Well, whiskey, come and take my pain, the money.
My brain, Oh whiskey.
Don't why think alone when you can drink it all in with Ricochet's three Whiskey Happy Hour, join your bartenders Steve Hayward, John You, and the international woman of Mystery, Lucretia.
Where this lap it up?
It?
David? Ain't you easy on the show? Tap got a giving?
Let that whiskey.
We have an emergency three whiskey Happy Hour podcast this afternoon because well, because I know Lucretia was just thrilled to the Supreme Court today, marts you and Lucretia thrilled.
But everyone should know that I was actually in ignorant bliss because I was so busy and have so many things. I didn't even have a chance to look at uh at news, even even in boring meetings because I was too busy fighting. So I didn't know till Steve. I always take Steve's text no matter what, So I was like, what what? I don't know what's going on? You had to ruin my day even more than it always already ruined.
But thanks to well right, But then it's also the day after the State of the Union address, and by the time we usually record our weekly episode at the end of the week, it'll be really old news, so you know, a couple of quick reactions to that, and then we got the second half of our conversation with Richard Epstein to get in the cannon out and it's shorter than the first installment, so listeners, of course, you know Richard gets in, you know, three books work material
in about ten minutes, as we know.
Well, a shout out to the Golora for a second, because I didn't get on there before the comments were shut down. He says he's leaving me. He's leaving me for Richard, because Richard is a true libertarian, and you know I'm not. I still love you, David, and I'll forgive you when you come back groveling on your knees.
He'll be back soon, as my prediction.
So listeners, in case you have not heard the news, it was blissfully leading your life on this ash Wednesday. Supreme Court today let us down twice.
It seems to me. First, after having granted.
The stay last week, that was Chief Justice Roberts blocking a district court injunction against Trump withholding payments of two billion dollars in USAID grants. Today, the Supreme Court ruled five to four, with Roberts and amy Cony Barrett joining the three liberals, saying, sorry, the District Court's right, Trump administration, you will have to pay out that money. Although there's some wrinkles.
In it, a little not exactly yeah, okay, I know, you know, I just don't want to get use listeners from the outset. Basically that they sent it back to the damned District Court for whatever reason, to sort of figure out how and when the money should be spent, you know. And it is not necessarily an indictment of the entire Doge project of stopping payments. It is payments for things that have already happened.
Right, So, I mean, the thing is is that the it's just a very sort of brusque order from the five justices and a long unsigned that's right, and a long descent from Alito where he professes to being shocked, and I agree with him. It's stunned that shocked and stunned, as they say in the Great Ruttles spoof of the Beatles.
Well, it wasn't clear to me. I mean, it seems to me that maybe.
There is lurking, and here an argument of this is a contract that needs to be fulfilled if the work's already done, in other words, decided on narrow grounds, even though it may be rotten, like you know, the Fletcher versus Peck decision way back and when it was that eighteen oh nine. Right, A contract's a contract even if it's corrupt. And I guess I can live with that, But it's not clear that that's what it's on. It's
partly is there. And I think Alito's argument is, does a district court, even if the district is.
In Washington, d C.
Which would seem to have jurisdiction at least in one sense, do they have the power to do this? And I don't know that all lands. But it's still a disappointment.
Yeah, it is a disappointment. But let's I'm gonna be optimistic. It is ash Wednesday, and I've been awful all day. I have to go back to confession after my day to day. But let me be optimistic for just a moment, which is that tomorrow it goes back for the district court judge, who's a Biden hack. Of course he is, you know, I mean appointed by Biden. That's what I meant to say. I'm not doing very well on my commitment to being the better person, Steve.
But you're already not.
