Andrew Clavin dissects modern culture wars through Chick-fil-A’s Dan Cathy—who weathered protests over same-sex marriage without apology—and Starbucks’ Philadelphia incident, framing both as media-driven narratives. He defends Sean Hannity against Michael Cohen claims, mocking calls for disclosures while praising his refusal to apologize. Joseph Tartakovsky then traces constitutional history, warning against a new convention and linking slavery’s inevitability to the South’s 1830s shift from ambivalence to pro-slavery dogma. The episode ties legal precedent—like Scalia’s war on judicial overreach—to today’s executive power grabs, while blaming millennials’ sexual decline on a "relearning" of boundaries post-sexual revolution. [Automatically generated summary]
The Pulitzer Prize has been awarded to both the New York Times, a former newspaper, and the Washington Post for failing to make the case that Donald Trump colluded with Russia to defeat Hillary Clinton.
The prize comes with a citation to the Times and Post that reads in part, quote, Even though you didn't achieve anything, you tried really, really hard and deserve a trophy for doing your best.
After all, winning isn't everything.
Everyone who participated should get a prize.
And afterwards, we'll all go to Baskin and Robbins for ice cream.
That should help you forget the fact that you've wasted more than a year covering a story that doesn't exist while people were watching Brett Baer on Fox News to find out what was actually happening in the world.
So congratulations, and here's a plastic cup and a ribbon, unquote.
Reporters at the Times and the Post celebrated by drinking champagne until they found themselves lying on the bathroom floor, vomiting and sobbing over their lost journalistic ethics and their wasted lives.
Trigger warning, I'm Andrew Clavin, and this is the Andrew Clavin Show.
I'm the hunky-dunky.
Life is tickety-boom.
Birds are ringing, also singing, hunky-dunky-dunky.
Shipshaw, tipsy-topsy, the world is a bitty zing.
It's a wonderful day.
Hoorah, hooray!
It makes me want to sing.
Oh, hurrah, hooray.
Oh, hooray, hurrah.
All right, I am here in Phoenix in a Hilton hotel.
I had a fantastic time yesterday at the Grand Canyon University.
I gave a speech there, and the kids were absolutely great.
I call them kids because I'm so old they look like kids to me, but they're students.
Really nice universities just burgeoning kind of a private Christian university.
A couple of really interesting questions I will tell you about in just a moment, but first we have to talk about Lightstream because I don't know about you, but when I use my credit cards, I don't think about money at all.
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All right, so, you know, I'm at this university, and I obviously took questions.
I think it'll be online on YouTube.
You can probably look it up if you want.
It was a really interesting exchange.
And one kid said to me that his mother hated religion, and she kept telling him that religious people only do good to get a reward in heaven, whereas non-religious people just do good because that's the kind of people they are.
Family Values Under Attack00:05:15
And I was thinking, you know, first of all, of course, the premise is untrue, that unreligious people do good just because they're them.
But it really is like saying, you, you know, you're a fake.
You only exercise because you want to have a healthy lifestyle and look good.
It's like you move toward God because that's where the joy is.
And that's what I was kind of speaking about.
I was speaking about the way that the press and everybody attack religion.
And they basically have a way of manipulating religious people who oftentimes are not press savvy, media savvy, into condemning things, into always being into the position of saying, no.
Should you do this?
No.
Should you do that?
No.
And that's why religious people always look like kind of the grim reaper, and not to mention, of course, Hollywood portraying them as the worst bigots and homophobes and all that stuff.
And that's the basic, that was what my speech was about, is why they do that and why that's happening in our society and what we can do in answer to it.
But it got me thinking about the fact, you know, since normal, everyday Christian American values are so under attack and anybody who holds them comes under this absolute onslaught from the left, it's good to like observe the different ways that people handle them.
I was watching Hannity yesterday get hammered for this Michael Cohen story.
I'll talk about that.
Watching Starbucks getting hammered for these two guys' arrests.
And I thought back to Chick-fil-A.
Remember Chick-fil-A, where Dan Cathy, the guy who ran the place, runs the place, CEO, came out against gay marriage.
He's a very, he's a Bible-believing Christian and doesn't believe in gay marriage.
And he said so recently, the New Yorker, I mean, this is just a couple of days ago, the New Yorker ran a piece called Chick-fil-A's Creepy Infiltration of New York City by Dan Pepenbring.
And he says, New York has taken to Chick-fil-A.
One of the Manhattan locations estimates that it sells a sandwich every six seconds, and the company has announced plans to open as many as a dozen more storefronts in the city.
And yet, the brand's arrival here feels like an infiltration in no small part because of its pervasive Christian traditionalism.
It's just the New Yorker telling, Chick-fil-A is infiltrating New York with its Christian traditionalism.
