Well Whiskey coment, take My pain the money, Oh Whiskey, don't you Leave Me?
From power Line blog dot com and produced by Ricochet dot Com. This is the Three Whiskey Happy Hour with your bartenders Steve Hayward, John Yu and power Lines International Woman of Mystery Lucretia has Gotta giving.
Let that whiskey clone when you're feeling in love, Down and Lone.
Welcome everyone to the very very last edition of the Three Whiskey Happy Hour in the year twenty twenty four, and I'm very excited to be here with my co hosts John You and Steve Hayward celebrating what has been, by all accounts, quite a successful year. I almost am tired of winning, but not quite. I don't know, but you guys, are you tired of winning yet?
No, not at all. I'm a joint John.
Well, this has just been spring training so far. We got to see how the real games, how the real game goes the next four years. What are you talking about?
So, John, tell me what was in your opinion, the best thing, the best story of twenty twenty four.
I'd have to say it was Trump defeating law Fair, which got him the primary and I think contributed heavily to his winning the election. But I think Trump defeating all the use of prosecution and then cross support by the media and everything to win. I did not think he was going to be able to do it.
So you by that, you don't necessarily mean defeating all of the individual lawsuits and so forth. What you mean is that the intent of the law fair was to bring him down and he was not brought down.
Is that am I? I say? Each Yeah, each individual lawsuit was a different tactic. The overall strategy was to use this sort of combined effort of prosecution, civil lawsuits, the media to bring him down and prevent him from running for president and prevent him from winning.
And would you add the assassination attempts in there as well?
I don't think that was part of it. Come on, although I know you're still investigating. I know you're still investigating to find the links.
All right, before I get to his worst? See what's your best?
Oh it's see. I think bigger than John as usual. I think it's Trump winning over everything, not just law fair. And then we put it this way as was I think readers know I was a desantist person. You know i'd met him. I think he's a very smart and promising guy, and I was for him.
That's that's when the poll started going south on him, is when they.
Picture of you and your favorite calamy. But here's my point is I have to say that Trump winning is more satisfying than the sand. Is there any other Republican winning this selection. The fact that it's Trump who won a majority of the popular vote, uh and and routed every attack on him so well, that is so much more satisfying than if a conventional Republican had won.
That.
That's sort of my great story of the year. I think you can't. This is why I side with you on the whole landslide question, which you know, statistically persnicketty people will pooh pooh, but I think you are metaphysically correct about that. And that's why I think Trump winning is the big story. And we'll see, yeah, and as Trump likes to say, we'll just see. I have to see what happens.
Well, and you add to what John said about the law fair and the fact that all of the major institutions of of our of American society were stacked against Trump. I mean, if if you remove Twitter. From that equation, I can't. I have yet to come up with even one major institution in society that was even new towards Trump. Am I wrong about that? I mean, wait, think of what I'm asking. I'm actually that's actually a question for
both of you. Can you think of a I mean, certainly not academia, certainly not anything in the media that with any sort of force. Even Fox News is not at all trustworthy when it comes to reporting on Trump. Better than most, of course, but not altogether trustworthy.
And you know, the on and on and on.
It's everything stacked against him, along with the law fair it should have brought down anyone else, I guess it would be my point. It's amazing that the victory over all of that is utterly amazing in my opinion. But it also goes to show that that thing that the Democrats like to refer to as our democracy trademark actually works a whole lot better than than any of us thought it might. In other words, there were it is,
in fact, in our constitutional republic, still democratic rule. From the point of view that a lot of people out there were not convinced by the elites who wanted them to do a certain thing that they didn't want to do, right, am I right?
I have a slow descent?
Is that I don't have.
I don't think the great news is Trump himself winning. It's that the system rejected this effort to radicalize it by all the institutions coming together to try to disrupt the way we've conducted elections for hundreds of years in this country. That's that's I mean. I'm glad the institutions in a way worked and that the left tried to pervert them because they thought Trump was such a severe threat to democracy they had to go to any ends
to prevail. Although this is you know, their track record on things like climate change, affirmative action, abortion, or you go through all the progressive issues, and they're willing to radicalize institutions to win. And so that's why I find it the story not because of Trump, but because they failed. The left fail.
I think that's what I was trying to say as well, that the reason that they failed is because Americans are a lot smarter than they gave them credit for. They're not as easily manipulated, they have a better sense of their own self interest rightly understood, and so I think you're right. Trump. Trump is a nice figurehead for all of that, and the person that he is made it possible in many ways. But it was the American people rejecting all of those things you just talked about that
brought about the win. I do have really quickly, John, It's on my list, and I apologize for this, but I know you'll get a kick out of it. I won't remember their names, they're not worth remembering. But you might have seen the story about those two lawyers who are calling for for Electoral College electors to reject Trump's win and install Calm a Lah because you know, the whole insurrection thing.
Or they said could do it too. They said Congress could do it. They said, not electors, but Congress could also reject you votes.
That's why I think the electoral that's why I think that new electoral count that's actually unconstitutional because it allows Congress to reject electoral votes.
I don't think they have that right.
No, not, It doesn't seem to be under the constitution. But on Twitter, I called out Rachel Alexander and I said, I think that we need to get these two lawyers disbarred because, after all, there is precedent yep.
That's right.
Yeah.
I said the same thing yesterday on Power Line.
Right, yeah, yeah, okay, okay, enough of that, wor well.
Can I just add though, real quickly? John says that it's uh that it's right now. We're in the preseason or spring training formally again, formally true except what I'll sug justin rebuttal is but Trump is wearing out the best pitching arms of the other teams, but before the official season starts. And by that I mean the shock of his election isn't just a shock of Democrats in America.
