Well, whiskey, come and take my pain moneys all right, oh whiskey. Why think alone when you can drink it all In with Ricochet's three Whiskey Happy Hour, join your bartenders, Steve Hayward, John U and the International Woman of Mystery Lucretia, Where.
The lapped it up and David, ain't you easy on the should have you got to give me?
And let that whiskey flow? Welcome to the three Whiskey Happy Hour, where the whiskey is always neat, almost as neat as the opinions of the three hosts. Starting with me, Steve Hayward, your host of this week, along with the ever positive positivist John You and the international woman of Less and Less Mystery every Day, Lucretia.
So come on, I say, got lots of mystery left. And you know what I want you to know that on the version of this podcast last week that I put up on something else X, I think it was I got taken into account because I put the picture of the Sidney Sweeney. You forgot to put up the Sydney Sweeney and me as it merged, oh yeah right, and you know she did actually have the gun pointed like this and I got in trouble for posting a picture with such horrible gun management.
Yeah, and by the way, you have your your academic name up on the the the I.
Changed it, not today, mystery, I did before the start.
Well it's it's still, says professor, changing it.
Okay, everybody knows who I am.
Well, okay. Our opening questions, as usual preempted by Lucretia, is they are? How and what? Which is? How are you doing? And what are you drinking? John? I saw you pour something? What are you drinking? Oh?
I was always was always waiting to actually start to show before I poured it. So you can hear me right in the bottom right, although now that's on video, I don't know if this really matters anymore. And then pour it out. So this is a wild turkey rare breed barrel proof rye right with a ungodly high percentage of alcohol.
Oh what does that mean? Very very high?
And actually I think I've already gone blind in the service of drinking this and without glasses.
Well that since Lucretia and I think you have a certain blindness to natural law. But that's we'll leave that for Christ's sake.
You too, exactly. I didn't say it. Don't give up. He's trying to. He's trying to compete with Richard Samuelson.
One hundred and twelve proof. Okay, that's that's pretty high for a rye.
That's about the same as the kill Karen kill Kearny that I was drinking last week. I'm doing this my lettle like ten this week because it's been busy last couple of days and I've been running around and I didn't want to.
About the bottle, but I'm drinking the the orphan barrel and it's one twenty proof.
Oh god, worel Yeah, what does that mean?
It means that it's a it's a distillery that finds these orphan barrels of Scottish whiskey that and makes it, puts them together. I don't know that anyway. It's like a very few of them made, and this one's actually just really nice.
So yeah, all right, so we have three or four topics to try and get through.
But I'm also sorry, sorry, Steve. I'm also still having my famous grouse chocolate with blitz too. You know how I'm about chocolate.
Well, I did see a science magazine, not science, some Scientific magazine this week saying that dark chocolate apparently has just got amazing health benefits.
Oh yeah, uh, that's really good for you.
Yeah, it has flavonoids and any occidants and I don't know about the famous grouse in the middle, but yeah dark.
All right, before we get to our three fourth subject, we'll try and say something sensible about a brief announcement. The three Whiskey Happy Hour is calling for you a complete and total shutdown of Tucker Carlson until we can figure out what the hell is going on. I'll just say that for the record, and we don't need to waste any time on that. But it just gets worse and worse.
Way why now versus last week or the week before, Well, he.
Just keeps, you know, he's he was in a Doah cutter this week, and he has a video out here in the last twenty four or thirty six hours spent you asking questions about the killing of Charlie Kirk, and it's all a very veiled and weird Yeah, and I think there's well, you know, I didn't mean to do this. I mean I was mostly just telling that as a joke. But Tucker said, what that he was he woke up with demons had invaded his bedroom, and I'm starting to think maybe he's right about the.
Lucky guy.
Well, I don't know. It's uh, it's uh, you know, he needs an exorcism or something. But all right, let's go on a serious business though. So Item one, there was quite an extraordinary moment I think in the Supreme Court on Monday, in the argument in the wonderfully titled case Trump versus Slaughter. I mean, I mean, that's.
What mc gribbs, Steve, I'm sorry I did.
Ribs. Well, we're gonna do that at the end. All right, what about mcgribbs coming from We're coming to that. John, Don't worry. So first of.
All, I'm actually excited about what you're going to say.
Well, I'm not going to say. I'm not going to say it in this segment. Hey, listeners, you can see how much trouble I have running the show with these two unruly co hosts I have. Okay, First of all, what happened was is Lucretia's favorite Justice Katanji Brown Jackson led the mask slip. Can I just say, by the way, I think I shared this with you guys and but not with listeners. The New York Review of Books, the latest issue, in a totally banana's article about wokery that
I won't go into, has the following sentence. This is a direct quote Katanji Brown Jackson. Uh, I can't read my writing. Ah, sorry, Katanji Brown Jackson is proving to be the sharpest justice on the Supreme Court.
It's just insane.
