Marbury then, Mayhem now

Welcome to another episode of America's Constitution. I'm Andy Lipka here today with Professor Akil Omar. Hello, Akhil. Hey Andy, and this week is just the two of us. Um of course our last couple of episodes we've had Steve Calabrazi, co-chair and co-founder of the Federal Society, who does not always speak for the Federalist Society of course, but we we've had Steve on but this week, Andy, it's um just you and me.

Yep. Wanna thank him for a lot of time, a lot of effort, and some very interesting And thank you also and and thank you also to our friends in the Federal Society, some of whom may be joining us. for the first time, perhaps because the Federalist Society went out of its way to actually advertise that these episodes and welcome aboard. Because our audience is growing, maybe some from FedSOC, some from other sources, but if this is your first or second or third episode, welcome aboard.

To some of our audience, especially this day and age when everyone's a little bit hyper, it may be jarring to hear welcome or thank you to the Federalist Society or something like that. Just to be clear, this is not a podcast of or for the po the Federal Society primarily. We welcome everyone and in fact

the Federalist Society complimented us, I think, on the nature of of the podcast that this was a cross the aisle discussion. We're happy to have them and their opinions and their input, those on the other side of the aisle. And in fact

Maybe we can get rid of that aisle to some degree and convince some people of one thing or other. Okay. Yeah. So here's a quote from the uh Twitter of the Federalist Society. It's this is a quote within a quote. All in all, it adds up to something you don't see that often these days, a prominent conservative and a scholar, often on the side of the Democrats, having civil discussion and finding common ground, as well as principled disagreement.

This is the description of a recent episode of America's Constitution featuring Akil Ridemar and Professor Stephen Calabrazi discussing the legacy of Ed Meese, his impact on the judiciary, and today's top constitutional issue. And then they link to us. So thank you to the Federal Society for that shout out. And in that spirit, I want to tell you a little bit about what's coming up on some of our podcasts.

So we've had a bunch of guests recently. We had, as we mentioned, Steve Calabrese and we had Josh Chaffetz. And of course, very memorably, we had Justus. Steven Breyer. So it's been quite a feast of guests recently. And we're happy to announce that next week we're going to have a very timely guest. and a very welcome one. We've been talking a lot about these questions related to the unitary executive and firings and who can the president fire and who who not.

And we mentioned the the quandary that to Hampton Dellinger, who was the special counsel to the office of special counsel within the executive branch, the quandary that he was facing. And in fact, he has now agreed to come on the podcast. So he will be on or he'll be a special guest coming up next week or the week after. We're gonna tape it over the next week. So I try not to get pinned down too much into timings because w events sometimes overtake us. But we're very excited about that.

If I could Cavel for just a minute about Hampton. He is my former student and dear friend. I love him to death. His son Jackson is actually a student at Yale Law School and drops by my office from time to time and I love that. And of course our audience our longtime audience, the old timers in the crowd will remember that uh when uh Ham Hampton's father, Jackson's grandfather, the great Walter Dowinger, passed away.

we did an episode in his honor. So can't wait to talk to to Hampton. But this is a mark, his constitution and a lot of the people that you're getting are people that we're connected to in various ways to Stephen Breyer, for whom I clerked, and for Josh Chaffetz, whose teacher I was and and mentor, and Steve Calabresi. We try to bring folks on this podcast in our world who are friends and we try to have

friendly conversations, but oh, sometimes they're hard hitting as well because we try to ask hard questions of folks on all sides. We don't do gotchas. And Andy, I don't think there's been a single guess. that we've ever invited who declined our invitation to come back again. Just for those of you out there, if we ever give you a call and invite you on, we will treat you right.

even if we it can be sometimes a little bit vigorous. But we love you if you come on and and thank you to all our past guests for having come on. And actually when Justice Breyer came on, we got some emails saying, Boy, you were rough on him and in fact the story there is that he wrote a book. And he's a professor at Harvard Law School. And Rabakiel calls him up and says, We'd like to have you on.

And they talk about what it's gonna be like. And he says, Unlike all these other things which are just people kowtowing and saying how wonderful you are, we think you're wonderful too, but we are going to ask you serious questions as befits an academic, a professor, and an author of a book about the court. We're we recognize that your book is not

a biography of your your glorious childhood or whatever, but rather is a serious discussion of the law and we're gonna treat it that way. And he said, you know, yes, let's do that. And that's what we did. So at least that's what we tried to do anyway. and that's Sounds like an apology or an excuse. It's not, but perhaps it's a bit of explanation.

And Andy, if I could just say one other thing, since Steve mentions that I'm one of his two closest friends in the world, not counting his wife. Andy, you're one of my closest friends in the world. and we didn't know each other ten years ago, but now we talk virtually every day, and we gave Justice Breyer candidly not just the MR treatment, but the Lipka treatment. This is treatment you give me when I send you my manuscripts at every stage of development.

you asked me the hardest questions and push back sometimes again and again if you're not satisfied with my initial responses. And oh, as an author, I'm so very grateful to you because I think no one actually gives me better feedback, which includes pushback. than you do. And since I'm on this point, I can also tell you that one person who's also been really great at giving me

feedback, but a little bit less pushback actually is our friend Steve Calabresi. But I'm so very grateful to both of you because you read my stuff very carefully and you both ask Really good and hard questions. Andy, you more than anyone, maybe anyone that I've ever had. Some of my readers in years past, many of them have been my students, and so they may be a little bit more diffident.