I think it's a shock to the entire world. And so one of the amusing things I'm watching the last ten days or so is Trump saying, you know, we all have the Panama Canal back, and we should buy Greenland, Greenland, And I play what's this about? And the Wall Street Journal even sniffed at editorial, Gosh, I don't remember Trump campaigning on invading Panama. And you know, by now you
think people would understand Trump's negotiating style. So I pick up the paper here yesterday and it says, ah, Panama is finally going to get serious about closing the Darien gap. That's an area southern Panama that's sort of an out of control jungle where the human traffickers assemble people. And the Journal reported responsible for five hundred thousand migrants at least to our border over the.
Last and what happens to them in that jungle is isis a humanitarian crisis exactly.
And but suddenly Panama stepping Oh yeah, I guess we have to do some. The headline this morning is Mexico fears Trump may bomb or attack the drug cartels inside Mexico between and that in his terror threats against Mexico. Just geeve, people are suddenly saying, you know, maybe we you know, what's the old Mockavillian line, better to be feared than loved. Trump doesn't care about being loved, And
this all seems rather crude and direct to me. Greenland I'm not sure about, except that I think maybe Trump did say it has military strategic significance. And you know, if the Russians turn to get frisky again, not to mention the Chinese, sooner or later, the Chinese are going to start staying their own submarines under the North Pole, suddenly using Greenland as nothing else a monitoring base for
intelligence gathering looks important. I could say more about that, having visited Greenland last summer and not sure whether we really wanted or not for a bunch of reasons. But still I think this is you know, Trump has everyone back on their heels, and like so many of his business ventures, he'll say something outrageous, this is something Conrad Black picked up six seven years ago. He'll make it outrageous proposal, and then a reasonable one will come through
and he's happy and everyone's better off. And the world politicians came figure this out because they're not used to someone who operates that way. So so just the first of the year, you asked that was your next question.
Sorry, no, I was just gonna ask what why do we want Greenland? Explain that one to me.
Well, I mean, first of all, I don't get why. I just looked up the population. Can anybody guess what it is?
It's like two thousand or less.
No, it's so ridiculous. It's fifty six thousand people. So I don't know why we should let fifty six thousand people control the fate of that enormous piece of land. But if you look at the met Lucretie, it's the enormous strategic importance. In fact, one of the things FDR did before we ever even entered World War two was he basically stationed a huge base, you know, sent troops into Greenland to prevent the access from getting it, because it's a great base to patrol the North Atlantic front.
Like if you don't have Greenland, if we don't have Greenland, we don't have the uh, we don't have the bridge to Great Britain. In World War two, we can't get our ships past summarines through there across Atlantic. Plus, as Steve said, if the Arctic is becoming an area of great power competition. You look at the map, China, Russia and the United States are a lot closer to each other if you look at the Earth from the top and Greenland again, is this huge, you know, really unoccupied space.
I mean that people only live on a very small sliver of it, but it's actually of enormous strategic importance. Also, that's I think why Trump's talking about Canada being the fifty first state and Trudeau being a governor. It's like,
ye know, this actually goes back to the founding. I don't even know in the Articles of Confederation there is a provision about adding the Canadian provinces to the United States, and part of what the War of eighteen twelve was provoked because we wanted to invade Canada and add it to the United States. I always said there was a great idea, except then we'd have to have nationalized.
Healthcare, not that we didn't have it already.
Middle Why couldn't we get rid of theirs? Yeah, right, I'm just curious. My dad always used to say that there's very little ice in Iceland and very little green in Greenland. And I was stationed there actually during the Korean War, came upon a mass grave site.
Now, don't the thing is with Greenland and Canada. We don't really need to possess them and make them part of the United States, but we need to have the right to put bases there.
Yeah, okay, all.
Right, So what's your worst? What's your worst thing that happened this last year?
So, I mean the worst of course, everything is going to have to do with Biden. I think the fact that the White House staff, it now appears, have been concealing his mental incapacity for it seems like his whole presidency, if not before, I think, is a huge problem for our political constitutional system. I mean, our constitution centralizes power
in the president. It's a single person to take advantage of speed, speed and energy in the executive and if this imperial guard surrounds him and prevents people from knowing his true condition, I think it undermines our system. So I actually, if I'm going to write a piece about this, I think actually Congress should hold hearings and investigate whether we need to change the twenty fifth Amendment to make a clearer the state of mental incapacity that would justify
removing a president. And here's the delicious part. This is the part I think Lucretia would like President Trump will be able to waive executive privilege on behalf of all the Biden White House staffers who would not want to have to testify about all the ways they covered up
Biden's mental decline. And when Congress subpoena is them and then holds them in contempt, it'll be the Trump Justice Department which will be allowed to prosecute people like the White House Counsel and the chief of Staff for refusing to testify about the ways they covered it up. And so I just wonder if the Steve Bannon Memorial jail cell will have extra spaces or the people who are going to be sent there when they refuse to cooperate with the congressional investigation.
Yep, yep. Peter Navarro was imprisoned for Also, Yeah, okay, just wanted to make sure, just out of curiosity, could we maybe hold that whole thing, those the hearings in New York for a change, and then put them in Rikers Island.
Oh well, Rikers Island is a city jail. I'm not a federal one.
