This episode of the Three Whiskey Happy Hour is being recorded before a live audience at the University of Tulsa College of Law. Pay 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 laps happen on.
David ain't easy on the should taps gotta give me?
Well, that is quite a welcome.
Indeed, Steve, that's the most applause you've ever had in your life.
Yeah, that was even better than the Magic Trick.
For everybody would well, the listeners will not have even heard that, John, So all right for listeners who are picking us up the usual way on podcasts four, this is pretty unusual. We've never done an episode together in person before live audience, and we're grateful for the hospitality of the University of Tulsa.
We're gonna skip usual banter about whiskys.
I was not expecting to be supplied with some High West double rye and as it is really good, and I'm normally not a fan of American bourbon.
Whiskies, but this is really You're barely a fan of America as it is.
See, let the mud slinging begin.
We're going to get right into our topic of the Declaration of Independence today, and I'm going to set it up this way. I want to give to all of you in my co panelists two quotations from British sources and then two from American sources, and then pitch the first question to Lucretia first in seventeen seventy six, just a few weeks after the declaration was finished, and it was controversial from the beginning, and it remain so today.
Of course, Jeremy Bentham, the famous utilitarian philosopher and John Use favored philosopher, had the following to say about the declaration of the preamble.
I have taken little or no notice. The truth is little or none.
Does it deserve the opinions of the modern Americans on government, like those of their good ancestors on witchcraft, would be too ridiculous to deserve any notice, if, like them, too contemptible and extravagant as they be, they had not led to the most serious evils. He also said, or also disparaged that second paragraph by what he labeled the so
called self evident truths. Now fast forward to just two weeks ago where Rory Sutherland, a columnist for the Spectator of London magazine, did say the Declaration was genius marketing.
But they went on to say this seventeen seventy six, so one of the whiniest publications in history, a tedious SOB story called the Declaration of Independence, in which a collection of colonial real estate speculators confected a litany of spurious Rievens's they claim to have suffered at the hands of the British Crown, largely to advance their own narrow financial ambitions.
So some thing's never changed. And by the way, let's not let.
President Trump hear about that, or he'll want to restart the War of eighteen twelve.
Just the thought.
But then coming over to our country, there's Woodrow Wilson, our only pH d President, and I hope we never have another one, he said the follower.
He didn't like the declaration.
He said, if you want to understand the declaration, the real declaration.
Do not repeat the preface.
And by that he met the second paragraph about inable rights and natural law. In fact, he said that Jefferson's championing of as quote, abstract political truths was an American.
That's why you think I don't like it.
And at this point I think we refer to another American president, and that would be Lincoln, for whom the abstract truth of the declaration was its strongest point. And so Lucretia finished the Lincoln quote for us, because I didn't write it down.
And who's got the better argument, Well, of.
Course it's Lincoln.
But there's so many quotes that, from different angles express the exact right idea that we should today even be
thinking about the Declaration. But I will leave it to just one, I think, with a little bit of extra All honored to Jefferson, Lincoln said, all honored to Jefferson, to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness forecasting capacity to introduce into a merely revolutionary document an abstract truth applicable to all men and all times.
And so to embalm it there that today and in all coming days, it shall be a rebuke and a stumbling block to the very harbingers of reappearing tyranny and oppression.
Now let me just go on for a moment Steve and say that it's very interesting how many different people since that time, since Lincoln's time, all the way up through today, argue that the Declaration of Independence, in part because it said all men are created equal, didn't include women, didn't include slaves, didn't include people of this color, of that color, and it just was designed as what was his name again, that dun Britt who said something about
what you're both I know, but what right does he have to even to speak about our declaration? Fix your own damn country anyway?
So Lincoln's very clear about it, you know it.
It was impossible for our founding fathers in seventeen seventy six or seventeen eighty seven, any time in between, to have sort of immediately placed all human.
Beings on a level of equality with one another.
He says, in response to the dread Scott decision, that I know you have all heard of that this grave argument that you know, the declaration only applied to white people because only white people men were given equality. He says, it comes to nothing at all by the other fact, they did not even want at once or ever afterwards, place all white people on an equality with one another.
They.
He says, it's really unmistakable, very simple language, intended to include all human beings, regardless of color, size, intellect, and so on. He says they defined what they were equal in, which is natural rights.
Lincoln says things like that over and over again.
Who disagrees with Lincoln, The Confederates, the Southern.
Slave owners, Justice Tawny.
Mister Rory, whatever his name is, and lots of people on both the left and the right today argue that the declaration's self evident truth of the equality of human beings is either a myth, a lie, or just a hypocrisy by our founding fathers. One last word and I will be quiet. I used to tell my students all of the time. Okay, called Jefferson a hypocrite. He was a hypocrite from the you know, our way of looking
at it. He owned slaves. The guy who said it's a self evident truth that all human beings are created equal own slaves. Definition of hypocrisy. Thank God for every one of us sitting here that Jefferson was willing to be a hypocrite because what he could have said, well, I look around and I see that white men with property are in much a superior position in our society to everyone else. So the only people who are truly
equal are white men who own property. Where would we be today, I'm dun Steve, No, you're not, but for the moment.
Okay, So John, let's let's actually go start going through some of the clauses in a little more detail, and we'll start with that famous first sentence of the second paragraph. We hold these truths to be self evident, that all men are created equals. So first, what is a self evident truth? And second, how does it connect to or inform what the term equal means?
And don't blow it.
I have no idea.