And others um maybe are a little bit more ginger. But Andy, I I love it when you actually give me really vigorous questions. Thank you. But I I think though that I'm setting myself up for a problem because I'm hoping to complete a book and when you get to read it, oh boy, the tables will be turned and there'll be carnage. But okay. So

Now Getting back to the subjects that we're gonna be covering on the podcast today and in the near future, we mentioned this very exciting prospect of having Hampton Dellinger on to talk firsthand about things that couldn't be more timely. But there's so much that's timely day to day. And given our intention of covering things in depth, we have to take our time and we ask our audience to be patient with us. We

We'll get to most of the things that are on your mind, not necessarily all, but so in the near future, we're going to be talking about some issues regarding the First Amendment and questions of government reach and government decision making and how that interacts with First Amendment rights. So some things that we're gonna be w and we're not going to do it now, but just to tease some things that we are gonna be doing without a keel

weighing in on them and giving away the the store here. But we are going to talk about how this applies to, let's say, removing security clearances from law firms that represent clients that might oppose the president. or revoking a green card from a protester because of their political position. or revoking federal funding because of a private institution's hiring policy. Where advocacy is a various ideology.

or denying press organizations access to White House briefings because of their decision to call a body of water by a particular name, as opposed to the president's preferred name. Again, I you can't imagine what we're referring to there. Okay. So those are some things that we are gonna be getting to. And some of those might sound to you like they implicate recent uh developments at Georgetown.

And so we're hoping to convene a panel of a number of Georgetown law school faculty, some of whom have been on this podcast before. We've got these invitations out there and we w we can't say for sure what's gonna happen, but We expect that we'll be able to do that. So that's another thing that's gonna be coming up.

So I think you might want answers to these things immediately, but give us give us some time and we'll try to explore things in a way that will enlighten you in a way that maybe you couldn't get anywhere. And so another thing we'd like to do is bring our audience in. And if we have some time today, we'll see how things work out with what we're planning on talking about. Um, but if there's time we may go to some audience questions.

Well that uh just to tie some of these things together, of course Hampton Dellinger has recently been involved in an episode that implicates questions of the unitary executive and the willingness or the ability of the executive to fire people in various positions.

And that's of course what we were talking to Steve Calabrese about. And one of the points that Steve made had to do with liquidation. So we last week we were talking about the sinking fund. And the sinking fund, if you recall, was a an early institution passed by statute by the first Congress. in seventeen ninety. So some people were calling this the the decision of seventeen ninety because it contrasted with some of the things in the seven decision of seventeen eighty nine.

Okay. And so Steve was in responding to questions about the sinking fund. And he was saying, even if the sinking fund somehow m seems to go against my theory, my Steve's theory of the unitary executive. It could just be that the first Congress is making a mistake. And I was misinterpreting the meaning of the article two. And courts later, for example, make what we now acknowledge to be mistakes, like for example, in Plessy versus Ferguson, when they're interpreting the Fourteenth Amendment.

So we don't necessarily go by the interpretation of early actors when we're trying to decide what something actually means. So we let that pass and a couple of our listeners wrote in about it and I would I've been thinking about it as well. So uh Akile, tell me here's a few things that occurred to me as a layman in listening to these. So first of all, Steve's here talking about Interpreting new constitutional amendments. And he's asserting in a in a way that this is the same thing.

or at least analogous for the purposes of a liquidation analysis, as saying that the first as the first Congress legislating on the newly adopted Constitution. But it seems to me that there's quite a difference there. Many of the authors of the Constitution and many of those who debated the ratification were members of the first con And the first administration.

And this is not necessarily true of the court, for the most part, especially the Plessy Court, which is thirty years later. In and the first Congress is quite likely to know what they had in mind, for example, when the decision of seventeen eighty nine was written.

by that same Congress, these same people, one year before the sinking fund is created. And the other person who's likely to know what they had in mind is George Washington, who signed the bills related to the decision of seventeen ninety. First hand knowledge like that, I think, is part of the idea of the logic of liquidation. as opposed to courts. In fact, we drew attention to this in the past when we talked about the weight that should be given to court decisions involving Solomon P. Chase.

Who opposed section three of the fourteenth Amendment and then when he offered an opinion in Griffin's case in the context? of the meaning of section three of the fourteenth amendment, we said the fact that he was opposed to the fourteenth Amendment argued for giving less weight to his ideas on this, kind of an anti-liquidation.

But you can't say that for George Washington, whom everyone thought would in fact help to flesh out the implementation of Article II. He signs the bill creating the sinking fund without complaint and makes no effort to remove persons. such as the Chief Justice, for example, from the sinking fund, when John Jay, the Chief Justice at the time, two years later,

doesn't show up for meetings of the sinking fund, saying he's too busy. And they can't get a majority. So the George Washington can't can't spend money is that he wants to spend. Because the sinking fund can't release them because John Jay isn't showing up and Jo George Washington is making no effort to remove him or saying I could remove you or threatening to remove him. Eventually he does show up months later.

But anyway, so all of these things I think argue for this notion that liquidation means a very different thing here than what Steve was talking about and saying you can't re they frequently make mistakes just like the court made them. Your reaction.

Very well taken points. Since you mentioned the eighteen sixties and the Reconstruction amendments, especially the Fourteenth Amendment, I can tell our audience that we had a big conference at Yale last week on the first sentence in the Fourteenth Amendment. The sentence that says everyone born in the United States and subject to the jurisdiction thereof is born a citizen, a constitutional birthright citizen.

