Sept. 23, 2016 - Rubin Report - Dave Rubin
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unidentified
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[dramatic music] | |
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| I can't believe we're almost four months into the fan-funded version of "The Rubin Report." | ||
| To say this has been a crazy couple months doesn't even begin to explain it. | ||
| Our team has always worked hard, but since we went independent, things are at an entirely new level. | ||
| This show, based on honest conversation, exploring big ideas, and not pretending to have all the answers, is by far the most rewarding thing I've ever done. | ||
| And it's all thanks to you. | ||
| So to the nearly 3,000 of you who have joined us on Patreon, and to all of you who made and continue to make contributions on PayPal, my team and I humbly thank you all once again. | ||
| While I knew that going independent was going to be a big lift, I didn't fully realize how many things were about to change. | ||
| We've now built a business from the ground up. | ||
| We had our own production company and own all of our equipment and our content. | ||
| There's no longer a middleman between me and my audience. | ||
| I answer to nobody except when David and Amira outvote me, which has happened more than I'd like to admit. | ||
| The real beauty of fan funding the Rubin Report though is that you guys have given us the budget to do the show as we see fit. | ||
| As I said the day we launched, we now don't have to enter partnerships we don't want to enter, we don't have to make sales deals that don't fit with our ethos, and most importantly, we don't have to answer to anyone but you. | ||
| Many people, organizations, and institutes reached out to us after we relaunched to partner with us one way or another. | ||
| We put them on the back burner, though, because we wanted to let the dust settle and make sure that we only collaborated with like-minded projects. | ||
| One that really piqued our interest was the YouTube channel Learn Liberty. | ||
| After doing a little digging, I quickly realized that they were a great fit for our commitment to free speech and big ideas. | ||
| See for yourself. | ||
| Learn Liberty is your resource for exploring the ideas of a free society. | ||
| We tackle big questions about what makes a society free or prosperous and how we can improve the world we live in. | ||
| We don't have all the answers, but we've got a lot of ideas. | ||
| By working with professors from a range of academic disciplines and letting them share their own opinions, we help you explore new ways of looking for solutions to the world's problems. | ||
| I then did even more digging and found videos they've made using Star Wars to explain freedom, war, and more. | ||
| The force is strong with these people. | ||
| So here's exactly what we'll be doing together. | ||
| Once a month we'll be collaborating to bring you an interview with a classical liberal, usually a professor, for an interview series based around free speech. | ||
| Learn Liberty is reaching into their extensive network to send us the guests and I'm conducting the interviews, as I would any other, with open dialogue and a skeptical eye. | ||
| The really cool part of this is that the list of guests comes not only from all over the country, but from various disciplines, be it math, science, economics, or something else altogether. | ||
| We'll explore how free speech really is the cornerstone of a functioning democracy, and we'll dive into the current political climate on various college campuses. | ||
| Our first collaboration with Learn Liberty will hit on both of these topics. | ||
| I'll be sitting down with the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, Randy Barnett. | ||
| Professor Barnett teaches constitutional law and contracts and has also been a visiting professor at Penn, Northwestern, and Harvard Law School. | ||
| He's argued in front of the Supreme Court and has written several books on the Constitution, liberty, and the rule of law. | ||
| You know, old school stuff. | ||
| So much of what we're bombarded with in the mainstream is designed to distract and confuse us. | ||
| I like to think that the Rubin Report has been an antidote to some of that lunacy. | ||
| I'm looking forward to working with Learn Liberty to introduce you to academics, intellectuals, | ||
| and other bright people so that together we can make America smart again. | ||
| To launch our partnership with Learn Liberty, I'm joined by someone who's no stranger | ||
| to explaining complex ideas. | ||
| Randy Barnett is a lawyer, an author, and a professor at Georgetown University, where he teaches constitutional law. | ||
| Randy, welcome to the Rubin Report. | ||
| Great to be here. | ||
| Thanks for having me. | ||
| Yeah, thanks for coming on in. | ||
| You're staying at the very fancy Chateau Marmont. | ||
| And you made it all the way over here to where we are by the airport. | ||
| Had to fight the traffic, but it's worth it. | ||
| All right, very good. | ||
| Well, there's so much that I want to talk to you about because the things that you study and that you're an expert in are exactly the things that I've been talking about on this show for quite some time. | ||
| So it's nice to have an expert with me. | ||
| So first off, let's do constitutional stuff first. | ||
| What's so great about the U.S. | ||
| Constitution? | ||
| Well, what's great about the U.S. | ||
| Constitution is that it is the law that governs those who govern us. | ||
| It is not the law that governs us. | ||
| We're not necessarily bound by the Constitution as individuals. | ||
| But it is a law that each and every person who's an officer of the U.S. | ||
| government, including state officers, take an oath to support and enforce and obey that law that governs them. | ||
| So it is a charter that subjects rulers to the rule of law, assuming they follow it, which is what they're supposed to do. | ||
| Right, so they're supposed to follow it. | ||
| I don't know that they always follow it, or I'm sure they don't always follow it. | ||
| How come when the president takes the oath he does it on the Bible instead of the Constitution? | ||
| Wouldn't that make more sense? | ||
| Well, an oath is supposedly an act of faith, it's asking you to be judged by God, and God holds you to your oath. | ||
| So the Bible is what makes an oath morally significant to many people. | ||
| In this country have always been offered the alternative of affirming rather than taking an oath. | ||
| So anybody who wants to affirm rather than take an oath is free to do so. | ||
| Right. | ||
| But everything being equal, I suspect you'd rather have someone put their hand on the Constitution when they're swearing in, right? | ||
| I mean, that ultimately is the... Right. | ||
| That's what they are making an oath to follow. | ||
| And they should follow it. | ||
| And actually what that means is that they're not allowed to change it. | ||
| If the Constitution is the law that governs those who govern us, then they can no more change the law that governs them by themselves than we can change the laws that govern us without going through the legislative process. | ||
| So, for example, we can't change the speed limits that govern us. | ||
| There's no living speed limit that we can adjust depending on circumstances, and they should not be able to change the rules that govern them without going through the amendment process. | ||
| But that's not, of course, the way they play the game. | ||
| Yeah, so we'll get into how they play the game in a little bit. | ||
| Is there one particular part of the Constitution that you think really, like, just nails it perfectly? | ||
| Is there something that you really see as just the underpinning of everything else? | ||
| Well, I'm known for having a strong affinity for the Ninth Amendment to the Constitution, which says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. | ||
| That is an expressed affirmation of the retained rights or the natural rights of the people that first come rights. | ||
| And then comes government. | ||
| It's an express affirmation of that. | ||
| And then the 14th Amendment repeats something like that where it says, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. | ||
| So that applies then the Constitution to state officers in a way that it wasn't applied before. | ||
| And that includes both the natural rights that the 9th Amendment refers to and also affirmative rights that are in the Bill of Rights as well. | ||
| So those are my two favorite parts of the Constitution. | ||
| Yeah, so both of those parts, they really deal with the individual, right? | ||
| I mean, it really comes down to the individual person, and that the state should not infringe on your individual rights to do what you see fit within the laws. | ||
| Yeah, so when I say first come rights, and then comes government, I do mean first come the rights of individuals. | ||
| The Declaration of Independence, which was the founding document of the country, then we had two tries at government, To make a country, the Declaration declares the country we are. | ||