That's what you guys are here, your political philosophers who first time, I say thank you to Justice for inviting us to come and visit with you and also taking a chance on this different kind of format for a speech which is supposed to be is in your honor, and so I hope that at the end of it you still think this was all honoring you, which it's intended to be, even though I spend most of the podcasts insulting the other two panelists for not being lawyers
and not understanding and part of that's The root of my remarks is on this question is I think it's very difficult to treat the part of the Declaration that we all know by heart as legal, as law that has to be implemented by courts. And I think the level of which we're discussing it, it's a philosophy.
It's a moral worldview.
I don't think, for example, if the government, even though I would oppose it, if the government did something today that violated whatever we think the pursuit of happiness is, that it would be acting illegally or unconstitutionally, because this is the moral view of the founders, but it's not binding, I would say on us in any kind of legal sense. It is to me aspirational. I think it's you know,
these are inaliable truths. I might believe they are, and I bet most people in the room think they are, but I don't think they can that we can compel that moral view on people. And my impression is, and you guys, that's why I saying, you guys, tell me why this is wrong. Most philosophers today think the natural law world where this ca came out of is they were the famous phrase, it's nonsense on stilts that it's ahistorical.
There was never any state of nature. There was never any social contract where we got together and made a deal to enter society. And that, you know, Lacke is nice, but the idea on which he built the philosophy, that influence of famers was built on this sort of ahistorical, flawed experiment, not a true state of nature. So I wrote a piece where I think the actual parts of the declaration that are very interesting are all for a lawyer, is all the rest of it that we don't talk
about that much in school. The rest of the Declaration I think has a lot of interesting precursors to our constitution.
And it's not just a list of.
Grievances like the British commentary made it sound like, oh, it's just made up stuff that we came up with because we wanted to break away from England and make a lot of money, although anyone who broke away from England these days would make a lot of money just by not being in England. Right, But but you know that that there if you that the are the are the Americans of the eighteenth century have real, honest to goodness political grievances. This is not just some kind of
Marxist excuse to just try to increase wealth. And so if you look at it, there's a lot of complaints about the role of the judiciary, the British undermining the independent judiciary, the British taking away the right of juries, the if you think about canceling the decisions of legislatures, sending if you might think about independent councils to the colonies who could not be controlled by the elected representatives, by the governors, if you want to see it's like
as if uh, right, there's lots of jack Smith's being sent by the British monarch out to the colonies to run the to run everything, who could not be removed, right, who had ultimate power.
They're describing special.
Councils in the Declaration of Independence. So, actually, I think because we're so far stop, we were so focused on the beautiful language of Jefferson at the beginning and one of the greatest pieces of rhetoric and English political rhetoric and English language, we actually understudy the rest of the document, which I think could actually be very useful for constitutional interpretation.
Are you going to sit still for that, Lucretia.
I'm gonna I'm gonna do what John often does, which is answer the question that wasn't asked.
Did you asked you a question at all?
I did, Yes, ye who cares?
So what I would What I would ask John is where would this notion of law come from?
You say that you know, I might. You don't like Jack Smith.
You don't like the kinds of government policies that might take away the rights of individuals. But you don't think that the Declaration has anything to teach us about why that might be the case. So you might argue that law that our American legal system has its entire basis and foundation in common law. I do not believe that. But let's even go one step further. Where does that come from? And if it's merely an historical put it an historical set of decisions and so forth that got
us to where we are today? Why do we care? Why would we care? Is there any logic to the common law? And where does that logic.
Find its basis?
My argument about the Declaration, the relationship between those first two paragraphs and the rest of it, is that those complaints against King George of Great Britain can only be complaints if you understand the import of those first two paragraphs if you understand the idea that all human beings have rights, that government exists for one purpose and one purpose only, and that is to secure those rights that
are insecure by nature. That God has not created man human beings with rulers, does designated by him by God and ruled. And that means that each one of us has rights and the right to what we would today call sorry self determination. That's what makes all of those problems that John talks about, that he says can lead us into understanding our government today perhaps and what might
be wrong with it. It only makes sense in the context of understanding human equality, natural rights, and the purpose of government. And if you remove that, it's mere his history, which next time, you know, we should have moved on. If it's just history, I guess no.
No, that's all right.
You know. The funny thing is, John, is that I can actually derive reputations what you just said from your own paper, which I will.
Come back to in a minute.
I look forward to trying.
Go ahead.
I let me be clear, I'm not saying I.
Disagree with the moral views of the Declaration. I think, like again most Americans do, but it's not law, and so I think it's a historical document.
I agree with you, it is history.
And so the main document we interpret is the Constitution, right.
That is the law.
The Declaration helps us understand the actually legally applicable document because it's part of the mindset of the people who drafted and ratified the Constitution. But I don't think you could say, I don't think the Declaration gives you the power of judges here may disagree, but I don't think judges have the power to say I'm striking that down
because it's inconsistent with the Declaration of Independence. I think you can say I'm striking that down because inconsistent with the Constitution of the State of Oklahoma or the Constitution of the United States. Maybe their phrasesn't the Declaration which helped me understand what the Fifth Amendment means when it says, nor can life, liberty, or property be taken away without due process. But that's because it's that is the legally
applicable text. And you're what it worries me about what you want to do is you're saying, here's this body of morality.
I mean, you've talked a law about God.
Here's this body of morality which I think you think comes from God, which I am allowed to import into judicial decisions and the law without it going through any kind of democratically accountable lawmaking process. It's because it's in the Declaration. That's almost the way you describe it. Almost sounds like the declarations superior to the Constitute.
Oh well, now hold that thought, because I have a series of questions to post to both of you about the relation between the Declaration and the Constitution. It should
just add so people understand what's going on here. It is true that Lucretian and I studied chiefly political philosophy, but we also did do a lot of course work in constitutional history with Leonard Levy, one of the famous constitutional historians back in the sixties, seventies and eighties, political prize winner, New Deal Liberal, friend of Felix Frankfurter, and a big ACLU civil libertarian. He loved us and we loved him because he was one of the great classroom teachers.
