Well Whiskey coming game.
From power Line blog dot com and produced by Ricochet dot Com. This is the Three Whiskey Happy Hour with your bartenders Steve Hayward, John Yu and power Lines International Woman of Mystery Lucretia.
Have you gotta giving let that whiskey love where you're being in love down and low?
All right?
After last week's Gonzo episode, this week is even stranger because this week it's going to be the three Keyanti Happy Hour. The band is back together in person. Lucretia, tell them where we are and what we're doing a little bit.
We are in a beautiful castle from the twelfth century, continuously occupied by the same family. A family there is a very dear friend of all three of us, castle Decaciano, overlooking the entire Tuscan Valley, or I guess the southern part of the Tuscan Valley.
John is staying in the big castle.
Steve and his wife and I have been given the I believe as the servants quarters, which anybody would be thrilled.
To live in.
I finally agree with them that Aristotle's natural.
Order of the universe has finally finally been achieved.
John's room has been of those sort of Louis the fourteenth bedrooms with the curtains around the velvet and all of that.
It's really quite a pressive.
But we've been having the most extraordinarily lovely time our dear friend, the Baroness and her husband. We are the guests of that, and we were treated to a Downton Abbey style formal gala dinner last night, and it was most extraordinary. I don't know that any of us ever have or ever will experience anything like that.
Again, so well we are.
Oh John, you were going to know.
I was just going to say, it was just like weekend at my house.
It was likely I finally achieved the station to which I so ritually deserved.
Except for the good food, the good wine, and deliveried servants, it was just like John's.
House except for that. Except for that, it was just and it was.
Just literally thousands of dollars in flowers and extraordinary wines, all made here at the castle, which is and I have.
To say, you know, listeners may know that I still questioned Lucretia and Steve's strange adoration of the British monarchy.
But I can get used to aristocracy.
I can get used to it.
I kind of see it's merits here while I'm in the castle, but we are.
I mean, this is just the weekend idol between academic appearances, first in the lawn and then early in the week in Florence. Will turn to maybe a little of that
towards the end. I think, first, though, John, we do have some listeners and readers who sent some questions in One of them is wanting to hear some from you or from all of us about the question of whether how recess appointments work, whether Trump is right that he can command the Senate to adjourn, or that the Senate should adjourn so we can install who he wants quickly to the resource recess appointment process. And I think, well, I'll stop there and ask you what you want to hear.
Guys.
I did post an article on National Review a week ago, roughly just a few days before mister Gates withdrew his nomination, and I know the pro Trump listeners may automatically be suspicious because I.
Was critical of Gates.
I would hope, actually that all conservatives would be dubious about his appointment.
But my main argument was that this doesn't make sense.
If you really want to reform the Justice Department and the FBI, like many of Lucretia and her supporters want to, because Gates would have been mired in one to two years of litigation fighting over whether his appointment was constitutional. It's actually an interesting question of constitutional first impression, This provision that Trump's transition team wanted to use has never
been used before as far as we know. Sorry to digress, but there's actually a lot of There has been a lot of fighting and litigation about recess appointments, and actually the case got to the Supreme Court because President Obama actually had tried to really use this recess point prior to put as a very questionable people who never would have been confirmed by the Senate.
But in short, the question, and it is discussed in.
The Federal's papers, is what do you do when you're the president and you need to appoint people quickly and.
The Senate not in session.
In the eighteenth century, the Senate was expected not to be in session all the time because it took forever to get all the way from say Georgia, all the way up to Washington.
By horse or by sale.
So the Constitution has a provision in it and it says, it basically acknowledges the power of the president to make recess appointments, which are just as good as normal appointments, but they only last to the next session of Congress. The big constitutional question is what's a recess and when is a recess? How do you throw someone into recess? Presidents have often tried to say any time the Senate's
not in session, it's a recess. The president, Well, let me say, the Supreme Court held in this case almost exactly ten years ago, not usually, the case called Noel Canning nine year oh yeah, versus NB, and the courts there said, anytime the Senate's out of session for ten days or longer, the President can make these recess appointments,
which without the consent of the Senate. However, I point out that our friends, our buddies on the Court, led by Justice Scalia and joined by Alito Thomas and Chief Justice Roberts, took the and this would have doomed Gates's appointment, said no, No, a recess only occurs between one year of the Senate the first session and the second year of the session.
For those who are.
Into accounting, you say every Congress that we number the Congresses.
By the election of the House.
So there's like say, I worked in the one hundred and fourth Congress, which was the contract with American New Ginglich Congress, because that was the one hundred and fourth election for the House. And then each Congress has a session, a first session which is the first year, and then they take a break, and then a second session which is the second year of that.
So the according to Jessics Scalia, he thought that a recess was.
Only between the first year and the second year, and that any kind of break during the Senate's meeting and they let me tell you guys, as a former Senate stafford, they take a lot of breaks every holiday, and then there's they take breaks just to go on campaign.
There's so many breaks.
So jess Scalia's view was no, that none of those breaks are actually a recess within the meeting of the Constitution. If Scalia was right, Gates's appointment just wouldn't work.
Couldn't be made it all? Yeah, it could be made it all.
He'd have to wait until the end of twenty twenty five to make a recess appointment. So the Liberals, I'm sorry.
Good question.
Why couldn't it have been the recess in between the outgoing Congress and the incoming Congress. Why would that not be a recess.
Because I'm not president yet comes in January fourth, Yeah, so it's very Yeah, you would think, oh, why couldn't you do a recess before at the very Yeah, right, that makes perfect sense.
Yeah, there is no recess because there's no to that.
We didn't bring the president in until March.