It's that insane. Well, I told you the whole article is bananas. But the reason I bring this up is extraordinary moment. Well, I want to I want to do this. Give me, give me forty five seconds of latitude to set this up properly, because it guilds the point. You know, it happens frequently that I'll read something a leftist says about conservatives. I mean I leftis intellectual or journalists, and
it's always always inaccurate, usually distorted, usually incomplete. And it reminds me of the great comment by the Caltech physicist Richard Feynman, who was listening to some guy make no sense one time, and he said, well, that's not right, that's so stupid, it's not even wrong. And so the point is is that when I read leftist thinkers, you know, serious ones or supposedly serious ones. And right now I'm writing a very dense article on postmodernist linguistics, mostly to
annoy Lucretia. But the point I, yes, you do, I will thank you. The point is is that I always want to make sure I understand them accurately, and that I'm not making up a straw man to knock over right, uh, and so on progressive ism, Katanji Brown Jackson. So I worry about you know, we clare monsters talk about the progressive era, progressive thought and Woodrow Wilson and all those guys, and once sometimes say I wonder if they really believe what we say they thought, and what the meaning of
their principles are. And so Keatanji Brown Jackson. In the middle of the argument, let's fly by the way for listeners who haven't followed this. This is the case about whether Trump should have the authority as president to fire appointees to all the independent agencies and so forth, of which we now have a million of them. Right, So what you say here, here's what she said. Some issues,
quoting Justice Jackson. Some issues, some matters, some areas should be handled in this way by nonpartisan experts that Congress is saying have the expertise that matters with respects to aspects of the economy and transportation. So having presidents come in and fire all the scientists and the doctors and the economists and the PhDs and replacing them with loyalists and people who don't know anything is actually not in the best interest of the United States. These issues she
thought should not be within presidential control. So right, Okay, So the point is she wasn't making a legal argument point number one. That's a very important point. But she just confirmed everything we have been saying for decades now about progressives thinking we should be governed by experts, sealed off from the consent of the governed or from political accountability.
Because her last sentence, I skipped a bunch, is we don't want the president controlling She said, well who should control them?
Then PhDs and the elite.
Right, Yeah, your comment, Lucretia, you go first on this.
I'm actually gonna say that you saw a lot of backlash on that comment, probably because she said it said the part out loud that we're not really supposed to say, we're all supposed to believe that, But because it sounds so incredibly stupid when somebody says the whole thing out loud like she did, in part because of what we suffered through with COVID right not to mention all, you know, the fact that we're thirty eight trillion dollars in debt
because all of these experts and elites have figured out that we're gonna cure POW and we're gonna do all these things that none of them have been able to do with their elite expertise and their fancy Ivy League degrees. The point of the matter is it is, in fact a very frank statement of what progressives believe. And I will go one step further and just throw this out there for John who has such a great respect for what he thinks is the moral philosophy of things like
separation of powers. The reason that separation of powers needs a natural law foundation is exactly what Katangie has to say about it, which is, if either you turn to a fundamental view of human nature that says, you know what, it doesn't matter how smart they are, it does you knowed to be Isaac Newton. Doesn't matter how many degrees they are, they are still capable of being rotten, horrible tyrants.
And the separation of powers is there not because separation of powers in and of itself is something good, good that stands on its own. It's because the understanding of human nature tells us human beings can't be trusted with power, and that doesn't change just because somebody has a stupid ass PhD. And in fact, it makes it worse.
Well, before I call you, John, let me sort of add this modification, not modification, but additional thought, which is again to try and understand them as they understood themselves one hundred years ago when they brought out these theories. Maybe it was plausible to think sincerely that you know, the revolution and science and social science made it possible
for greater human control over human affairs. And so one of my favorite statements from you know, more than a hundred years ago now was John Burgess, who was a very famous political science one of Woodrow Wilson's teachers and later colleague, and he wrote a passage I don't have handy, but I'm going to put it up on our substack, and he said, you know, we need to have these experts.
It's because it'll be so much better than hack politicians and appointees, and they will be no more ideological in their functions than judges are today after the war, court Revolution and all the rest of that. You just laugh at this, not to mention the utter failure of expertise. I mean, how could Jackson say something that stupid after we've been through COVID, climate change, all the things I believe, I know they do, But it's yeah, okay, anyway, John, give us your two or five or ten cents.
Yeah. So I don't want to be a defender of Tangi Brown Jackson. I will say that. Spending all my time with progressives as I do at Berkeley, they I don't think anybody there would think what she said was remotely controversial. It's not on the left you're saying, yeah, no, yeah, I mean they say things like this all the time. It's more I think that conservatives are surprised to hear liberals say this, But they say it all the times in all the journals, the workshops, the classes. So it's
not the surprising to me that they say that. When I argue with people about the Trump administration and try to explain what he's doing, and they say things like, but he would let people who aren't experts make scientific decisions. I mean, this is a great outrage to them. So that's one second point though, which Linda raised, which I think really interesting topic, is whether I'm trying to understand it properly. So are you saying that natural law requires that we have a separation of powers?
See?
To me, it's just an instrument. I mean, Lucretia was teasing, but it's true. I do believe this, that the separation of powers is an instrument, and you know, we should have it depending on whether it works or not, you know, whether it's successful or effective. It's not clear to me that it would work in other countries. It's not clear to me necessarily it's the only form of government that
would work in the United States. You know, a lot of other countries have parliamentary democracy, which has no separation of powers at all the time that we accept. But it seems to be British government seems to work pretty well.
I don't.
I think their folks are not their government. It's not their only as their government. I think it's the people have bad policy preferences, so that I want it to be clear whether that's clear. You think that government must have it.
You have it backwards. You have it exactly backwards. John. As a matter of fact, they do agree with you that it's not necessarily separation of powers which allows a government or prevents a government from becoming tyrannical. You know, that's Madison's view. The when all the powers of government are joined the same hands, set of hands, it's the very definitieve definition of tyranny. And you know, when I explain that to students, the idea is very simple. I
usually use this as an example. John, You'll like it. I will say I'm the tyrant in this class because I am the legislator, I made the syllabus.