But we combine those two things together, and yeah, I can't do the case.
Law on the fifth different level of right.
You mean you can't pass the bar.
Well, I seldom do pass the bar if I can help it.
No, no, no, Steve, you often don't pass by a bar without stopping.
That's true.
The point is is, well, the counter argument is this, and I want to go back to I think we need to do justice of some of those key things in the second paragraph, which, by the way, you write, some things that are so close and yet just miss.
I think I'll come to a couple of examples.
But look as that you cannot understand the constitution except through the lens of the declaration, and your paper says that. But forthcoming paper, it's the National Affairs this summer, right at the title itself the Declaration of Independence as a constitution. I'll ask you specifically what you mean about that. But look, let's i'll just take things quick and if I fill in and help here. But self evident truth does not mean something obvious to every self walking down the street.
It's really the formal proposition. And the person who understood that best in America was Lincoln, who right, he explained his understanding of equality because of what he learned about self evidence and demonstration from Euclid.
Where else do you find that directly discussed that way?
Thomas Aquinas in his Treatise on Law the famous question ninety four. It's uncanny how close Aquinas's language is there about what is a self evident truth?
And he says it's not evident. He says, some of these things.
Are only evident to the wise, which may be problematic, but it's contained in the principles of the term itself. You know, man is a rational being. That is the first proposition that Aquinas makes. It says, he who knows what a man is will know what a rational being is. And that being is not God and not a dog or a horse. There was an intermediate being, right, and then equal then becomes more. I think confined is not the right word, but it's in modern times.
It's very simple.
Go ahead that among the human species there are no natural rulers.
Those are two choices.
There are simply only two choices, either God or nature or whatever evolution has clearly delineated among the human species who is to be the ruler and who is to be the rule or they haven't, which leaves you with only one conclusion. That each human being is his or her own natural ruler. You have to start there, and that if you are your own natural ruler. You have the right to life. You have the right to do what you want to with that life. And let me go back to life for a moment. We like to
turn this concept of rule into something softer. We talk about leadership and those sorts of things, but rule means the power of life and death and all lesser powers.
Either you have that right over.
Yourself or somebody by some higher being or whatever I don't even know what it would be, has designated like you know, the divine right of kings. The whole concept behind the divine right of kings is why is.
King George the third King? Because God said so?
Right?
I mean, over simplifying a bit, do you believe that or don't you? Do you believe that all human beings are created equal?
Or don't you?
And then so much follows from that. We mess up the whole thing by saying, but people are smarter, and people are this, and people are prettier that. Whatever it might be, there is no argument. And Lincoln was very good at this too. There is no argument for a superior quality you can bring forward about one person over another that you can end up saying, well, that person deserves to be the absolute ruler.
Over the other person. Of course he applied it to slavery. But it's important.
What when he you know, he talks about it, Well, why did you make a slight Why do you think this group of people should be says, well, their skin's darker. We'll be careful because when somebody's got darker skin, lighter skin than you, they can make you your slave. And so it's a very simple place to begin, which is what makes it a little bit different from Aquinas. By the way, it doesn't require wisdom. Jefferson tells us he was merely expressing the common sense of the subject, that
people understood. They weren't born rulers and ruled some with saddles on their backs, the favored few, booted and spurred, ready to ride them legitimately by the grace of God. It's everything fallows from that. So I don't argue that a judge should open up their declaration of independence, say I'm overruling that because the declaration says this. That has never been the argument, but he likes to frame it that way. However, let me give you an example we have.
I'll talk about Virginia. Anybody here a big fan of Abigail Spanberger. Am I going to insult you by what I'm about to say about her? So she gets rid of sanctuary policies, or excuse me, she gets rid of the policies that allowed I don't want to go into the details. Do we, as a sovereign people who have decided, under the principles of the Declaration to form ourselves as a sovereign people, get to decide who comes into this country and who doesn't.
Do we get to do that? The Declaration says.
Absolutely, and yes, And not only do we get to do that, because we each of us are own natural rulers. We get to do it and must do it in a way that confirms our safety and happiness, the alpha and omega of political life. So, no, you can't turn to the Declaration of Independence. The Declaration says this, So
your laws, I'm gonna overrule it. But we can learn things about how we should think about government, the role of government and political society, the role of citizens with respect to one another, the role that we play must play in securing our rights and not endangering them. All of those things that we see in the Declaration can help us understand how laws should be promulgated, how they should how they should be implemented, how they should be applied by judges.
This is a great example of why you guys are wrong, amongst many other examples. But I don't see what the declaration has to do with immigration policy.
Frankly or Abigail Spambigger, what you just so the declaration the right you say, immigration.
Is just handled by the Constitution, it says, right or we have presumed ever since the beginning that the states initially set the terms of citizenship and they use the common law rule. Right, they all chose to use a common law rule upon independence. There's a fourteenth Amendment makes clear that birthright citizenship is the test because dred Scott aired in trying to say only some people get.
To have birthright citizenship.
Where city policy is set by the federal system that's set up by the Constitution is interpreted by the Supreme Court. And in fact, the Supreme Court has said states don't have.
To cooperate with the federal government on immigration.
Just like red states didn't cooperate with the Biden approach, Blue states are now not cooperating with the Trump administration approach. But the Court has said states don't have to participate in cooperation with the federal government on immigration.
That doesn't.
It's not really handled or addressed by the Declaration of Independence.
It's just set by constance.
Isn't I forgot my copy of the decoration.
Isn't one of the complaints against the king, specifically that the king is obstructing the sovereign legislatures of the states from making their laws of immigration.