| It says that all persons are endowed with certain inalienable rights, among which are the rights to life, liberty, and the pursuit of happiness. | ||
| Each one of those is individual rights. | ||
| Life, liberty, and pursuit of happiness. | ||
| And the next sentence of the Declaration says, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. | ||
| It tells you first come rights of individuals. | ||
| Then comes government to secure these rights. | ||
| The entire philosophy of the country and the Constitution are summed up in those two sentences of the Declaration. | ||
| Yeah, so our founding fathers really were individualists at heart, right? | ||
| I mean, when they were framing this entire thing, when they wrote the Declaration of Independence | ||
| and then when the Constitution came, their whole concept was that if we can take care | ||
| of the individual first, that the rest, that the government will have to behave in a way that will | ||
| always respect that. | ||
| Yes. | ||
| First come individuals, first come rights. | ||
| But individuals are not atoms. | ||
| They were not atomistic individuals. | ||
| Neither do I believe contemporary libertarians are atomistic individuals. | ||
| The reason why we have rights and the reason why we need rights is because we do live in society with others and rights are the way The rights are the way we define our jurisdiction as opposed to our fellow citizens' jurisdiction, the way nations define their jurisdictions so that one nation doesn't interfere with the internal affairs of other nations and we don't get wars. | ||
| That's what rights are for. | ||
| In society with others, each of us needs our own jurisdiction to make our choices and that jurisdiction needs to be defined relative to other people's welfare as well. | ||
| So we are individuals but not atomistic individuals. | ||
| Right, so let's back up to the Declaration of Independence for a second, because the line about the pursuit of happiness, there's some comic that I heard do a funny bit, I can't remember who it was, but that line, that we're the only country that has something like that, that you're here to pursue your own happiness, that puts a lot of pressure on us, that we're supposed to pursue happiness, where a lot of other governments, they don't really exist to have us pursue happiness, it's to pursue the government's means, or to make more product, or something like that, So that really is a unique line that our forefathers put in there that really has helped spread freedom, right? | ||
| Well, it's the ultimate end. | ||
| I mean, rights themselves are not ends in themselves. | ||
| Rights are the means. | ||
| to the pursuit of happiness while living in society with others. | ||
| So libertarians and classical liberals generally, though we believe in individual rights, do not believe that rights are the end of everything. | ||
| Rights are simply a means by which individuals are able to pursue happiness without unduly interfering with the ability of other individuals to pursue happiness as well. | ||
| And that formulation by Jefferson was not unique to him. | ||
| George Mason, several weeks before the Declaration was written, wrote the Virginia Declaration of Rights, and he also put happiness and safety as the ultimate end. | ||
| The pursuit of happiness and safety is the ultimate ends of society. | ||
| Yeah, when you think about the people that wrote these documents, and then you look at our political system today, we'll get into them later, so let's not go too deep on what's going on today. | ||
| Don't depress me. | ||
| It's a beautiful sunny day in LA. | ||
| I'm at the Chateau Marmont. | ||
| And now you're going to try to bring me down. | ||
|
unidentified
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Don't bring me down, Dave. | |
| I'll bring you down in about 20 minutes. | ||
| But for now, let's focus on just those specific people. | ||
| The Founding Fathers, really. | ||
| Do you consider them that they were modern day geniuses, really? | ||
| Or was it just a function of... | ||
| They were escaping a monarchy, basically trying to create a system, and that it was sort of thrust upon them. | ||
| Or maybe there isn't one answer. | ||
| It depends on each particular person. | ||
| I mean, I really don't know the answer to this. | ||
| I don't think I've ever been asked this question before. | ||
| But I would say they are better educated than we are. | ||
| I don't think they were geniuses. | ||
| I don't think they're natively smarter than we are. | ||
| I just think they had a much better education in both Their primary education and in college they learned they read all the classical writers and they just knew more facts and they knew more theory. | ||
| than we know today. | ||
| Then most people today, you know, we watch our TV, and we watch reality TV, we watch, you know, we watch the wonderful dramas that are on TV. | ||
| I don't want to knock TV, I'm actually big on TV, frankly. | ||
| I'm a big TV guy, I've always been. | ||
| Yeah, yeah, a lot of good stuff on now, nobody's. | ||
| Yeah, and not even, you know, I became a lawyer because of The Defenders, which was a television show that came out in the 60s, so I'm totally big on TV, but the truth is, we're not as well educated. | ||
| I certainly didn't get, learn in high school what I could have learned, and I didn't even learn in college what I might have learned. | ||
| They knew more than we know. | ||
| They weren't better people than we are by any means, but they knew more than we know. | ||
| Yeah, this is a total sidebar, but I'm curious if you watch Boston Legal by any chance? | ||
| I tend not to watch any legal shows because I think they're stupid. | ||
| I used to be a criminal prosecutor in Chicago, so I know what it feels like to be in the legal system and none of them ring true. | ||
| The only one recently, I mean, "The Wire" is famously, that rings true, by the way, | ||
| about what law enforcement is like. | ||
| But this new one, "The Night Of" on HBO, totally rings, totally true. | ||
| There's a few plot elements that aren't quite right. | ||
| But by and large, that's the way the criminal justice system and the legal system feels. | ||
| So you're telling me the truth of a real trial lawyer is that it doesn't always get resolved in an hour? | ||
| Is that how it works? | ||
| Because I thought it was always resolved in one day. | ||
| Is that not really? | ||
| I hate to break it to you. | ||
| With commercial breaks! | ||
| I hate to break it to you. | ||
| No, actually, the reality of the criminal justice system, if you work in it, is better than TV. | ||
| Until recently, better than TV could show you. | ||
| The reality, the nitty-gritty of how you navigate the criminal justice system is more interesting, actually, than what they depict on television. | ||
| Yeah, I mentioned Boston Legal because it was one of the few legal shows that I watch and I thought they actually did such a nice job each week of laying out a lot of the principles. | ||
| Each week they took a principle and they wrapped it around some trial that didn't really have much to do with it, but that you got some sort of message at the end, which I thought was really nice. | ||
| That, you know, and Law & Order, I'm told, I can't bear to watch these shows, but I'm told that the law In fact, I have done consulting for the Good Wife because | ||
| my former trial partner in the Cook County State's Attorney's Office is their principal | ||
| legal consultant. | ||
| And I'm told the Good Wife, for example, has very accurate law. | ||
| And I did consult with them on a couple shows that involve the Constitution. | ||
| But whether they get the law right and whether they get the ambiance of how people act and | ||
| how people talk to each other, that's two different things. | ||
| Right. | ||
| And also it's your day job. | ||
| So sometimes I would imagine you want to watch some monsters at night or something else. | ||
| I still like good cop shows and stuff, but it has to ring true to me. | ||
| And that stuff just is too melodramatic. | ||
| People don't give speeches to each other in the criminal justice system. | ||
| Right, right, right. | ||
| Okay, so let's back up to something you mentioned, which was classical liberals and libertarians. | ||
| Now, I would consider myself a classical liberal, and I've watched what I think is the sort of destruction of the left over the last two years. | ||
| It's been very sad for me and one of the things I've been talking about a lot on the show. | ||
| What is the difference to you between a classical liberal and a libertarian? | ||
| Well, classical liberal is a larger category, and libertarians are a subset within classical liberals. | ||
| They're not different things. | ||
| One is a more narrow subset. | ||
| Libertarians, I think, the difference is libertarians believe in a few basic sets of rights, of individual rights, and the more radical a libertarian you are, the less you think need to be added to that basic set of rights in order for society to do well. | ||
| So there's the right of property and contract and self-defense and restitution. | ||
| These are the basic rights that people have. | ||