I am well, you know, we have three branches here on the podcast, but you're the tyrant here too.
System didn't work here on the podcast.
But my point is, you know that. And so I'll say something like, and I'm the executive, I execute the class, and then I'm the judge. I'm the one that gives a grade. And if what if, say, for instance, the day before the finals due, I've finished grading everything up to that point, and I say, God, you guys are just a bunch of stupid idiots who didn't do any of your homework, who didn't study, who didn't do the readings,
didn't pay attention to class. And you know what, if you want to pass this class, I want a fifty page paper tomorrow instead of the final or you will fail now. And you could see they're like, but the point of the matter is, you know that's not gonna happen. The Dean's gonna step in and something I said, but what if there's no dean, Because I'll ask them what would you do in that case. Some of them will turn it in, some of them will not turn it
in and take the out. Some of them will go to the dean, and I'll say, but you know, remember government, there's no dean, there's no senior administrator that you go to when you say the government's wrong. If all of the powers of government are in the same hands, and then I'll usually do something like you know the case in priest Lake, the Sacket's case, and explain, yeah, that's exactly what happened to these people. That's the whole point of it. Here's the point, though, John, you said that,
how did you put it? Separation of powers demands natural law or something along. No, the point of the matter is understand human nature. And if you set up a government with sufficient powers, as Madison said, to control the government the governed, you have to oblige it to control itself. In our system of government, without an aristocracy, without a monarchy, without some sort of other kind of balance of powers, separation of powers and checks and balances. Is what does that?
And it is a follow through from understanding human nature. It is not nature. Human nature demands it. It's it however you put it.
And so is so it's because it's a it's effective. It's not sort of a priori effective and whatever. I think your view is that there should be a limited government, and so it's effective because it produces limited government, and you want to have limited government.
But why why limited government?
So that's the question to me, it's a question of effectiveness. So you can say because limited government it is because limited government could be good or it could be bad. It depends on the society.
Well like.
Sorry finished Johnhead, Well, so was you know one problem with you know, they say with Latin American kind trees is that the governments were too weak there initially, and so then they collapse into a kind of dictatorship autocracy. Because the government's too limited. It can't do the things that are are the articles of confederation are too limited. So it can't be the case that limited government by
itself is right. I didn't say the answer has to be a certain kind of government for each country, and I.
Said, was a government strong enough to control the governed, and next place oblige it to control itself. And that's where Why do you care about that? Because of natural rights needing protection? Why do you care about that? Why do they need protection? Because human nature needs to be understood in a certain way. It's human beings are capable of good, they're capable of virtue, but it's unreliable. So what do you do about that unreliability? You need something.
You first need a government powerful enough to control the government so that they don't take away each other's rights. And then you need a government ways to limit the government, not just because we like limited government for its own sake, but because we want individual freedom and autonomy to the greatest extent possible. We don't want a tyrannical government. And a government can be tyrannical if it's not protecting the rights of citizens. I would argue that that fat p O. S. Pritzker,
governor in Chicago or Illinois, is as a tyrant. He is an absolute tyrant.
Well he's sorry, Go ahead, yeah, go ahead, Steve, make a joke about well, he's a waddling argument for separation of lipids.
At least Olympics Olympics.
But let me make that, Let me make let me make four quick observations to press us along to a related matter that'll sharpeness, I hope. So first of all, John, you know, Andrew Roberts and some other British friends of ours, they actually make an interesting case. It's hard to understand that they kind of do have a separation of powers in British parliamentary government. It's I was skipping for today though,
because I'm it's very hard to make out. But second point is, you know, separation of powers was new really with Montesque. He's the first theorist who really right.
There was no empirical proof that it would work at the time they told it.
But you know, I think it was John Adams, who wrote what a four volume treatise on constitutionalism, who said Montesque was the one great innovation of democratic theorizing, republican theorizing of that era.
Uh.
And that's remember Montesque is the most frequently cited person in the Federal's papers, not lock. Lock's is not mentioned at all. And remember that point three. Woodrow Wilson what he hated most about the old the Old Constitution was separation of powers. Right, he said, you know, we need a Darwinian constitution that gives us a living constitution. Right. But then then jump all the way forward to today.
The subtext, and I think Catangie Brown Jackson's point makes us very clear the subtext is and again hear you say, oh,
aren't you you know, setting up a straw man. But I thought this actually ever since Tom Bethill started writing about this forty years ago in the American Spectator really interesting journalists who I got to know pretty well, is that for the that sort of expert class in the bureaucracy and their allies at academia, elections are a nuisance, right, I mean, you know you want to ignore elections, right, and then they're.
At and Wilson basically says that too.
Yeah, and this is why the Trump challenge is an existential threat to them in all the right ways. I mean, I'm for this existential threat right. But that brings me an item number two, which is a related question for you John to say.
Wait, this is item two out of four. Well, he said he's going to be quick.
To be here for a year.
Of course, not We're not going to make it at number four. I mean I will see what number three. So somewhere along the line this week, and I've been busy running around, I didn't grasp a hold of it. That doesn't matter because someone said, well, boy, this is really if the Court decides as we think it will, to overturn humphrees and grant prompt the power to dismiss appointees from the independent agencies and elsewhere and the commissions and so forth, this is really going to supercharge the
Unitary Executive. So, first of all, for listeners who haven't been with this long were forgotten, will you please just give us a short primer on what is meant by the Unitary Executive. And since I think it's fair to say you are one of the premier advocates of the Unitary Executive, why that's a good thing.