Even one day. I mean, I churched like four hours ago. Anyway, the I mean, in many ways, Alito is absolutely right, and he's speaking to the larger issue. And the larger issue, of course, is whether a district a single district court judge has any jurisdiction uh to compel the government of the United States to pay any thing, you know, whether it's two billion taxpayer dollars that are, as Steve said, already contracted for services already rendered. However those horrible those
services are. And if we know anything about USAID, we know how horrible those services were. But the court, but
the court didn't agree to that. Now, I did see some commentary, Steve, really quick, I'm going to throw this at you about people who said it was it it was a Trump administration being a little bit a little bit naive or a little bit too hasty in pushing this issue, because the Supreme Court does, in fact, very rarely step in on these kinds of things, and you know, overturn a stay or or give us stay to a
temporary restraining order. That this is the kind of thing that is usually just played out in the courts first and yeah, and so there's not a lot of merits in this case. I'm not even sure if your contract legal rationale is there. It's not in the unsigned opinion. Maybe behind the scenes. But nevertheless, we were hoping that this would be the beginning of the slapdown of these out of control district judges, Steve, I mean, that's why you knew I'd be upset.
Yeah, well, I just thought you'd be upset at the lineup. You know that it was Roberts and Barrett letting us down right.
Used to it now and by the way, we do not refer to him any longer as Chief Justice Roberts.
Oh, it's dread what is it?
It's the dread coward Roberts.
That's right.
And we the sequel to the Princess Bride with that character. I think, okay, the other case that is what are you saying, disappointment sign of talk about dread coward.
The Supreme Court ruled today, actually ruled.
What they did was they rejected a petition to hear a case called Speech First versus Pamela Whitten.
I forget who Pamela Whitten is, but it's.
The case concerning the University of Indiana's Bias Incidents Response Team, which is very popular in a lot of woke campuses.
And you know what.
Happens is is that, oh, if somebody says something mean, you know, hate speech or derogatory or something like that, you can report it anonymously to the Bias Incident Response Team. That's a bunch of you know, underutilized administrators, I suppose, who then can contact the offending party and ask them to come in for a voluntary.
Review of what they've said.
And there's no formal disciplinary process attached to this, but it's certainly intimidating. In any other context, you would call this chilling speech. And by rejecting the appeal, they've left the circuits in place, because I think, if I've got this right, your lower court opinion rejected the challenge to these practices by speech. First, I think it's I'm not sure it's the seventh Circuit or which circuit is, but it's the circuit that includes Indiana.
While the sixth Circuit next door.
I think it is, has ruled in fact that bias Incident Response teams are on the First Amendment. So you now have two circuits with two different states of the law regarding First Amendment protections. And ordinarily you'd think the Supreme Court would have to step in and the Circuit sweat.
Yeah, you're right, Steve, it's not I have to. It's by their own internal Supreme Court rules. Those are two of the things that seem to require that they grant cert And that is again what you said, which is when a fundamental right is at stake. Now they can turn those things down because they can often sort of pont on whether or not a fundamental right is really involved in it appears to be that might be what
they're doing here. But also when there are in fact two separate Circuit Court rulings and two separate circuits that contradict each other, I mean, that's just not that that makes no sense from the point of view of, you know, having judicial supremacy decide these issues for us, right, because if you live in one part of the country that the Circuit Court decided that bias incidents response teams, I'll have something to say about that in a moment after
comes back. But are chilling on free speech, then great. If you were in the part that says they're not, then you know you're stuck knowing as say a professor like me who says something that triggers a poor a poor delicate students delicate sensibilities, which I've done more than once and then turned into the bias Incident spons team more than once. Then you you the faculty member, whoever it might be. Students in classes get turned in by other students, then you have no recourse where and and
it depends on where you live. And that makes no sense.
Well, you would think this would be solidly footnote for territory of carolling products, right, a fundamental right that they have to have heightened or strict scrutiny for it, right, And they're dodging it on the technicality that well there's no injury yet, direct injury or something like that, which seems pretty weak to me, and.