Yeah, which actually makes even more sense under scale is right, because I think Congress would have been meeting for months and then the president kind of come in like here's the here's the here's the other thing that's trigging. This is my main point is there's another provision. This is the one that's never been used. So people have thought about these recess appointments. Teddy Roosevelt. So Congress, for example, famously tried to stop Teddy Roosevelt for making any recess appointments.
So between the first year and the second year, they literally adjourned for one second, and Teddy Roosevelt claimed and he got away with he said, in that one second, you were in recess.
So I appoint five hundred people.
So that's called the Teddy Roosevelt's famous metaphysical recess appointments. Those so anyway, So the thing that's different is that there's another provision in the Constitution never been used before, in Article two, Section three, I think, which says, if the House and the Senate disagree about adjournment, then the President can choose the time.
Of adjournment and how long it lasts.
Now this if you agree Justice Briar was the author, of course, of the ten day rule, because the first thing Scalia goes is, why isn't nine days, Why isn't it eleven days? Where's this ten day figure you made up, Briar,
which Briar actually didn't really respond to. So the interesting thing is that if you're with Justice Briar and you think you can make these recess appointments like at gates in between during the time of a session of Congress, then maybe Trump's argument would work because it says the House said we want to Congress to go in a German now, and the Senate doesn't want to go to German at all, which they generally don't want to do because they don't want to give away.
Their confirmation power.
Then this provision suggests that President Trump could say, okay, there's a disagreement between the two houses, and I'm going to put Congress into a chairman for ten days and then make all the recess appointments.
Never been done.
So the political play here is getting Mike Johnson to get the House Republicans to adjourned. I said, I won't want to do it, and then Trump uses this never before use power.
No, the political play is Trump shouldn't need to have Reese's appointments in any way shape or for me as a fifty three majority in the Senate.
And no, no, no, no no.
They talked for months about how Clinton, with forty three percent of the popular worlde.
Had a mandate.
What the heck is wrong with these idiotic Republicans?
Do they really not see what happened? You know, you can think that Gates.
Wasn't perhaps the best choice for attorney general, But at the same time, anybody who says that to me, I want to smack them until they can explain to me how it was that mister establishment perfect resume, former Judge Garland was anything but a disastrous appoint a disaster's appointment to the attorney general position. I mean for the country, the damage is probably never going to be fully undone from Garland, So why not bring somebody the exact opposite of a scumbag like Garland did?
That's my point, And I was.
Fine with with Gates.
I was, you were fine.
I wouldn't have chosen him.
But he doesn't even meet the minimum style, which are what might not be a child molester.
Letting all those illegal aliens.
Let me get back to the other side of the political question, which does not relate to Gates or Garland or anybody, which is so what Roosevelt probably appoint five hundred.
People, no exactly the time is is.
A new president now has three thousand appointments to fill. And ever since the Arab War gate, when we changed the you know, stepped up the ethics requirements, that process has gotten longer and longer and longer. The FBI background checks take forever and so forth. I wonder if this isn't I mean, maybe they do want to exercise this power, but I wonder if this is a bit of bargaining.
That's the breakfast bell. I think that's at the front door.
Oh okay, actually that the son you're hearing listeners is Steve stampeding to breakfast when he heard the bell for food, priceless antiques destroyed because they were in Steve's.
Speaking before before he finishes up, good morning, the barrenness of the castle.
Right, but joy so to resume.
Ever since Watergate, it's become more and more difficult to get people confirmed. It takes months and months, sometimes years, And I wonder if this is partly typical Trumpian business bargaining UH to try and speed up the process. People have been talking for years about how this has been getting worse and worse for every present of both parties, and all the proposals for reform get nowhere, and the only way to change is, like so many other things,
is really shake things up. So I think, you know, a, it might work, or too, it might get the Senate to move faster. And supposedly we are Trump people want to skip a lot of the FBI background checks, which some Republican senators are resisting.
Of course, I.
Don't think that makes sense.
For the cabinet officers first coming in, they get confirmed fast. I mean, well, they do see this weird phenomenon where the Senate is going to actually hold confirmation hearings before President Trump even takes office, and they'll all get confirmed quickly. I don't think that explains the Gates problem, which is I think you have a guy who just was not qualified and had serious background issues to get confirmed.
That's a different question than.
The all the sub cabinet officers who who you're talking about where that you could say is you know, the Senate is slowing it down because they just can't process
that many people at the beginning of an administration. So that's partially the Senate's fault because they've made so many jobs of vice and consent jobs, right, although Hamilton says, you know that's the purpose of the clauses to make sure the Senate has to say, because each of these junior officers prior wields far more power than a cabinet officer did in the eighteenth century.
But what john about those officers that are not Senate confirmation do not like, for instance, the as I recall the National Security Advisor, the White House Chief of staff,
some other really important powers. Will there be a tendency or has there been a tendency over time to increase those kinds of offices so that you can get around entirely the Senate confirmation or to give more power to people in those offices that say, the National Security Advisor versus the Secretary of Defense who has to be confirmed.
This is the very interesting dynamic and a partner response to this what you're talking about, what Steve's talking about, which is that the president considers the people who are part of of the White House Office, who all the people Lucretia mentioned, they're not even independent officers, they're just
aids of the president and running the White House. And so they've always made the argument and the Senate's respected it so far, which is that they're not subject to advice and consent because they're essentially part of the presidency itself as an as a singular office, whereas you know, the cabinet officers are not in part you know, they run for They run a congressionally authorized and funded office that has statutory duties putting in differently like the National
Security Advisor doesn't have any duties set by Congress. So the interesting thing is the president has this political incentive to make more and more of the operation part of the White House Office because as you say, the Senate, you know, slows things down, but they also Congress is using the advice can cent power to enforce its own priorities. So, for example, the head of OMB is an advice and consent officer. Even though they kind of work, they'll say
they work in the White House. That's where the struggle is, or these offices that are they're called in the I hate to be all nerdy about it. They're in what's called the Executive Office of the President, which is a much.