I know, I know, but I was at least going to move the venue to show I understood slightly. No, I agree, absolutely agree with you. Yes, yes, the answer is yes, John, I'll do another. I would argue that, let me start over. I would ask you whether or not there is a crime involved at this point without a new twenty fifth amendment, you know, changes to it. Is there a crime involved that anybody could actually be prosecuted for covering up the mental disability of the president.
There's not, really is there.
So this is actually a really great liberal versus conservative fight because liberals would have to admit that they think there would be because they have they have brought prosecutions, particularly the Special Counsel Jack Smith, where he lost unanimously at the Supreme Court. They have brought prosecutions on something they call fraud, but it's really called honest services nature fraud, where politicians have not. It's so ridiculous that that there
was ever prosecutions brought on this. Politicians, even corporate figures, have not been honest in the way they did business, and so they could this was apparently a federal crime. You know, you'd have to you'd have to prosecute every member of Congress under this theory. So but liberals think, yeah, that's a crime. Conservatives at the Supreme Court have gradually narrowed this and narrowed this to try to prevent people
from just being prosecuted because we think they did something corrupt. Right, This is you know, like the Supreme Court has said, you have to show there was a payoff, not just that someone was doing someone a favor. So I actually am not sure there's a crime, except the liberal theory of good government would suggest there was a crime.
Ah right, Well, yeah, I mean did.
You want to comment on that? See, because I was one further question.
No, go ahead and ask your question.
So the further question is how would you how would you personally? Let's say John you is being asked as no doubt he will be to testify before Congress before hearings to talk about what the language of an amended twenty fifth Amendment might look like. What what would you suggest to make sure that it does what it's supposed to do and not be abused, which, of course is always, you know, always the issue here.
So there's two different features of the twenty fifth Amendment. One is it doesn't include mental right. It doesn't include actually doesn't really decline and define disability. So want these you want to define it. The second thing that I think the harder thing is the process. Right now, the process is completely controlled by the vice president. So you cannot remove a president. Even if a president is obviously disabled, he cannot be or she cannot be removed unless the
vice president agrees to it. The vice president is one who triggers the whole process. I'm not clear that the vice president is the best person to have in this system.
So the way it works is the conflictive interests.
Conflict of interest, Yeah, like look at Kamala Harris, right, So you have the system works as the vice president decides, and then they have to get a majority of the cabinet to agree, and then the president is temporarily removed
and the vice president becomes acting president. So and then the weird thing is the president can come back almost right away and say send a letter to Congress, say no, I'm all better, I'm able, I'm not disabled, I'm abled, and then two thirds of Congress has to reject that
in order to keep the president out of office. So like a demented like Joe Biden, suppose this had been used on him, I have no doubt that he and his palace guards would have immediately sent a letter to Congress saying I'm all better, and then all he would need would be right thirty four senators to agree with him, and he would have become president again, no matter how nuts he was or how demented he was. So that's anything. We got to think of a better procedure for judging.
Now here's the interesting thing. I'm not saying we should adopt everything Korea does, because the Korea is going through its own interesting thing right now. The one thing in Korea that's interesting is the president gets impeached by the Congress, but then it's the Supreme the Supreme Court they call it the Constitutional court, the country that has to approve it.
So I could see a system where you want you could have a system where the president's removed they're found disabled, but maybe you want to have some kind of judicial review over whether Congress is not actually abusing this to seize power and kick out a democratically elected president who's actually in fine shape.
Okay, yeah, I mean, anyway you look at it right now, you can see where all of the pitfalls might lie from any in all directions and with any institution that you involve in it, the vice presidency, the cabinet, I mean, those are people chosen by the president himself. There's a you know which in the case of Biden, those were the people who were going to protect him.
And actually that no one is mentioned, ever mentioned then or now. I would subject it to a vote of the governors. Oh, why no one has thought of that? Governors?
Yeah?
And would you do that? Let me, I'm going to go I'm going to go there, throw down on you, John. Would you do that if the majority of governors were not Republican? Oh yeah, even if the majority of governors were Gavin Newsom, Sure, well, because that's a whole new idea for me, a good one.
I'd rather have governors than Congress, because you remember, the Founders did not want the president's subject to removal by Congress. Yeah.
I was going to say that's the problem. I'm just going to stipulate John for later argument that Hamilton would not like your idea, but he might like the governor's idea. And I think that. Look, Newsom's interest is not purely partisan. His ambition, what's the flying ambition connected with the place. You know, I think you could see Newsom and Whitmer another Democrats saying.
Keep that as long as possible.
Yeah, no, no, get him rid of him. I think it's the other way around.
You'll get rid of him faster, longer.
The longer he's around, the worse it is for my prospects. I don't know, I could see it going that way.
Yeah. I just think it's better at least governors who don't have parliamentary supremacy, which is the real worry.
Yeah, okay, Well, like I say, when you get up there, which no doubt you will if you're not already on the Supreme Court, by then or or whim when.
I testify before Congress. All I'm trying to do is stay out of jail, all right, So I'm going.
To follow on with that. Oh no, sorry, Steve, I owe you, I owe you your opportunity for your worst story of the year.
Well, it's the same story. It's the Biden cover up. But that story is not over, not just because he has three and a half weeks still in office. But I think this is going to unfold worse and worse as the months and years go on. And so I mean, I think you're gonn of well, yeah, respectulate the other day about how so many presidents who leave office unpopular later enjoy revisionist improvement, you know, Truman, Eyes and Hour, even Nixon, to a small extent, even George W.
Bush.
I think it's the other way around for Biden. I think this is going to get worse and worse and worse for him. And when the details come out, at which they inevitably will, I think his reputation is going to go down the drain, and you know that's gonna
have big political consequences. I think for Democrats, I think at a minimum, all the people who work for him should never be allowed back in any government job ever again, period, full stop, Go away, ron Klain and the rest of you and never bother us again.