Its headquarters in Atlanta.
Listen to this description.
This is supposed to go with horror or danger music.
So think to yourself, like, bum, Its headquarters in Atlanta are adorned with Bible verses and a statue of Jesus washing a disciple's feet.
Bum, Its stores close on Sunday.
Bam, bum, bum, bum, bum.
Its CEO Dan Cathy has been accused of bigotry for using the company's charitable wing to fund anti-gay causes, including groups that oppose same-sex marriage.
So anyway, there were protests.
Remember, people were dressing up as chickens and holding signs.
God hates hate and all this stuff.
But Kathy stuck to his guns.
He never changed his stance.
But listen to him back.
This is back in 2012.
So listen to him back in 2012 talking about why he felt the way he did.
This is cut number two.
So we're concerned about this whole issue of the family and how we define the family.
And so we just want to encourage our nation that, hey, God sets the standard of what a family is.
It's not going to come out of Washington.
It's not going to come out of some blog site.
But whatever that definition of marriage that we can hang on to that really is going to represent the stability of our future, we need to be committed to it.
I'm not a politician.
I'm not a preacher.
I'm just a businessman out here.
But I just want to say that, hey, we ought to pray for our politicians.
We ought to pray for those that are the thought leaders.
We're really out here to sell chicken.
But if someone asked us the question of how valid biblical values are, our testimony is they work, they really do work.
Regardless of the internet and all the things that are changing all around us, there are some things that haven't changed and never will change.
So he stood up to them.
He never apologized.
He never said anything.
He said, these are our values.
And people lined up around the block.
Now, Chick-fil-A is, I think it's the third highest fast food venue if you include Starbucks and McDonald's, McDonald's and Starbucks, and Chick-fil-A, which was not as big at the time because he stood up to them.
I mean, he didn't spit in their eye.
He was kind about it.
He was just insistent that this is where he stood.
He did, over time, moderate his tone because he's a Christian man, right?
He wasn't trying to spew hate.
He wasn't trying to say, you know, the Bible says there's no yes and no in Jesus.
It's all yes.
And he wasn't trying to condemn people.
He was trying to describe what a family was according to the Bible and what it isn't.
And that is what he was trying to say.
So later, they interviewed him just a few months ago.
And, you know, he still maintains exactly what he maintained before.
He's never lost his principles.
But he moderated his tone a little bit to make it clearer what he was saying now that he had won the face-off.
So here's that more recent quote.
I've been able to reach out to people in the gay community and sit down and have some incredibly wonderful dialogue with them.
Police Intervention Debate00:07:25
I tend to like to find the things that we can agree on.
And as an example, a friend that I've gotten to know up in Charlotte, North Carolina, we find that this issue of bullying and saying demeaning things about people because of a whole wide range of different things that we can try to pick at each other.
Washington does a pretty good job of it focusing on minors and things that we should, you know, just let's move on to the important stuff.
So I've been able to do that with this friend, and as a result, this opened up a great dialogue.
And together, we say, hey, we're going to be honorable and we're going to be respectful of everyone.
That's a beautiful thing, right?
The guy stands up for his principles.
He wins the day because he doesn't back down.
He's not panicked.
He stays exactly where he is.
People show up because they respect him.
And some of them share their principles.
And some of them, I'm sure, just like the chicken sandwiches.
And then he can say, you know, it's not about hatred.
It's not about no.
It is about yes.
It is about welcoming people and being respectful of people.
But it's also about not changing the definition of something just because the government says so when the Bible says something differently.
That is a beautiful thing, in my opinion, to compare that now to what's happening at Starbucks in Philadelphia.
But before we talk about that, let us talk about my teeth.
Because I know as I'm talking, you can barely think for looking at my teeth and saying, wow, how do they get like that?
They get like that because I consulted my dental hygienist and she told me you got to use an electric toothbrush.
And the problem with electric toothbrushes is they're huge, but not quip.
Now, usually when I talk about Quip, I do not have a visual aid, but because I'm traveling, of course, I have it with me.
Here is my Quip.
It is a beautiful thing, right?
It's sleek.
It's really well designed.
You don't have to recharge it.
It works on a battery.
And they will send you every three months.
You can subscribe and they'll send you a new brush head, which is important to keep the brush heads strong.
It packs just the right amount of vibrations into a slimmer design at a fraction of the cost of the bulkier traditional electric brushes.
And most brushes don't get named one of Time Magazine's best inventions of the year, but Quip did.
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Quip is backed by a network of over 10,000 dental professionals, including dentists, hygienists, and dental students.
And it really does make a difference when you use an electric toothbrush.
It really gets rid of the stains, especially if you've been hanging out with Michael Knowles and smoking those cigars.
You get stains.