Broader office, and those people.
That's where the battleground is over whether the Senate is going to control their appointment or not. That's totally different than these junior officers. Like I was a junior officer in the Justice Department. I was appointed by President Bush, but I didn't go through advice and consent because I wasn't high enough.
Really, Yes, well.
So I just wanted to say, I hope that our listeners understand first and foremost that I asked these questions just to give John an opportunity to pontificate, because I already.
Know the answer.
But I actually do have a question, and I thought that the National Security Advisor was to some extent congressionally mandated by the National Security Act of nineteen forty eight.
Oh there's a question, John is Yeah, the National Security Advisors and naw Security Act. But I think, I think think it's an executive appointment, but I'm not positive.
Is there no statutory john Is there no statutory authorization for the National Security Advisor in the National Security.
Act of nineteen forty eight.
So Congress funds the offices still, right, so they will, but they don't it says they don't provide for it. Or putting it differently, if the statute didn't exist, the president could create them anyway, their creation really isn't so the I mean, Congress funds it, but their office isn't a creation of the Congress in that way.
So that's the theory.
Like the person the position I know best is a National Security Advisor and White House Council. Those are just like jobs that kind of evolved over time. Is like personal aids to the president, and they were never like so trying to like you person like who the White House chief of Staff? Right, Presidents would go to the mat to stop Senate from confirming them or Congress even creating the position, because when Congress creates a position, it kind of as partial control absolute.
Well, now, I think a couple observations.
One is I think as recently as the beginning of the New Deal, the White House staff was still something like under fifty people, and now it's hundreds and hundreds. The National Security Council, I know, has become kind of
a plaything to stick special purposes. So for example, the numbers were something like, I don't have the memorize, but the Clinton administration or maybe the Obama administration grew the National Security Council to something like three hundred people, and they stuck in that a lot of their pet projects, like climate change is a national security issue, right, And then I think the Bush or Trump may have shrunk it back down so they think it was evan flow.
And then part of you trying to control a bureaucracy out of the White House, And that's a long subject that's going to get us off into the weeds. All right, let's draw a veil over the recess appointment power and whicher cabin nominees may or may not be problematic or so forth, And moved to the other big story of
just the last few days. The International Criminal Court has issued an arrest war for Prime Minister net In Yahoo of Israel, and there are some countries starting with Canada, whose Prime Minister Justin Trudeau declared they would arrest net in Yahoo if he came to Canada. And I think some other countries are piled on too. And it has been suggested that Trump ought to respond by threatening to arrest the chief judge or judges of the International Criminal Court.
Of course, we're not a part of this darn thing, John, and for a whole bunch of reasons. And I have I have no end of things to say that are bad about the International Criminal Court, But I mean.
What should be that are bad about it? Yes, there's to say that are bad. No, I thought I was trying to say. I can't run out of things that are bad to say about it.
That's what I'm trying to say.
The thing, so it should be. I mean, what's the right response, John, or is there one?
Well?
The right response is that the Trump administration should wait a campaign to delegitimize, if not destroy, the International Crimic Court.
One just letter level of broad policy. This is the worst of the international organizations. It claims to be able to grab anyone anywhere in the world.
To try them for war crimes, even if they come from a country like ours or like Israel's that has a well functioning judicial system and legal system and can be trusted to make sure that.
Justice is done. But I think it's worse.
I think that the ICC is an effort by some countries to prevent other countries from fighting necessary wars. If you have some kind of weird body without juries, where the prosecutors and the judges are part of the same body, not democratically accountable. Second guessing American military decisions in the field.
This is just going to make it harder for us to fight the wards we need to.
Do to defend ourselves and our allies and to stop our rivals at a time of great instability and challenge from our competitors. So I think the Trump adminstration, which campaign, I think on a level of a broader level of protecting the sovereignty of the nation, of protecting our borders, controlling immigration, you know, red, rebalancing trade, like it or not, I think the American people want stronger sovereignty on behalf of the United States, and the International Criminal Court is one of.
The great threats to it.
You know, you're sometimes co author Jeremy Radkin made a good observation about the court many years back when it was still something of a live controversy in our country before George W. Bush took us out of it, and he pointed out that every judicial system in the world, and I'm not sure about other international bodies like the World Court, but certainly all sovereign and judicial systems have a pardon power lodge somewhere, so an executive where somebody
can correct some mistake of judges or juries. There's no pardon powered international criminal court, no way to an appeal, no body or a way to appeal.
A judgment of the International Criminal Court.
And that just goes against every sound principle of as usual.
Steve, you're our way off mark here.
Yes, because it's as if you are accepting the basic legitimacy of some sort of self appointed international.
Court to begin with, and of course we don't, and we never can.
It could be the best, most just and fair international criminal court that ever existed, made up of basically a philosopher, Kings and solos and so forth, and it would still be illegitimate.
You cannot exercise power.
As a global body, and anybody who concedes even that much has already conceded the whole thing.
You are the.
Reason I raised that particular point is that's on purpose because they want to be a super judicial powers.
Let him want all they want.
It's illegitimate, and anybody who says otherwise deserves to do.
I mean, who was wonderful? Because you know that that happened how many days ago today? It was like if a story I can find it?
Yah?
Who a rabbi was disappeared in?
I think it was United Arab Emirates disappeared and they found it murdered.
And who sussured in to pay? Yeah, you know, screw your people in your international criminal court.
I am going to continue to exercise the sovereign power my people have given to me, and there is no other kind of sovereign power.