| And the more radical libertarian you are, the more you think we can just get by on those rights and we shouldn't add anything else. | ||
| And then people think, oh, well, no, you need this and you need that and you need this other thing. | ||
| And then that makes them somewhat less radical. | ||
| But as long as they believe that the core of society is the individual, living in society with other people. | ||
| So there's a society as well, as long as they believe that these individual rights | ||
| are the core and that in some sense, first come rights and then comes government, | ||
| then that puts you in the liberal tradition. | ||
| And we call it the classical liberal tradition to distinguish it from the term liberal, | ||
| which got taken over by the progressives. | ||
| When progressives got a bad name after World War I, 'cause progressives, they had their own, | ||
| no, they were called progressives. | ||
| And then they got a really bad name associated with World War I | ||
| when Woodrow Wilson, the famous progressive, is locking up dissenters | ||
| and putting Eugene Debs behind bars, who was the socialist candidate for president, | ||
| got a bad name. | ||
| So they started calling themselves liberals 'cause that was a good thing to be called. | ||
| And then they gave liberals a bad name. | ||
| So then we can't call ourselves liberal because they call themselves liberal. | ||
| Don't you hate the label part of it? | ||
| Because I find that to talk about these things, we need these labels. | ||
| And yet at the same time, nobody really wants to be labeled, and it's usually limiting because a lot of us have things that bleed into the other categories. | ||
| Well, I went through a phase in which I didn't call myself a libertarian. | ||
| I called myself a classical liberal. | ||
| In fact, the Institute for Humane Studies, who is sponsoring this or has something to do with this video, they had that as part of their thing, which was we were liberals, we were classical liberals, and I found it confused people. | ||
| And they would say, well, what is that? | ||
| And it would make me seem like I'm defensive, like I'm hiding what I am. | ||
| And I finally realized, you know, libertarian actually doesn't have a bad valence anymore. | ||
| It used to be really weird. | ||
| I'm old enough to remember when the term was like really weird. | ||
| I think it still has a bit of a weird connotation to the masses. | ||
| I mean, did you watch, I'm sure you saw it, or maybe you attended the Libertarian Convention? | ||
| It was quite a show. | ||
| Well, I saw it on livestream. | ||
| Yeah. | ||
| And I thought it was actually well-conducted. | ||
| I didn't see the part where the crazy people came out. | ||
| Where the guy would, you know, stripped on stage. | ||
| Yeah, I didn't see that part. | ||
| I think most of it, it was much more serious and businesslike than the other convention I had just watched, which was the Republican Convention. | ||
| I don't think it has the kind of wacky connotation it used to have. | ||
| That's why some people call themselves libertarians who aren't, because it makes them seem cooler. | ||
| Therefore, I just embrace it now. | ||
| I am a classical liberal, but that's not what I call myself. | ||
| I just own up to the fact that libertarian is the best descriptor of me, and I'm good with that. | ||
| How does a party like the Libertarian Party that really is about the individual, how should they, because this is where I think they haven't been successful, is how do you take people where it's about the individual and really get them to unify? | ||
| So when I was watching the convention, for example, they had people up there screaming about either legalizing all drugs, which I could be convinced is fine, but more things like You know, no driver's licenses, things like that, where it's such a non-starter for so many people. | ||
| Like, it just seems so silly. | ||
| Like, to get in a car, you could kill a lot of people if you don't know how to do it. | ||
| We should have a license. | ||
| Like, that seems, within the libertarian construct, I think you can make an argument for that. | ||
| How do you think they can untie themselves from some of the most things that are sort of out there at this point? | ||
| Or do you think that maybe they don't have to? | ||
| You want to talk about how the Libertarian Party should be made better? | ||
| Is that mature? | ||
| Well, basically, yeah. | ||
| I heard them talking about the driver's license thing, and I was like, guys, you're arguing about such petty little things that you're completely missing what the bigger argument is. | ||
| Well, that's true. | ||
| That would be an easier way to ask that. | ||
| I guess. | ||
| I very proudly voted for the Libertarian Party candidate when they first started the party. | ||
| I went to the New York Convention in the '70s, the presidential nominating convention. | ||
| So I really liked the fact that there was an LP when it got started. | ||
| But I was quickly, I quickly came of the opinion, even into the '80s and the '90s, that it was | ||
| a big mistake to have a libertarian party. | ||
| And the reason was, and I got invited to libertarian party conventions to debate people on whether | ||
| there should be a libertarian party. | ||
| And the reason was that I thought, first of all, we have a two-party system based on the | ||
| voting rules that currently are in existence. | ||
| And to have a libertarian party, basically, a third party will basically cost the party | ||
| that's closest to it votes and help the party that's farthest from it. | ||
| It'll drain votes from the party that's closest to it. | ||
| That's not a good thing. | ||
| Right. | ||
| The second thing that makes it not a good thing is that, to the extent people want to be political activists, they don't want to be professors, and they don't want to be writers, they want to be political activists, and you, instead of saying, okay, go out and find the party you feel best about, the Democrats or Republicans, and make that party more libertarian, It drains those people into a libertarian ghetto party that's never going to win. | ||
| And that, by definition, makes the two major parties less libertarian at the margin, because libertarians are invited out of that party. | ||
| If there was a law that said they had to go into the third party, libertarians would resent it, but they segregate themselves. | ||
| So, for these two reasons, I was against the libertarian party. | ||
| Now, this year, of all years, The year in which there may not be a lesser of two evils. | ||
| There's always a lesser of two evils, but there's no natural law that says there has to be a lesser of two evils. | ||
| They might just be bad in their own way, equally bad. | ||
| This is the year when a third party like the Libertarian Party really-- | ||
| This is the chance. | ||
| --they're in existence for. | ||
| Don't tell me about they're going to get 10% of the vote this year because it's | ||
| going to help in the future. | ||
| This is the future. | ||
| The Libertarian Party has been around for 40 years or 30 years, however long they've been around. | ||
| This is their year. | ||
| And they don't seem to be up to the challenge this year of fielding a candidate that's | ||
| genuinely attractive. | ||
| Whether Gary Johnson is better than Donald Trump and Hillary | ||
| That's a reasonable conclusion one can reach because they're so bad. | ||
| But we shouldn't have to settle for that. | ||
| We should have actually they if they hadn't been able to feel that if they're not able to feel the candidate this | ||
| year Yeah, which should be their year? | ||
| Then they're never going to be able to really Yeah, I did a video a couple weeks ago about why I wanted to at least support Gary Johnson until the debates. | ||
| Let's at least get one other voice in the debate. | ||
| I think he should be in the debates. | ||
| Yeah. | ||
| You know, that's another version of the rigged system for two-party system. | ||
| The two parties got together and they created this debate commission that has to That creates a threshold to let another party into the debate, so to basically screen out other parties. | ||
| It's working very well for the two parties. | ||
| It's working really well for them. | ||
| It's another reason. | ||
| But I think Gary Johnson should definitely be in the debates. | ||
| But I really think that the Libertarian Party, this was their year to nominate a real contender to be president, and I don't think they've successfully done that. | ||
| Right, so without getting too far down the rabbit hole with Gary Johnson, I mean, you would argue that, as a libertarian, he isn't libertarian enough, basically, to draw the people, right? | ||
| So, like, something with the cake and the gay marriage thing. | ||
| Like, he's fore-forcing the private business owner to bake the cake. | ||
| That seems very silly to me. | ||
| I am okay with a Libertarian Party candidate who's not purely or perfectly Libertarian. | ||
| First of all, almost nobody is, because everybody disagrees about what it means to be a perfectly pure Libertarian, right? | ||
| Exactly. | ||
| But I'm okay with them making political compromises. | ||