Not, you know, hanging out with Michael Knowles, you get stains on your character, but those cigars will give you stains on your teeth.
Quip will take care of it.
Quip starts at just $25.
And if you go to getquip.com slash Claven right now, you'll get your first refill pack free with a Quip electric toothbrush.
And I know what you're saying.
You say, hey, you're claving because you're brushing your teeth.
It's K-L-A-V-A-N.
There are no E's in Clavin.
That's your first refill pack free at getquipp.com slash Clavin, spelled G-E-T-Q-U-I-P dot com slash Clavin.
You know, we say there are no E's in Clavin, but apparently that is not always true.
I found a fellow at Oxford named Dr. Andrew Clavin.
Can we put that up so you can see it?
And it's spelled K-L-E-V-A-N.
So I guess K-L-A-V-A-N or is it it's K-L-E-V-A-N.
Yeah.
So there is occasionally some Ease in Clavin when you take your Ease.
All right.
So Starbucks, Philadelphia.
Two black guys come in.
They don't buy anything.
They want to use the bathroom.
The manager says to him, you know, you're not allowed to use, our policy is you're not allowed to use the bathroom without buying something.
He asks them to leave because they say they're waiting for a meeting.
The police come in and he calls the police and the police come in and escort them out and he gets caught on video and this becomes a big deal.
Okay, so they're protesting, they're boycotting.
And here is the police chief, Richard Ross, in Philadelphia, describing the incident as he saw it.
They had seen these two males come in.
They sat down and after being seated, they decided that they needed to use the restroom.
Starbucks said that according to their company policy, they do not allow non-paying members or non-paying people of the public to come in and use the restroom.
And so they then asked these two males to leave.
These two males refused to leave and the police were called.
Now, when the police were summoned to the scene, they get there and they get this story that I just began to outline.
They then approached the males.
They asked the males to leave because they're being asked to leave by Starbucks employees.
In fact, in an effort to quell the situation, officers actually called for a supervisor so that it would not get out of hand, something that was a good decision.
And three different occasions, the officers asked the males politely to leave the location because they were being asked to leave by employees because they were trespassing.
So of course, it's a racial game, right?
The two black men, they're arrested for sitting while black.
People are going in there with megaphones and screaming.
They're protesting outside.
They're threatening a boycott.
The lawyer for the guys who were arrested, Melissa DePino, comes out and she immediately plays the race card.
Here's her quick take.
These guys were doing what people do every single day.
They were having a meeting and they were undoubtedly singled out because of their race.
Undoubtedly.
If you say it like that, undoubtedly, that means there's no doubt, undoubtedly, okay?
Starbucks collapses.
They fire the manager, or at least they say he's no longer working there.
So I guess they give him the boot.
They start, our hearts are broken.
Here's the CEO apologizing, falling all over himself, apologizing.
In this particular case, the local practice of asking someone who is not a customer to leave the store.
And unfortunately, then followed by a call to the police.
Now, certainly there are some situations where the call to police is justified.
Situations where there's violence or threats or disruption.
In this case, none of that existed.
These two gentlemen did not deserve what happened.
And we are accountable.
I am accountable.
It's like it's going to be sensitivity training for anyone.
I call BS, okay?
I don't know what happened.
I wasn't there.
But just use your imagination for one second, okay?
This is Starbucks in Philadelphia.
You ever been to Philadelphia?
It's an East Coast city.
People there are all different colors, lots of black people, lots of people in between black and white, lots of everybody.
It is an American city on the East Coast.
Philadelphia, Starbucks.
You think there are no other black people in Starbucks?
You think that place, you think that they hire bigots who harass their customers because of the color of their skin?
Absolutely not.
Something, what were these two guys doing that made them different?
Maybe the manager overreacted because they were giving him a hard time.
Maybe he overacted because he thought these are the rules.
They've got to fire the rules.
And by the way, why don't they have to follow the rules?
Why shouldn't they follow the rules like everybody else?
I am telling you, I am telling you, there is no such thing as an all-white Starbucks in the middle of Philadelphia.
There are people streaming in and out there all the time.
I want to know what these guys did.
Now, they're not arrested.
They're not charged.
Hannity Defends Managers00:08:55
It's not going to come out.
But it's going to be really interesting to see as this story goes on.
What's going to be interesting is the moment when it disappears from the news media because it no longer serves the narrative of a racial of a racist America.
You know, that's going to be really interesting.
You just watch.
It'll be there for a couple of days.
There'll be protests.
And of course, apologizing does nothing, right?
It does nothing.
They don't accept the apology.
Just like with Laura Ingram, she apologized, but luckily, Fox stood up for her when she was going to, when she insulted that Nazi teenager who hates guns.
I shouldn't call him.
I apologize.
Oh my God.
I'm so sorry.