Okay, But first I want to respond to Linda. Okay, no, I'm just kidding, but I do want to respond to Linda, but maybe we'll do it in writing or chords. No, No, it is a very interesting question. I think about a lot and teach about. You know, I taught the Separation of Powers. I teach it every other year, and I teach federalism in the off years, and so I always
start the class with why do we have it? How do you evaluate that it works, whether it should And you know a lot of people want to dispense with both, including the Supreme Court for many decades. So what's the justification?
So the unitary executive theory is pretty simple. I think it actually is the view that the Constitution sets up three branches, and each branch has assigned to it one of the three powers from Montesque separation of Powers, and the legislative power goes to the Congress, and the judicial power goes to the judiciary, and the executive power goes to the president. And so the unitary executive idea is that if the government is acting in a way that we classify as executive power, then it must go to
the president under Article two. Then a corollary, that is, and everyone who works within the executive branch is a subordinate of the president because the Constitution only puts the duty of the executive branch in the president as an individual. It doesn't say the executive branch shall enforce the law, or the executive branch shall protect national security or be
the commander in chief. It says the president shall. And so you could say the case of the removal power is an ancillary question about how the work out those principles and practice if the basic principles are true. And this is not something Trump made up, This is not something antonin Scalia made up. This is how Hamilton and Madison read the Constitution in its very first year.
It has to be the case in the Federalist papers.
Yes, and it's mentioned in the Federals papers.
Yeah.
I mean, the idea is that the president has to be able to fire people in the executive branch because otherwise there's no way to force them to carry out his orders. And if they don't carry out his orders, say this slaughter person on the FTC is saying, I want to break up the Netflix merger with Discovery Warner whatever,
Warner Discovery. Even though President Trump believes the best enforcing of the law, enforcement of the law is to allow it to go forward, then you have people in the executive branch who are undermining his ability to take care that the laws are faithfully executed. So the removal power is not mentioned in the Constitution, but it's inferred as has to be present because otherwise the president could not actually perform as constitutional duties.
So can I interrupt with the question about that, John, as I recall vaguely, and I know you will recall precisely. Wasn't there some controversy under President Washington in the seventeen nineties about whether a president to fire a cabinet member without.
Yeah, yeah, there's two actually, so there's two controversies in the Washington administration that get resolved in favor of the unitary executive theory.
Okay.
One was when they passed the very first law creating the four you know, not the four the three major cabinet agencies, Treasury, State.
And War.
Right, some people in Congress try to insert something in the legislation saying that the president could not fire. Yeah, with that, And actually Madison and Hamilton, both from their different purchase, led the fight to have those stripped out. And so those statutes aren't because they thought it was unconstitutional.
And then the second one.
The full flowering actually of the unitary executive idea then comes on the second big Washington administration controversy, which is over the neutrality proclamation and the president decided to be neutral in the French Revolution. Constitution doesn't say who gets a set foreign policy, and Hamilton made the argument because the executive power is vested in the president, foreign affairs is executive by nature over historic, and he looks at
British constitutional history therefore it must be presidential. So unless it's specifically taken away from him by constitutional text, that's the same large one that's Scalia makes and the Independent Council Statute.
The one thing I would argue that is missing, I think, or just kind of glossed over maybe is a better way to put it, John, And that is the question of accountability or what Hamilton calls a due responsibility. He says that what is it that gives if we decide to give the president executive, a single person, the executive power. They get energy, they get dispatch and all those other things. But isn't that dangerous? And he says, it's a due dependence on the people and a due responsibility. So how
do you hold the dumb person from FTC accountable. She is not elected. No one on the Federal Trade Commission is elected. The only person who is elected is the president. And you cannot remember I used my example of that dumb ass Obama all the time, where you know, when he was being called out on all of the different scandals of his administration, his his you know, the.
Can I buy him on a specific example it was, you know, it was when the National Labor Relations Board tried to stop Boeing Aircraft from building their new seven eighty seven in non union South Carolina, clearly a stopping unions. And some people pressed Obama and says, oh, I had nothing to do with that. That's the NLRB. There was independent agents.
Read about in the newspapers.
Right, yes, I think so, I would just say, Linda's Linda's you know the argument.
Whatever.
See, this is the problem of dual executive. When the tyrants splits into two, it's very hard to keep them sitting. It was responsible so that, you know, so Lucretia's argument is actually what most of the focus was in the oral argument in the Supreme Court, because the major argument that today's justices favor more I think than the energy and the executive which was barely mentioned or you know,
Hamilton's theory about the executive power in its text. Instead, they placed a lot of importance that these agencies are not accountable to anyone elected, and so if they aren't, there's no way for us as voters to hold the policy makers accountable. That's what I said, was the main justification.
That's what they want.
Yeah, yeah, they're very open about it.
Yeah.
I mean at the time and today, I mean, Katangie Brown Jackson is not saying something out loud that they're trying to keep secret. She just thinks she's in the faculty lounge, you know, chit chatting.
But I you know, I think you're right, absolutely right, and we hear it especially. But I'm not sure that the average American no in any way influenced by the idea that, oh, you should let these decisions be made by the people who really know because they went to college and they went and they got graduate degrees and economics or whatever it might be. That works for the people that the three of us consort with most of
the time. But I think that's the reason it got a lot of play, why it seemed like it was such a crazy thing for her to.
I think that's true. Yeah, you couldn't campaign for office saying things like that these days because it's fundamentally anti democratic.