Maybe I haven't seen the facts of the case, Steve. What I will tell you this is the honest truth. The first time, the first time that I got a notice from the incident the bias Incident response team, the answer back was, well, we're not trying to curb your free speech or tell you what to teach in your classroom. What we're suggesting is that when you use analogies that you that you choose something a little bit more inclusive
and current. Perhaps I think that the actual, the actual topic that drew this particular incident response inquiry into me was that I was talking about the state of nature and trying to explain how you can still be in the state of nature in within civil society when there's no you know, ruling force to make sure that you're you know, one person isn't violating the natural rights of another.
And I talked about Bernie Getts, Bernard Getz, oh yeah, and you know, being on the subway, and I said, you know, he was in the state of nature and a bunch of stupid, stupid criminal thugs came up and and you know, he had a gun. And I explained the whole thing, and this was triggering, and maybe I shouldn't be using those kinds of examples in my class.
I tell you a true story, and you.
Know what I said, I don't need you to tell me what examples I use. And it's none of your damn business. And please don't bother calling me on this again.
Yeah, you know, I think you told me once you never had the pleasure of experiencing Harold Rude at Tremont, You know, the great strategic studies professor who had been a tank driver for Patent's Third Army in World War Two. So when he talked about war, and he actually brought a gun to class once, an old M one rifle, to pass it around, saying, this is the fundamental reality of war, things like this, And.
He's talking about, you know, war is violence, et cetera.
And some young lady in the class was sort of all sentimental and gushy and typically naive and saying, oh, I just think, you know, we ought to be able to the usual slop. And he put his foot up on the front of her desk and leaned over and he says, well, you can think that if you want it, says, after all, they're not going to rape me. Can you imagine he used to like to say shocking things like that in class.
You know he too, but even I probably wouldn't try to get away with something quite bad.
Well, his variation, which it might have been the same young lady, was sometimes young lady, you just have to say, I'm going to shoot your ass off to the you know, to aggressors.
Okay, ye, that was another one he liked to. Okay, yeah.
The other issue on that Steve that we probably should at least give a tiny bit of attention to is the idea that the Supreme Court on the same day decides not to reconcile the differing opinions about a fundamental right in differing jurisdictions, but has absolutely no difficulty whatsoever allowing a district court, which, for folks who don't pay all that much attention to the federal judicial system, you have the Supreme Court at the top, you have the
appellate or circuit courts, which are appellate courts only, and then you have the district courts, which are the trial courts. They are the lowest on the whole ladder, right all that they don't have appellate powers, et cetera, et cetera. And there are ninety four districts, quite a few more than that in terms of how many judges there are
district court judges. They are appointed the same and confirmed the same way that Supreme Court justices and appellate court judges are, but they're district judges, so they serve a district and as Steve pointed out, this one was probably over the Washington d C. District. But at the same time, he's a district court judge, and the idea that the entire policy of the United States government could be decided
by this one, again, Biden Hack, is just appalling. And this was the opportunity for the Court to say in this case, as Alito did, we are not going to allow differing district court opinions about what the federal government should do based upon what you know, whose ox is being gored and whether or not they've forum shopped for the right judge will give us the right. I mean, they just it's as if they can't think at the Supreme Court these days.
Yeah, I don't know.
I don't know what else to say about it, Steve.
But well, I mean, I'm sure John if he was with us, would give us maybe a B minus at best for not getting quite. I mean, I would think wouldn't the DC Circuit normally be the right of Pelop's court to rule on this?
But that maybe takes more time.
I don't know, But remember Roberts did issue the stay in the first one. This one, I, you know, kind of came out of nowhere as far as I can tell. But they refused to grant sucerari, so things will stay the way they are. Maybe what you said at the very beginning, Steve, I recall you said that they couldn't prove harm. Maybe somebody who actually can prove harm because of it?
Oh, you're think of space versus I was thinking of the district the USA, do you funding?
Yeah, we're mixing working our apples and oranges here, but.
Let us yeah, I know, to escape John's harsh sugrading Panela.