Just to be clear, I will not at all suggested, Oh there's a bard power.
Be okay, Why I discuss it?
Because I think it is. It's a one way to get across the people. How perverse the structure of it is.
Again, you are giving up the game when you do that.
Yeah, well I don't think so, but.
We'll see commenters see us right on this one.
Look, I'll race you which one of us can bomb the building first?
Probably have better, but well one other thing is what should the Trump administration do other than just criticize? So I mean, I know Lucretia hates this guy, but John Bolton was the one who waged a long campaign against this and he was the one who, on behalf of the Bush administration designed the treaty.
I think he said to him, I think he says something. This was his greatest public act as an American.
Official, someone who had his job at the UN by recess appointment. Let us remember, because Republicans mocked him from being confirmed.
A couple of Republicans did.
But on this point, what else should the Trump administration do other than just cheap talk? You know, what can it do to help Israel to fight off?
I think cheap talk probably matters at this point, and it should be more than cheap talk. It should be serious theoretical, rational arguments about why.
Something like an international cour is simply a ludicrous idea.
Again, regardless of its you know, checks and balances or anything else, the United.
States government is a sovereign government. It does not recognize any.
Rulings by any international body, not by the Geneva Convention, not by the United Nations, and certainly not by the International Criminal Court. We can jolly be jolly and pretend we follow the Geneva Convention, and that makes sense. I mean, let's pretend we can have a peaceful world when we're at war.
What a stupid idea.
But when it comes down to it, if we need to violate the Geneva Convention, we must violate the Geneva Convention if that's what we need to do. So this is all just kind of a it's a smoke screen.
To make people feel better.
So here's another thing.
I looked at the budget of the International Crew Court once upon a time, probably back when John Bolden was Matters, and it turns out that this thing gets funded by all our allies. One of the biggest contributors Japan. So I figure one thing the trumdministration could do, which would be consistent with the way they think, is for every dollar that any ally gives to the National Curler Court, we should cut off aid five dollars, right, and then I.
Think this thing will close up and fold like that. But that's a great example.
The bigger problem is, here are are allies who want us to defend them, right, Japan is crying for our aid in the Pacific against China. At the same time, they're funding this institution which is attacking us and our allies and the way we have to fight war. So I figure, let's kill the thing by cutting off all its money, cut off all our foreign aid to countries that fund this thing.
Yes.
Absolutely, But we've been Patsy's about this in the past, which is, we have all of these foreign policy experts in the State Department, et cetera, et cetera, who believe somehow everybody knows this about some sort of global government will be the way to keep the world at peace, and that way we don't have those awful mega Republicans with their America First nonsense.
It's so embarrassing to the elite on the left.
And yeah, absolutely Trump can do that, and it will actually matter that he.
Does, I think, and I bet he does. I mean, you know, there's a lot.
Of people pushing Trump to stop giving foreign aid simply speaking, but certainly our foreign aid is no longer targeted and very specific to accomplish specific purposes. It's just I think it was Steve himself who said a couple of weeks ago that most of the foreign aid, most of the kinds of at least stuff that's given to NGOs, money that we give to NGOs and so forth, is really just kickbacks to the left, and I think foreign aid in many ways.
Is that true?
Well, one other possible harassment, John, and then we'll move on.
Is is it.
Possible to prospect declare someone bersona non guada so they can't enter the country. Oh yeah, of course, the whole staff of the International Criminal Court and all the judges.
I believe actually that under the Bush administration. No, under the Trump administration, when John Bolton was National Security Advisor, they did that. They said the judges and the prosecutors that I SEC will not receive visas to enter the units.
Oh good, oh good, Well, let's lettle do more of that. But for now, because we have a lot to do and there's a curfew.
John has to get back to the manor before it gets closed for the.
Because I know, I tell you, I haven't scaled a castle wall ten years.
At all.
Right, our main event, and actually maybe we're gonna have to make this a couple of episodes.
So one of the reasons we're all.
Here together in Italy, among my lord appearances, was to have a panel discussion I guess you call it that with Adrian Mule of Harvard Law School about his book that created such a sensation common good Constitutionalism, and I have some well it it comes in three parts which I can lay out, but I have a particular criticism of one part of it.
I think Lucretia has a criticism of all of it.
You go on, why it made a sensation? What an somebody explained to me, why there was any appeal to it? Well, okay, I think others would.
Like to know that.
Well. Well, first descriptively, I think it's very safe. It has yeah, big swee.
I'm asking, well, all right, I have.
A long piece on substack, which I'll link in the show notes.
That describes as to some extent. I think there's three parts to it. One is he thinks.
Originalism is a dead end in bankrupt He says, it's just another species of positivism, no different in process than the way the war in court operated. And I think there's something to that. I think you and I partly agree with that for other reasons, or say well, but he does say okay. Part two, he wants to revive what he calls the classical legal tradition, and he says that really means natural law. And by the way, natural law is originalism. But he thinks the term originalism is
so defective that can't be saved. So he says, instance, we ought to have common good constitutionalism. Now what he says there is it's not really judicial doctriness. It's not a theory of judicial review, although he gives a couple of examples of things he likes, I think are susceptible to criticism. And then second, that means that other branches, including the legislature and the executive, need to be reinvigorated and need to think about the common good as their
north star. Then the third part is where I think he runs into the most trouble. But the left liked about the book.
He says, Oh, and the administrative state, it's a good thing. We need to keep it. He does say it needs to be rightly ordered.
And I'm skeptical that it can be inherently And that's where we differed in our panel discussion.
Before we go to the panel, I'm essentially done, So go ahead.
Can I just for a moment say that he's first of all, absolutely wrong about his criticism of originalism, which is.
You know, I'm no great, but to say that.