| I work for Senator Rand Paul. | ||
| He is a Libertarian. | ||
| He may not be perfectly Libertarian in every respect, although I think he's very Libertarian, and I worked for him on his presidential campaign. | ||
| So I like him. | ||
| I wish he were the candidate. | ||
| Sure. | ||
| I wanted him to be the candidate. | ||
| Well, he was the only one that was different. | ||
| I mean, I guess Trump was different too than the rest of them, but Rand Paul was the only one with really different ideas. | ||
| But libertarians dumped all over him while he was running as not being libertarian enough, and he was too libertarianish, and look who they've got, who they picked. | ||
| Right. | ||
| But anyway, the point is, is I'm okay with somebody who's not perfectly libertarian. | ||
| It's just that in this case, Gary Johnson, and I don't want to dump on him because he | ||
| still is better than the other two. | ||
| In this case, Gary Johnson has run away from libertarian positions that would actually | ||
| appeal to disaffected Republican voters. | ||
| But Gary Johnson is running to his left, even where genuinely libertarian positions like | ||
| gun rights, for example, would help him to the right. | ||
| That's not where his heart is. | ||
| That's not where he's running. | ||
| I mean, look, he's being who he is. | ||
| Fine. | ||
| But this is the year in which you could actually compete for Republican voters. | ||
| And he really is drawing more support from Hillary, I think. | ||
| The polls have shown. | ||
| So in a lot of respects, basically, he's to the left, but he's framing that within a couple | ||
| libertarian principles, like gay marriage and marijuana and a couple other things. | ||
| I don't know what's in his heart. | ||
| I don't really know him that well. | ||
| And so I don't want to characterize what he really believes and what he is. | ||
| But he's running to his left. | ||
| I mean, there are people who are not libertarians and very critical libertarians say, look, you know, this candidacy is revealing libertarians as being basically leftists. | ||
| Leftists who believe in the free market or something. | ||
|
unidentified
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Right. | |
| So that's what they are. | ||
| I don't think that is what libertarians are. | ||
| But I have to say that Gary Johnson is somewhat playing to stereotypes. | ||
| Interesting, that is interesting. | ||
| So a couple times you've mentioned the two-party system and sort of the rigged piece of this thing. | ||
| I think that people think that it's somehow in our system, maybe even written in the Constitution, that we're only supposed to have two parties. | ||
| That has nothing to do with the Constitution. | ||
| Actually, parties themselves didn't originally have anything to do with the Constitution. | ||
| Parties, a term party was a negative thing. | ||
| Democracy was a negative term at the time of the founding. | ||
| Democracy had the same valence as demagogue has today. | ||
| Party had the same valence as partisan has today. | ||
| Party was a faction. | ||
| The founders were against parties. | ||
| They set up the Electoral College to select presidents from just people who people knew. | ||
| It wasn't going to be parties. | ||
| But it turned into a party system very, very early on. | ||
| And maybe it needed to. | ||
| Maybe the founders were wrong about this, and that in fact people need to organize themselves if they disagree, and organize themselves into groups and associate. | ||
| But it doesn't necessarily have to be a two-party system. | ||
| But there are things about our voting system. | ||
| It's basically winner take all, first pass the post voting, which if you get 51%, you get the entire office. | ||
| You don't get 51% of the office, you get the whole office. | ||
| That means parties need to get to 51%. | ||
| And that means they basically have to put coalitions together of voters to get to 51%. | ||
| Whereas in a parliamentary system you can have isolated parties and then to form a government you put them all together. | ||
| So it's a different system and that leads to two parties or it leads to a handful of parties. | ||
| But in addition to that the parties have in fact rigged the voting rules. | ||
| to entrench themselves. | ||
| So for example, there's all kinds of restrictions as to who can get on the ballot in different places | ||
| that privilege the existing two parties. | ||
| Yeah, I heard a lot of the Bernie people saying during the primaries, well, the primaries were rigged, | ||
| and now we know that the DNC definitely was doing some things to do that, but one of the things | ||
| that I saw people were upset about was that in certain states, | ||
| that they didn't have open primaries in every state. | ||
| Now I would argue you shouldn't have open primaries because then you could have people that you know are not going to vote The whole primary system is a problem. | ||
| The whole system we have today. | ||
| ticket, load the voting system in the primaries. | ||
| Do you see that as a legitimate problem? | ||
| The whole primary system is a problem. | ||
| The whole system we have today, it was basically invented by the left, this part of the Democratic | ||
| Party in the wake of the McGovern situation in the 70s. | ||
| And then the Republican Party just took on board this primary system that the Democrats | ||
| had invented without thinking about it. | ||
| Wait, can we pause there for a sec? | ||
| The Democrats did that because basically the party leaders wanted to make sure that McGovern | ||
| There would be an out, pretty much, right? | ||
| Right, right. | ||
| I mean, you know, they would pick Hubert Humphrey, whoever it would be, and so the radicals in the Democratic Party wanted to open up the Democratic Party so that more progressives could get nominated in the future, and it's really worked out pretty much for the left of the Democratic Party. | ||
| The left has taken over the Democratic Party from what it was when I was a kid, which was a mix of liberals and leftists. | ||
| And that but the Republican Party just took on board the same voting roles and the same open primary or even the | ||
| fact that There would be primaries primaries were not all not every | ||
| state had primaries in the past, right? | ||
| The Republicans really need and actually both parties should but at least the Republicans need to completely | ||
| rethink How they select their president state by state and I know a | ||
| someone I co-authored with Jay Cost who works for the Weekly Standard | ||
| wrote a piece About how to redo the primary system. I can't give the | ||
| exact citation I think it was in the Atlantic or it might have been in the | ||
| nation. Maybe it was in the nation And I thought I thought it was made a lot of sense, but | ||
| Republicans really need to rethink how they select presidents | ||
| Yeah, so going to the Republicans for just a second has Trump in effect | ||
| [BLANK_AUDIO] | ||
| He crushed the conservative movement because it seems to me that the people that are voting for him, they don't really care about conservative principles. | ||
| They want to win. | ||
| I think that's a, you can make an argument that that's a perfectly fine place to place a vote. | ||
| You want to vote for a winner, okay. | ||
| But in terms of conservative principles, this doesn't have a lot to do with the GOP nominee, right? | ||
| It doesn't, but at this point, I mean, you have to distinguish between people who voted for him in the primary, which was 35% to 40% of the primary electorate, meaning 60% voted for somebody else. | ||
| They voted for a Ted Cruz or a Rand Paul or a Marco Rubio. | ||
| They wanted somebody else. | ||
| But he did get the most primary votes ever. | ||
| I get that, but they were, at best, a plurality of Republicans. | ||
| supported him in the primaries. Then once he becomes the nominee and a Republican voter, | ||
| even a conservative Republican voter, has to choose between him and Hillary, | ||
| it's not irrational to choose him. It's just not. So in a sense the election is about teams. | ||
| You're rooting for your team. | ||
| You may not like the quarterback of your team, but you still want your team to win, right? | ||
| Right. | ||
| And so people who are Republicans want their team to win because they don't like the other team. | ||
| Yeah, and you can really see that. | ||
| And they might call in the sports radio shows and say, I wish they'd get rid of this quarterback, but you know what? | ||
| He is the quarterback, so let's win. | ||
| Yeah. | ||
| So I wouldn't tar with the same brush people who support Trump now, that he's the nominee, than people who supported him to make him the nominee. | ||
| That's a different thing. | ||
| That's a really interesting distinction because I've seen that happening where people that were in the Never Trump campaign, you know, that were tweeting about this constantly and writing articles about it, that slowly you're seeing them fall in line, but basically you're saying that's just a natural reaction. | ||