But how do you accomplish that?
I don't know that there may be some criminal violations to be found in all this.
We'll see, yeah, yeah, not made up once. We don't want to go there anymore.
Well, look, I mean on the well, so let me give a hypothetical to John. You know, I'm wondering, as well speculated in the Clinton case, Clinton's pardons twenty four years ago. Now, I wonder if there will be some tie ins between the money the Biden machine got uh from Chinese and other foreign sources and maybe some of these pardons that happened. And if that's the case, I guess you, I guess the pardon power is not qualified.
But it sure seems to me that there could be some collateral criminal you know, remember alge Hiss was convicted for perjury before Congress, not espionage because the statute limitations that expired. But there ought to be some criminal exposure for perhaps Biden himself.
No, Steve's right, I mean, so suppose, I mean suppose the worst, the worst could happens like some people bribed gave money to Hunter, yeah, or gave money to Biden's family and then they got a pardon. You can't undo the pardon, but you could prosecute, investigate Biden's family for corruption.
Yeah.
Yeah, that's I mean, and I'm I'm sure that that's going to be watched closely, just like what happened with you know. The thing is with Clinton. I think George W. Bush, who was of the mind not to you know, use prosecution to go look backwards, but I think he could have investigated Hillary Clinton for you know, the guaranting of pardons by Bill Clinton, or to affect a New York election.
Yeah, yeah, okay, all.
Right, Well that brings me to my next point, which is I want to ask John, who is an expert in the powers of the executive, how much of the damage that Biden is obviously very very diligently trying to do before he leaves office, how much of that damage can be undone by Trump immediately upon his ascension into office.
My first example, probably really serious example, is the fact that Biden has now made it federal but through federal executive order allowing granting, authorizing however you want to put it federal work to continue to work remotely. I know that you've probably been following some of that. It's been a big, very big deal. I will tell you this, guys. You are both probably exceptions to the rule because I know both of you do not work in an office every day, but you get an incredible amount of work
done all of the time. But I know this from my own professional experience, that about nine out of ten people who work remotely do a third of the work that people who come to work do. It's just, you know, it's just the way. It's not true of every one of them. Some of them are dedicated, love their job, will work just as hard no matter where they are. But some of them just you know, spend their whole day screwing around. I know that they can be in
and sorry, last thing about it. They can be in a federal office building in Washington, DC or elsewhere and still be watching porn all day long. We have lots of evidence of that. But it's a little more difficult anyway. What do you think, John, will he be able to undo that at executive order by another executive order.
I used to I thought the study showed people who work at home are more productive, you know, per hour than people who have to come into the office because of all the I'm saved from commuting and all those other costs. But maybe I'm wrong. But so this is the thing.
Presidents.
Presidents mostly can reverse anything past presidents have done. So the one the few areas that you cannot are things like pardons. The president can't do unpardon someone who's already been pardoned. But in general, presidents can reverse any executive orders issued by the previous ones. So in fact, I always thought that's one of the great presidential powers I call the power of reversal, is a presidence can just
reverse what the last president's done. And so here's some exemple, like anybody bite in appoints Trump theoretically can fire any treaties that Biden makes. Trump can you know, break.
Any executive agreements and.
Any executive order, No, any executive order that Trump Biden issues. Trump can undo any regulation that the Biden administration issues. Trump can undo, although it takes about a year to use to do the APA. So I don't think any of these it's actually just it's sad because what it is is Biden at the end of Biden's staff, not him, Biden's staff at the end of his term in office, on his way out the door, is just engaging in
purely symbolic gestures. So I wrote a piece about a thing that Biden just did in regards to energy policy. He just again one of these things he can do is represent the view of the United States government at the Supreme Court and try to urge the Supreme Court
to make certain findings. And he's come out in support of these ludicrous lawsuits brought in the States, the first one hitting the Supreme Court from Hawaii of all places, that against energy companies for concealing climate change from the American public, and so they must pay billions and billions of dollars for the harm done to the city of
Hawa Honolulu because of it. So this is ridiculous. But the Biden administration are at the very end is taking the position at the Supreme Court that these lawsuits are valid and should be allowed to proceed. Now, Trump.
Nation cases back and forth, right and is likely Trump will take that one up again.
Right. Well, one thing that he could do that would be interesting is he could come in and I think reverse the position of the government on the transgender case. That case is actually you know, they argued the case on the merits at the Supreme Court. This chance you can states prohibit transgender treatment for children. Trump should do you know, day one, he can come in and have the United States withdraw or turn about, turn its position around one hundred and eight degrees.
So I know our listeners will be happy here that Steve, make sure you link to John's article special maybea article in the show notes, because it was a good article despite the unnecessary Tinner's clause reference. We won't go into that because.
What he wants to move on, well, i'll I'll say is two things. One is the Hawaii suit saying the oil companies concealed from consumers climate change reminds me of the equally ludicrous claim years ago that the tobacco companies try to conceal the dangers of smoking from people like Gosh, if the government hadn't told us, you know that, I would have known that smoking was harmful without right. And
then then one is lucretia. I'm not sure do we really want federal employees to be two thirds more productive by coming back to the office. I think maybe it's a bargain of the taxpayer ram to sit at home.
I will tell you that that it's part of DOGE I think their general the idea that they're going to DEI and all of these people who are going to quit because Pete haig Seth is coming in. If you force a lot of federal workers back to the office, will quit, and then they just needed to let attritionian be attrician and re hire those people, and then you'd solve a whole lot of different problems in my opinion.