Wait wait before you go on on, John, he did actually have something to say. I just haven't had. I looked up the case after you you alerted me to it, and what I saw was John on Fox talking about it. But I've been so busy all day I couldn't stop and listen to a video because I've just been a meeting, So I need to go back. John had something to say about it, and that's why we miss you. John. Where are you?
Well know, we've been on contact today about all kinds of bookkeeping stuff, of course, But all right, well let's move on from that territory, uh, and to something happier, which is Trump State of the Union speech. I guess not technically a state of the Union, but it looks.
Like it, so that.
There's an obscure reason for that. You can't give a state of the Union when you've only been in office for a month.
Well except you know, we'll wait a minute. Le's stop on that.
Article two simply says the president shall from time to time, doesn't say every year give information on the state. It does not have to be a speech before that. And for you know, one hundred plus years when the president sent letters and yeah, they would do it once.
Again, starting with Jefferson, right, starting with Jeffrey. It sent an annual message.
And so I don't think that technically speaking, it's I mean, I think this is fake.
Same.
It's not really a forget all that. The point was it was I didn't watch it live. I followed things on Twitter, noticing highlights, and I'm just a joint the heck out of it, because you know, the Democrats just things, displayed all their worst behavior and Trump was not relenting at all, and it was just glorious.
Yeah, I mean, he handled it remarkably well. If you've ever been and I know you have, Steve. I know I have been in a crowd h never on television as a matter of fact, never on live TV to the whole world practically, but been hackled by somebody or some you know, more than one somebody in the crowd. It could be a bit unnerving. And he, you know, he just you can tell that that guy is completely at home in his own skin. Yeah, it may be can at times, but he's at home there.
And you know that.
The here's the big deal. The the I heard that Alyssa Slotkin, who gave the Democrats rejoinder response whatever it is, was praised more by conservatives and Republicans than she was by people in her own party and the left.
Oh yeah, because if you know our.
Comments about the CIA, this and that anyway, neither here nor there. So the left has doubled down on their stupidity. The left has doubled down on their ideological hackery. I don't know whatever other way to put it. I mean, if you can't at least smile, you don't have to
get up and cheer. I know that it's a you know, it's a bit of a political stunt to bring a fourteen year old boy who's had thirteen brain surgeries up and you know, make him an honorary Secret Service agent because he was supposed to only live five months, thirteen years ago, whatever it was. If you can't at least smile at that, if you have to sit there looking grim and sour and dower, you're just a horrible person.
I'm sorry.
No, they look well all there's stunts, you mean, holding up these little power board signs and and you know, walking out at periodic moments.
Yeah, but did you did see I hope that Tim. I'm already forgotten his name. It's okay, he's passed on to another place. But so so he he wasn't al Green, but he was another congressman from the Houston area in Texas who had just been elected to fill Sheila Jackson Lee's seat because she died in office. So he went to the speech, posted something very derogatory about Trump and said he's you know, I'm not going to let you kill our Medicare, Medicaid whatever and as if, as if,
but anyway, and then he went to the hospital. The hospital sent him home and he died.
Yeah, yeah, no, it's uh, yeah, there you go.
I don't know that that Trump effect is pretty pretty incredible.
Well, the House is closest to this, and people have been saying, Sentinel member, it's going to depend on you know, who's sick or who dies in office, who controls the so you know there and.
Actually with the three because of that, with the I have no idea about that district. I imagine they'll.
Oh, it's a Democratic district.
Yeah, yeah, and and and somebody else will come in like that. But at the same time, for the time being, the Republicans maintain a little bit bigger of a majority. And if the three all good, the three Republican districts that are up because Trump stole those people for his administration, they will they will have an even larger majority.
I mean, well, what's happening.
I don't know how many listeners know this, but uh, Trump wants at least Stefanic to be you an ambassador. Now he has not formally made her nomination because the New York government, you know Democrats, they are.
