the, let's just take the equal protection clause of the 14th amendment, one could say that the spirit of that law is to prohibit discrimination.
In other words, it's an affirmation of human equality.
Now, the founders may have thought of it exclusively in the context of race.
But would it be arguable that one could, for example, apply that same principle, obviously prudentially, in other areas?
Let's say, for example, someone discriminates against you because you are a woman, or someone discriminates against you because you are, let's say, born in another country.
And the argument would be that even though the founders didn't specifically think about They were specifically thinking about blacks.
They were specifically thinking in the racial context.
Nevertheless, the underlying principle of equality is clear enough that it could be applied even to circumstances that the founders didn't directly envision in front of them.
Right. Well, we're speaking of the authors and ratifiers of the 14th Amendment, which we might call our second founding.
And they were quite clearly thinking of beyond race.
For example, they were very concerned building up to the Civil War with the rights of whites To advocate abolitionists in the South, whites were being punished.
Whites were being run out of the states because they were abolitionists.
So this was not solely a racial thing.
It's not the Equal Protection Clause that is the equality part of the 14th Amendment.
It's the whole amendment.
The Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause all are about equality in addition to fundamental rights.
The Privileges or Immunities Clause is about fundamental rights and they're about the fundamental civil rights we get when we enter into a civil society from a state of nature.
It's the civil rights we get to protect our natural rights.
The Due Process Clause is about a judicial scrutiny of arbitrary laws to prevent irrational discrimination against any person.
And the Equal Protection Clause is first and foremost about protection.
It's about, for example, unequal law enforcement in the South where there was a perfectly good law against murder, but it was only being enforced selectively and allowing African Americans to be lynched and murdered.
You make a very striking statement in your book, Randy, where you basically say that when people are trying to make an argument against a majority form of tyranny, tyranny of the majority, they typically flee to the Bill of Rights.
And they typically say things like, you know, this is a violation of my First Amendment right to free speech.
This is a violation of my Second Amendment right to own a gun.
My Fourth Amendment right against search and seizure.
As if those are the only refuges from majority rule.
You use the image of the fact that we're fleeing the boat, the ship, and kind of jumping into the lifeboat.
And you say that the Bill of Rights is a kind of life raft.
It is an enumeration of certain rights that you do have against majority rule.
But the whole constitutional architecture has a protection of those rights.
And we're kind of missing that architectural defense against majority rule.
Spell out a little bit about what you mean by that.
Well, first of all, the Ninth Amendment says that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
And then the Fourteenth Amendment's Privileges or Immunities Clause says, Which shall abridge the privileges or immunities of citizens of the United States.
Well, in my book, we talk about what were those privileges or immunities.
They certainly were the fundamental rights contained in the written Constitution.
Those were among them, but those were actually only supplemental to the more fundamental civil rights that you get when you enter into civil society, which includes, for example, the right to own property, the right to enter into contracts.
The right to have protection of the government.
These are the more fundamental civil rights that were accepted as privileges or immunities of citizens by the Republicans who wrote the 14th Amendment.
You call at the end of your book for the Republican Party to embrace the Republican understanding of the Constitution.
Would it be accurate to summarize that by saying that what you want the Republicans to do is not to be, quote, activists or restrained one or the other, but to be activists where the Constitution demands that they protect rights?
And to be restrained or to restrain organs of government from exceeding their legitimate constitutional authority.
So it's not one or the other.
Be restrained when you need to be, according to the Constitution, and be activist when the Constitution calls upon you to do so.
Do your job. Absolutely.
And I want to be clear. I don't want to be misunderstood as saying, I think judges should say, oh, this is a natural right.
This should be protected. I think that's not the appropriate role of judiciary.
But when the Constitution, which is set up to protect those individual rights, is violated, it is the duty of the judge to say no to the legislature.
And in that sense, unfortunately, Chief Justice Roberts betrayed that duty when he said, no, no, it's my duty to defer to the statute.
That was the mistake.
He didn't have to recognize natural rights to protect our natural rights.
The limitations on the commerce power and the Necessary and Proper Clause did that.