Somehow the return by the Supreme Court to an originalist doctrine has not been salutary, has not produced the common good in very, very real terms, is simply mistaken. I mean, I get that his stupid book came out right what before Dobbs, so he should have just thrown it away, told the publishers stop publishing. It is stupid, But I mean originalism produced the decision in Dobbs, which is an originalist decision against the living Constitution.
He says, they're essentially the same thing, right, I.
Mean, it's just so dumb, But anyway, and a whole series of other decisions, the Harvard decision, yes, the exactly Lowber that.
Of course he's probably.
Against those, but certainly the Brewined decision he's against because it turns out, on top of everything else that's wrong with him, he's also a Second Amendment denier. Listen to this job does because I owe him a few snarky asked snarky comments back.
Excuse me, correct or editing I have to do?
Okay, anyway, So I mean, am I wrong?
I remember John when he first.
Came on the podcast made the comment that originalism is now the prevailing constitutional theory of the Supreme Court, and it has produced better decisions than anything in the last sixty eighty years.
Well, let me dispute that this way.
I mean, one form of originalism brought us the boss Stock decision.
No, no, that's wrong. You are wrong about that because it was not originalism. I don't care what he called it. You don't just get to say I think that when in nineteen sixty four when they passed the Civil Rights Act, what they meant by sex was everything, including transsexuals, and call that originalism.
It's just stupid. Well, it's not originalism just because you call it that. Well, okay, realism is a theory that makes sense.
Whether you agree ultimately with it's the best theory.
Is a different cho Well, which kind I mean, what's his name? Of course, I said he was anchored in the text. I think there's a text. We go from the text there is.
Text doesn't mean what he said it means.
Okay, but that's his claim there never in mind the effects of that.
The other kind is the original public meaning, which is part of the adopt's decision. The third kind, I think is more of our kind, which is the natural law and natural rights.
Philosophy behind it. See, I think you're wrong, Steve.
I don't think boss Stok is originalist because originalism doesn't apply to the interpretation of statutes. So where boss stock was about Title seventh and whether discrimination against sex included orientation, included whatever, and then you know, obviously the door.
Is open to then what do you think You're orientation?
Is?
What do you identity?
Yeah?
And actually Scalia, who was the prime originalist, he didn't want to look at legislative history our statue. So actually what Gorsitch was doing, I think is that he was the opposite of being an Originals.
He was a textualist.
By that, I mean he said what does sex mean to me today? He didn't say what did sex mean in nineteen sixty four? That would be something like originalism. But he could win that one because there's no way right that sex in ninety six four would have been thought to include Kays.
I don't think.
And if I say, I mean, it's just like if I.
Say it's light outside, that automatically means I have an accurate interpretation when it's dark outside.
I mean, you can't know what his claim is. It doesn't matter what his claim is. My point is, it doesn't matter at all.
My point is, is the originalism, whether any kind of originalism, textual, original public meaning, all of those things as produced as a constitutional theory, better outcomes than the living constitutional.
Okay, see this is where So this is where Adrian's response to you is more, I think, in.
His writing than what he said in the panel. He would say, I agree Dobbs was great. I agree that the Court is doing the right thing. But he says they're.
Not really being originalist, because if you're originalists, you couldn't actually receive achieve these results. It's just because they're openly conservative, and then the originalism is just like this kind of fake thing they write on the opinions.
And he says, I like.
Their conservativism, but they're really being common good constitutionalist. He wasn't that clear in the panel, but that's what he says in his writing. That part of what he's doing is he's actually describing what the court has done. So he would say boss Stop was wrong because they should say, as a matter of the common good, we should not allow gays to.
Have legal protection.
Although I don't think he says it exactly that strongly in his book. But he also on the Second Amendment case, he would say, oh no, the common good means that police.
And military are the only ones you should there to go.
So we see this recent case Raheem.
He thinks the court didn't, you know, turned away from originalism, which it kind of did, right, Rahimi's the case whether someone under domestic violence order is allowed to have a gun or not. Justine Thomas, who wrote Bruin and I think, is the purest originalist. So if you're going to be faithful originalism, you can't use that kind of order to take away someone's.
Right to a gun. So Formuele, who.
Likes gun control because he thinks it reduces crime, which is for the common good, he would say, well, the court in Raheemi, they're just being considered. They're doing the right thing, and they couldn't do it in an originalist way, so they just did it and that's good.
That's better.
So he's making a descriptive claim and then he's making a normative claim.
He would actually say, it's interesting.
I think people would say and Dobbs if the court was going to be only originalists and Dobbs, it should have stopped after at eighteen sixty eight, at the time of the fourteenth Amendment, would they think abortion was covered or not by the right use?
And he would say no, so you would stop.
But then vermals, but what's all this tradition and history and looking at the practice of the country till between.
The passage of the fourteenth Amendment? And ro Vermia would.
Say, you wouldn't look at that at all if you were really originalist. But if you're just conservative and you like tradition and doing things the way you've always done them, then that's stuff cast So he's cleaning like it's not really originals court, and that's why we.
Like it as conservatives, because you're reaching all the right outcomes.
It did that just first of all, he's he is putting forward what he says is a theory of constitutional interpretation normative theory as you put it, based upon some sort of morphous concept of classical legal theory. How classical legal theory gets you to pro environmental causes or anything like that is way beyond me. But the problem is is that he cherry picks things and gets them to fit in something he calls a theory that has, as we put it John, no animating principle and no limiting principle.
It's really what does.
Adrian vermule like, And his theory happens to just fix everything to the way he likes it, and it really has no logical consistency originalism, I get it, people do. I mean you said also that even the liberals on the Court talk at least in the language of originalism. But whatever else you can say, you may not agree with every decision that the Court has come down with a conservative liberal whatever. Originalism is way more of a limiting principle on the decisions of the Court than the
living Constitution ever was. And he's wrong to identify those two things as essentially the same.