It was an originalism conference sponsored by the Rosencranz family. Robert Rosencranz and his son Nick Quinn Rosencranz, one of my favorite students, have generously subsidized this. a program. We launched it many years ago with a to great fanfare with a keynote addressed by Justice Clarence Thomas, but then COVID intervened and we're now trying to jumpstart it once more. We'd like to have this a conference every semester. And it's especially focused on um originalism and its implications.

I mean in it for all sorts of things. And we welcome critics of originalism as well as exponents and supporters of originalism. But this last week we had a great conference at Yale on this first sentence. of the Fourteenth Amendment, and we had all sorts of Volks Yale professors talking about this, Kate Stith and Jed Rubinfeld and Keith Whittington and Garrett West and Tony

Cronman, I'm not going to give the whole list, but Jack Balkin, Christina Rodriguez, but Steve Calabresi was a key figure in this whole event, helping me organize the thing. And Steve and I emphasized Quite a lot. the Civil Rights Act of 1866, which not only has a lot of textual overlap with the Fourteenth Amendment, but was passed essentially by the same Congress.

by the same vote, plus or minus. It had to uh get two thirds of the House and two thirds of the Senate, like a constitutional amendment, because Andrew Johnson vetoed the measure. So same Congress, same year, Same language, same vote, plus or minus a few, and So that's the just the sort of liquidation, Andy, that you're talking about. And it wasn't from judges. Judges at the time weren't supportive of the Fourteenth Amendment in the main, but Congress obviously was

the author of it. Congress is the only institution specifically mentioned in the Fourteenth Amendment. The last sentence talks about Congress enforcing the provisions of this article. So the Reconstruction Congress. is to the Reconstruction Amendments something rather akin to what the First Congress is to the Constitution and the Bill of Rights, which come from the First Congress.

Yeah, great point. So that's okay, very good. I should also mention, Akhail, that they had this originalism conference and I couldn't attend because I was Sunning myself. I have to say that this was a great example of the Everscholar community coming together as well because I said maybe some of our ever scholars might be interested in this. He said, Oh, invite them as my guest. So we sent out an email to people.

on the Ever Scholar mailing list and audience, we keep asking you to sign up for this and please do and I'll tell you how in a moment. And so we sent this email out inviting them to the conference. A bunch of them came. They met up not only with you, but with each other. And then you generously invited them to join you and the faculty for lunch.

So now they got to schmooze with these luminaries on this topic which we've been covering in the podcast. So really it was a great thing. And it's really an example of some of the benefits of being a member of the Ever Scholar community, which costs you nothing. And this was friends, community, education, hobnobbing with top faculty, et cetera. This is it was great, so I'm told.

I wish I would could have been there, but instead I was in Florida. Anyway, and so audience, please join this community. And the way you do it is you go to everscholar.org. And right at the top of the page is a place to enter your email address. Do is click the button. Done. So couldn't be easier, couldn't be cheaper and couldn't be more valuable to your life in ways that I think

You can't even foresee at this point. So thanks for that, Akeel. So let's just take a break for a moment for those of our listeners that are interested in getting their cont continuing legal education credit, C-L-E, from listening to our podcast. So as we've partnered with the New Jersey State Bar Association on this. So if you go to their website, podcast.njsba dot com and you

Fill out the form, you'll be asked for a code. You can enter the code and receive your CLE. What is the code? The code is a five digit number seven eight seven three four. Just to repeat, 78734. Enter that. And in the states of New Jersey, New York, and Pennsylvania, that's all you need to do, and you'll receive your CLE. In other states, You can receive it through the reciprocity offered by most state bar associations. So check with them on the procedure.

And thank you to the New Jersey State Bar Association for partnering with us on this.

Okay. So now that's a look back. And in one of the things that we did a lot of in the episodes with Steve was originalism. We looked at a lot of history and a lot of stuff that went on in the early republic. And you mentioned at one point, Makil, that a case that maybe you don't think of If you're just a run-of-the-mill person, not a kilomar. Maybe one of the things that one doesn't think of necessarily when one thinks of the unitary executive is the case of Marbury versus Madison.

But in fact, you've uh actually written on this and you think that it's important not only in questions of unitary executive but also presidential transitions. We talk about The unitary executive being important because President

need to be able to fire certain people, it said. The time when that need or desire might be at its height is when a president takes over, because after all, he's probably going to be saddled with a lot of appointments of his from his predecessor, who may not be of the same party and At a time like that, it might be at its height. Can we learn about the history or what can we learn from the history and from this early case in this important opinion from the court led by John Morris?

Way back in nineteen eighty-nine, the bicentennial of the Judiciary Act of seventeen eighty-nine and the launching of the United States. George Washington takes his oath of office in early seventeen eighty nine. I wrote an essay all about Marbury, a bicentennial essay, and I'm just gonna read a couple of little snippets from that are very relevant to

What you just asked. First Marbury established not simply the power to review the constitutionality of congressional statutes in cases properly before the court, but also the power to review the legality of actions and inactions of the executive branch. As Professor Henry Monaghan has reminded us, Marbury thus stands as the cornerstone of modern administrative law.

Um end of quote. And by the way, Professor Monaghan, a very great scholar at Columbia Law School, graduate the Yale Law School, recently passed away, and we remember him very fondly. To resume the quote, second The case obliged the Supreme Court to wrestle for the first time with the scope of implied presidential powers. In particular, the asserted powers to remove officers and to invoke executive privilege.