I know, but we don't.
We don't actually enforce those in our legal system.
See the point, which is the principle there? I think what Lucretian's pointing out is the principle there. Never mind the tangles of where we've gotten to in the current case and all the rest of that. The principle there is is deeply involved with the principles of consent and sovereignty of the PC.
This story, I think you guys are wrong because you think that a birthright citizenship is not the actual rule. You think that if you believe what you say about society, the political society, and the United States being formed on consent, then you would say no one can enter the country without the consent of the country, and then have children who are who become citizens because the nation did not consent to them actually joining the community.
Well, I'm not quite sure I put it that way, but we're gonna get off into the weeds of the current controversy and subject of the jurisdiction thereof.
Because, like I think this is just I just don't think that's ever been the rule in the history of the country. I don't think there's ever except for the mistake of dread Scott, there's never been a period in our history where we said, well, you could be you could be born here, but the government or the nation has to consent to you joining society too, which seems to be the way you guys are reading the declaration.
Well, okay, let us, as we usually do, agree to disagree, and let me move on to another part of the declaration, which is you have an observation. It's correct the Declaration is replete with references to the proper working of the separation of powers. I think that's true, but you derive it mostly from all those build of particulars against the king. I think that's absolutely correct, But I want to try a different way of getting at that that I think you're allergic to or have myss.
Well, probably hidden in those ropes you were pulling. Now, am I supposed to see it?
Well? How about this?
God appears in the declaration three times, once as legislator, once as executive, and once as their judicial power. Right, the very first mention is the laws of nature and Nature's God.
Then he is the creator. That's an executive act. And at the end the.
Side of the declaration appeal to the Supreme Judge of the world for the rectitude of our actions. Now, maybe I didn't want to push the theologist Roopie.
You think the separation of powers derives from the declaration of independence of some kind of natural law, you know, regamarole, or you know God is I thought God was three different forms. But it wasn't judge, executive and legislator. I thought it was this other thing about father's son and a holy ghost.
I wasn't the holy ghost of Supreme.
Court, because you need three of them to three people show up and then the holy ghosts like a chord.
And I mean we're talking about John.
I would say you in the spirit, no, John, what it's a It's uh no, I was I was trying to say before you so typically interrupted that I was not pushing the theology of the trinitarian God of Christianity or.
Anything like that.
It's up to note that the logic of the separation of powers for human beings is because only God could be trusted to have all those powers in one being, because it was wisdom of omnipotence and the witness for this. Federals fifty one right, you want to finish the sentence for me, lucretia.
If men were angels, no, no.
Uh, no government necessary.
No government would be necessary if angels were to government, Neither external nor internal controls on government would be necessary in a government of men over men. The great difficulty lies in this. You first must enable the government to control the governed, which is no mean feat. We are seeing a lot of problems with that today, and in the next place, oblige it to control itself.
Now, my the most important part of.
That quote for me is the final phrase, which is a dependence on the people is no doubt the primary control on government. We can have all of these checks and balances, the careful setting up of you know, these uh conflicting powers. We've seen where that's gotten us. We've got Steve's.
Dumb ropes to prove it.
Madison looking wrong.
Madison was idiot, He was wrong, and he was a terrible president.
And when he tried to put his theories into power this he almost caused the country to be destroyed by the British Empire. And this idea of like, oh, these little spheres of three branches are going to revolve around each other. Put that never worked. It never worked before he made it up. And our government has been a failure when it's tried to work that way instead.
Hamilton was right.
The three branches are separated by their function, not by their blocking capabilities on each other, but because they specialize and effectively do the job.
And that's that's that's why everybody says how effective our government is said, doing their job.
It's way more effective than all the other ones in the country, the government the world has tried, but second are used guys saying that, okay, so God created natural law, and natural law requires a separation of powers. Because most of the other countries of the world don't have a separation of powers, right, they have parliamentary supremacy and no division really of formal authority between their branches of government.
Are they all a violation of the natural law, no right, So why how can you read the separation of powers or even.
Federalism out of.
No?
It doesn't make any sense.
We're not trying to win a court case.
Why are you in law school?
Then?
Why did you show?
Why did you We're sitting in a room that looks like a courtroom.
Now you're just because you have home field advantage. John, doesn't mean we're going you get away with this.
You don't realize.
So we lawyers just you know, we just like suffer you for amusement purposes while we actually run the society, and you guys make us feel good while we do it.
The one thing that I'm going to accuse John rightly of is that he agrees with almost all of the conclusions, but refuses to look into the foundations of where he gets those opinions from. He just says he prefers them. He prefers living in a society with the rule of law.
He prefers living in a society it's not a parliamentary system, et cetera, et cetera, et cetera, having his rights protected, But he does not want to confront where those rights and privileges and benefits come from He just happens to think that maybe we can say that the United States turned out pretty well, and it's got this, you know, great economy, and it's this and that, and so therefore it was the right thing to do.
Yes, that's exactly, that's exactly what for once?
That's right?
Yeah, that's it is true.
I mean I I see it because you guys seem to think it is morally required that the government be structured. I think we're lucky that through whatever messure factors historical and geographic and our history, that we figured out the right package of things. And now everyone else in.
The world, right, what what what standard?
By no? Bye? By the success and happiness of the people?
And are the two related in any way?
Or was it just a complete what's the word I'm looking for, a complete accident of history that it worked out that way? Or was is there anything in those Founding principles that you say just matter in the eighteenth century and they don't matter today? Is there anything in those Founding principles about the nature of man, the nature of government, the worry about government, all of those things that the Founding fathers believed.
Is there anything that they put together.
That can teach us about where we are today, and according to you know, no.