| It's not necessarily that they're abandoning their principles, but they're saying, No matter what, he's better than Hillary if those are the principles that you believe in. | ||
| Yeah, exactly. | ||
| And I don't think it's irrational. | ||
| I don't think it's irrational to be never Trump. | ||
| I'm not never Trump. | ||
| I wasn't never Trump all the way along, but I mean, I'm not for Trump, but I'm also not never Trump. | ||
| I don't think it's irrational to be never Trump. | ||
| I don't think it's irrational to be pro-Trump. | ||
| I don't think it's irrational to be against Trump. | ||
| I don't think... | ||
| Any one of these are irrational. | ||
| I think reasonable people can differ now. | ||
| I don't think that's as true of the primaries, when you had a choice between Trump and a bunch of other much, much better choices. | ||
| Then I'm very down on those people who opted for Trump then. | ||
| I think they played into the hands of a con man. | ||
|
unidentified
|
Right. | |
| And I don't think that was a good move for them to make. | ||
| So going to that place and for those couple months, you mentioned you worked on Rand Paul's campaign, so obviously I assume you wanted Rand Paul to win the nomination. | ||
|
unidentified
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I did. | |
| Fair to say. | ||
| What did you think of Ted Cruz? | ||
| Because I would suspect that Ted Cruz, a guy who was pretty much as much a constitutionalist as you're ever gonna get in America. | ||
| Now, my issue with him, which I said many times, he just read as a used car salesman to me. | ||
| So even though there were things that he said that I thought were based in law, I didn't like the guy. | ||
| And I know that's sort of a crappy place to be, but it is what it is. | ||
| What did you think of him? | ||
| I've known him, and I actually, I watched him argue in the Supreme Court of the United States. | ||
| He argued a case when he was Solicitor General of Texas. | ||
| I mooted him before he argued. | ||
| I saw him argue in the Supreme Court. | ||
| He was a brilliant Supreme Court litigator. | ||
| I met with him, and I think after Rand dropped out, I favored him as a Republican over the other Republicans that were then available. | ||
| So I actually think quite highly of Ted. | ||
| I do think that personality-wise, he doesn't come across the way you would want a politician to be able to come across, to appeal to people. | ||
| I've characterized his affect the way you did as a used car salesman, but I get what you're reacting to, totally. | ||
| And I think that actually cost him. | ||
| I think that persona, he hasn't got as appealing a political persona. | ||
| But I do think he has principles. | ||
| I do think he is in his heart of heart a conservative. | ||
| I don't think he's a libertarian, but I'll tell you of all the conservatives I've ever seen run for office, I think Rand is a libertarian, but of all the conservatives I've seen run for office, he's the only one who I saw during his campaign specifically list libertarians as people who support he was seeking. | ||
| Respectfully. | ||
| He would list them. | ||
| Libertarians should support me. | ||
| This people should support me. | ||
| And I've never seen a conservative Republican politician favorably appeal to Libertarians like that before. | ||
| And that tells me something about the guy that I like. | ||
| So as someone that understands the system, understands the laws that we're governed by, and you see all this and you watch the primaries and how it all shook out, Do you place a certain amount of blame on the media for how this whole thing has happened? | ||
| That Trump didn't run on principles, really, but ran on, I'm going to win, and I'm going to do this via the media, and I'm going to keep my name out the most, and Little Marco, and Crooked Hillary, and Lion Ted, and everything else. | ||
| And I had Scott Adams on, the creator of Dilbert, last week, and he really laid out why He doesn't love Trump the man, but he understands what he did. | ||
| And so do you blame partly just the media for not making people understand the way this is all supposed to work? | ||
| Well, I can blame the media for almost everything. | ||
| Right. | ||
| It's a bit of a wide net there. | ||
| Yeah. | ||
| But, you know, our political elite are pretty bad and the media is part of that. | ||
| And so the media Sure. | ||
| If I had to more specify who I would blame, because I think in some respects the mainstream media, so to speak, is predominantly lefty, and I get that. | ||
| That's sort of like a given. | ||
| It has been like that my whole life. | ||
| If I had to blame anyone specifically, it is right-wing media, conservative media, talk radio, who put ratings and viewership and popularity amongst their audience ahead of the screening and vetting that they formally claimed to do. | ||
| I mean, they were the ones that were supposedly down on rhinos, Republican name onlys, right? | ||
| So who do they end up, you know, supporting? | ||
| Legitimating. | ||
| They didn't all support him, Donald Trump, but they legitimated him as a legitimate conservative when he was in the takeoff phase a year ago. | ||
| Instead of dumping on him they kept, they didn't dump on him and I think part of it's because some of them were friends with him, personal friends with him and they should have tried, they essentially legitimated him as a conservative candidate when they might have had some influence and by the time he really took off with the voters They no longer had the influence and then they put their audience at risk and then they got on the bandwagon. | ||
| And so if the, you know, conservative radio, conservative media who was supposed to be screening people for the conservatives, I think they fell down on their job for conservatives. | ||
| Right. | ||
| So they just want, they wanted clicks and views and ratings. | ||
| So they went to where the clicks and views and ratings are. | ||
| At one point or another, that's what most of them did. | ||
| Um, it, I can't explain them. | ||
| I think it would probably have to go down individually, by individual, why they did what they did. | ||
| But I was screaming at the radio or the TV saying, you know, this guy is not for real. | ||
| And they weren't prepared to say that early on. | ||
| So for all the people that say that Trump is a demagogue and he's the next Hitler and he's going to be an authoritarian and all this stuff, do you think that the underpinnings of our system are strong enough to withstand that, whether it's Trump or somebody else? | ||
| Do you think that our separation of powers are actually strong enough to rein in somebody that could be really terrible? | ||
| Well, one of the problems we have is that Our separation of powers and our constitutional constraints have been systematically eliminated. | ||
| In the interest of promoting good government, the government that progressives have wanted. | ||
| Can you give an example of that? | ||
| Congress has delegated to the president so much discretionary power by statute that it's very difficult to rein in the president when the president, in this case it's President Obama, wants to do whatever he wants to do. | ||
| He can usually point to a statute where Congress has said, it's up to you, do what you like. | ||
| So, that plus the fact that the Congress has delegated, I mean, in my book, Our Republican Constitution, I have at least one chapter on separation of powers and two chapters on federalism, about how these constraints on federal power have been systematically overridden for a long time, for a hundred years, not just recently, and as a result, One by one of the checks on the president's power have been eliminated and it makes us more vulnerable to an authoritarian president if we were to get one. | ||
| It's as though you were flying on an airplane and you're shutting down, that has a lot of redundant safety mechanisms built into it. | ||
| And one by one, you're shutting them down and the plane still is in the air, but you're just, and then now you're down to one engine. | ||
| And you're still flying, but if anything were to happen, you've eliminated your redundancy. | ||
| And the Constitution had a lot of redundancy built into it that's been eliminated. | ||
| And now we're kind of on a wing and a prayer here, to stick with my airplane metaphor, and hoping there's enough left to take care of an authoritarian president, should we ever get one. | ||
| I'm not endorsing the idea that Donald Trump is necessarily going to be one. | ||
| Yeah, I'm not either, I'm just saying that. | ||
| But if he is, trying to be, then we have fewer constraints on him. | ||
| I do think that Democrats are going to rediscover the importance of checks on presidential power if Trump became the president. | ||
| And just as Republicans have rediscovered checks on presidential power with Obama in office that they weren't as enamored with when Bush was there. | ||
| Right. | ||
| So they all sort of have principles when it's convenient, right? | ||
| Like they suddenly, oh well, the Republicans are going to say we don't want executive actions when it's a Democratic president. | ||
| And vice versa. | ||
| Right. | ||