Which is what he did, at least.
In his dec he did which I thought was going too far to say they're equally limited or equally limitless. He doesn't. He claimed they're neither of them. Is a real limitation.
But here are two interesting points because by the way, listeners, I helped organize this, but I just wanted to sit on the side.
Because there was Lucretia and Steve and then Adrian the moderator was a fellow in Alesandro Manjo, who's a leading legal theorist at the University of Milan, Catholic Katzolica.
They call it. And then another younger guy.
Named Philip Arupta Brazolti, presiding teachers in Rome, also up becoming Italian legal theorist.
This was so out of my.
Depth because I just want to know why we get to use the death penalty and search without a work, and all these guys are of this high fluid in legal theory.
I didn't want to get in the middle of this. I would have fallen asleep on the path.
So the audience.
So two thoughts I so, you know, as the neutral observer.
Two things that occurred to me that I hadn't really realized until I listened to.
The exchange was one he believes in natural law of this. So one thing, one way I told him.
Afterwards that I would pitch his argument to make it clearer, is that he doesn't like originalism because he doesn't think originalism advances a moral theory of the good.
It's just a method, and it's a method that doesn't come out of any political theory. That's what I thought. That's why I think you guys are in agreement.
No, the thing said, but the second his second point, which then I think would be the interesting contest, and I think it kind of was, but it wasn't phrase this.
Way, was that? So what he's really saying then, is I want.
To repretation to have a moral theory to it, that you should interpret the Constitution.
I do.
Actually, it's not just limited to the Constitution.
Do everything in illegal, Anything you do legally or politically should be with an eye towards advancing a certain moral theory.
There's no such thing as neutrality.
And then he would have to admit his moral theory is really Aristotle's moral theory, right, or Saint St.
Thomass But that's what he thinks he's doing, saying, I would use the morality of Aristotle and Saint Thomas aquinas to, you know, to judge whether decisions are correct or not.
And this is why Lucretia drove him, Betty, because Lucretius said, like everybody, she.
Said, your yeah, Adews just found the same position to me and Steve Nie just didn't know.
So Lucretia came in and said, no, the moral legal theory is the one of the founders that you should use right, she said, and you know natural rights. Commic good constitution doesn't care about naturalids think about natural law. So Lucretia King said, what about natural rights? What about the equality of human beings? What about social contract theory?
Steve in a way asked the same question, like we had the same kind of criticism, but listeners will be shocked to learn Steve was nicer about it than Lucretia.
But you know, basically, I think coming from the same place. And Adrian went nuts.
He said something like I didn't come all the way to Milan to hear about Jefferson, and he basically, this is the second point.
I didn't realize until I heard the debate.
I think Adrian's comic good constitutionum rejects the Enlightenment. Yes, oh yes, I didn't understand until I read your substack, till I heard your questions. He thinks that mocky velly on was a wrong term, right, that liberalism is a wrong term, it's small, that autonomy is a wrong term.
Individual this is a wrong term.
Yeah, I didn't really that was not and that's not really clear from his writings as much.
It's there that I it's not.
It's not like he doesn't lead off the presentation of his thinking. Luf, I'm here to reject the Enlightenment. We should go back to write pre Machiavelli understanding.
Of wells, I mean Lucretia and I can spot that that argument from fifty miles.
Away, and I think it's I think it's clear in the book. Now, it's not explicitly stated, it's implicit dated in the books to stay clear.
Well, well, it's not stated the way you just did. Yet I think it's clearly there. I'll put it that way if you read it carefully and understand what he's saying.
I mean, you guys pulled out the Straussian decoder ring. We did the book Straussian. Well, you're allowed to do that.
That.
But here's why this is important.
If you rejected, if you reject the reject the Enlightenment the way he has you also implicit.
And here he doesn't say it anywhere. And I think this is what Lucreas exposed in a certain way. He rejects the American founding.
Yeah, he was very clear about that.
American founding is something unique and different rather than this.
He didn't say this by assume he would say Jefferson was just a clever rhetortician.
I don't think he even thinks Jefferson is clever.
Yeah, he doesn't think of as a political philosopher. Well, I don't either. I hate Jefferson.
I know you hate Jefferson, but but you don't hate the regime founded on the principles that Jefferson articulated.
But here's here's the challenge I think he put to both of you two, which we ran out of time on the panel, is he.
Was basically saying, well, prove to me why the American Founding really is a political theory that's superior to his playing to Aristotelian Saint Thomas Aquinas as the moral universe.
And my answer to that is very simple.
It's it's rational, it's grounded andtionality. We had that as a constitutional theory for at least the first what sixty seventy years solidly we saw we saw not only Chief Justice John Marshall articulated, but he brought over Joseph's story, who remember, was a Jeffersonian, Madisonian.
Whoever natural law man?
Yes.
But but my point is is that I actually asked him afterwards because he basically ignored me after he'd.
Insulted me a few times in dish.
He did, yes, he did.
He was we treated both of you with a respect which you don't receive on your own podcast.
But anyway, I asked him, I said, okay, so I'm not even being argumentative.
Here, give me one example of a time where a.
Legal system was informed by this classical league theory that you are espousing. Give me an actual, concrete example of where what you're talking Never mind that it's very amorphous and nobody can define it and he can't define it. But give me a time when you would say this has been a successful manifestation of classical legal theory. And he looked at me like he had no idea what I was talking about. So I reframed it in the modern age.
No, I meant any day, because in his book he has praise for like the.
Roman you know, but yeah, the idea that whatever, we know what the Romans threw Christians to the lions, so whatever.