Delaying or saying they will delay the special election to fill her seat on something like September.
And that's just a naked play to try and steal a seat or you know, drop of Republicans down wanted to.
So Stefanic for now is not resigning.
To go through the confirmation process to be UN ambassador.
And so anyway, and.
You know what, she's more important in the House because nobody gives a damn about the UN. I think instead of instead of making a least Stephanic, UN ambassador should just stop funding the UN and say we're done.
Well, that's that's true, although I would like to be fun to have our ambassador telling them off again like the good old days. So that's fine. But yeah, I think I see your point, and I think I agree.
Yeah.
Do you ever did you ever notice though a kind of as you would call it, field theory I'm going to offer here, Steve, for a moment, if I would have said something like that five years ago, three years ago, let's say that, you know, we just Trump just needs whoever needs to stop funding the UN altogether, Yeah, you would have called me just a little bit crazy because you couldn't even say that sort of thing out loud.
You could the idea that they could cut the size of government and you could talk about it, The idea that you can be in a meeting at a university and talk about how you have to get rid of DEI and put all the you know, I did that again today. Look, guys, you might be able to get away with some of this sex and sexual identity discrimination for a little while longer, but you cannot get away with any of your deia that refers to race, because the Supreme Court has ruled on that. That's the end
of the story. If you prefer somebody on the basis of the race, you are a bigot. That's what I said.
Oh fun, you can.
Imagine I'm so popular. I'm so popular. Not but I could say it now where I couldn't a year ago.
Yeah, all right, Well, with that, I think we will draw.
Our introductory part of this emergency podcast. I want to keep up with the commentary, guys, because we still have our undeclared, our declared total war against them for dissignmic rib, which, by the way, the McRib was a clue in the New York Times crossword puzzle earlier.
This week, which I think, what was the answer, I don't, I don't know.
I got to check.
I heard the secondhand from a I don't do the New York Times crossword puzzle.
I don't do the New York Times.
Well, I you know, I keep up with a little of it as opposition research.
Of course, that's why money.
Yeah, I know it's quite sensible. I write it off of my taxes because I figured it's you know, medical.
I don't know.
I thought maybe you were getting USA I D money to guide to it. Steve.
No, they keep trying to sell me all their premium stuff that actually makes the money. The real story of the New York Times profitability is not the newspaper.
It's the cooking stuff.
And all the other the games and word role now makes some money and all that stuff.
So same with Wall Street Journal, and they keep trying to sell me all that stuff too. And I have the very basic subscription that allows me to keep up with the crap you guys are reading.
And okay, all right, we'll let you go.
And now we will get onto the second half of our conversation with Richard.
Epstein, and we'll be back with John, all three of us full strength over the weekend. So stay tuned so much winning.
Yes, indeed, Richard, you published a few years ago this little book called How Progressives Rewrote the Constitution.
That's a big thing for Lucretian.
I we have a particular approach to it that comes from political.
Philosophy rather than law.
They overlap, and I wonder if you could, I don't know, maybe why did you just sign and write that book?
And what are your one or two main themes?
Why do I end up writing the book? It's like everything you look at. It was published by the Cato Institute. And what happened is.
Did Roger talk you into it? Well?
Roger was a.
Part of it, okay, and he actually had a fairly substantial hint in the editing of the book. His objective was, I don't care whether your ride or but I want you to be clear and I have this tendency to.
Go the other way.