These issues, of course, have loomed large in our own time, lying at the heart of constitutional debates over independent agencies, special prosecutors, the Tapes, you're on contrafair, uh, to name just a few examples. Our audience at this point is scratching their heads saying, What does Marbury have to do with removal? And the answer is everything.

And so just to set the scene uh just a bit. So Andy, here's the background of Marbury versus Madison. And I come back to this, by the way, in my book, The Words That Made Us. And so we're going to return to that a little bit later in the conversation, I hope. But Marbury arises out of the first transition of power from one party in effect to the other party.

George Washington succeeds himself in after the first four years. He's unanimously reelected. You could think about the transition from the first Washington administration to the second, but it's not much of a transition. It's same old, same old. He steps down and he's succeeded by John Adams, who was his vice president, was pretty much in line with his approach. So that was a transition, but not quite from one party to the opposite party. But of course, in 1800, 1801.

There's a fierce contest between Thomas Jefferson and John Adams, former friends who are are now leading very different factions, parties in America, very different visions of the future. And they're very much d disagreeing in part about um European power politics. Back then it was France versus England, but American politics was sharply divided on many issues. Jefferson wins.

Adams peacefully r relents and relinquishes power, hands over power. Oh, but it's a more complicated transition than many people understand. On his way out, Adams, who has been repudiated by the election, and his allies in Congress, the Federalist Party, pass a bunch of laws that Jefferson is going to inherit. And those laws create various uh governmental positions that are filled at the end of the Adams administration.

And then the question is, how stuck is Thomas Jefferson gonna be with these ghosts of Adamsonian's past? Our audience may of course know about the so called midnight judges. These are Article Three judgeships that were created at the very end of the Adams administration and Adams nominated people to fill these judgeships. I think there were sixteen in all, and at least fourteen, maybe fifteen of these posts went to Federalists. Maybe one didn't.

And so he nominated people for these positions and the Senate confirmed them and just At the very end, on his way out, Adams in effect, commissions these people. And his Secretary of State, his right hand helping him and all that, fixing the great seal of the United States.

is none other than John Marshall, who for that last month is Secretary of State and the new Chief Justice at the same time. And John Marshall himself is not a midnight judge in that his position, the Chief Justiceship, was established by the Constitution and set up. under Washington, but the and it was filled initially by John Jay. Eventually it's filled by Oliver Ellsworth, but Ellsworth steps down at the end of the Adams administration and Adams picks.

John Marshall's to fill it, um, and Marshall is confirmed, and in for the last month, Marshall is still holding over as Secretary of State.

And he's the incoming Chief Justice. And by the way, one of the reasons Marshall is picked is'cause he's in town and um Adams can't afford to send a letter to someone across the country saying, I'm nominating you for this chief justice position, will you accept'cause it's going to take too much time and the clock is ticking down and so he actually tells John Marshall at a certain point, it has to be you'cause you're in the room.

And you're the in effect in the room when it happens. So Marshall actually agrees to be uh nominated to the Chief Justice Lot and he's confirmed by the Senate. And for the last month though, he's still Secretary of State and he's I'm stamping the uh these affixing the great seal of the United States to these commissions that are going out to these new Article three judges. But in addition to that

The Adams administration at the very end, along with fell uh federalists in the uh Congress, passed statutes, creating a bunch of other offices, and Adams then fills them. One of these positions is the position of justice of the peace. of the District of Columbia. They're moving down to D.C. that the federal government's relocating. It started off in New York, then it moved to Philadelphia, and now it's moving down to D.C. And you're going to need some functionaries in this new district.

to do various things. And so they create a whole bunch of positions. They're called justices of the peace. And Wait for it. They're not Article III judges. They have five year terms, which I believe is exactly the term of office that our friend Hampton Dellinger was uh appointed to, and we you're going to hear from him next week. So who appoints the Justices of the Peace? It's President Adams. And who seals these commissions? It's Secretary of State John Marshall.

Mm Marbury's commission and several others weren't delivered on time. They were commissioned before the end of the Adams administration, indeed hours before midnight. They're technically not midnight judges, they're midnight justices of the peace, Mar William Marbury and others, and the commissions aren't delivered.

um on time, uh before the end of the um Adams administration. John Marshall, I believe, gives the task of delivering them to his brother, James, who himself is a midnight judge, Article three judge, and James doesn't get the job done and So now Jefferson's in power, and this commission has not been delivered to William Marberry, and he sues for his commission. He sues the new Secretary of State, James Madison. Thomas Jefferson's right hand man.

And that's the background of Marbury versus Madison. Now, how does that connect to all these unitary executive issues? Here's how. First of all, Marshall says this commission is valid. It's been signed and sealed and that's sufficient. So unlike a a property deed, which proverbially must be signed, sealed, and then. and delivered. That's where we get the phrase, delivery is not essential, says Marshall. And so um Marbury court. And so therefore in effect

Marshall is saying Marbury is a justice of the peace. But here's the point. If this position of just as the peace were removable at will, it wouldn't matter because Thomas Jefferson could say, fine, with what in what you know, one nanosecond, I give it to you and at that very same moment I fire you. I I pull it back. I heck, I don't even need to deliver it to you in order to say you're fired. If I can fire you at will, at whim for any reason.

the whole issue about delivering the commission would be irrelevant. And yet that's not what Marshall and the Marshall Court says. So implicitly, at least the Marshall Court is saying this statute that gives William Marbury, a five year gig, and doesn't specify removable at will. implicitly is not removed but well. Maybe he could be removed for cause, for implicitly for malfeasance or corruption or negligence, but presumably he's not removable at will. And that's the backdrop

Of the basic pris presupposition of the case. Now, why is that relevant? Oh, because our friend Steve last week said On this sinking point, you could read into this statute an implicit idea that the president can just fire people at will. And you and I both said, that seems a little circular to us, and so we're not sure about that. Marshall didn't do that when it came to Marbury's five year commission. So that's interesting.