But he didn't even offer that up to me. He looked like he didn't know what I was talking about.
So I said it like this, I said, where I just told you guys, that the Founding period and the decades after it were, in fact, in human history one of the.
One of the the time when human.
Human self government, human forms of government, that the constitutional system we had was at its apex, was as good as human beings had ever produced.
That was my argument to him, and his argument back was, I said, can you give me a similar example that classical as opposed to the American Founding classical legal theory would have produced.
And he said, well, you know, in the New Deal, they they really shut down unions and that was a really dumb idea.
If we still had labor unions then we would have, you know something.
Yeah, that was strange. He was very pro union in the He had.
Nothing to do with it was that he doesn't understand basic ideas.
No, I think that's going too far.
I don't.
I mean I tried it three different ways.
This is the again, this is the question.
But this is not his question.
I mean I ask you guys this all the time too, being a dirty, filthy utilitarian.
So you've accused me.
I'm only interested in increasing the social adp and social welfare of our great country, the United States, which is now greater than it ever was, how do you prove that your moral theory drawn from the founding drama natural rights Leo Strauss and Harry Jaffa reading and just identify as natural tradition. How do we know that's a superior moral theory to classical theory, to my utilitarianism. It's not enough, I think, to just point out flaws and utilitarianism.
You have to show that your theory is How about the success of the natural law founding principles for a new country that founded itself on those principles explicitly and we basically.
Followed them even though we had slavery until eighteen sixty five.
Yeah, because those are compromises with the these arguments.
Before sum utilitarian perspective, it was a terrible machine because of slavery, well bender natural rights.
It was to Would we have ever ended slavery? No, No, absolutely does it.
Would we have ever ended slavery had it not been for those founding principles?
Well, you know what I think we want need to have a whole episode on Jefferson versus Bentham, which you know I threw it you and.
Ben is an idiot.
I have known it without me, But I mean, well, look I don't want to discuss Bentham when you can discuss something important.
Okay, utilitarianism that is the Oh but I want to say this because we actually that is the way our government works.
But go ahead.
Look, there's one thing that one thing to be said of, not the favor of the book, but this rejection of the American family Enlightenment.
Is a very widespread of months or we younger.
Some people call me, all right, but you know they're I mean, I talked to the month or two ago is the Hillsdale faculty and political science. They said they're shocked at they're conservative students who have contempt for the American founding.
Yes, which is one of the reasons why his book is so dangerous.
And I don't intend to hold my tongue about how bad it is, how destructive and insidious it is.
Okay, you just care what it's right. They're wrong. What do you mean it's.
Dangerous because it's proving itself to it's proving itself to be a crutch a philosophical crutch for those really bad ideas on you.
All right, but he's not the only one. I mean, you're on Hassoni right at.
Let's let's.
Right.
You have to attack these people wherever they're wrong, especially when their ideas are so destructive.
You have to do it.
It's your sacred responsibility. I don't have any reason to care what that guy thinks about me.
I'm going to call him out on his destructive ideas every opportunity I get. Just because somebody else has destructive ideas doesn't mean I don't call him out on it.
What that's a dumb argument.
I think he's going to block you on Twitter. I just a hunt out.
I follow him on Twitter.
Okay, but I followed John to you know, use these adjectives about I want. What I want to see you guys do is rationally explain why your.
Approach is morally almost finished before you interrupted me, which is that you can argue about slavery but set it aside for a moment. Have we ever seen a country, a nation in the history of the world that you know of but found as much peace, prosperity, freedom as the United States was able to implement based upon the founding principles?
So two points. First, isn't that a consequentialist argument?
But second, you asked me to give you a reason why I can prove it work.
But I'm the consequentialist here. You're just saying the principles are morally superior because the country did really well on a number of different measures.
To me, that's just like utilitarianism.
Startling the principles.
I'm well, I'm not finished.
You could also say all those good things that happen in the United States were not.
The result of those principles.
You're just assuming they were could be because we had a huge continent, no natural enemies, we would have the Anglo American political system, which was that of innovation rather than individual liberty.
Because we also had a lot of bad things happen in our country during that time which were violations of those principles.
Consequentialist analysis is not incompatible with the classical political philosophy of Aristotle or Plato or the American founders.
I agree.
Okay, well, let's set that. Let's put let's put a pin in that. When you put a pin in a balloon and explodes. But I didn't put the put the angry down.
I'm well. The second point is I think I think the way John just raised the question would be a good way to approach our next substack. Exchange, whether you or I do it, or maybe we both. I still get step listeners.
Steve hacked into my laptop and I can't get it to start, so I can't write responses, just least substack.
I haven't written a response to yours yet.
You have to, okay, because I'm going to type one out on the airplane back to the US using my thumbs on my stupid iPhone.
Okay, I think we should now brought to a conclusion and continue this argument several more future installments.
Let's just said, one.
Good thing about Adrian's book is that it's reinvigorating debate about constitutional interpret Yeah. People haven't been making, thinking and arguing this way in many years, so I will you and.
I've been talking about these things as long as I know.
I'm just talking about like constitutional you know, the world constitutionals lost.
Scholars generally don't think about this anymore. They're all Rassians, they don't even know they're halls.
But at the same time, don't you think that that just the rise of originalism itself has has in fact, it reinvigorated that debate to some extent.
I mean, that's been your argument.
To me for a while yes it has.
I mean, the liberals spend most of their time now just attacking originalism, but not on any kind of deep philoscops a basis like this.
It's more rooted in Oh, it's too hard to do. You don't do it consistently. It's not really history, right, it's not mad about dots. Yeah, they're all you can think. They're all implementation question it's not the question.
Yeah, I'm not sure.