I don't apologize.
But that teenager who hates guns, she insulted him.
She took it back, but he wouldn't accept the apology.
Fox stood by her, and now her ratings have skyrocketed, which brings me to Sean Hannity.
So yesterday, Michael Cohen, Donald Trump's personal attorney, is in court, and he is trying to keep them from revealing all the documents they got, which he says violates lawyer-client privilege.
And the judge is a friend of Bill and Hillary, presided over George Soros's wedding.
They called her the love judge in New York because she was caught in an affair with a businessman.
So Cohen is trying to protect the names of his clients.
He's got three claims.
He says he's got three clients last year.
One was Donald Trump, and then this guy, Elliot Broidy, who's a venture capitalist and the former deputy finance chairman of the Republican National Committee.
What he's doing, he's paying off girls for these guys, right?
And who's the third guy?
And he says the third guy is Sean Hannity.
And apparently there is an audible gasp in the courtroom and the media goes bats.
Hannity, to make fun of them, just to make fun of them, Hannity just strung together all the times he was mentioned in a single day.
It was cut 12.
He stood up and he said the name Sean Hannity.
How did he say it?
Was it like Sean Hannity?
It was Sean Hannity.
Sean Hannity Hannity.
Sean Hannity.
Hannity.
Sean Hannity.
Hannity.
Sean Hannity.
John Hannity.
Hannity.
Sean Hannity.
Hannity.
Hannity.
Sean Hannity.
Hannity.
Sean Hannity.
So, of course, you know, the comedians go absolutely bonkers, right?
They hate him so much.
Jimmy Kimmel hates him.
Stephen Colbert hates him.
Stephen Colbert really sank low.
Here is Colbert's piece.
Cohen only has two other clients, and all he does for them is pay off mistresses.
Which raises the obvious question: who did Sean Hannity have sex with?
Now we don't know, and I can't prove this.
But I think it's that football he's always holding.
Every commercial break, he's got his hands all over it.
Daddy wants some pigskin.
You know, the other day there was a piece in, I think it was in the New York Times, a former newspaper, used to be a newspaper, by Kevin Yu, a guy named Kevin Yu, YU.
And he was watching Roseanne, and they had a funny joke on Roseanne.
Roseanne and her husband, Dan, wake up after they pass out on the couch, and they say they've missed all the, and Dan says, we've missed all the TV shows about black and Asian families.
And she says, oh, they're just like us.
You know, there now, you're all caught up.
In other words, the message of all these shows is they're just like us.
And the headline of the story is, Roseanne, when a punchline feels like a gut punch.
If one joke on one TV show is a gut punch to this guy, I want him to just imagine what it is like to be a conservative in America where you are hit every single day by every single late night comic.
I will say this: the late show did do one funny thing that really is worth playing, where they mashed together pieces of Sean Hannity.
These are all spliced together over the years to make it sound like he was confessing.
So do we have that?
And this is a Fox News Alert.
President Trump's longtime personal attorney, Michael Cohn, is my attorney, and I defended him right here on this program.
Can anybody say conflict of interest?
A huge conflict of interest, Fox News has largely ignored.
To put it another way, Sean Hannity should be fired, like yesterday.
That was pretty funny.
But I mean, since every comedian is going to attack him, somebody's going to get funny.
Here is Sean Hannity explaining his relationship to Michael Cohen, this Cup 13.
Michael Cohn never represented me in any legal matter.
I never retained his services.
I never received an invoice.
I never paid Michael Cohn for legal fees.
I did have occasional brief conversations with Michael Cohn.
He's a great attorney about legal questions I had, or I was looking for input and perspective.
My discussions with Michael Cohn never rose to any level that I needed to tell anyone that I was asking him questions.
And to be absolutely clear, they never involved any matter, any, sorry to disappoint so many, matter between me or third party, a third group at all.
And my questions exclusively almost focused on real estate.
I said many times on my radio show, I hate the stock market.
I prefer real estate.
Michael knows real estate.
So in response to all the wild speculation, I want to set the record straight here tonight.
I never asked Michael Cohn to bring this proceeding on my behalf.
I have no personal interest in this legal matter.
So all over TV, they're calling for him to resign and slinging insults at him.
Alan Dershowitz was on his show and really, I have to say, Alan Dershowitz is really coming off really well and said this to him.
This is what Dershowitz told Sean Hammond.
I really think that you should have disclosed your relationship with Cohen when you talked about him on this show.
You could have said just that you had asked him for advice or whatever, but I think it would have been much, much better had you disclosed that relationship.
You were in a difficult time.
Do you understand the nature of it, Professor?
I'll deal with this later in the show.
I understand.
It was minimal.
I put out the standard.
You should have said that.
And that would have been fair to say that it was minimal.