So what happened is I gave one of their Low Day talks in whatever September, and I wrote a little lessay on it, and the seamen, Roger and the people that Cato said, they said that what really goes on in this particular case is that you have to write this in a longer and most and more consistent fashion so it could reach the larger systematic audience. And this, by the way, was at a very different time from
what we have today. I think the debates on the aftermath of the nineteen thirty seven revolution and so forth were much more salient in twenty six when the book came out than they are today. Because modern constitutionalism has
moved on. The abortion case becomes the new focal point, and even that is now changed, and the separation of powers issues and the executive order issues are dominant, and the e commerce clause issues and the substantive due process issues that I wrote then are still covered, but in much less stuff. So why did I write it given the fact that it was then a live issue, Because it was a book which essentially wanted to attack the
dominant synthesis of that particular time on these issues. And so if you go back to nineteen thirty six and carry it through to about nineteen forty two or forty three, the dominant literature is a celebratory literature. We had all these big, bad cases out there that nobody wanted to keep, and then we had justice accused who bothering was a progressive Republican, He was not a conservative, and he was willing to leave the charge. And what we had was
to use the word of red. Remember the switch in time that saved nine. Thomas Reid wrote that, well, I mean, whom did it say, Well, you start looking at it, start at nineteen thirty.
Eight, there was a recession.
Well, right, The.
Book basically dealt with the fact that this thing which was celebrated was essentially unsound.
Well, it was essentially unsound, but not just because of the New Deal. It was essentially unsound because what rewrote the Constitution was a different progressive view about human nature, the perfectibility of human nature, the denial of human equality, the denial of human rights, natural rights, as we find in the Declaration of Independence. You have Woodrow Wilson's you making fun of all of that, or saying, we don't wish at the very least we shouldn't look at the
preamble of the Constitution, you know, on and on. But what it did was it destroyed the entire basis for the constitutional system, and then allowed by nineteen thirty seven, after progressive ideas had become I think more dominant, it allowed the Supreme Court then, as you point out, to destroy the Constitution by destroying separation of powers, by destroying the idea that all of the powers that when they end up in the same hands it's the very definition
of tears by destroying the idea that men are not angels and that we could trust some ridiculous elite expert class to govern us and they would never bring politics into the into the fray. I mean, all of that destroyed experts.
Do you have a lot of that here?
I should have asked that, yes, I mean, if you go, if you go in effect, yes, I mean if you go and actually check the book. The first fifty two pages of it are talking about exactly the issues that you mentioned, and then at the page fifty two I talk about federalism revisit and individual rights revisit it. So the only reason why the book had credibility is that what you started to talk about in our conversation is what I devoted the first chapters of the book to.
And it's one of the themes that I think everybody has to remember is that when you start dealing with political philosophy in the Grands tradition, you do not want to start with this, that or the other little statute. What you want to do is to start with the question the nature of man and how society has come to get formed.
Language Keep going, I mean.
And there's no disagreement between us. The first thing you have to note is that given scarcity, self interest is a necessary carl it in all societies, but it's greater in abundance in some people than in others. And so what happens is you have construct confined generosity the human term as a weak offset that can actually take place in some cases. So you start looking at these individuals and what you realize is that man is a social animal.
Is through with ninety percent of the population various degrees of cooperation. Then there's this other bunch out there, and they're not so cooperative. And the great challenge to any situation as to how to give those people some respect for their rights when their major intention is to destroy the conventional arrangements that other people have put together amongst themselves. And so what a constitution is about is trying to
see how you do this. And one of the most profound instance that you have in the Federal's ten by Madison is enlightened statesmen will not always be at the helm. Now why is that statement important? Well, first of all, the help means you have only one And if you go back to the American debates over the formation, a single chief executive was sought to be an essential reform,
and the Articles of Confederation had nobody with executive power. Well, this one person is going to do all the right things, except when he does all the wrong things. So you do is you have to give him discretion to act with dispatch, and then try to surround it with enough institutional constraints and so that what happens more generally is that he cannot essentially be essentially allowed to work when he's going to steer you into rough waters. These institutional