It is. But you know what a lot of those senators picking on picking on our friend Jay Badachario, but especially picking on RFK Junior. What you know, it's he's not a doctor, He's not he's not a whatever it was Fauci was, I forget some dumb thing. But you know, but they're actually making those arguments. Know that, so elected officials think that probably nobody's watching congressional hearings in their right. But that's their complaint is that he's ignoring able to look.
The other problem with what she said, Tangi Brown Jackson has said is that no one in the exit Jacky Branch says we can't have PhDs. It's just that the people who ultimately make the decisions get advice from these people. That you can have experts, but they're not the final decision maker. And she made it sound as if the whole point of this is to drive all expertise out of the government, which is I mean, that's just silly.
Yeah, but I'm sure that's that might actually be the way she looks at it, because you know Trump. To be fair to Trump, not all of his high level appointees are the usual Washington circle of I actually don't want to see this because I don't want to insult you. John. I don't believe you fall into this category. But it's not the U well A circle of Ivy league. You know, fraternity boys and who went to the same prep schools and so on, and they just you know, circle around.
Now, now I'm an elitist, don't I don't apologize for that. I well, as I always say, what's the alternative? Is governed by the masses. Well, now, rather be an elitist two points democratic, just like Hamilton and the founders were.
Yeah, there are two quick points about that. Just to twist Lucreatia's tail. Is Buckley used to be asked, are you well, never mind, I won't. I won't jump to that bait. I'll try, okay. Bill Buckley used to be asked are you an elitist? Who said, oh, yes, of course, I'm an elitist. You know, when I have to go in for brain surgery, I definitely want an elitist doctor. And then the other thing is specifically to you, John Is.
One of my favorite racing stories is when he's assembling his first cabinet and they settle on Drew Lewis to be Transportation Secretary, and Edie says to him, yeah, but he went to Harvard. And Reagan's answer West, well, we won't hold that against him. Go ahead and make the appointment against you, John.
Sorry. I one more point on this that I know you guys will agree with. I want a brains you know, a Harvard educated or JOHNS Hopkins educated, probably thirty years ago, a surgeon to do my brain surgery. I don't want a democratically elected brain surgeon, for sure. The problem is the rest of the progressive project has also undermined the possibility of merit being the defining quality of our elites. That ended with John.
That's very true.
I think John was the last elite who got there.
No progressive there's no progressive. Progressive asm works in part if you have actually subject matter experts advising the government. But right, if the progressives believe the things that are best in life to advance these DEI projects, then I'm it undermines their very theory of why you give experts powers.
To probably not last observations because I never get in the last word. But first of all, what was I gonna say about that one is that Trump's cabinet has an interesting mix of people with I think superb expertise. Of course, my favorite is my good friend Chris Wright, you know, has an advanced degree in nuclear physics from MIT and has his head on straight right. And I
think Scott Bessant is a terrific Treasury secretary. He's not an academic, unlike say Larry Summers, who might have been actually okay Treasury secretary, which is why the left hates him. Okay rfk Junior. I'll just say that's a very interesting political appointment and leave it at that and for some other day. The other one is what let us remember that the problem we're dealing with is not just Katanji
Brown Jackson believing the progressive kool aid. But let's face it, you know, Anthony Fauci was this hero to lots of people because a lot of exactly a lot of Americans are fools. And the fact that you know he's on TV every night, that was the first sign. I mean, by the way, I remember that guy from the AIDS epidemic in the eighties when he was terrible, and so when he showed up during COVID, that guy's still around.
He's just as bad now as he was then. And the fact that he was on all the network news shows every night meant to me that he was not really doing his job, because I mean, I know, you do a lot of this job, but you do it for six minutes. He was doing these things every day. He was a media person from beginning to end, and he wasn't really paying attention to what was going on. And their decisions were just as political as any hack would have been. And I'd rather have political sure, Well, well, no,
that's true, Yeah, I get that point. My point is I'd rather have a hack making some of those decisions than Anthony Fauci.
That's very okay, Yeah, because it worked for a while. What John was saying too, it worked. There were including Trump Trump. It probably his biggest steak was listening to Deborah Burrs and Anthony Fauci and not listening to Scott Atlas, right.
Yep, right, yeah, no, I think he knows that, right, Yeah.
Yeah, he knows that now. But I mean, you have to give anybody including Trump, a little bit of leeway for thinking, Yes, these are people who have been in this particular field for decades and should have lots of experience and expertise to bring to the table, and they'll do the right thing. That sort of Contangi's argument, right, they will do the right thing because of their expertise and so forth, and they have been I mean, it's been proven how wrong that is in your face with COVID.
I think it's been proven how wrong that is for decades, but COVID made it undeniable.
Yeah, all right, let's let's move on. We can play this lot.
I didn't get the last word by this, Steve Well, so I didn't.