Look, you were in a tough position because, A, you had to talk about Cohen.
And B, you didn't want the fact that you had spoken to him to be revealed.
And you had the right, by the way, not to have an identity.
I have the right to privacy.
Right, I do.
You know, it's a complex situation when you're speaking to me.
It was such a minor, it was such a minor relationship in terms of real estate and nothing political.
I understand that.
Good advice from an honest guy, but it's tactical advice.
You do it so you look like you're, you know, that you're guiltless.
You don't do it because you have to or because it's a conflict of interest.
If what Sean Hannity says is true, and I'm sure it is, if what he says is true, there is no conflict of interest.
And as John Nolte wrote brilliantly today, we just saw, we just saw James Comey interviewed about his investigation to Hillary Clinton by the man, George Stephanopoulos, who said to Hillary Clinton, I love you, Hillary, and was her operative.
I mean, they're all Democrat operatives.
And so Nolte is saying, let us now have the Sean Hannity standard, where every single person who covers the news has to reveal his connections.
Did Barack Obama go to Martha Rattis' wedding?
Yes, he did.
She has to reveal that.
So he says, Nolte says, now we've got to have the Sean Hannity standard.
But Hannity should stand fast.
I'm sure he will.
He's a rock about stuff like this.
He should not apologize.
There's no point apologizing to the left because they're not out to get your apology.
They're out to destroy you.
And I think we saw, Chick-fil-A, we should all follow that example.
Stand by your principles, stand fast.
But if you feel that it is right to moderate your tone or say something about what you said, go ahead and do it once you've won, once your principles have lifted you above the protests.
All right, we got a break with YouTube and Facebook, but you can come on over to the dailywire.com.
And while you're there, subscribe because tomorrow is Mailbag Day.
I almost forgot.
This traveling rattles my brain.
Tomorrow is Mailbag Day.
Go on over to thedailywire.com.
If you haven't already, subscribe, press the podcast button on the site, go to Andrew Clavin podcast, and then press the mailbag and write in your questions about anything you want, your personal life, political life, religious life.
Answers are guaranteed 100% correct and will change your life on occasion for the better.
That's tomorrow, so get your questions in today.
The Founding Fathers' Experience00:15:02
we've got Joseph Tartakovsky coming up.
All right, Joseph Tartakovsky is the author of The Lives of the Constitution, Ten Exceptional Minds That Shaped America's Supreme Law.
Joseph is also a contributing editor of the Claremont Review of Books, a great review.
If you don't get it, you should.
And a former associate at the San Francisco office of Gibson, Dunn, and Crutcher, where he focused on criminal defense, complex civil litigation, appellate briefing, and constitutional law.
He has written for the New York Times, The Wall Street Journal, National Review, Los Angeles Times.
We had a really good talk about the Constitution.
Here it is.
All right, Joseph Tartakowski, thank you for being here.
It's good to see you.
Great to see you.
Thanks for having me, Andrew.
So your book is called The Lives of the Constitution: 10 Exceptional Minds That Shaped America's Supreme Law.
Why the lives of the Constitution?
Explain the title.
Well, I wanted to tell the story of Americans' journeys under the Constitution.
We've had 230 years now, longer than any people on earth.
And most constitutional histories are a series of Supreme Court decisions or theories of the Constitution.
But the story of the Constitution is the story of the American people.
So I picked 10 people who made extraordinary contributions in one way or another from before the founding to the present day.
And they all came from very different places.
Scottish immigrants like James Wilson at the founding.
I have a black female journalist who was at her peak in the 1880s, 1890s, all the way to Scalia.
And so very different circumstances, but they all show in various ways how we've overcome our constitutional challenges over the centuries.
And the lessons are important because I find that these same clashes keep reoccurring.
The same clash.
Okay, well, we'll get to that in a sec, but let's start before the founding.
You mentioned what's his name?
Wilson, right?
He's one of the more obscure people that you talk about.
Who is he?
Yeah, undeservedly so.
So James Wilson is the most important founder that people haven't heard of.
He's one of six people that signed both the Declaration and the Constitution.
He was the driving force at the Constitutional Convention with Madison.
He was the first founder to publicly defend the Constitution after the Convention.
And he gave a famous speech that became the most cited document in the ratification debate.
And he wrote something called the Lectures on Law, which was the first sort of constitutional law course under the Constitution.
And it is just as good as the Federalist Papers.
And it's the most searching examination of our American political philosophy as it relates to the Constitution.
It's always seemed to me almost providential, the level of the minds that were present at the creation.
I mean, that were present at the founding.
Is there something besides the hand of God that you think created, like you talk about Alexander Hamilton, that brought those people together at that particular moment?
Is there something, was there something in the American sauce that made that happen?