He just had to follow those clauses and the effect would have been to protect our natural liberty, our natural rights.
But four justices would have done that and he was the fifth judge and he refused.
So you're saying, ironically, that in embracing the statute, in a way he spurned the Constitution.
Absolutely. Thank you, Randy.
This has been a very illuminating conversation.
I really appreciate it.
Well, thanks for having me, Dinesh, and it's good to see you, even if only virtually.
A second billionaire has propelled himself into space, this time Jeff Bezos, the founder of Amazon and the world's richest man.
He follows entrepreneur Richard Branson in space and apparently Elon Musk is third in line, a kind of billionaire space race, you might say.
And this is not really, by the way, going to the moon or anything dramatic.
This is not Neil Armstrong territory at all.
Let me describe exactly what these guys are doing.
The three stages of the flight, each one lasting three to four minutes.
So stage one, the rocket basically fires up into the air and you experience up to three times the pressure.
That you get on the surface.
Then there's four minutes of weightlessness where you drift in space and you can kind of see the distant curvature, the curve of the Earth.
And then finally, three minutes of descent.
And then you're back where you started.
Jeff Bezos didn't go alone.
He went with his brother Mark, an aviation pioneer, a woman named Wally Funk.
And then a Dutch teenager whose dad, I guess, apparently paid for him to be on the flight.
And then you've got the usual media excitement.
Of course, the Washington Post, which is a pawn of Bezos.
He owns the post all over it.
And here's Bezos.
He's uttering cliches.
Look at And so there's a little part of me that is sort of, I see this whole thing as a little furile, which is to say juvenile, which is to say adolescent.
And the reason I say this is because the desire to kind of propel yourself above the Earth's orbit is And to do it, you know, not for exploration, not really to advance human knowledge per se, but just to do it and to be first.
If you read about these billionaires, there's a certain quality to them that is a little bit strange.
At one point, I remember Oracle's CEO said, Saying, you know, someone asked him, would you like to have more money than Bill Gates?
And he goes, well, no. And he goes, well, maybe.
And he goes, well, just I'd like to have a little more.
And so you get the sense that people whose earthly needs are satisfied are nevertheless driven by this sort of restless desire to be, number one, to be, you know, the...
And you wonder, is there some sort of psychological issue behind it?
But I think we can set all this aside because the benefit, I think, will accrue over the next probably 10 or 20 or 30 years.
And the benefit is that it's going to open up space travelers.
It's going to open it up, I think, in a way that a government-driven space program of the kind run, say, by NASA would not do.
What these guys have in mind is private space flights.
And, of course, they're going to be ridiculously expensive, a quarter of a million dollars to go up there for five minutes.
Obviously, there are only going to be a few people who can afford that.
Elon Musk, by the way, has even more distant goals.
He wants to create a multi-planetary species that can have a base on Mars by the year 2050.
But we only have to think back historically to the automobile and even to the airplane to think that...
Things that started out as luxuries, only for the rich.
Remember the automobile? I discussed this, by the way, in the United States of Socialism.
Talk about how the automobile was a rich man's toy.
It cost $3,000 in 1900 to have a car.
And all cars were custom built according to your individual specifications.
And Woodrow Wilson, who was at that time the president of Princeton, dismisses the car.
He goes, it's It's a rich man's toy.
It's not going anywhere. Who needs a car?
Why not just have the horse and buggy?
But of course, part of the genius of Henry Ford was to take the rich man's toy and figure out ways that it could be democratized, made accessible to more people.
And it was the investment of the rich in buying $3,000 cars that enabled cars to get better.
And prices of cars to come plummeting down, by 1916, Ford's Model T was selling for $400.
And a middle class family could afford a Model T. We see the same with air travel.
When I first came to America in the 70s, you'd see people dress up to go fly.
Why? Because you had to be upper middle class to go on a plane.
And it was only in the last few decades that airplane travel has become kind of like the Greyhound bus.
Anyone can travel.
You can travel coach if you get the vacation fares.
It's a couple of hundred bucks to go back and forth to Florida.
And so, once again, these are technologies that are originally for the few.
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