But anyway, it really there really our studies, John, it's why you're seeing more and more people like Elon Musk and other CEOs demanding that their employees come back to work. They really don't work when they're not being supervised. You've got to be the kind of self starter person who will work on their own in order to put in a good eight ten hour day if you're at home working without any supervision. Anyway, enough of that, Steve says,
I have to move on. We had a question asked to us by a good friend of all of ours, Ryan Williams, who is the president president. Yeah, the Claremont Institute. I knew I just wanted to get his title right of the Claremont Institute, and he wanted to know our opinion, which I know this will surprise everyone. Diverged somewhat about whether or not the fourteenth Amendment allows Congress or did it actually say demands of Congress. I think it said
allows Congress. His question to outlaw private discrimination, A private discrimination can, I believe can be somewhat of an encompassing term. It can mean that I am being outlawed in my private feelings and actions about saying I really don't like people from South Korea because they eat pineapple on their pizzas.
The listeners don't know what that's In reference to the ant natural law discussion of pizza between the three of us, and I took the view we can make where I mean human beings, we can make anything we want to be pizza, where Stephen Lucretia, of course, took some bizarre medieval view that pizza was fixed and could never be changed. It could not evolve.
Us about that. But never mind.
Again, I probably wouldn't go that far, just would never put pineapple on anything. Yeah, but anyway, no, no, no, But my point is is that there are are there's the idea of discriminating privately against someone, But then there's the actions that follow from private discrimination that would discriminate on the basis of some immutable characteristic of birth, like your race, your ethnicity, your sex, and so on. And the question is whether the fourteenth Amendment and the is
it the fifth clause? The enforcement clause is the fifth clause of the fourteenth Amendment? John, Yeah, the fifth clause of the fourteenth Amendment, the Congressional authorization Clause. It gives Congress the power to enforce the prior four are paragraphs in the fourteenth Amendment? Is there power there for Congress to outlaw private discrimination in the fourteenth Amendment? And so, Steve, why don't you give your irrelevant answer? First?
Well, no bias in that question. Look, isn't what this really comes down to as an argument about Title seven of the Civil Rights Act that banned employment discrimination. And it's amazing to me that we're now talking about this question when to even raise that question, even as recently as five years ago, would have been thought out landish.
It certainly was Richard Epstein when he argued, but thirty years ago now in his book Forbidden Grounds, that we ought to repeal Title seven of the Civil Rights Act. There's several things going on here. One on the level of constitutional principle is well, the First Amendment gives us freedom of associations, freedom assembly right, and the principle of freedom of association certainly would imply a right of exclusion.
You know, if I want to associate with, you know, twenty to twenty five year old guys who like to play golf, that means I get to exclude people who don't like to play golf. And we've always made an exception on race because of the obvious historical can tingencies of the country. And I think we've been willing to make that exception, and now we're starting to question that because of the abuses of things like disparate impact and
the application of civil rights law. I'll just say that, and John, you'll remember this, I think better than I do, because I haven't read the cases in a long time now, But the early cases in the nineteenth century, in other words, after the civil rights first Civil Rights Act of eighteen sixty eight and the Fourteenth Amendment said no, the Fourteenth Amendment only bars state action. And then they equivocated a bit when they said, you know, places like hotels and restaurants.
Private properties ceases to be wholly private if it's open to public conveyance. And okay that I get the logic of that. But the fact that we are and then I'll be quiet. The fact that we're now discussing this question again, first Richard thirty years ago, then Chris Caldwell in his recent book The Age of Entitlement, suggests that we are at one of those moments when, as the cliche goes, the Overton window is moving. I'm not sure
how much many listeners know the Overton window. It's the theory that Joe Overton, who I knew, by the way, Joe Overton three, of course I did. I always like to say the liberals. He was a libertarian, by the way, worked at the Macanon Institute in Michigan. Died in a plane crash in his own home built light plane. That most people don't know that about Joe. But his idea was you make these sort of out there arguments and suddenly you move what is possible to talk about and
then possible to be done in policy terms. The left loves to mention the Overton window without understanding that it was a conservative who thought of the idea. But I think we're now seeing the Overton window move on civil rights, and I think there's a ways to go, But I haven't declared an answer to that. You know, it used to be that we had private clubs like the Lions Club,
which is your basic do good service club. It was men only until about forty five fifty years ago, and they were threatened by the government with losing their tax exempt status if they didn't open up to women members, which they were perfectly happy to do. But there you go. We now have the full force of the law against any kind of of selectivity private association, that includes the right to exclude certain people for whatever reason, and I think it's time we do rethink all that.
Well. I think that the state action requirement is an important part of limiting the Fourteenth Amendment, because if the Fourteenth Amendment were to apply to private activity, it would be almost limitless. But it just I think it's just this idea that the Fourteenth Amend reaches private conduct is just belied by the Constitutional. The Constitutional Texas the Members says no state shall and then it says, you know, deprive people of privileges and communities right deprive them that
do process deprive them eco protection of law. The whole point of amendment. It actually parallels the Bill of Rights. First Amendment says Congress shall not. It's always the purpose of it, and that's why it's always a purpose of it is to get what governments do. And that's why when we're talking about it earlier, I do think that the sixty four Civil Rights Act needed to use the commerce clause because much of its right reach is it's a great effect. Its effect on private actors, not on
state employers. So but there is I think an area where you can reach private conduct. And this is something the Supreme Court wrestled with after Brown versus Board of Education, which is what the Southern States did after Brown, is they basically transferred all these institutions and functions to allegedly private actors, so they wouldn't All the public swimming pools
were transferred to private ownership. And so I think the Court was right there in saying that when the states are essentially trying to evade the state action requirement, or when they're basically helping private actors engage in the deprivation of rights, then I think the state actation doct might be read narrowly to allow people to get so good. A good example that I threw it, Stephen Lucretia is racial covenants.