It seems that way because this extraordinary, I mean, how the concentration of talent that you had during this period is, I mean, to me, it seems like it's something like fifth century Athens or London under Elizabeth or Florence under the Medicis.
I have some friends in the Texas governor's office that have been calling officially for a new constitutional convention.
I say, if you can get that, if you can get that many great people as we had during that era, then I'm for it.
But you're never going to have that again, ever.
That's just what I said.
I said this on the air the other day.
We have this thing called the conversation where people send in questions and you answer them live.
And somebody asked about the Convention of States.
And I said, yes, I'll do it as long as we can have John Adams and Thomas Jefferson and all the rest.
But people have been yelling at me ever since because they say, no, because of the, you know, Mark Levin is very big on this.
He loves this idea.
But he says because it takes so many states to ratify, it wouldn't become a Belgian waffle of like a thousand, you know, our Constitution would come out as a thousand pages regulating the salt that goes into potato chips.
Do you agree with that?
I just, I have to ask, because you bring it up and it just, I'm in this kind of firefight about it right this minute.
It's too risky.
The Constitution has served us.
The Constitution has served us so well.
We've entered our third century under the Constitution.
Why tamper with it?
And it's not just they were learned individuals, but between the time of the Declaration and the Constitution, the American states had ratified 17 different constitutions in the states.
So what these people had in particular was experience in creating constitutional orders.
And that's what they brought to Philadelphia.
They had experimented.
So Benjamin Franklin had created a constitution.
He was the chair of the Philadelphia, the Pennsylvania Constitutional Convention.
Their Constitution of 1776 had a 12-man executive.
So the president of sorts was a city council.
People thought that was a good idea, but they tried it.
It didn't work.
People had experimented with unicameral legislatures.
So these people brought this extraordinary experience in knowing what works and what doesn't.
And you could definitely not replicate that today.
So we're talking about the book, The Lives of the Constitution, 10 Exceptional Minds That Shaped America's Supreme Law by Joseph Tartakovsky.
Let's move on to the Civil War.
You talk there about Daniel Webster, a guy whose name we, he was very famous when I was a kid, but we never hear about him anymore.
Yeah, I tried to pick some of these individuals that did contributed to our constitutional understandings, but have sort of been lost.
Daniel Webster was the chief protagonist of the most important constitutional debates in the first generation to follow the founders.
And that was a very big deal for him.
He felt that his father's generation, his father had guarded George Washington's tent, among other things.
They bequeathed us this amazing document.
And his whole life, his whole adult life was just filled with anxiety that his generation was going to be the one to fumble it away.
I mean, we've been one generation.
So he was involved in all the great fights about nullification, whether a president like Andrew Jackson can ignore a law.
He doesn't like whether the Supreme Court is supreme as the expositor of our Constitution.
And it's a body of constitutional thought that is still so useful.
And he was cited, Daniel Webster's arguments were cited 12 times in the briefs in the fight over the Affordable Care Act.
So you see how these fights perpetually recur.
Yeah, yeah, yeah.
You know, the left is always hitting on constitutional, the Constitution, partly because so many of the founders, many of the founders owned slaves, and secondly, of course, because of the clause that was meant to protect the keep the southern states from using slaves as a population ballast, essentially.
Is the Civil War baked into the Constitution?
Was the Civil War baked into the founding?
Was it inevitable?
Yeah, so I wouldn't use it.
I feel like at the founding, the consensus was that slavery was a bad thing that had to be dealt with, and they didn't know how to deal with it.
Now, some of the founders were confirmed slave owners and were unwilling to give up the institution, but a lot of the guys at the convention were not.
I mean, Franklin, Hamilton, John Adams, these are key people.
I think that the struggle, something seemed to have changed in the 1820s, 1830s, where the South started defending slavery as a good institution.
I mean, not something that they had to figure out a way to extirpate, but something worth defending.
But I explore that question.
I mean, whether it was inevitable.
Daniel Webster tried.
Daniel Webster was responsible for the last attempt, the compromise of 1850.
You know, California comes into the free state.
The fugitive slave clause is bulked up.
This was like the last exit I can see an attempt to solve this legislatively.
So, yeah, it may be, but you never know what these historical things.
Whether they could have been avoided or not.
I mean, yeah.
It's fun to think about, but one of the guys in this, in the lives of the Constitution, is Alexis de Tocqueville, a writer who seems to have been right about everything that he said.
I mean, it's kind of bizarre.
You can go back to read him, and there's not a false note in anything that he said.
What was he able to see that Americans weren't able to see?
Why was his vision so clear?
It's an extraordinary thing.
I mean, you have this 20-something-year-old Frenchman.
He spends 271 days in America and then writes what is considered.
He came here with a skeptical eye.