Also interesting, Marbury is not a member of a board, a commission. So he it's not quite like the sinking fund, a precursor of modern day administrative agencies like the National Labor Relations Board or the F Federal Trade Commission or the Securities and Exchange Commission. Rather He's more a precursor, I think, today, to folks that we would call administrative law judge.

He has quasi-judicial duties, but he's not a full-blown article three judge with life tenure. He's a more minor functionary. He does some ministerial things, some administrative things. He's not completely different, Andy, than modern administrative law judges. And so the argument would be. since at the very beginning, none other than John Marshall is reading a statute passed by an early Congress signed by an early president, not George Washington, to be sure, but

Since John Marshall is basically reading the statute as giving this person a five-year fixed term of office that crosses administrations. You're appointed under one administration, but the next administration is stuck with you for five years unless you misbehave and and maybe implicitly there is the power to remove in cases of negligence or corruption or malfeasance or something like that.

Wow, that's an interesting early precedent, early gloss, perhaps, on the administrative law judge issue, which is one of the issues going forward. Here's a little we leave that one. It's a five year term and that corresponds to to other things, right? It's the same as Hampton Dellinger, but also it will encompass the entirety of the Jefferson administration. And maybe he gets reelected when in fact he does get reelected, but you don't know that at the time.

So there's some thought here that Congress is asserting its independence of the president here by trying to say that the president can't even come right out and say the president can't fire him. There's some sense that's their intent. And that goes to the sinking fund also, that they're clearly doing things

to establish a certain independence of the president. In that case, there are things intrinsic to the functioning of the sinking fund that are independent of the president. The president can't release the money, for example, without and here it's more a matter of the term. is something that seeks to make it independent of the president. Steve was saying if the statute is silent, then that means the president can fire him. That's the lesson of the decision of seventeen eighty nine.

But here we're drawing a different lesson, which is that there's clear intent to make the these positions independent of the president. And that would seem to speak towards them being independent of the president. But here's the argument on the other side. Who's the president who wants that? The outgoing present, the loser present, the lame duck present doing this after he's been reputed by the poll. So Jefferson thinks all distinct.

And we don't know if Jefferson would have agreed that all this was constitutional and could bind him because. At the end of the day, John Marshall does not order Jefferson to hand over the commission to Marbury. And we don't know whether Jefferson would have defied that. Court order. Oh d don't you see ladies and gentlemen of the audience this is

So interesting. If you know your history and your early history, you have a a useful way to think about some modern development. And the other analogy, so one analogy I I made was between Marbury, William Marbury, and today's administrative law judges, because he wasn't a full blown Article three judge. He did somewhat judicial thing. The word justice sounds a little bit like a judging thing, but he also did more administrative stuff, more executive stuff. So

In the same way that modern administrative agencies sometimes blur executive and judicial functions, maybe this just is the piece the position did too. And the question today, one of the issues is can Trump fire ALJs across the board? But Andy, the other analogy which you picked up on is five years just like Hampton Dellinger. If so, you might say, Why did Hampton Dellinger actually in the end step down? D maybe he had a good argument based on Marbury.

Now, since our last episode, the DC circuit did weigh in and say that they're not going to prevent. Dellinger's firing. They're not going to order the president to keep him on board. And I just told you a little bit about. And Dellinger and Hampton basically acquiesced in that and and he said, and we'll talk to him next week and w we who knows when we're gonna upload the episode, we'll talk to him next week.

But I think he said that he thought his odds in at the Supreme Court were slender, and I think he's right about that. I suggested as much. Andy, in recent episodes, in our conversations with Steve, and here's why. Here's why he doesn't quite have m Marbury to stand on as a rock solid precedent. He, Hampton Dellinger, doesn't really exercise judicial power and he does um exercise some more obviously

uh executive functions. He does I think play a role in prosecution, which Justices Lapeace didn't quite. And it's harder to say that He's just so it's a little hard to say he's just like the justice of the peace. In Arbor versus Madison. But Andy, we're going to talk to Hampton soon and we're going to get his take on all this. But audience members, we're going to talk about other transitions early on in the early Republic. But the one that's closest.

to the facts at hand are the very c uh sharply contested election of eighteen hundred, eighteen oh one, and some issues in the transition when Jefferson says, why should I be stuck? With people appointed at the end of the last administration, whom I consider to be, this is Donald Trump's formulation, part of. a quote, deep state unquote, trying to constrain my ability as the incoming president with the mandate to do the things that the American people chose me to do. So audience.

You see how this issue today has some similarity to the issues raised in the background of Marbury versus Madison.

Akila, you mentioned the D C circuit didn't side with Hampton Dellinger, but really my understanding is they didn't side with them on the restraining order. In other words, th there wasn't a final opinion in the case. And so that doesn't really decide the issue. He he had his own reasons, like you said, and we'll have to ask him about it.