structures will try to stop that. I'll give you an earlier institution, which is not about the federals and stuff. Within a year or two after I wrote that book, I got involved with the whole question of what George Bush could do with respect to the various international treaties, Geneva treaties and all the rest of it. And I wrote a long article not a law about saying, look, I mean, the one thing to understand about this is you have to understand the structure of the causes governing
the operation of the military in the United States. I said, well, first of all, you have to understand how important they were, because they had at least three or four clauses that were dealing with wars amongst the several states and the conflicts that existed amongst them, and the Republican form of government clause under the Guarantee clause was in effect a course to the United States trying to figure out can
you intervene to prevent wars between the states? Lutheran Bordon was such a case which they had, and then how do they do the power? Well, they had the army and the navy, no air force obviously, but when it came to the army, there was also the militia, and the militia was a very complicated organization. The Constitution has a provision which says the militias are in charge of the state generals. And what happens is there's a compromise
standardization point. You have to train your militia in accordance with the discipline, that is, the standards of proof that are required to everybody. So they could become interoperable. And so they put that in there, and essentially then you remained under state control with that limitation until you were called up into the active service of the United States. But the president could not do that. It had to be authorized by Congress. There's another check in balance on
the operation of the system. And then it could be only for limited purposes. And at that time there was a guy named Purpet who wanted to withhold troops from the federal government because they didn't want them to go overseas. This is in the nineteen fifty and could you get them overseas under the militia clause? And well, you have to look hard and say, is this an invasion, is this an insurrection anything like that? Or separation case? No, it was a foreign case. So how did they handle that?
They changed the constitution.
They rewrote it.
What they did is in nineteen seventeen, a man named Pitney was a Supreme Court justice and a selective Act selective service cases, and he said, one is military service is not involuntary service too. And then the other thing that he said is that when you look at the way this is organized, it turns out it is permissible for the president to draft the militia into federal service one and all into the army. Now, if you look at the structure of the clause, the militia clause is
supposed to be a safeguard against the federal government. If you could draft them into the army, it's all over. But nobody worried about that. They were worried about the funding the Russian the European War, and so Pittney took it pumped and he said this is a political question, when it cluded was not. It was a legal question, and he decided it wrong. So it happens is the war is over, and you still have to reconstitute the militia.
And so in nineteen thirty two they passed the statute which created dual citizenship in the army and in the militia.
And what happened is you.
Went overseas under the army clause, and you got funded for local operations under the militia clause. And that carried all the way through until the Purpose case when I worked on the cases that came afterwards, in which the die hards for the militia clause wanted to say that you could send people overseas under the militia clause, and the court basically struck that thing down, and rightly so. So I mean, this is a class negostration of rewriting
the constitution. But they're rewriting in a way to correct from a grievous constitutional mistake which was made under political necessity.
One gets another one.
Yes, I went back you up a minute.
You said somebody a minute ago. You also said in class that I want to make.
A proposition about you said that you know something along the lines you said you ninety percent.
Of people are reasonable and you know, behave in a sensible banner.
And to restate it, really often doing is making law and enforcing law for the ten percent, we might say, in today's terms, are anti social.
Yeah.
My proposition is this is very broad, and you may or be not resisted. It seems to me that an awful lot of the agenda of the progressive left today is to right laws in favor of that ten I mean, one example would be these court cases you've had over the years saying public libraries can't exclude homeless people.
Yes, right, Is that too broad a statement?
No, it turns out you're in a very sensitive topic. It's not public libraries. It's that there was a decision which said that, so long as they're not atquate shelters, public people have the right to sleep on public streets.
Well, Supreme Court, the state courts that actually said the library. I guess you. An example of the law is in favor of the answer.
There is no question, and that's because they're isolated and discreet minority. But it's the wrong one. What you want to say, in effect, is that public streets are for public walking, coming and going. They're not for camping.
I don't know.
And so once you do it on the streets, it explains a lot of the success of people like a mass turning up ten camps on campuses, because there's a presumptive First Amendment right to violate the traffic law. And here you have to understand what the First Amendment is about it in a very very simplistic way. Is what the First Amendment does is it protects the kinds of freedoms that you had at common law to speak into protest.
What the First.