Right.
So for a long time, in many parts of the country, there would be a covenant in your deed that said you would not be allowed to sell your house to someone who was not white. Right, So it's just a racial people are Jewish, Yeah, just people who defended these said, there's no state action here. This is just you know, private contract between people. What's how can the fourteenth Amendment reach this? H and so what the court said was, yeah, but it was state contract law that made that a
viable contract provision. Otherwise it should just be held. It could just be held in val So that's as far as I would go is to say that you could restart the thirteenth and fourteenth as to get at things that were still with the court is called the badge of inferiority that was still after effects of slavery.
So I want to I want to criticize that from two directions, which means that I mostly actually agree with you. But on the one hand, I agree that I don't agree with the civil rights cases of eighteen eighty three and the way they came about their definition of state action.
But on the other hand, I do agree with you that the reach of the fourteenth Amendment should reach only so far as those things which the government, whichever governmental level we're talking about, should have the right to regulate in any way, shape or form. And when they have the right to regulate those things, then like your example of restrictive covenants, then then they cannot do so in a way that discriminates, it does not provide equal protection
and so forth. Now, I also think that the abysmal court decisions over the years really screwed up our under standing not only of equal protection and do process, but obviously privileges and immunities as well. We can discuss that on another time, But I do think that if that you get around the problem Steve's talking about, you know, freedom of association, all of those things that Robert Bork was against the Civil Rights Act of nineteen sixty four. He said, because of you know, it was what did
he call it? A profoundly ugly thing that to tell you, I can't was that the word he used some I don't remember, something like that, But anyway, is that that, yes, you cannot do anything legislatively, in my opinion, Congress or anyone else to get rid of the discriminatory intent in my heart right. And so that's the second part of my argument, John, and that is that we cannot discuss
these things in a vacuum. And my belief is had the Court not jumped so quickly to restrict our understanding of the equal Protection Clause and the Privileges and Immunities Clause way back with the you know, slaughterhouse cases, said whites cases, et cetera, we might not have taken so long to change the hearts and minds of Americans to the idea that discriminating on the basis of race and then other things is just it's not it's un American.
I hate to say, it's not who we are because that sounds like someone I'd never want to be caught quoting. But we Here's my argument is that if you think about what Jefferson said in What seventeen eighty about how we would never be able to get rid of the discrimination, the prejudice that whites feel toward blacks and blacks have every right to feel towards whites, it turns out that he was kind of wrong about that. It did take a very long time. But the question is how much law?
How much do we give law the credit for changing those attitudes and to the point where today we don't accept people culturally in society, we don't accept people being abject racists, you know, and that's a very good thing in my opinion, unless we talk about, you know, the white white racism, you know, all those stupid critical race theory people they don't count for anything anyway. But I mean, would you be friends with someone who was just an
abject racist? Just there would be someone you would have no respect for. How did we get to that point? How much of the law and the Constitution was a factor in getting us to the point where we can accept people regardless of the color of their skin or some other immutable characteristic birth. Does that make sense?
Well, there's a lot there to untangle. I can quarrel parts. I'm going to be the I'm going to be out on the extreme edge of this one. Amazingly enough. You know, I think people should go back and read Berry Goldwater's speech on the Senate floor about why he was voting no, and he said, look, law can do some good, he said, what you just said, Lucretia, don't drink. You knows that me bringing up Goldwater you did. But look, he said, Look, law can do some good. It can be a moral teacher.
But Section seven is the only thing I object to because I don't see how it can be enforced without a tyranny, he said. And I think he's he may have overstated that with that vocabulary, but he was for right about that, and everyone else said, oh Goldwater Republicans are against civil rights. He voted for every other Civil Rights Act and said, I can support all the rest of this Act, including you know, voting rights, public accommodations, and so forth, because I don't see how we're going
to enforce this. And that's what a lot of people said. I think as a social phenomenon, leave a side law for a moment. It's actually made our problems worse. Although it's true that, by the way, I'm not sure you need the Civil Rights Act to stamp out over public racism of the kind you mentioned. Again, if I'm of a view that legislation often follows public opinion, and I did once go look at the gallop surveys on race.
Going back to the late forties when they started, and by you know, nineteen sixty four, you have overwhelming public support for civil rights and the civil rights movement. And by the way, one of the things Epstein points out in his book is if you got rid of affirmative action and Title seven, how many big corporations are going
to actually discriminate on the basis of race. Almost none. Instead, we have the disparate impact test, which has spun out of control, and maybe that's the next target for serious legal reform and judicial rulings. But I do remember that in the Reagan years a while ago now, they thought about rescinding the Affirmative Action Executive Order of Johnson, Like
john says, presidents can do that. Reagan a huge fight inside Reagan's cabinet, and then the people who didn't want to rescind it got a whole lot of corporate CEOs to lean on Reagan. And then there was a survey taken of the fortune five hundred CEOs, eighty percent of whom said, if they get rid of affirmative action federal government does, We're going to continue our affirmative action programs at our company. Now it's a more complicated situation with
the Old South. But I do like to always raise the question that was the central focus of the Plessy cases. Why do those states need to have Jim Crow laws to enforce segregation because the marketplace is against it? I mean, one of the great counterfactions we'll never know the answer to is in the nineteen sixties, as you're starting to have national change, you know McDonald's Motel six going on down the list seers Eventuley Walmart. Are they going to
want to discriminate against their customers and employees? I think likely not. And the great work on this, and I'll stop here is, you know Gary Becker's work from the fifties Nobel Prize winning economists. His dissertation was the economics of discrimination. By the way, he was advised even then not to tick up that subject as his research subject for his dissertation at Chicago in the fifties. He did, anyway,
And you know, he's the father of behavioral economics. And he said, look, all the economic forces are to break down discrimination because it makes no economic sense.