I didn't have time to really do this way I want to. And it's a big, sprawling subject. You guys had this wonderful back and forth on our substack on originalism, and we got down to you guys, Scott, I say we. I had said something about this months ago, but you guys got around a tangling about Dred Scott. And there's one particular aspect of bred Scott that I thought was left out from both of you that I want to bring up and see if you can't add on to it or sort it out, and we here go on
for hours on this also. But look, you know, as Harry Jaffa pointed out, Justice Tawny's opening statement in that opinion is a perfect statement of original intent, right you quoted it, Lucretia. It was like, you know, we don't want to be changing the opinion of the people who drafted the constitution. It would be wrong with us to do. And the thing is, though, John, is that I've always thought that Justice McLean's dissent gets left out of all
these discussions. So what Justice McLean said an assent was well, wait a minute, you pointed out, John, Sorry, be restarted, Which is you pointed out that Lincoln himself said in his inaugural address. You know, the Constitution's ambiguous about the Privileges and Immunities clause and whether Congress has the power or to what extent they have the power to regulate slavery in the territories. Okay, that's sort of true in
our very short constitution. But the point is, MacLean said, slavery is only sustained by the positive law where it exists. And Jaffa's point was a slave could only be a slave or a negro could only be a slave under positive law, but not under natural law. Okay, The point I'm making is it ought to have not been difficult for justice to say the negro is a person. We know what a person is. The power of Congress over the territories ought to extend to not extending the positive
law of Alabama to the whole country, to all the territories. Right, I'm not stating this very well, but that's the point. And instead what Tawny does, this is the crucial point. And I'll shut up and let you guys go at it. Who's the point is? Is that Tawny said, Yeah, that Declaration of Independence thing, sure all men would include on the surface, you know, negroes and slaves, but they really couldn't have meant it. I mean, we just know they
couldn't have meant it. And so that's why we can't possibly apply that principle to this matter in front of us. It's that sleight of hand that he does it I
think makes possible the wrongness of that decision. And if you would simply say the opposite, you know, the Declaration of Independence means, you know, as Lincoln argued in response to the dread Scott case that in fact, this is a maxim to be approximated, and this case before us presents an opportunity to approximate it in the right direction. That's what Justine stephen Field would have said if he who Lincoln appointed later? Right?
Does that make sense?
You understand the argument I'm making here, John, or.
Not at all? But let's see it again. I'm just kidding.
I'm just kidding.
This is so my So what I understand you to be said, So, I think you and the Krestia have different views of dread Scott than from what I hear, because yeah, so I think what la Cruise argued was that dred Scott was correct as a purely originalist opinion if it's decided in a moral vacuum where there you know, you don't allow the Declaration of Independence to come in. Yeah, well, yeah, it's only because I've had a very strong rye and
you know so, Steve. But Steve, your boy's a little different, because I think your point is that, uh right, that's uh. You're not saying that dread Scott is correct as an originalist matter. You're saying that dred Scott could well it was wrong because it got wrong the relationship between how
the founders thought about positive law and natural law. But I'm not sure it makes a difference in the outcome of dread Scott, because right then, dred Scott, the positive law was that the states could decide right state by state whether to be free your slave, and that Congress could eliminate or allow slavery in the territories, as long as it passed the law to do it. If it had done nothing, then your point is that the natural
law would have controlled. But I see why Jeff argued this, because what he wants to do is to say the reason why dread Scott is wrong is because you have to agree with him that natural rights and natural law are actually in operation. And my view is that dread Scott, I mean originalists mostly think dread Scott's incorrect, putting aside whether the Declaration of Independence exists or not, because the Articles of Confederation in the Northwest Ordinance had already prohibited
slavery in the territories, and so it was understood. I think that Congress had control over the territories and that they could create slavery or they could end slavery. There and that also at the time of the fact. It's very similar to the way Justice Alito does Dabbs. He said he looks at the practice right before the Constitution,
and he looks at the practice right after. And he says, if the Constitution really changed things, like did the fourteenth Amendment really change state law and their ability to regular abortion, you should see after the amendment lots of changes. And he says in Bobbs, you don't see states banning abortion, I'm sorry, I'm sorry allowing abortions after the fourteenth Amendment. So therefore they didn't think the fourteenth Amendment had anything
to do with abortion. And so my boy would be you don't see states changing their view on whether they have the right to prohibit slavery or allow it to be free or slave. After the Constitution. They don't change their attitude on the territories. The Northwest Ordinance is just accepted under the new government. So that's my reason why I don't think anyone thought at the time of the
founding that slaveries are preempted positive law. And therefore I just think putting aside whether the declaration is law or not, you still reach the same outcome. That Tawny was wrong in thinking this is the original stage.
Here's the simple answer. Though it may be the case that for the reasons at the time, Congress, in both under the Articles and under the new Constitution in the Northwest Ordinance, determined that they would they would outlaws slavery in those places. However, and that's a where slavery is allowed to stay. Is positive law, right. The argument about slavery is it is a violation of natural law, and
slavery exists only as a creature of positive law. So Congress decided in seventeen eighty seven not to allow slavery and to the territories, for whatever reasons they might have
decided that. But if circumstances changed, and there is no principled basis for saying that slavery should not extend to the territories, to the places where it is not, then it's perfectly legitimate for the Court to say yes, as a matter of fact, if Congress decides, or if we decide for our reasons, a better understanding of the Constitution now that slavery that to deny a slave owner the right to take a slave into a territory is a denial of the slave owner's property rights, which is protected
by the Constitution. And remember Toni's argument was the Constitution does in fact give protection to slaves in at least three four different areas. The fourth is a little harder to explain the whole idea of a republican government. So why not say that it's simply a different extension of
the positive law into the territories. The only argument for not extending slavery into the territories is because the slave is a person and in the Constitution, and that creates, despite the conference demises of the Constitution, that creates a property in a person, an impossibility a different category of property. That's the only way. That's the only real argument against it. Because Douglas tries to make the argument against it very much in the way you do, and it doesn't work
for very long. He wants it to be a nice little Kumbaya moment where we can stop fighting about it. It's not going to happen.