No, of course they help us understand how we got here, but they're not priori compelling, you know, moral choice that we must obey. What if so, for example, how would you give definition to the phrase pursuit of happiness?
How would you legally enforce that? And why would say you should? But why would that be?
And if you can't, then was it really an ingredient in the success and the happiness of the American people and the development of our institution where I do think we live in the best country in the world. Was the first pursuit of happiness? And it was a phrase pursuit of happiness?
Necessary for that?
Or if it's not, If you can't put it into legally binding language and decisions, then to me, it's just political rhetoric.
There are rich histories about what inspired that phrase, the pursuit of happiness, which is often said, not quite accurately, to've been a substitute for life liberty and property or life liberty property.
Is much better, like we can we have a whole class on that here. You guys may not know that, but we have.
Many classes on property in law school, and we can tell you what is property, what is not property?
How do you protect the well, how do you take What I.
Would say quickly about that is that it's not that that's not included. But the notion of the pursuit of happiness is a little bit broader than that. And I will sometimes actually compare it directly with Marxist thought, because remember Marxism says, from each according to his abilities, to each according to his knee. There is no relationship between the talents and faculties that each individual human being possesses and what they should have as a result of that.
In the United States Founding Principles, we believe that your labor put into some otherwise useless materials and turning it into something gives you a right to property. What Jefferson does in many ways by the pursuit of happiness is to harken back to an ancient time where living in a good society meant you had the freedom to do the right thing, You had the freedom to become a good person, you had the freedom to live a virtuous life.
And with Jefferson, it includes all of.
Those aspects of property, but it also includes the idea that the goal of every civil society is not just the safety, but it's the safety and happiness of the society. And that if you don't have a government that is is uh working towards that end, you have to revolt against it. You have a duty to get rid of that government. And so pursuit of happiness includes and is in many ways definable by right to property.
But it's more than that.
So if the government doesn't make us happy, we have to.
Have no nobody makes you happy. But if your pursuit of happiness is let's say you you could play the cello.
Boy, that's why we need three of those.
But yes, it does make sense.
The pursuit of your happiness might be to see if you can actually acquire property by realizing your talent.
So property, I get, it's in the constitution.
Where's it in the constitution?
What anyone studying for the bar?
Where's the property in that? Where's property in the constitution?
Well the minute, Yeah, it's not that it was added to the constitution in the Bill of Rights.
It's not where is it in the constitution?
You mean the original gues I do you said it?
So the Bill of Rights doesn't get included in your vision of the constitution.
No, but well, well then okay, then the constitution.
It was actually they did not put property in.
It was a mistake. They immediately corrected it two years later.
Can I I'm just curious, what is the pursuit of happiness beyond the right of property?
And then how would you actually give it me?
I mean I heard you just say if the government stops you from pursuing happiness as you see it. Look, that's a ground too. There's a there's a disobey the constitution and the law.
There's rich scholarship about what it was meant by Jefferson at the time of the Founding, which could take us three hours to go through in a serious way.
It would be one example that's not already included in the right of property.
Oh no, look, I mean this was Douglas Stairs view was that Jefferson and other authors of the Founding had in mind an Aristotelian idea which was way beyond property.
I'm just gonna assert that. Just no, I don't.
This is what lawyers do.
Let me see, Well, hold on, Johnny, let me let me just in it like hurting cats man.
Sometimes, let me just interrupt with a quick fun fact for everybody, and then we'll switch gears a bit.
We have to go to questions soon.
In ten, about nine minutes, we'll go to questions. I'm watching o'clock.
Don't worry.
Fun fact.
On July fourth, seventeen seventy six, King George the Third wrote a short sentence in his daily diary which read, nothing of importance happened this day. Now, the phrase pursuit of happiness, John, has appeared in eighty three Supreme Court cases.
I haven't looked them up. I take that from.
Carly Conkline, the legal historian at the University of Missouri.
Now, I'm going to go on the attack. Since you've been doing it.
I'm still waiting for my one.
No, I'm not giving you one because you clearly don't get it. But let me.
But I'm a lawyer, would say you refuse to answer the question, it must be sai by the judicial authority.
John, You have clearly been bamboozled by the fact that we're in a courtroom setting that you can behave like a lawyer in citizens.
Now, John, now hareck to go on the attack.
You do mention in your paper that the only justice who has invoked a.
Declaration of Independence in his judicial reasoning.
Is the justice you clerk for Justice Thomas, And is it true that you used to try and persuade.
Him not to include those references. Yes, so, and shame on you if you know.
I think he's mentioned this.
So he is the only justice who's cited the Declaration of Independence as a legal authority as opposed to I bet in all those examples.
You say the Supreme Court is used the pursuit of happiness is rhetorical, they're not.
The Supreme Court is not saying we're making this decision because of this phrase pursuit of happiness and the Declaration of Independence. So, as far as I know, Justice Thomas is the only one who's done that, and he did it in a case called Adiran versus Pina, which was about whether the government could consider race when it was
giving out contracts government contracts. And so there has been this argument made by what I call liberal originalists, who say the government is allowed to use race based on the original understanding of the fourteenth Amendment because of the presence of post Civil War programs to help the freed slaves. So that those arguments were well the government that the same people wrote the reconstruction amendments also allowed race conscious
programs that benefited races. So Justice Thomas cites the Declaration of Independence for as to verify the idea that the Constitution, in his view, is colorblind. So yeah, I said, Justice, you can't cite the Declaration of Independence. No justice has ever cited the Declaration of intensey, it's not.
No, But he didn't know.
He cited as legal authority.
He quoted from it. And so Justice said to me.
I'm not I don't think I'm breaking any uh bounds of of confidentiality. But the Justice said, in his immortal words to me, he said, just watch me.