He says, to mean, like the.
Whole argument that females are paid seventy seven cents on the dollar, and why didn't all of them get hired, because if you can pay seventy seven cents on the dollar, why wouldn't you There you go.
But I think that, you know, we were so steeped in the orthodoxy of civil rights ideology that no one thinks this way, and you have not until lately been allowed to even bring it up unless your real outlier like Steve Sailor, who I think has been proven right about just about everything he's ever been contending for the last twenty five years.
So I have a few points to mental. I think, no, no, no, I think it's good. But I think there is a useful focal point here, which is Trump could. And I thought I read that he's been thinking. You know, there's been discussion about, you know, about Trump actually repealing some of these affirmative action executive orders issued by Kennedy and Johnson, and they do a lot Nixon, Yeah, exist because yeah, nexton, because they they forced government contractors to engage in reverse
discrimination based on race. So I mean Trump could. I think Trump could do it. So you know, two points. One is there's there's a big debate going on amongst legal historians about the effects of brown versus board of education, because the story is after Brown, actually much disegregation did not occur. It was really not until the sixty four Civil Rights Act that real disegregation came to the South.
And so really, people, you know what it really happened, John was under Nixon.
Well, I mean the busting went too far, I think, but no, but it was it was started in the sixties, the mid sixties. And so the point that these legal historians make is that this you know, story of this kind of heroic Supreme Court forcing the unwilling country to desegree has really got it backwards. That it was really the majority of the country wanted racial equality, and we're trying to fare out a way to force the South to live up to the majority of view which had
been in there since the reconstruction amendments. Uh So that's and then the other point I like about the uh
why I think I agree. I think that even if the nineteen sixty four Act weren't there, businesses would not discriminate based on race, because if you assume that, you know, companies that engage in race are actually therefore hiring less qualified people because they're white, then the thing a competitive right, a competitive market should produce are companies that would hire all those people who are being discriminated against because they'll
at cheaper rates, Lucretia suggesting, and then you would have a better company with lower costs. So I can are one of the Nobel Prize and economics in part because of this theory, right that that you know, an efficient market would produce, you know, companies that hired up all those people who are being being segregated against discrimination.
Trouble in Paradise. John between are among Trumps, some of Trump's appointees or suggested appointees. There's a I guess it's been this huge, huge controversy on X because Vivek came out and said, it's basically Americans who were not John Hughes growing up, who have failed to become engineers, failed to I'm I'm I should let me do this properly.
It's just about, yeah, we need more H one B one visas from India and other Asian countries because those, according to Vivek, those people didn't watch Saved by the Bell and a bunch of other stupid comedies back when they were growing up, and they celebrated jocks instead of celebrating math competitions, and it's just been this huge controversy, uh and back and forth, people mostly conservatives against what
old Vivek had to say. By the way, but one of the points that was discussed in my household, that that I've seen discussed on X and elsewhere is this one that affirmative action disparate impact and all of those pieces of legislation that I think are aberrations of the fourteenth Amendment made possible in part because it was grounded
in the Commerce Clause and not the fourteenth Amendment. But anyway, the fact that white guys graduating with engineering degrees with other kinds of STEM degrees can't get jobs, and there's lots and lots of anecdotal evidence about that. I happen to have some of my own where it's not so much that these are kids who watch Saved by the
Bell and never studied and never took diff CAALC. It's because the corporations out there are still choosing to fill those roles with immigrants because that fills their their quotas, not because immigrants are better or worse, but because it fills their quotas well.
Or the related argument is they can pay them less than they have. Then maybe there's some truth.
I think that's Look, I mean, we have a shortage of engineers. I mean, I don't know whether you know, I don't know about your anecdotal stories about any individual person, but we have a huge engineering shortage, scientific short I think Vivek is right, or Elan or Wright, and the basic point is that we should actually bring as many farmboant and it's not just medical doctors. There's a huge shortage.
Nurses is a huge shortge. We should be happy to have people who want to come to the United States to fill those jobs. If we can't fill them ourselves, well.
That's just well, can I give an example of that. See, I'm not sure this.
People are choosing to go to engineering to get the engineering in the United States, the numbers are not high.
Well, I think I think this is a little bit tangential to the civil writes question, But maybe there's another one that's right on point that does relate to it. So take for example, your elite private colleges like Middlebury and Colby and probably Boden engineering departments. I'm going to talk about I'm going to talk about the immigrant aspect of it, which is sort of immigrant aspect to it.
They'll say, oh, we have a diverse student body, and then you look closer and you'll find out that they're black students. A lot of them, sometimes majority of them are not American blacks. They're Africans, I mean actually from Africa. They're often the products of elite schools. I mean I had, okay, my anecdote, my one research assistant AEI fifteen years ago, Middlebury graduate had gone to prep school some Ghana. I had that wonderful West African accent had gone to prep school in Switzerland.
You know.