| I mean, I don't want to play the game of moral equivalence and say everybody's always the same as everybody else, but there's a term called fair-weather federalism, federalist. | ||
| You're a fair-weather federalist when, you know, you're against the national policy and you want, so therefore you prefer for states, but if you're for the national policy, you're not so big on states. | ||
| I think this is a tag that you can easily attach to Republicans as well as Democrats. | ||
| Easily. | ||
| Okay, so as the executive branch gets more powerful, is there any instance where you think the executive order or the executive action... First off, is there a difference between executive order and executive action? | ||
| Executive orders are actually literally orders issued by the president to subordinate members of the executive branch to do X, Y, and Z. Executive action is a broader category of things that the executive branch is going to do. | ||
| So it fudges up what used to be an executive order is a specific thing. | ||
| The president orders the Department of Health, Education, and Welfare to do this or the secretary of that to do that. | ||
| It's an actual order. | ||
| Executive action is here's what we in the executive branch are going to do about such and such a problem. | ||
| We're going to do this. | ||
| We're going to take executive action. | ||
| So it's a fuzzier Right, so constitutionally, the executive action is the one that you'd be more leery of, right? | ||
| Because it's sort of vaguer and the powers aren't... Look, no, not necessarily. | ||
| I mean, executive orders, first of all, the president, if you believe in a unitary executive where the president's at the top and you have people subordinate to him, the executive should be able to issue orders to his subordinates to do X, Y, and Z. So there's nothing inherently wrong with an executive order, nor is there anything inherently wrong with saying, That's the problem. | ||
| branch are going to do the following as our actions. | ||
| The question is, are they authorized to do it by law? | ||
| Or are they trying to get around the law, either trying to get around a law or trying | ||
| to avoid going to Congress for something that really ought to get authorization from Congress | ||
| to do? | ||
| That's the problem. | ||
| It's not the bare existence of an executive order, but it's what they're trying to do | ||
| with executive orders. | ||
| And it's what presidents have been doing for a while. | ||
| And as I said earlier, mostly what they do, they can justify doing by the discretion that | ||
| Congress has given them in innumerable statutes where Congress has dropped the ball and said, | ||
| you do what you like. | ||
| And then when they turn around and start doing what they like, then everybody gets upset. | ||
| But then Congress can't stop them from doing it without having another law that the president's going to have to sign, and they won't sign. | ||
| So now Congress, having given up discretion to the executive branch, can't reclaim that power without the cooperation of the president, and that's not going to happen. | ||
| So it's like a self-fulfilling prophecy, sort of. | ||
| Congress doesn't do anything. | ||
| They give the executive branch the power. | ||
| The executive branch uses the power. | ||
| Then they get upset. | ||
| But you've just created this mechanism that will just kind of keep eating itself. | ||
| Right. | ||
| Well, in my book, I do talk about why it was the progressives hit upon the administrative state, which is all of the executive branch, to essentially make the laws of the country. | ||
| Well, Congress has outsourced the lawmaking power, by and large, to executive branch agencies by saying, we want clean air, we want clean water, you go make the rules for that. | ||
| Now the rules for that are what used to be called laws, telling us what to do, right? | ||
| Now being made by executive branch agencies. | ||
| Some of them are at least theoretically subject to presidential control. | ||
| Some of them are independent of presidential control. | ||
| And they did that because they couldn't pass enough laws. | ||
| I mean, there's 535 of them. | ||
| They can't pass enough laws to satisfy the progressives. | ||
| So they needed to outsource the lawmaking power. | ||
| And then all you have to do is hire more administrators and you can make as many laws as you like. | ||
| Right, so let's get to your book a little bit, and let's talk about progressives a little bit, too. | ||
| So the progressives, basically, they couldn't get certain things done, so it really becomes about authoritarianism for them, right? | ||
| Like, they need to get things done, and they can't do it through the legislative process, and that's why they're pushing this. | ||
| Well, there was a limit. | ||
| We have a government that was designed to be limited. | ||
| And so if you want to do a lot more, if you want to be a lot more ambitious, then you have to get around the limits. | ||
| And they've been very ingenious over a long period of time. | ||
| And the progressives that I'm talking about in my book, Our Republican Constitution, are the original progressives. | ||
| They were the progressives in the late 19th century, into the 20th century. | ||
| They include Republicans like Teddy Roosevelt and Democrats like Woodrow Wilson, Republicans like Herbert Hoover, Democrats like FDR. | ||
| They were all progressives and they believed they had a very affirmative ideology that | ||
| said government needs to be much more active, it needs to be doing things in the public | ||
| welfare but they were using what they themselves called a horse and buggy constitution to try | ||
| to get there. | ||
| So they basically adopted what they called living constitutionalism to evolve out of | ||
| that and they did all these workarounds to get out of the constraints. | ||
| Well one of the constraints is that all legislative power according to the constitution should | ||
| reside in a congress of the United States. | ||
| That's now 535 people. | ||
| Now before air conditioning they could only sit there some of the year. | ||
| Now they got air conditioning so they can sit there 12 months. | ||
| But it's only 535 people. | ||
| They can only make so many laws. | ||
| Well, to run the whole economy, to run the whole country, they need a lot more laws than 535 people can pass. | ||
| So they actually outsourced it to the administrative agencies. | ||
| And then progressives could monitor the administrative agencies by how much they funded them, without having to actually make any more laws. | ||
| And they insulated them from presidents who might get elected by other parties, and so they're really out there doing their own thing. | ||
| And that was a way that they could make as many laws as progressives wanted to see made. | ||
| In my book, I basically propose two major reforms to limit the size of government based on the original Constitution. | ||
| One is that most all of the Big issues should be decided by state governments rather than the federal government so that you can have a diversity of 50 state solutions to different social and economic problems. | ||
| The other one is that the Congress should make its own laws. | ||
| So my radical proposal is that it's not that no government should do anything, but that state governments of which there could be more choices should do more and the federal government should do less. | ||
| And secondly, that the elected lawmakers should make all the laws. | ||
| I know that's really shocking. | ||
| I thought you were giving me something else there. | ||
| Those who are elected to be lawmakers should make all the laws. | ||
| This is radical stuff. | ||
| Do you think the concept of states' rights has been totally lost too? | ||
| It seems like we debate everything on a federal level now. | ||
| And I guess this is exactly what you're saying. | ||
| We've gotten to the point where we think the executive branch has all this power, so we think that the president can magically do everything, and we forget that the states are supposed to do... most of the things that should have to do with our day-to-day life should be decided by the states. | ||
|
unidentified
|
Right. | |
| But I don't like the term states' rights. | ||
| First of all, the Constitution is very fastidious. | ||
| The only rights that it refers to are our rights. | ||
| What government has are powers and they're delegated powers. | ||
| Governments are our agents. | ||
| Government is a fiduciary working on our behalf and ultimately subject to the control of the | ||
| voters. | ||
| But still, they're fiduciaries. | ||
| So they have powers and we have rights. | ||
| And the state's rights theme, which is very old and it's easy to think of, to use, but | ||
| I don't like the term. | ||
| So what term would you prefer? | ||
| Well, you know, there's state discretion, state lawmaking, diversity of states, there's lots of ways to talk about it, it's just I don't think states have rights per se. | ||
| Although, truthfully, relative to the federal government, you could say they do have rights, but I just prefer the term rights be used for us. | ||
| My audience knows I like terms, so I'm okay with some definitions. | ||