Him.
And that's my job as a clerk.
Doesn't get it.
No, my job as a clerk is to make sure that the judge understands the legal consequences.
Of what they're doing before they do it. It's not my job to make the decision.
There's where the Declaration of Independence can actually give us some guidance about what is the right thing to do in the case of affirmative action, in the case of race based discrimination.
Why is race based discrimination wrong? There's nothing in.
The Constitution specifically that tells us why it's wrong to discriminate on the basis of the immutable characteristic of race. You only can understand why color blindness and the approach to the Constitution is a fundamental principle if you refer
to the Declaration of Independence. Otherwise, yeah, there's I mean, you can't get rid of segregated schools from an originalist point of view, because even the legislative history of the Fourteenth Amendment says, we don't intend this to mean that there shouldn't be segregated these, that there should be integrated schools.
They were very clear about that. It's only the principle that is embodied in the Fourteenth Amendment, which Lincoln says over and over that the Civil War was fought to take out the flaw, the original flaw of the Constitution. The Fourteenth Amendment completes it. The Fourteenth Amendment authors said the same thing. How does it complete it by saying that race cannot be one of those factors that denies the fundamentally qualities?
I disagree.
I think that without the text of the Teeth Amendment and the equal Protection Clause, then the government would be free to make distinctions on the basis of race, unfortunately, as it did for the first right sixty some years seventy years of its history.
So are you saying.
First two?
Are you saying that before the fourteenth Amendment was enacted that the government could not base decisions because of race?
Even though these are that, there's no way to understand why discriminating on the basis.
Why the race is a problem.
Why do we need to understand it?
Why do we need to understand it if the amendment just forbids us from doing it, Why it doesn't matter?
Why the text tells us not?
Can I jump in here say the numb of the problem is is I'm trying to put us in neutral language. The key thing for citizens is to understand and historians, I think is to understand the difference between the principles of the Constitution and the compromises of the Constitution. I think a lawyer has trouble doing that. I think citizens have less of a problem doing that. And so the specifically, that's why we don't let the citizens do dangerous.
Things but interpret the law. Oh we do let them vote though, yes we do.
Look, John, I'll just repeat Lincoln's challenge to Douglas. The Declaration of Independence has found where in American law at.
The beginning of the statute books.
Now, I think I know what your answer is going to be, But it can't your answer can't.
No, this isn't your answer.
You're gonna you're gonna wheel out of it. It can't possibly be that it has no meaning, even if it has difficult or maybe no specific applications.
So, like I said, statue, if you're trying to interpret the Constitution, we are trying to recreate if you're an originalist, and you could just say, and maybe you guys are originalists, because.
There are people who say we're not originalists.
We should be allowed to take our current philosophies about morale into account when we interpret the Constitution. You could say, you guys believe in natural law, and there are other people who say, I believe in John Rawls's theory of equality, and we're going to use that when we interpret the Constitution, because that's today what we think is you're not saying that Ralls or.
The Founders, who's right good, who's interpretation of.
Right?
So for me, that does not matter when it comes time to interpreting the Constitution as an originalist, I think we are just trying to recreate the understanding of the people.
Because I think that because I think the contract the Constitution.
Was adopted and ratified in a legitimate way by the American people, and that's our governing document.
Are you saying that?
Nomore, So you're saying we should just follow the Constitution because we think it's morally.
The best governing document.
Because we haven't it all right, we have the only alternative to originals.
We have to call time because we're going to open it up now to questions from the audience.
Our subtitle is.
About the future of the Republic after now that we've reached two fifty, we don't have time to get into that. So while you're getting ready for questions, and I think we have two students who are queued up first, right while.
You're getting queed up for questions. Another quick fun fact.
About thirty years ago, the British made a great movie about King.
George the Third.
Maybe you saw it, The Madness of King George the Third, with Nigel Hawthorne, a great actor playing him well. When it was released the United States, it was released as just the Madness of King George. Why I Am not making us up. The studio thought American movie going audiences would say, but I didn't see the first two movies and I don't want to see the sequel.
It's a true story, it's not really.
But okay, i'd like to ask people. You know, this is not required, but I love people asking questions. If you'll give us your first name, and if you're a student, tell us you know what year, what program you're in, and.
So who's who's does it need to be first?
Oh?
Yes, sorry, yeah, Marcus.
I'm a I'm finishing my first year here at the university.
It's all downhill.
Yes.
So the declaration talks about the right and even the duty.
To alter or about us to destructive.
So for those of us who are entering the legal profession in the next few years, what does that responsibility.
Look like in practice? Does it mean working within the system, does it mean challenging it?
Or does it mean something else?
Oh?
Great, you know I had I had a whole line of questions about the right to revolution part of the second paragraph, but John kept going to nitpick with us.
So now I'm glad you brought it up.
Guys, So the duty is always to I'm sorry I'm gonna say it, to make.
Sure that the laws passed at the.
Local level, at the state level, at the national level. As lawyers to fight for just laws. What are the definition of just laws. It's a little simpler, I think than that any other place.
It really is just laws.
Are those consistent with the Declaration of Independence promoting our safety and happiness. Safety is the first thing, Okay. Laws that endanger the safety of citizenry, whether they're sorry, sanctuary laws, whether they're getting rid of no cash bail or getting no cash bail, sorry, those kinds of things, that's what you have to fight against because every citizen has a right to be safe, and the government has an obligation to make every citizen right.
Do you alter do you abolish it?
Not?
Probably not.
That's a really complicated question, Jefferson says. It's something that has to be approached with the greatest amount of prudence.
But altering and a mean uh prudence.