Ask him whether he thought about Marbury as a defense. So in the end then, K I just want to see where you came out on this because I'm listening to you talking about Marbury. Sounds convincing to me. John Marshall, the court's important opinion, lasts hundreds of years, says this is okay and the Congress's intent is clear.

And then you say Jefferson might have disregarded it, but we will never know because he doesn't order him. So what actually is the outcome here? Is this just a question of remedy that the court found that the law was okay? But they didn't order any remedy? If that's the situation, isn't it still a precedent that would be relevant here? So I just wanna be straight and clear on this. Sure.

Is there a presidential value in what the Marbury Court said? And is it just a matter of that they didn't order the president to do anything and this just goes to remedy? So remedies are important and remember Steve Calabrazi told us that Humphreys executor, as he understands it, stands for the proposition that you don't get your job back, but maybe you get your pay at most, your back pay.

And back then, John Marshall, in effect, he's not he's not ordering that the commission be delivered. I don't know what if any salary a Justice Lapeace was entitled to, and John Marshall doesn't get into all of that. Um, titles and honor were important. And in the end, John Marshall actually does in effect say, commission or no commission, you're a justice of the peace.

But Marbury is so complicated because at the end of the day the court says, Oh, but we don't have jurisdiction, so never mind. But he's wily in that okay, what does Marbury want? He wants a thing called a mandamus, which today would be called an injunction. It's not so different than the Hampton Dellinger litigation. What's an injunction? It's a piece of paper. What's a mandamus? It's a piece of paper. Mandamus is a piece of paper from a court.

to typically an executive official saying you must do something. And it's a mandate, you must affirmatively do something, as opposed to you shall not do X. This is saying you must do Y. So he wants a mandate. A piece of paper in effect from John Marshall to the Secretary of State, the New Secretary of State, James Madison. Well what does that piece of paper say if Marbury wins? It says hand over the commission.

What's a commission? It's a piece of paper. What does it say? You're a justice of the peace, and you can frame it above your desk. Now, does he get his commission? No. Marbury doesn't. Does he get his mandamist? No. What does he get? A piece of paper signed by John Marshall, not as Secretary of State, but as Chief Justice in the fact saying, you really are a Justice the Peace. Okay. So this is brilliant, because Marshall has no jurisdiction in the end.

he says to say all this, but he says it anyway, and he's giving Marbury something. Why doesn't he give a mandame? Many people thought that Jefferson might defy the court order. And remember, the judiciary is not as well established. then as it is today. It's the weakest of the three branches for all sorts of reasons that I explain in especially in my book, America's Constitutional Biography, that it's third out of three. But just one sentence I think to help you with that.

The judges uh in the American Revolution were not the heroes of the American Revolution. In ten of the thirteen s uh colonies, they sided with King George against George Washington. Um and so when you read the Constitution there are three articles and and the judiciary is third and presidents pick justices, but justices don't pick presidents and Congress lays down rules of procedure and evidence for the judiciary and the judiciary doesn't even have

absolute power to have its own rules of evidence or ethics for that matter. The judiciary doesn't tell Congress how it should organize itself, but Congress tells the judiciary. How it should organize itself. The judiciary is not nearly as powerful as it is today. And Marshall hesitates to push the point too hard. Madison doesn't even show up in courts to defend the case. So he's already

sending a signal, maybe a shot across the bow, that the executive branch is keeping its options open, may not recognize the jurisdictional pretenses of the courts. So Marshall One Treads very carefully. Yeah, he says a whole bunch of things, but then he pulls back at the end. Also, if we look at what he says, he doesn't expressly articulate the removal power issue. He just says that Marbury's entitled to his commission. And since Madison isn't there in court pushing back.

He never really talks about maybe this is irrelevant because even if you hand the commission to Marbury, you can take it back from him the next moment, or maybe you can even fire him on the spot without withdrawing the commission. Because Jefferson formerly hasn't done any thing like that. And so that case, Marbury versus Madison, doesn't talk in great detail.

about the removal question, doesn't talk about the five year term of office and and whether it implicitly permits presence to remove in cases of negligence and uh misconduct and corruption and and only those things as opposed to just being able to fire someone well Marbury versus Madison, the judicial opinion doesn't get into any of those issues in great detail. And finally, just to repeat, It may not squarely apply to an office that's structured precisely the way Hampton Dellinger is.

Okay, but I'm still not clear on exactly where that leaves us today in terms of the you're giving us this analysis very interesting, but you're not just doing it because it's interesting, you also consider it important. And that we should be guided by it at some level, or perhaps it could be fodder for a brief before the Supreme Court. Correct. That's what I'm saying. In a breeze.

No and So, I'm not sure if you're pushing back against Steve's per conception of unitary executive for everything, for cabinet heads, depart uh heads of departments, and for independent agencies, and for administrative law judges. and for uh people like Hampton Jellinger, um, maybe even for the lower civil service, the maximalist view of the unitary executive says, oh, the president can fire three million people at will or something. And Steve said maybe civil service.