| That makes sense. | ||
| So you would agree, though, that we have slowly eroded that to the point that it almost It doesn't seem that anyone cares about the powers that the state is supposed to have. | ||
| Well, here's the thing. | ||
| States are bad actors. | ||
| All governments can do bad things. | ||
| State governments can do bad things. | ||
| Clint Bollick, who's now a Supreme Court Justice in Arizona, wrote a book called Grassroots | ||
| Tyranny because of the terrible things that local people, governments do. | ||
| I'm for that. | ||
| The thing about local governments or state governments is you have 50 of them. | ||
| They tend to compete with each other for resources, for businesses, and for population. | ||
| As a result, there are some constraints on them that are not at the national level. | ||
| Because of those constraints, progressives long ago decided they wanted everything done at the national level. | ||
| Because the option, if they were to win at the national level, is to stay in this country or leave your country. | ||
| If you lose something at the state level, you can go across the state line. | ||
| Either as an individual or as a business. | ||
| Right. | ||
| They didn't like that. | ||
| That was too much of a constraint on what governments could do. | ||
| That's really fascinating. | ||
| So push everything to the national level and then you have to leave your country. | ||
| To get to another legal system, and there might not be anything better, and people are reluctant to do that. | ||
| So therefore, for a very long time, and we still have the mentality, if you're really serious about something, you must support a federal law. | ||
| Not a state law, but a federal law. | ||
| Because that's serious. | ||
| That serious means one size fits all for 300 and some odd million people, rather than a diversity of approaches where Texas can do one thing, Wyoming can do something, California can do something, where we are today, California, or D.C. | ||
| Everybody can do different things, and there's a different mix, and people will flow to where they like it better. | ||
| Yeah, that's actually the best explanation of when I say, when I describe progressives as authoritarians now, that's really the best example of that. | ||
| Because you could take something like the New York state estate tax, which is probably lower than Florida, so a lot of people eventually Older people leave New York and they go to Florida. | ||
| The progressives, because they want a certain tax level to be high for those people in New York, well then they want it to be federal. | ||
| Now you can't go to Florida, so then you'd really have to literally leave the country. | ||
| Right, right. | ||
| And that shows why it's about power, really. | ||
| Yeah, so I have a chapter in the book all about this, and I talk about foot voting, which a colleague of mine, a friend of mine at George Mason University, Elias Solman, has a book about federalism in which he talks about foot voting. | ||
| I like the term. | ||
| Which can you do more to advance your own personal well-being? | ||
| Electoral voting in the ballot box, where you're one of millions? | ||
| Or foot voting, where you actually have it within your power to uproot yourself and move across? | ||
| Now people say, well, but if people don't move. | ||
| People have been moving all the time. | ||
| In fact, the South had to pass laws that prohibited labor agents from coming down and recruiting blacks to go north. | ||
| To work in better locations, because blacks were fleeing the South to live in the North after the Civil War. | ||
| That's how mobile we are. | ||
| Now, not everybody can move, but people really are able to move. | ||
| And that's something you can do to improve your life. | ||
| Going to the ballot box every two years, every four years, and checking off a name, that's not going to do that much to improve your life. | ||
| So people pay a lot more attention to how they can improve their lives that way, because they actually, if they take action, the action will have consequences. | ||
| They take action. | ||
| They may close a small business. | ||
| They take all their money out of the local economy. | ||
| And they will actually yield a benefit by going somewhere. | ||
| Whereas if they go to the ballot box and they pull the lever, | ||
| they may or may not get any benefit from that. | ||
| So they take that first decision much more seriously, and that provides a much bigger constraint on what governments can do, because if they lose their voters, they lose their businesses, then they're going to be more constrained. | ||
| Not perfectly constrained. | ||
| Again, I also favor in the book, under the 14th Amendment, federal scrutiny of state laws that are irrational and arbitrary in how they restrict our liberties. | ||
| The 14th Amendment does give the federal government power to protect us from our own states, | ||
| something they didn't have before the Civil War in the original founding, | ||
| and I talk a lot about that as well. | ||
| But that's sort of a third line of defense. | ||
| So first you have most of the power stays at the states, a few functions go to the federal government. | ||
| At the federal government level, you have separation of powers to try to keep it on the | ||
| level, and then when the states go haywire, | ||
| you have the ability to go to federal court to protect your liberties from your own state government | ||
| acting irrationally and arbitrarily. | ||
| That's what my book proposes as the way the system should work. | ||
| Right. | ||
| And all of that is within the way the system is supposed to work, right? | ||
| You're not calling for something that would alter the system, really. | ||
| If I had a copy of the Constitution now I could hold up as a prop, I would say I'm only calling for this thing, the law that governs them who govern us, to be | ||
| followed. | ||
| That's all I'm proposing. | ||
| So you're not saying pass an amendment to do this? | ||
| You're not saying... | ||
| Well, I do propose some amendments at the end of the book, and I proposed more amendments | ||
| in my last book called the Bill of Federalism, which are attempting to restore the basic | ||
| operation of the Constitution, both against court decisions which have undermined it, | ||
| but also there are ways in which amendments to the Constitution have messed things up. | ||
| We have, you know, states no longer have the input they used to have when they could select their own senators by legislatures, and there's the income tax which has created an enormous amount of wealth in Washington that they use to bribe states to do what they want to have done. | ||
| So there are some things we could do by amendment to make the Constitution better at the margin. | ||
| All right, let's back away from politics for just a second and focus on the fact that you work at Georgetown University. | ||
| You're in the midst of this college situation that everyone's talking about now. | ||
| We hear about trigger warnings every day and safe spaces and all of this stuff. | ||
| So I'm curious, as someone that's in the thick of it, have you seen an attitude change within the student population where they really are afraid of new ideas? | ||
| I honestly haven't really seen this. | ||
| I do think law schools are different than undergraduate programs, and so most of what I know about what you're talking about, I know the way you know it from reading press accounts of it, not from personal experience. | ||
| I don't exactly know why. | ||
| I mean, it's not that law schools are completely immune, and we do have our controversies and people can get themselves into trouble, but I just haven't seen And students do tend to select professors on the basis of | ||
| whether they like and there may be some students who avoid taking me | ||
| Because they don't want to be they don't they don't think they want to hear from me | ||
| But that's their choice, and that's all they can self-censor. | ||
| That's always been the case I haven't had a problem, and I haven't seen a problem | ||
| And I haven't even heard about that many problems in law schools themselves. Yeah | ||
| So, I think mainly because students who go to law school are usually interested in a degree by which they'll make their living. | ||
| And the professors who teach in law schools usually are practicing lawyers, or they've been practicing lawyers, they have, and they're somewhat more grounded in the subjects that we teach. | ||
| Contracts property towards simple procedure. | ||
| Whatever it is we're teaching, there's a law there that we need to talk about. | ||
| It isn't just our views of what Right. | ||
| So there's sort of a literalness to it that you wouldn't be able to use a safe space for because you have to address the things that you're talking about as opposed to like a social science or something. | ||
|
unidentified
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Right. | |
| I mean there were problems that when people were teaching the law of rape and criminal law as to how they would teach it and I think we've all become more sensitive to how we express ourselves. | ||