Altering laws so that they are more just, that they are conducive to the safety and happiness of the citizen. That should always be, in my opinion, what lawyers should do, whether they're fighting before court, whether they're advising legislators, whether they become legislators themselves, whether they're judges. The safety and the happiness of the American people is always the end for which our government is intended.
I would say everything Lucretia just described as what lawyers should not do, those are all things that all of us can do as citizens. So I think the Constitution sets up a system where you have moral preferences. Policy desires increasing safety at the cost of higher taxes to hire more police officers. Everything is a trade off in government policy. Those I think are properly the decisions of
the legislature. And you and I elect people to the legislature, and we can ask them to pass certain laws that would maximize one value versus another one. But the lawyer, your job is to read the laws that are passed by those legitimate set up by the Constitution and execute them even if you disagree with them. So I mean again the sanctuary laws. I mean according to the Supreme Court.
I happen to agree with the Court on this. Our federal system so that the national government controls certain aspects of immigration and that the states are not to impede it, but they don't have to cooperate with it. In Lucretia's view that mayse may increase crime in certain parts of the country or along the border states where we both live.
That doesn't mean I think.
As a lawyer, you have the right to refuse to implement the laws of a sanctuary city if you are an employee of that sanctuacy, or you're a lawyer in the bar of the state that has passed even statewide sanctuary policies. You could go to legislature and say, please change the law. But as long as that's the law, I think as a lawyer, you have to carry it out.
I don't think you have any flexibility to do what Lucretia just said.
So I'll just state for the record that maybe our greatest train wreck of an episode ever was about the same object of prudence, where John was even more streperous and stubborn than usual.
Whenever I get you guys knailed down, you start using words that have no legal meeting at all.
Well, pursuit of happiness.
And that's why we don't These are all your escape act.
Soon it's going to be the.
Republican form of government.
Next, there's all the refuges of scoundrels really quickly.
I read on social media, probably a lawyer who said that in order to access some kind of court system I wasn't really clear entirely, but basically being able to file things and so on, and now an electronic system, he was forced to sign a statement saying that he would not cooperate in any way, shape or form with any immigration law.
I forget.
I think it was Colorado, of course, that this this happened, and that he had a choice either to sign that so that he could actually get his access to the court symm that he absolutely needed to defend.
His clients or not and then not be any longer be able to do his job.
Now, Okay, he signed it, and he said, I signed it, and I'm opposing it. He did exactly what you did. But where does the hesitancy to sign something like that come from.
No, Like I said, he can have the moral view that that's wrong.
But you said, what the moral view that the law is wrong?
The law is the law.
No, he can and then seek to have it changed by the legislature.
But until it's changed by the legislature, he has to obey it. Unless you want to have a revolution.
Right, you can always say I just I want to overthrow the government because I think it's in person unjustice.
I want to get the next question up.
But remember that the other sentence before that is something like this right should not be invoked for light and transient causes, right, which.
Means shall dictate.
Yeah, exactly the point me. Okay, okay, you I'm gonna throw this.
Great John talent that we all have and John operate, but we don't know what it means.
Is the statesman higher than the lawyer in the hierarchy of human excellence?
No?
Oh, there you go.
Statesman's get us into trouble all the time and the lawyers save them.
Yes, lawyers like Lincoln who become statesman.
You just got beaten. Okay, let's have the second question. Was there another student who was cued up for this? Otherwise I will throw it open to anybody.
Flora is yours? Yeah? Are you twitching for a question?
No? No?
Yes, go ahead, Yes, I am a pragmatist.
I love it. Yeah, No, don't start.
Remember that guy, why is a precedent?
Because president is amazing problematic than Yeah.
I would even go farther and say, I'm probably what you would think of as a utilitarian, which is even worse than a pragmatist. But I mean, I think that's what pragmatists you really are. And it goes to my answer to your question is to me, you know government, Uh, when you actually have to make decisions as a lawyer or in government, I wish they all boiled down to what is the meaning of the pursuit of happiness.
They don't.
They boil down to trade offs that you have to make. That unfortunately, and we have a world of limited resources. Every decision you make is a trade offer. We're gonna have more police, We're gonna spend more on welfare benefits, we're gonna spend more on defense. Right, and one goes up, You're gonna have to suffer costs somewhere else.
So that's a utilitarian.
Point of view, I think.
I think, I think Stephen Lucretia, they would reject precedent pragmatism cost benefit analysis because they want.
To see things in moral absolutes.
And I think when you see the world that way, sort of, I think moral absolutes and then you throw in a little prudence and you mix it around. Great, and that's how they think, and I think that's just it's very charming. That's what happens when you put prudence in with other stuff. So see, this is much more. You're gonna remember that, much more than Steve's trick with
the ropes. But that but I think that's the thing when you're I think when you become a lawyer, you have to figure out how to run government.
You know, run the decisions that the people vote for, and those are.
Going to be trade offs and limited resources.
Just when you say what's prudence?
How is prudence? Give you a war because you use to choose.
Here's a simple one.
You could say, well, we could spend more money on your point security if we spend more money on police, say we know the primate will go down a certain bill, and then we measure out against what else would we have spent the money on that we're going to Now.
Will you calculate the cost of benefits.
Like just everybody based on what standard?
What do you mean?
What standard?
Cost of betterf you reduce them to dollars if you can, that's a standard.
All right?
So what the government does and every decision it.
Makes, you don't think so I want to save time for the least the two more questions. I see, I'm just going to stipulate John that you have become hiromaniac in the field of straw men, because if you understand prudence correctly, which you never will.
Are you guys people?
No, No, And I'm the because that's true.
If you understand, if you understand.
Never go against him in court. That is my advice to you.
If you understand prudence, you would never say moral absolutes.