Fine. So now we're down to maybe a few hundred people rather than the millions of people who are civil service employees. But even for the policymakers, the administrative law judges and the rest. Steve might think Oh they're all removable at will, and the statute at issue in Marbury about that. Five year justice of the peace is in tension with that. And the so it's at least the lame duck congress.

that passed this and the lame duck president Adams who signed it. Marshall himself and the Marshall Court don't get into all these details. And remember finally, at the time, some people think that Marshall is a hack. He's not this is the beginning of his three decades on the court. He's very much allied with one side, the side that lost. that election. And he's making some mischief, truthfully, for Jefferson, but he also is pulling back in part because I think he is aware

that he's not that he might get actually real resistance from President Trump. Oops, President Jefferson. Okay, so just in terms of where we are today, you mentioned

So you made it clean now that this is fodder. What I would say is If you're gonna make if one is gonna make an argument before the Supreme Court elsewhere that the constitution, which is essentially silent on the univ unitary executive, notwithstanding Steve's claim that there's a textual basis for it, you would say as one piece of evidence

John Marshall didn't think so. The Marshall Court didn't think so. Maybe they didn't put it into effect, but you can't conclude from this reasoning that they anything other than that they would not have been convinced by that argument.

That may be overstating it just a a bit, but I just wanna go back to what I wrote long ago in nineteen eighty nine when I didn't know which way it would cut. I said Marbury versus Madison quote the case obliged the Supreme Court to wrestle for the first time with the scope of implied presidential power. In particular, the asserted powers to remove officers and then I had some other stuff.

These issues, of course, have loomed large in our own time, lying at the heart of constitutional debates. Oh, and then they talk about some other stuff. So I'm saying is Marbury is a very relevant case. not on judicial review of acts of Congress, but on other things about the unitary executive. And yes, a good brief, an original brief before the Supreme Court is gonna have to talk in some detail about Marbury and the underlying statute, which to repeat.

Said five years. On the other hand, who knows what Jefferson thought about it, and so the president was a lame duck president and the Congress was a lame duck Congress that that passed. But uh along with the sinking fund, they're gonna have to talk about justice as the peace, it seems to me. Okay. But you say who knows what Jefferson thought about it? And that's right. Who knows? So that doesn't provide any information

There may be information, I don't know. Okay, but I haven't gone through all the Jefferson papers on this. Okay. All right. So let's assume that who knows means no one knows. Okay. What Jefferson thought about it. Okay. It may not mean that, but let's just assume that for a moment. Um and then But what I heard you saying is that we do have a sense of what John Marshall thought. Because you the logic of what you laid just laid out. The logic of this is that

He wouldn't have e the what he wouldn't have even dealt with it because it wouldn't it would have been moot because Jefferson could have just fired him at the moment. So there was no issue. He could say John Marshall is so wily. John Marshall could say, Oh, I never said that at all. Madison didn't appear in court.

Since Jefferson, my second cousin, didn't have the courtesy to tell me that he was prepared to fire uh Marbury and that he had the right to do so under his reading of the Constitution. Since none of that happened, I just didn't reach that issue a at all. Okay. You had me convinced before and what you just said didn't unconvince me. You're allowed to be convinced, Andy, by what convinces you. But all I want our audience to know is

History is important. Marbury is actually important. And Marbury is important for stuff that you never were taught in eighth grade. It's not just about judicial review. It's about at least two issues that are the issues de jour. Why? Is it ever conceivable that a president could defy a court order? That's lurking in the background of Marbury versus Madison. And two How should we think about the president's power to fire officers who were appointed by an earlier and antagonistic administration?

Okay, but now just a minute, okay. Is it ever conceivable that a president could defy a court order? Of course it's conceivable. It doesn't mean that they're allowed to do it. Okay, and No correct. So let's just not let that sit there, that bomb. Okay, because you're saying earlier I heard you say the legitimacy of the court was yet to be established. And maybe John Marshall didn't want to put it on the line if we he maybe he didn't wanna have it be a question of power.

Okay, that I'm sure he didn't believe that the president had the right I think you're absolutely right about that. I think you're absolutely right about that.

But this is the long before the steel seizure case. It's long before the Nixon Tapes case, where presidents did obey a Supreme Court that had grown much stronger over the years. And finally, Andy, since We're reading about this in the news too, a lot of loose talk about impeaching judges because you don't like their rulings. It is the case that John Marshall did fear the possibility of impeachment at the hands of Jefferson's allies, were he to push very hard. And in fact, one of his colleagues.

On the bench, not on the Supreme Court, a lower court, Judge named Pickering, was about to be impeached. by the House of Representatives. Now Pickering was in fact impeached by the House and convicted by the Senate and removed. After Pickering

One of John Marshall's colleagues on the Supreme Court itself was impeached by the House, but there were two thirds to convict him in the Senate. A majority voted to convict, but not by two thirds. He's a man named Chase, not Salmon P. Chase, whom we talked about earlier after the Civil War, but Samuel Chase.

So we're in an era where, just to repeat, one lower federal court judge, and there are not that many judges, there's six Supreme Court justices and only fifteen or so lower federal court judges. So it's not like nine justices and a thousand lower court judges. It's six justices and only fifteen. lower federal court chency. So it's a small group. One of these fifteen, plus or minus, pa is in the process of being impe impeached, man named Pickering. He's gonna get convicted.

A Supreme Court justice is uh gonna soon be impeached, name Chase. He'll be acquitted. But John Marshall doesn't know all of that. And meanwhile, of course, there's a revolution going on in France and people are being guillotined and oh and Thomas Jefferson is very pro-French Revolution. So John Marshall doesn't know truth for. just how far Jefferson is gonna push the

That is true. So I did throw that bomb out there because it's true. At this moment, all sorts of things that today are very well settled or unsettled. Is a guillotine constitutional? No, of course it's not. But

Thomas Jefferson, some people thought was actually crazy. Do you have a right to guillotine people? Of course y you don't, just because you don't like them. So you're absolutely right, Andy. The fact that John Marshall may have been worried that a president might defy a court order is not the same thing at all as the claim that a president has a right to defy I don't want people listening to this podcast. Thank you.