Because I'm not sure I understand. I'm sure understand. So you're I assume you agree that if Congress wants to allow slavery or not allow slavery in the territories, there's no constitutional provision that prevents it, and there's no way to actualize natural law to override a positive law. Yeah, I'm like, I'm not I'm not sure because I'm not sure how it but if i'm or maybe effectuat or implements.
So Congress just passes something one there they say the Northwest Ordince, no slavery in the territories, or they pass something like the Missouri Compromise slavery and part of the territories. There's nothing that can override that.
Yeah, no, there's nothing that natural law doesn't override it. Yeah, the question is what should Congress be considering. I mean, if there's no problem at all with slavery, make it legal everywhere who cares.
So this is the other point I'd make is that the Constitution does not allow the federal government to And this is this is another reason why I think Twani's wrong. Is an original matter is people did not think Congress itself could ban slavery throughout the country or make the whole country free. That's a matter for the states. Yeah, yes, so I don't.
Really left in the states as a compromise.
Yeah, well, I mean I agree with you if you're saying well, the people who have the authority under the Constitution to make the decision, which is Congress in the territories. They of course can be motivated by natural rights or natural law or whatever, when they also be motivated by utilitarianism when they make their decision, or the desire for
a political compromise. But if you're saying that the natural law doesn't itself implement somehow through the system as law unless Congress passes it, then we actually don't disagree over very much, because.
I just think that's fine for Congress.
It can be informed by anything.
Well can I can? I can? I? I mean, we can and should resume all this. If I had all the time in the world, I would have dust off Don Fahrenbacher's epic book on the gred Scott case, which really lays out a great history of why the Tawny Court was constrained a lot of ways by the lower court cases in state and federal district courts up to that time. It's a point, well, it kind of is. Here's why. Jaffa, by the way, was a huge admirer of that book. I went looked up his review of
it today. He loved just using it Okay, here's here's my summary point, which both of you are going to quarrel with. I'm sure, which is part of the argument here is a legal constitutional one, and part of it is a political one. And the dividing line between those two, the vital connection between those two, is fuzzy. Let me make this proposition, which I think you will agree with. Lucretia is part of Lincoln's case is one about the law.
As a teacher. The Supreme Court is a teacher and is taught here like Douglas is I don't care as Labies voted up or down is corrupting of the soul of the country. That's a political and social point, not a legal point. But there are legal points that buttress that, and they're reciprocal to each other. Is that I don't disagree.
That's not the that's not the dispute between John and me, and and I think what it is. It takes a little as usual, Steve.
You're like a tangential thing, which with the second barrel of a shot, actually she has spare.
It gets down to the very basic question. Because John always wants to say that what I'm trying to do is implement natural law. Or that natural law actualizes or anything. That's not the point. The question is when you look at the provisions of the Constitution as a judge and you try to figure out if there's something that's ambiguous, the question of whether or not I actually agree with you that I think it was very clear that the territories had the power and Congress had the power to
outlaw slavery in the territories. Absolutely, I agree with that. However, why does it matter one way or the other. The question of why it matters is the question of whether or not a slave was a human being, because otherwise
it's just a policy and it doesn't make very much difference. So, if I'm a Supreme Court judge and I'm looking at the dread Scott case before me, and despite all the things Steve was mentioning about the you know, the intricacies of the case, if I'm a Supreme Court justice, what am I looking at? Is a slave a mere article of property just like a cow or a sheep, or is a slave a human being? And therefore a different category that requires a different set of a constitutional interpretation
to be brought to bear. That's the question, That's what I'm saying, I'm not saying natural law enforces something on the courts that they have to do. And then, like you always say, and I'll write about that, you have these liberal progressive judges who say I'm implementing natural law. I get the fear of that, but that's not That's not what I'm saying. And we need to keep debating what those natural law principles are and not lose sight of them like TANGI has for.
Instance, and all the addss.
So seriously, and what you said, Steve actually agreed with about the idea of educating people. If we if we take a completely utilitarian view of slavery, John, it's really hard to argue against it because.
It's a it's it doesn't work, it's inefficient.
Wait a minute, I mean, I'm not going to do this except to say I've read that book.
I've read those books.
The Robert vocal time on the Cross. I well, let's not do that.
Then let's say they look at society.
I mean, go ahead, let's get out with this.
Uh uh.
Actually, I'm just gonna get what I had two things, but I don't remember them. Let's let's do this. Let's properly end and move to close. But first the very brief news item and then to talk about why you out to be having a very happy holiday, John. So, my news item is late word here Friday is that President Trump has reduced to the choice to the next chair of the Federal Reserve too, Kevin Hassett and Kevin Warsh. And I want to go on records.
We have to be for Hassett because well, wait a minute, I was gonna say I'm going to go on record firmly for Kevin.
No, I've met him both. I know Kevin was my boss, and I've met Kevin Warsh several times and they're both dripping.
Yeah, he's a good guy too, But Hassett's our guy.
Okay, wasn't I was mostly making a joke and you took me.
I know what you're gonna You're gonna say something. So I'm bringing out my my Ammo. This is the best speaker's gift I ever received from Lucretia when I spoke at the University of Arizona. McDonald's gift cards. McDonald's gift cards. Well that's my next come in this very fancy, hard to acquire holders. I've been hoarding them for good. So I I've used some of it. I took my relatives out.