He thought that democracy, the spirit was coming to France, and he wanted to know what to make of it and how France would adapt itself.
But I do sound a few notes of dissent to the consensus.
Okay.
Because I compare Tocqueville to Bryce.
James Bryce was a Scotsman, but he came from the United Kingdom.
And he came about 40 years after Tocqueville.
And his goal was to displace Tocqueville.
And for a while, his book, American Commonwealth, was a rival.
Now we forgot about Bryce.
But I find in many ways, Bryce was more accurate because here's Tocqueville was very good on American culture, but he didn't care all that much about our institutions and our legal institutions.
He doesn't say that much about our Constitution.
He doesn't say anything about American literature, universities.
He doesn't talk about these emblems of early American-ness like railroads, banking, manufacturing.
So he did, I think, miss a lot about America.
And what he missed is particularly tied to the way our constitutional framework influences how Americans behave.
You know, you talk about Woodrow Wilson.
I was talking about him earlier this week, what I guess will be last week when we play this.
This idea that the Constitution was, as FDR said, a kind of horse and buggy document, that it was no longer suitable for the 20th century, that it limited the president from being the big man, as Woodrow Wilson would say.
Was that a new thought, or had that been there from the beginning?
Was that a germ that was just kind of coming to fruition with Wilson, or did he bring that out of nowhere?
Well, I find that on the question you asked about whether the Constitution prevents the president from being a big man, Woodrow Wilson's very interesting on this point.
I'll give you one example.
Thomas Jefferson stopped the practice of the president going to speak to the Congress in person.
He said, this is what kings used to do in England, and I won't do it.
And so 24 presidents followed Jefferson, and Wilson was the one that shattered that.
He went to Congress to speak in person in 1913.
And his argument was not that the Constitution is outdated, but his argument was: first, as a textual thing, the Constitution does say that the president shall from time to time recommend measures to Congress.
So the president has the role.
Congress, by the way, flipped out when he came.
They said this was a violation of the separation of powers, an illegal attempt to influence legislation.
And Woodrow Wilson's other argument was historical.
He said, you know, George Washington came to Congress.
John Adams came to Congress.
This was a good thing.
And so it wasn't as much a departure as you think.
And I find that that happens a lot.
Supposed departures from the past sometimes are actually revivals of old and better traditions.
I mean, we wouldn't have the state of the union as we know it if Woodrow Wilson or someone after him hadn't, you know, they used to submit the thing in writing.
And there were like 40,000 words, you know, their little books.
But it does seem to me that Wilson and FDR felt constrained, unfairly constrained by the Constitution in ways.
I mean, I know that Washington was a fair, you know, a strong executive and believed in a strong executive, but it does seem to me that Wilson and FDR had a new idea of the executive power.
Is that wrong?
Am I wrong about that?
No, I think you're right.
And Wilson wrote two books as an academic making that point that the president had to be stronger.
But what I find, I think the best way to look at it is not that Wilson thought that the Constitution as framed made the president too weak.
What he was arguing against was the separation of powers as practiced in the 1880s and 1890s.
This was a time of incredible congressional dominance.
The Speaker of the House, guys like they called him Czar, Reed, Joseph Cannon, they were more powerful than the president.
That's why no one knows the names of the presidents between Grant and McKinley.
I mean, they were waterboys for Congress.
Interesting.
So he thought that he thought actually, well, at least in his view, the separation of powers was imbalanced in a way that departed from what the founders thought, at least the founders that he admired most, which were Washington, Hamilton, the Nationalists, the presidential power guys, maybe not so much the Madison and Jefferson.
So he thought there was something to correct there.
Now, whether he was right about, I mean, it's clear that we've gone to a president that is something that was, no one thought he was going to be that powerful because the founders were actually very worried of the executive.
Yeah, yeah.
Now, let's finish up in terms of the people with Scalia.
I mean, I think we all remember the day that he died and feeling that something truly terrible had happened, that really something that the election that we were in had suddenly become much more high stakes.
What was it about Scalia that made him so special?
I think he was the greatest jurist of our generation.
Okay.
And there's just the brilliance of his opinions.
But what I the reason I gave him the last word and what makes him so important today is because he was the chief voice for sounding the alarm to Americans about the way that the United States Supreme Court in decision after decision is constitutionalizing questions that had been for the people to decide.
Reasons For Constitutionalizing Social Questions00:06:29
Social questions, military questions, welfare, free speech, religion, national security.
I mean, he thought this was undermining self-government almost imperceptibly.
And he thought it was very dangerous.
And I actually, I agree with him.
That is the constitutional imbalance that we have today, the power of the courts, in particular the federal courts.
You said at the beginning of this that at the beginning of our conversation, you said that there are certain themes that have continually played out through the history of the Constitution.