I know you guys think there's moral absolutes and then you mix prudence and to help you make decisions. But prudence is this kind of undefined, a morphist skill of judgment.
All right, Right, The last word before I call the next question is to paraphrase something.
In one of C. S. Lewis's great novels is John is an example of going for utilitarism to pragmatism and the lasts out into the complete void.
Yes, sir, who should try to incorporate the decoration as I.
Can understand how thought should be used, you know, with judicial review to enforce itself.
Everything that would I mean I said that really is what worries me is that you will have judges who say, I know what pursuit of happiness means and I have unless the state constitution authorizes the judiciary to do that, which unfortunately does in the state of California.
And you can see what's.
Happened right in the the state of California. The judiciary is allowed to make policy short of the constitution as it's just as granted policy the law making power.
So he has a lighter right. Thank god, are.
You the straw person again?
I want to make sure.
So. I think though, and this is my point about the declaration. I think you can agree with the morale the moral view it sets out or not, and then you can try to use the democratic process electing people to office, and they have the right to do it. They could say, I think the right to pursuit of happiness includes fracking. I think the right fus it does
not include fracking. It might produce this is a trade off more pollution, right or you know, you know, groundwater, groundmar contamination or unstable jobs.
I don't know.
But that's a job for the legislature to and so I think the legislatures totally. Its job is to be informed by moral views and policy objectives. But I don't think the judiciary should be I think the judiciar has to stick to the text that's been approved and not import ideas from outside it.
That's what they did, by the way, in a Supreme Court case in nineteen twenty eight called Olmsted versus Us, they said, the Constitution is very clear. It speaks to persons, places, houses, and effects. It doesn't speak to electronic wire taps because they didn't have electronic wire taps in seventeen ninety one when.
The Bill of Rights was passed.
So the Supreme Court finds that Olmsted was guilty even though there was no warrant to tap his phones, et cetera. Is there a principle involved in that that might have informed the court not going, well, what is that declaration say about this?
That's not what we're looking for.
Is there a principle, the idea of a realm of privacy that an individual that a citizen has into which government may not intrude, and how we can define that privacy, how we can understand it that might inform us about whether or not just because the Fourth Amendment didn't mention electronic wire taps, it might still apply. That's how you use the Declaration of Independence. You don't say I'm going to take this particular.
Thing pursuit of happiness or whatever it is, and I'm going to.
Apply it in this case and show how this is the Declaration of Independence that rules the day.
That's not what it's about.
It's about understanding a theory of government, a theory of human nature that is expressed in the Declaration of Independence that gives meaning to some of these principles that are articulated in the Constitution and in the law.
The Court exactly that and did it in a case called Cats, which is a disaster because Olmsted is replaced by the law Catsmers, United States, where the Court says, yes, we have to define this view of privacy which we've created from all these different sources, including the Declaration, and so therefore, what controls where we have privacy?
What society expects.
There to be a right of privacy which is completely circular and has no meaning.
And so Cats has been a disaster.
And so how would you apply your theory from the declaration to actually answer hard questions? Would you say at these are the questions the court is that would you say that you can't walk around a community with a heat detector to try from the outside of the houses to try to find marijuana growing plants.
I hear.
I don't know, but I hear that people grow marijuana in their houses with lamps when you could just go to San Francisco buy it on the street corner.
I don't know why you everywhere?
All right? All right?
You know?
Are you allowed to use are you allowed to use GPS tracking? You know information from cell phones? Is that including the right to privacy? I don't think your decoration of independence any way to inside any of those questions.
Go ahead, question last question, it's gonna have to be.
Doesn't get worse from here then it gets worse, So.
Not that meaningless?
Why not? But anyway? Continue?
I hate to say it, but do you know there's a statistic which is true that seventy five percent of all articles published in law reviews are never cited ever.
Yeah, oh man, it's so cynical at such a young age.
Perceptive, I think is the word he meant?
Gotles? What what? I guess?
I see.
You disagree? Now you could you could see it that way.
I think I think of the Constitution as setting out the tools of self government. But it doesn't tell you exactly what you and I should want to use them for.
So you could say, I actually do, I mean, they are right.
I do happen to agree with most of what they think, but not through this sort of blunderbuss a stomp on all opposition, unreasoning, you know, approach and invoking.
God and God knows what else on their side.
But you could say, I could say, I agree with what's in the declaration right. I do believe everyone is equal, and we write to liberty, and so we should use the tools set out in the Constitution for self governments to achieve those policies. But you can also have see this is why I also willing to accept we might have Americans who are Marxists who disagree with Lucretia's theory of property.
We do have Americans that are Marxists, and they do disagree, and they share governing at the moment, and.
She wants to have a revolution against them, you know. Yeah, But I think the.
I think the Americans Constitution allows for redistributionary policies which affect do a take from the labor and property of one and transfer it to another, because I mean, I don't think that's necessarily consistent with the declaration.
But the Constitution. But the rights, I don't think the Bill of Rights prohibits it.
What provision would the due process class?
It says you can take away property, but it has to be with due process, and you.
Can't take away property and just compensate.
Never mind, we are running over time.
So we really do like each other.
By the way, speak for yourself.
So John, do you want to begin?
Oh?
Yes, we always have a sign off which goes, always drink your whiskey, neat which I've ruined by pouring prudence.
I'm not gonna forgive me five more books. And then Steve always gets the last tagline.
Today it's just the new We're skipping some of the usual ruffles and flourishes and the way.
We'll just say thank you for listening to the three Whiskey.
Happy Hour sponsored by the Simatas Institute at the University of Texas at Austin, produced and hosted by Ricochet dot Com and today pleased to be at.
The University of Tulsa College of Law. Cheers everybody.
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