You gave me a lot of money on these. I took my relatives out to McDonald's but the day before Thanksgiving, and they got a lot of stuff and they didn't even use one card. But that's also because mcdonald' says, we all know such a great deal.
So listeners, John is showing us all as McDonald's swag. I must say, John, you must be having a very cooty monster right you must be having a great holiday system. McRib is back in circulation right now.
Except yeah, today in the New York Post. It was so great. I thought of you. This is the headline. Okay, and it's really stupid when you actually read it, But this is the headline. McDonald's fans both hungry and horrified after worker exposes how the McRib sandwich is made. Mchel nah. That's the headline.
And then when it.
Goes in and it says basically what we've known all along. It's actually a ground pork formed patty that's fried on the grill and then put in the barbecue sauce and then reheat.
You're making me hungry.
I know, people say, you're making me more hungry. But there are actually people and there was this who say things like, well I thought it was a real rib.
Well, no, it's.
The dumbest thing I've ever read.
Honestly, What do they think a hamburger is actually a slice of a cow?
A slice of a cow? Yeah, you know, as you put it yourself.
It's just a story from it.
It is spam. It's like, that's why I like it, because I like spam too.
But here's the other thing is that McDonald says, this is what's in it, This is what's actually in the patty. I gotta find it. Sorry, it's ground pork on I had it round pork, water, salt, a little bit of sugar, dextros and rosemary extract. They use pork picnic or pork shoulder. Preservatives were removed from the mcgribs seven years ago.
Pork shoulder is pretty cool. I mean, okay, yeah, I.
Mean ground pork. I mixed up with ground pork all the time. I may.
Wait, we are we are running along Lucreatius. Give give us a true Babylon bees. Yes you can try, just try.
No, I can't because five Jasmine Crockett hits campaign trail to acts for votes. You heard Betty Johnson yesterday act I will, I will shorten it a little bit. You didn't this one. I got to get out there, didn't talk about it. Don't need to. Pope urges Jesus and Satan to put all their differences aside in the name of peace. Not funny, is it?
No?
California family still waiting for permit to gingerbread house. Oh yeah, right, finally revealed. This is probably my favorite. Quans are finally revealed to be elaborate prank on white people.
Oh yeah, that's that's actually true, right it is?
And then the last thing is my favorite op ed. You'll appreciate this, guys. What's the use of having a Second Amendment if I'm not allowed to drive around the neighborhood gunning down Christmas inflatables?
I like that, you know. I want there to be an Asian Christmas holiday because then we would, you know, because Asian I don't know whether you white guys argue about this a lot. We argue a lot about whether to give gifts are cash, because most Asian gifts are these little cash and these little red envelopes, which I think is an American, but the economists all say you should give cash, and a lot of Asian people rather
give cash. Yeah, I'd like twelve days or someone gives me cash every day every day, or McDonald's or McRib yeah, or the magic of the mccookie monster gift card.
Well, now, John, I mean, uh, maybe you don't know because you you know, you left Korea when you were just a little kid. What is I mean South Korea? This is an amazing modern story to skip over. But it's a very Christian country. And what's Christmas like in South Korea? I don't know.
Oh, they love Christmas. Actually they love Christmas in Japan too, okay, which is not heavily Christian, but they love the gift giving and the I mean, you know, I'll tell you a funny story. When I was a first year law student, we had a Christmas party and I put on the Santa costume and just skip Jesus out of all the kids. They didn't know Santa was Korean. Yeah, it was very funny. Oh, there is a picture, but I think I destroyed it.
All right, John, say your lines here and we'll get to an end here.
Because always buy more books than I think I heard Steve talking about flying to Powell's Books just to buy books.
Is that? Yeah, I'm doing a Yeah, I am crazy.
You've heard of this thing called Amazon and the postal service, right, But yeah, anyway.
You discover stuff when you look through the stacks.
See that's really that's not on their online catalog. Because I got a great set of the papers of Alexander Hamilton from Powell's Books sitting up there there you go, under one thousand dollars. And he wrote a lot, it's like thirty volumes.
Well I did today. I will mention this just to annoy Lucretia. I did to Gay get four very thick volumes of the letters of T. S. Eliot, which I will enjoy. And because pretentious intellectual as Lucretian never tires of saying, all right, here's here's this week's a.
I'd say, And I said, buy more books, and always strike your whiskey, meat and meat. And then Steve, what latest ai confection do you have? It's not even remotely as good as a McRib.
So I have a news analysis article and the headline is John you discovers a new threat to liberty the McRib and here's the first couple paragraphs. By now you've heard the news. In a stunning act of judicial overreach, an activist court has declared to McDonald's McRib sandwich unconstitutional and somewhere deep and somewhere deep within the labyrinth of the Federal Society email lists, Sir John yu is furiously drafting a memo explaining why this is not really wrong,
but an existential threat to the American way of life. You, that's true, best known for his belief that the Constitution is less a legal document than a suggestion box, would likely begin with.
You see, I think Steve actually put that in there. I don't think that was ai.
He would likely begin with first principles. The framers, he would explain, lived in a time of smoked meats, questionable pork products, and limited time only offerings. James Madison himself, you will assure us, almost certainly envisioned a robust ex executive power to reintroduce seasonal sandwiches without interference on the judiciary. The Constitution, you would write, is silent on the McRib and, as he has taught us before, silence is not a restraint,
It is an invitation. Okay, that's enough. I have taught Ai so much. All Right, bye guys. Next week we might get sunder subject pseudos.
We might.
M hm. Ricochet join the conversation.
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