There's a theory questions, but we'll leave that.
So is it time for me to do bad wombe?
It is all right, much to do it?
In Italian.
Listeners will be happy to know that I went to Mass this evening in Italian and I in one of.
The great cathedrals, the Cathedral of Sienna.
Yeah, this is not my favorite cathedral, but.
It was.
Okay, No means what Lucretius even dressed like the Cathedral of Sienna because she's.
Wearing black and white stripes like a zebra.
Okay.
Uh.
Tom Homan introduces family size immigrant chick.
How do you say that word?
Trabuchrabha to speed up deportation process is a catapultary y?
Yeah, actually funny?
Did you say that because you know, I look very close to the border, and my my best friend actually has a house on either side of the Mexican border. She's an American citizen and a Mexican citizen, and near her house is a baseball field field, and you know, baseball is very big.
And they found out that.
One of their big hitters on one of the Mexican teams was actually filling softball you mean baseballs with drugs and hitting them over the fence.
Yeah, this is a few years back, but anyway, so that's the first one.
Local man passes bar exam after just one week of watching the View.
You get that because they they so they have been so over.
The top in the the harpies of the View have been so over the top in their denunciation of Trump's appointments.
They're just making up stuff, or they're they're taking whatever.
Has just been sort of mildly suggested that they're they're getting.
The MSNBC into legal trouble.
So on air one day they had to read aloud ABC but go ahead, Yeah, the View was on ABC.
That's what did I say?
That they had read legal notes saying.
What I noticed this?
Yes on while they were broadcasting Lawyers lawyers. Yeah, so they wouldn't get sued.
They don't want to get sued, probably because it would actually definitely put them under You.
Know, from time to time I appear on the Fox equivalent, which is called out Numbered.
Well, I was just going to say, you know, I assume everything I say there is just totally not to be believed, that it is not relying on and is meant to to fame and insult many many people.
But they can't sue me anyway, can So this one?
This one I really like and I think that actually John might go for this one too.
Musk says federal regulations must fit within two hundred and eighty characters.
I thought you'd like that must It's a great idea.
It is Musk.
Announces plan to buy MSNBC and turn it into a news network, is.
Actually buying it.
There, he's having fun. I don't think he would, but but.
But he was having fun too for a little while before he bought Twitters.
Yeah, let's let's give a shout out to ms in this situation because bought Twitter and actually and actually blew up the monopoly and provided an outlet for alternative details.
Right, what we can do is thank the misguided management of Twitter, because remember he tried to get out of the deal because he wildly overpaid, and they sued him to force him bright on Twitter.
Yeah, that was fine, not wonderful.
Now John's gonna turn into Pumpkinson.
So we give one more done. Okay, this one doesn't really make sense to me, but it might to you.
Guys.
We have been asked by our lawyers to read this legal notice statement informing you that duel Austin did not actually sail his shot through flooded Houston passing out copies of your best life.
Now that seems old to me. That goes back to the hurricane from a few years ago, I think. But I reading the legal noticing, is that? Okay? Maybe that's it?
All right?
It's been a week.
Can McDonald's has to issue legal notice? The Trump's appearance was still okay.
Very loud to want. Because I sent this to you guys last week. I was very frustrated and it wasn't on the podcast.
I missed it missed you right.
Thank you for the kind comments.
I do appreciate what that actually depends. On last week's episode, remember the fet sox, because.
It was that noise.
People actually missed me. John reads Yeah, listeners. So so I'm for some reason, I won't go into all the details.
American Airlines could not figure out and I called I stood in line. I did all these things, could not figure out how to get my TSA pre check onto my boarding paths. So I have to go through the cattle line, right, And I'm standing there, and you know, you kind of plan a little differently when you think you're not gonna have to.
And I'm, oh God, I'm I have to do. And I'm looking and I'm standing in this line.
And I'm about to be mauled and groped by a TSA agent after I take out most of my clothes. Actually they did, yes, And and I look over and in the special line is an entire group of legal immigrants holding their uh the notice to Appear paperwork, who are being escorted to the front of the line and pushed through with out any.
Going through the machine without turning.
You have to go through the mountain detector.
Nope, they just discored it and they said move over, let immigration through, and they just pulled all of those immigrants.
Yeah. I was so pissed, and I said, I hope that Trump ends this.
Now, were they like handcuffed or being escorted by armed police.
No, they were just and they didn't look I'll be honest, they didn't look like they were from that Venezuelan gang.
But they don't understand how.
That's well, I mean, I think probably it's I mean, you know, the one time I flew on a private jet, it's a charter. You don't actually will get your identification, you don't have to go to security stuff.
Because they're fun.
But the optics of this are terrible and the contempt to chose for law abiding citizens.
What well, I think charter flights might be exempt from having to.
Go through charter flights.
They go on them, and they go on they put.
They put him to the back of the Oh. Absolutely, but you don't fly to two song.
Thank god, I hope never to fly all.
Right, I.
Had to fly to Song.
So here's here's the bad lumbee, so that you'll know it's not just me who understands this. John after illegal illegal immigrant found guilty of murder, DEM's sentenced him to flying coach.
That is what that meant.
I didn't understand, Well, they didn't fly that guy from New York down to Georgia.
The government did where that murdered the.
Yeah, yeah, all right.
Josh Parson didn't get it that you want to send this out because you're gonna turn to the police if we don't know.
Okay, always drink your whiskey.
Meat.
Let's go, Brandon and Steve. What do we have now that we're not making fun of Joe Biden or Knawlla Harrison. Other losers the problem because they're lost.
They're the losers.
Betful, I'm gonna, I'm gonna. It's gonna be hard to give up. I can't think of a single thing. I'll think of something better. Ricochet Join the conversation.