| I mean, you have to be in doing a television or a video thing, you have to be more sensitive | ||
| to the way you express yourselves. | ||
| And I don't think there's anything wrong with that. | ||
| And so in some respects, it's been an improvement. | ||
| But as long as I think you're respectful, I haven't seen a major problem. | ||
| I'm hoping that remains the same, but we'll see. | ||
| Yeah, I'm curious, right before, when we took a tiny little break here, | ||
| you mentioned something about sort of the educational system in general | ||
| and that we should be teaching kids a lot of these principles probably a lot younger | ||
| so that they get to college. | ||
| I think it was the thrust of what you're saying. | ||
| So they have some of this knowledge. | ||
| Have you seen That change? | ||
| I mean, you know, we know our education system in this country isn't that great. | ||
| Have you seen, now again, you're at a law school, so they've already gone through some years of college, but just sort of the general state of education by the time they get to you, do you sense that that's changed at all? | ||
| I haven't actually even, I have to say, what I was joking about is it wouldn't be, I think, wouldn't it be nice if we actually had a system called an educational system in which people would learn these basics? | ||
| Crazy, crazy. | ||
| But the thing is, is when I went, I was a public school graduate, I graduated high school I hate to admit this, I graduated high school in 1970, so I was in high school from 66 to 70. | ||
| I didn't learn much of any of this stuff. | ||
|
unidentified
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Nothing? | |
| Not much. | ||
| I mean, I remember specifically knowing, when I became a philosophy major in college, At Northwestern, and I was taking other courses, and I thought, you know what? | ||
| I could have handled, why didn't they teach me some of this in high school? | ||
| I could have gotten it. | ||
| They were teaching me blah, blah, blah. | ||
| And now I'm starting to learn stuff now in college. | ||
| So I do think that college is where you tend, if you're going to pick up real information, you do pick it up in college. | ||
| And by the time they get to law school, they've had college. | ||
| And I teach at good law schools and students, I have good students to get into Georgetown, have to do very well in college. | ||
| And as a result, I think my students are pretty well educated. | ||
| Does that mean they know everything I think they ought to know? | ||
| But the truth is, I don't know everything I think I ought to know. | ||
| I'm learning new stuff. | ||
| I just was teaching Constitutional Law yesterday and I was criticizing the casebook for getting some of the facts wrong. | ||
| You know who authored the casebook? | ||
|
unidentified
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Me. | |
| And I was saying to my students, I said, you know, I said, like, I hate casebook authors that make these stupid mistakes. | ||
| Yeah. | ||
| But it was, you know, my own casebook, I have learned stuff since I wrote that edition of the casebook that now the casebook's going to have to be corrected. | ||
| Did you figure it out while you were talking about it, or did you know? | ||
| No, no, I... You knew before, so you were... No, I walked into the classroom, I knew. | ||
| I had changed my mind, or I knew more about what I... It was a story I was telling about the Civil War and stuff in this casebook. | ||
| I'd learned more about it since I did that edition of the case book. | ||
|
unidentified
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Right. | |
| So even I had got stuff wrong in the book. | ||
| Right. | ||
| How do we make this stuff cooler? | ||
| I think that's the hurdle here, is that when I've talked to a bunch of guests | ||
| that I've had on and we've talked about these ideas and liberty and individualism and free speech | ||
| and all these things, but they don't seem very, | ||
| they're not in the ether right now as cool ideas. | ||
| The collective seems to be out there more, you know, what I've been calling the oppression Olympics, that everyone wants to be part of a group that's more oppressed than some other group. | ||
| But how do we get back to making some of this stuff cool? | ||
| Not just at the So it's not just done as an intellectual exercise or an academic exercise. | ||
| You're talking to the wrong guest. | ||
| I'm asking the wrong guy for that one. | ||
| I was a nerd growing up. | ||
| I'm still a nerd. | ||
| I'm a professor. | ||
| I'm still a nerd. | ||
| I'm not the guy to talk about cool. | ||
| Just ask me stuff I know about, but being cool, that's not my thing. | ||
| Not something I know much about. | ||
| But to admit you're not cool is kind of cool. | ||
| That's how cool this works. | ||
| All right, so let's back up all the way to the beginning, because there was something I wanted to ask you right up top that we went past, which is, all right, so you love this document, the Constitution. | ||
| As you said, the things that you would like to see change could all be done within the constructs. | ||
| First of all, let me just say, I like the Constitution. | ||
| I mean, I don't know if I love the Constitution, but I like it. | ||
| within the constructs of the Constitution. | ||
| Is there any flaw in there that you really see that we're missing or that really is a weakness | ||
| of our system? | ||
| Well, first of all, let me just say, I like the Constitution. | ||
| I mean, I don't know if I love the Constitution, but I like it. | ||
| Fair enough. | ||
| Okay. | ||
| And that puts me ahead of most of my colleagues who don't like the Constitution. | ||
| They don't like the one we've got, so they want to make a different one, right? | ||
| Is that true, most of your colleagues? | ||
| I think that's true. | ||
| That's the only reason why you'd be a living constitutionalist is because you don't actually like the document, so you want to live your way, evolve your way out of it. | ||
| So I kind of like it. | ||
| But whether I love it or not is another question. | ||
| Now having corrected that, what was the rest of the question I forgot? | ||
| Is there a flaw in it? | ||
| Yeah. | ||
| Or some pieces that you feel like... Look, it hasn't actually worked out the way it was supposed to. | ||
| It was supposed to be a charter of limited government. | ||
| Do we have limited government now? | ||
| We don't. | ||
| No, we definitely don't. | ||
| So there's something about it that hasn't worked so well, or we wouldn't be where we | ||
| were. | ||
| In fact, when I was a law student, I liked the Constitution as an entering law student, | ||
| and I took constitutional law, and as I got to each part of the clause of the Constitution | ||
| I liked, I would turn the page, and I would find the Supreme Court said it doesn't mean | ||
| I'd turn the page and this doesn't apply and that doesn't apply. | ||
| That Ninth Amendment thing I read to you, I recited to you earlier, that's a non-starter. | ||
| The court doesn't pay any attention to the Ninth Amendment. | ||
| So my conclusion after taking constitutional law is if the Supreme Court doesn't care about the Constitution, why should I? | ||
| So I was done with the Constitution. | ||
| I went on to be a criminal prosecutor in Chicago, and when I became a law professor, I was a contracts professor, not a constitutional law professor, because in contracts, the law still matters, writing still matters. | ||
| And then I got dragged into constitutional law reluctantly. | ||
| That's a long story we no longer have any time for. | ||
| I got dragged into it, and so now I spend almost all my time talking about the Constitution. | ||
| Why? | ||
| Because I think the Constitution that we have, the written Constitution, that has not been repealed, is a better form of government than the one we currently have. | ||
| So that's the flaw in it, that it's not living up to itself, perhaps? | ||
| Yes. | ||
| And so, instead of arguing only for libertarian first principles, which I also believe in, and I have a book called The Structure of Liberty, which argues for, instead of just arguing for libertarian first principles, I think it's worth my time to talk about this text of the Constitution that is better, and it's not a perfectly libertarian document, but it's more libertarian. | ||
| than the actual government that currently we have. | ||
| And so, because it hasn't been repealed, I feel like I can still talk about it, and that's why I do. | ||
| Yeah, well I have to say, I thoroughly enjoyed this, and we laid out a lot of the principles and the definitions that I'm constantly talking about. | ||
| So we're gonna link to all your books right down below. | ||
| Terrific. | ||
| Do you have a final thought? | ||
| I think we did pretty well. | ||
| Now I'm gonna go kick back and enjoy my afternoon in L.A. | ||
| before I head back to D.C. | ||
| where I think it was supposed to be 97 degrees today. | ||
| I want to thank Randy Barnett for joining me today on the Rubin Report. | ||
| You can check out his book, Our Republican Constitution, in the link right down below. |
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