I figured out that the family had two cars. So this is the elite in Ghana, right. I'm not never found out what her father did, but obviously a very prosperous person. She goes to Middlebury, does very well, she was very smart, went on to get a PhD from Princeton. But the point is the elite schools say, oh, we have diversity, and are you know, are the color spectrum that we're all care about. It turns out they're using
it with immigrant students. This has not been lost by the way on some of the black activists and Black Lives Matter people who have complained at Harvard and Brown and elsewhere, that these students should not be counted.
Again we've left out regardless are white males.
Sure?
By the way, yes, sixty percent, upwards of sixty percent of university students across the country are female.
Right, right, No, The point I'm making is that this is the corruption and dishonesty of this kind of regime. That's the underlying point of this illustrates I can give some others like it, but I think it's best to keep that that tech question separate and let them fight it out.
I mean no, I mean, look that we just do have enough schools with enough students to fill the demands that we have for Again, it's not just it's engineering, medicine, science. I mean, we could change. I would love to have a totally color blind emission system for our colleges. But we're just not graduating enough of them, whoever they are.
That's the problem, and if we're going to keep up with.
These other countries, that's my argument. I'm more I don't know, I actually don't.
I don't actually don't. No, I actually don't. I mean, I don't think there are enough engineering graduates in the United States to fill all the demand we have for engineering, it could be right bud us of the racial and gender composition of the classes. Well, yeah, we'd have to do some kind of sputneck thing and double the size, and we'd have to double the size of the medical.
Stas in order to do so. And we're going way long, and this is my fault for bringing it up as too much of a tangent. But what we'd have to do, of course, would be fixed K twelve education and all of that in order to push more people into STEM and stop listening to the stupid women and gender studies complaining about the fact that only men go into STEM while she's studying some stupid gender studies degree. Right, there's the microcause of it all.
Anyway, that would take that would take eighteen tour, right, That would take decades for to come to fruition. So in the meantime it seems to makes sense to me. You know, if we're gonna write we're at you know, I think a terrible competition with China and Russia and who knows who else, right to maintain our high tech advantage, But we got to get the engineers and scientists from where they're coming from. Which is from other countries.
Yeah, I don't.
I mean, maybe that's a different issue than illegal immigration across the southern border. People who are showing up right engineering and you know a talenteer which helps us right surveial enemy countries. Right, these are not people who are coming across the border illegally.
But there are people, white males losing their jobs to H one B one visa holders because they can't they can be paid loose.
And maybe it's the margins, but I would suspect not in large numbers. I mean, because we just have a shortage of engineers entirely.
Listeners doctuive your anecdotes. But guys, I hate to tell you we have to draw this to a close without getting to your New Year's resolutions or your favorite books. Sorry Steve, no favorite book, Babylon Bee.
I'm drinking.
Aren't we going to do predictions? We don't have time to do that. You have to be out of here in like ten minutes or something.
But go ahead, go ahead, give me your prediction for this was.
I don't have one. I was going to go through our predictions from last year, which I looked at that we're mostly wrong.
Well, we could do special January first episode. Okay, that's New Year's Day episode watched and I'm.
Sorry if anybody wants to know why I'm I'm skipping out on the three whiskey happy Hour. It wouldn't be for just anything. Poor Nixy has to go to the vet, so she's.
She's just just just release her into the wild and get a new one.
Shut up, she explained. This is your to the person who just spent seven hundred dollars on the surgery that she's having a complication from. So there we go. Trump announces anyone who drinks tea instead of coffee will be arrested on suspicion of being a British spy. I'm not sure I get that one, but I figured i'd I'd give it to you guys and see what you thought about it. Is he against the British now too?
No, I don't think so.
Just Greenland.
Oh sorry, green tea comes from.
Resident residents of Fuvill regret defunding the police. I don't have very many. I think the people at Babylon B have been taking the holidays.
Oh no, it was a good one. You missed a good one. Gavin knew some orders a deportation of all US citizens from California.
Yeah, that one's on my list. So yes, now California announces mass deportation of US citizens. Yes, someone's very good. How about this one? Luig Gi Mangioni to host next week's episode of SNL. Right, yeah, all right, that's I'm done, unless you want me to end. Steve, have you done it?
You come up with your with your sign off?
No, I haven't. I've got a year end one, though, a customed one for this episode only.
Okay, so let me say mine first, then John mine from from Biden. I want everyone to contemplate this this week. The one thing I've always believed about public service, especially the presidency, is the importance of asking yourself, have you left the country in better shape than you found it today? I, Joe Biden, can say without with every fiver of my being, with all my heart, the answer to that question is a resounding yes.
Okay, always drink your whiskey, knee. Let's go Brandon for just a few more weeks, and Steve so I.
Saw someone on Twitter respond to Gavin Newsom's latest demand that we all buy electric cars with the phrase which is the phrase of the year. He can osculate my fundamental orifice. That's fancy speak for he can kiss my ass. I like that, osculate my fundamental orifice. I'm gonna put that on a bumper sticker. Happy New Year, everybody.
We'll try to have been new, Ye have been now gie. Let the new gie come in. Have been new, ye have been new ye Now the new gie can begin.
Especial day that happens only once a year when we all get together because the new year is here and if you roll enough, you can't participate because New Year's even awesome and we need to celebrate.
Happy New Year, Happy New Year. Let the new year come in, Happy New Year, Happy New Year. Now the new year can begin.
There's gonna be some preparations and many things to do each year. It makes this holiday few brand new.
There's parties in this fun times as we all.
Await Ricochet join the conversation.