Amendment does not do is expand the class of freedoms to include antisocial acts that trenched on anybody else. And so this first came to me by listening to a joke on Archie comics, and I mean it seriously. And so Archie comes to Jughead or jug Heads comes to Archie, and jug hares a notable nuture and he says to Archie, do you believe in freedom of speech? And Archie says sure, and then jug Head picks up the phone and says, then you won't mind me using your phone for a
long distance call. Now, why is that funny? Is ther question you asked because you were laughing, both of you. The reason it's funny is that he assumed that the right to speech meant he had the right to come into you somebody else's property, and that it was all a piece with being able to use his own phone. But the whole point of the First Amendment is to say that you could use your own form, not that you could expropriate somebody else's. So freedom of speech is
subject to the same limitations of freedom of action. You cannot use it in a way which trenches on somebody else's liberty. So you can't do a freedom of speech stuff. If you say all freeze is free, you have to use an analysis of the term freedom, which is going to talk about all the limitations on the use of
force and fraud. So the First Amendment has to now include, well, how do you deal with fraud, how do you deal with decoration, how do you deal with confidential agreements, how do you deal with libel, how to deal with trademarks and so forth, trespass of course that need pruniad cake all of these. Yes, but you don't have a right to be because you want to speak there and getting
this out is requires an enormous amount of stuff. And what you have to say about the progressives is that in general they're willing to compromise on all of those rights and every other contact. So it's not going to be any big deal for them to take the same thing amount speech. And this book was written before that issue became much more salient. But within a year, you know, I had the presidential power stuff that I was writing about and so forth.
So the book was focused.
On the two things at the fine nineteen thirty seven. But the theory is much more general than that, as is evidence by the fact that the first half of the book deals exactly what Lucrecia was trying to talk about.
All right, well, let me let me say that for a listener that you want to ask, let me say this for listeners, for those of you listening who may I think correctly Richard, say that your book on taking is the classic local constitution is a heavy reach for you, an intelligent lay reader. This books one hundred and thirty seven pages of texts, so it's short, compact.
Maybe give Roger Blonzo.
Credit for editing you some.
That's a lot Okay, very readable book, and I recommend to our listeners how progressive rewrote the Constitution?
Thank you, Richard.
But by the way, I want to mention one other things. Sure they even changed the title on me.
Oh, what did you want to do?
I have some dreadful title, of course, And what they did is they said, there's no punch in your title, and the rewrote essentially now defines the rebellion that you're attacking. And so I sort of wrote the rise of Progressivism in the United States, which is much too much weak relative to the thing they get. And so one of the things that all authors have to understand is that in many cases, when it comes to title, an editor knows better than you do. And what you have to
do is to always take their serious assumption. And the presumption generally is, if the editor knows the subject, their title is better than your title. Why is that because they're a reader and they're going to distill the central point. You're an author, and you're going to lose sight of it, and so you have to go with the guy who runs the punch. And so I'm always a believer in administrative difference by me the editors of my work.
Well, the classic example of that was Robert Putnam's famous article.
That book Bullying Alone, which an editor thought of.
Right, because I think, you know, being an academic, his original title is probably something like, you know, the Klein of Civic capital.
In America, Evidence from bold.
Yes, that never would have been noticed by George will or President Clinton if.
You have the title.
Well, this was also true of Charles Murray's book. Well, it has some terrible title and some editor to put the phrase losing ground on the title, and it became a best seller the Takings title.
But that was mine.
Yeah, but the second half of the title is a mouthful private property in the power of eminent domain. I'm not sure I would do it. The first part is strong as a title. Taking is one word. The second part is to namby Pamby. But I can't tell my publishers. Now, of course it's forty since the book has come out, right, Richard much my question?
Okay, Well, the only thing left to do now is to remind everybody always drink your whiskey neat and don't forget to milk the Margaret Brennan dividend. See you all over the weekend, everybody.
Bye bye, ricoson
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