Can you name a couple that tell us what they are, what we should be looking at as we go forward that they're going to be arguing about?
Just to take what's in the news, say, take war powers.
Who is empowered in this country to get us into military conflict?
It seems to have been the consensus that Congress would play a very large role.
Congress does not play a very large role.
So the president today was tweeting about we might strike Syria, maybe now, maybe later.
I'm not sure.
It was quite their view that the president was the one to sort of call the shots just on his own.
But we've come that way, not so much as a matter of, I mean, the Constitution itself, the text hasn't changed, but the practice has changed.
So presidents have called American troops into war something like 150 times without congressional approval or ratification.
And so Congress has sort of acquiesced and that has become essentially the constitutional law.
And yeah, is this question of that we were talking about with Scalia of constitutionalizing ordinary questions that should be for the people, is that something you see going forward?
You know, is that fight going to continue?
Yeah, it will continue.
I'll give you an example of that.
So for Scalia, the ultimate example of the court doing this was the death penalty.
The Constitution authorizes it and the court was just chipping away.
And last month, the president said there should be the death penalty for drug dealers.
And a lot of eyes rolled on the left in particular.
I don't think the left would be as there wouldn't be less eye rolling if they knew the decision that actually makes that proposed one constitutional.
And it's a decision from 1977 that said that you cannot execute someone unless they themselves take a life.
The issue in that case was whether you can execute someone for rape.
And this was the court's reasoning.
They said, for the victim of a rape, life may not be nearly so happy as it was before, but it is not over and surely it is not beyond repair.
In other words, rape is just not that big a deal.
Death is, it's just too much constitutionally.
Now, our culture is changing before our eyes on this point.
People think sexual assault is a much bigger deal than nine elderly gentlemen did in 1977 on the court.
And so these and so I do find that Americans are willing to think about their constitution.
They don't accept the verdicts of the Supreme Court always, like take Roe v. Wade, for instance.
So yeah, some of these fights will never go away.
And And I think Scalia's warning is, I want to do my part to carry that forward.
Interesting.
The Lives of the Constitution, 10 Exceptional Minds That Shaped America's Supreme Law by Joseph Tartakovsky.
Joseph, thank you very much for coming on.
A really interesting conversation.
Thank you, Andrew.
Great to see you.
I'll see you again.
All right.
And now it's time for sexual follies.
Millennials are having less sex than any generation in 60 years.
This is from an article by Tara Barumpur in the Washington Post.
Its headline, there isn't really anything magical about it.
Why more millennials are avoiding sex.
A new study in the Journal Archives of Sexual Behavior finds that younger millennials, those born in the 1990s, are more than twice as likely to be sexually inactive in their early 20s as Gen Xers were.
And compared, of course, with my generation, they are basically celibate because we went nuts.
Here's a quote from the article.
The sense of caution sometimes manifests itself as a heightened awareness of emotional pitfalls.
For example, many young people speak disparagingly of the messy emotional state love and lust can engender, referring to it as catching feelings.
In other words, it's not just sex.
There's no such thing as casual sex.
You know, Tom Wolfe wrote a wonderful, wonderful essay, which you can look up online, and it's called The Great Relearning.
And he talks about the 20th century as a time when we got rid of the basics.
People, for instance, in hippie communes got rid of the basics of cleanliness and hygiene, and they started to develop diseases like scropula and rickets that nobody had seen for decades, if not centuries.
So they had to relearn that there was a reason we had hygiene.
There was a reason that we had, you know, washing your hands and so on.
Communism, the idea that we didn't need freedom, what led to a world war, led to world wars and slavery and mass slaughters.
We had to relearn all these things.
And Wolf says that in America, America's contribution to this absolute, absolutely crazy idea that we could throw away the learning of our forefathers and not pay a price came in the form of a sexual revolution, which led to AIDS and has led since Wolf wrote the article to Me Too, to a sense of women that they're being abused and they're being raped and they have no recourse because there's no default setting at no.
What it used to be, the default setting was no.
And if you didn't go to no, if you went past no to yes, there was a reason.
Maybe it was the man's fault, maybe it was the woman's, maybe it wasn't anybody's fault, and it was something you agreed to, but there was a reason for that.
Now there is no default setting at no.
So, you know, this is just part, in my opinion, of the great relearning.
And when I say that I feel like a Victorian age is coming, what I mean is I feel that an age is coming when we suddenly say, oh yeah, you know, you can't throw away your foundational religion.
You can't throw away your foundational principles.
You can't throw away the basics of human interaction without paying a price.
That age is coming.
What Wolf said is that the 21st century is going to be much more boring than the 20th century was because people are going to revert to what they already know.
Can't Throw Away Basics00:00:57
Let's hope so because the 20th century was a bloody one.
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