And here's a source for of authority that that yes, he can defy the court order with impunity. Why not? And and by the way, on Pickering, why is he impeached? Is he impeached? Because he has unpopular opinions or the president doesn't like the opinion, or is it for an actual reason?

Oh this is it's these are like law professor hypotheticals cause and so is Marbert because they're uh Pickering is at a minimum not competent because maybe he's simply suffering from what we today would say is dementia or Alzheimer.

suffering from severe cognitive decline. And even if it's that, maybe that's not a high crime misdemeanor. But do you want him presiding over a capital case if it's your life in the balance or you're the victim of of a crime? Either way, I'm okay. So maybe suffering from demand. Maybe he's a drunkard. And again, is that a a a crime or disease? Or That's not good behavior. that or m it may be something more than that. And the grounds for impeachment were a little bit ambiguous. On Chase

because he refuses to allow the defense attorney to present to the jury the the fact that they have the ability to nullify. And in those days the jury was so dear to the notion of people's rights. That jury nullification was a real thing. The jury was really like a fifth branch of government, if you will. And because he would not

allow this, that was the grounds for his impeachment. So it wasn't a matter of him having unpopular decisions or or something like that, which would be very illegitimate, but this was actually an allegation that he was not doing his job according to the proper standards. H here's what I said in America's Constitution, a biography on this issue, way before again current controversies. I wrote this book.

Twenty years ago. This is from page two hundred. House members in the early eighteen hundreds impeached a pair of judges for misbehavior on the bench that fell short of criminality. The Senate convicted one, John Pickering, of intoxication and indecency, and acquitted the other, Samuel Chase. f of egregious bias and other judicial improprieties, which include not letting defense counsel make proper arguments to a jury. Now, here's what I say in a Flip no.

Although it has been suggested that Judge Pickering was charged with a technical crime of blasphemy, the word blasphemy nowhere appeared in the articles of impeachment. Because some people say, oh, you can only be impeached for criminal. Misconduct. No, that's not true. But you can but it does require misbehavior and not mere honest misinterpretation, which i is, I think, the standard that

um some people are invoking. If a judge gets something wrong, when judges are sometimes they're human, they can get something wrong. That's the basis for impeachment and removal. And I would say, no, that's not remotely close to treason, bribery. or or other high crimes and misdemeanors. But suppose this is the complicated thing. Suppose Pickering was sort of merely suffering from dementia. Is that

bad behavior or mis treason, bribery, other high crimes and misdemeans. You can say misdemeanor means misconduct. Demeanor means conduct behavior. Misdemeanor means misbehavior. Misconduct. And it's misconduct to basically be doddering on the bench. It's misconduct to not step down when you're dodgering. So now you see why I said this is like a law professor hypothetical, because these are somewhat close questions.

Yeah. I I don't know the law on it. But uh certainly it seems intuitive that if you're just suppose he was aphasic. He couldn't speak. And couldn't couldn't write his thoughts down. Could he serve as a judge? No. But is that not good behaviour? No. It's not bad behavior in any kind of moral sense.

But Andy, since you're an ophthalmologist, I just can't resist um mentioning Sir John Fielding. Sir John Fielding is, wait for it, an English justice of the peace. He's a Justice of the Peace just like Marbury's a Justice of the Peace. He's the brother of the very famous writer Henry Fielding, author of Tom Jones, Joseph Andrews, and other great humor novels. And Sir John Fielding, who's one of the great justices of the peace of his era, is, wait for it, blind. So just But he's very cool.

J Justice is blind. So Andy, let's put up on the show notes an image of Sir John Fielding wearing and he actually has a a blindfold. So we'll we'll post that picture uh Akill. But by the way, that picture hangs in the National Portrait Gallery in London. So the ever scholars that go to London on this trip will have an opportunity to see it'cause we're gonna we're gonna be at the National Portrait Gallery. We're actually gonna have dinner.

And Andy, if you're gonna plug Ever Scholar, I get to plug the new book. which our audience keeps hearing. Just early this morning I sent off the last round of revision before bound galleys. The the new book is called Born Equal, Remaking America's Constitution, eighteen forty to nineteen twenty. And chapter one opens with a story about the world's first anti-slavery convention. It's held in London in 1840. Oh, and I've got a great

portrait, a great painting at the end of that chapter, Andy, and it hangs in the National Portrait Gallery also. And you and ever scholars, you can see that as well when you go off to London. You mentioned that your book is coming out and I think from time to time we ask our listeners to do various things like earlier in this podcast, we asked them to get their CLE credit by going to the New Jersey State Bar Association website.

One thing that you can really help Professor Marr with is if you have any intention of reading this book, which I imagine if you're spending this time with us today, you're can't wait to read the book. You can pre-order the book. You can go to a variety of websites. Amazon comes to mind if you aren't worried about Jeff Bezos. And you can pre order the book. If you go there you if you go to the to Amazon, for example, you'll get a price guarantee. So if the price is offered

Well at a lower number between now and the publication you'll receive that discount. Anyway. By order by pre-ordering it, aside from being among the first to get it, it actually is helpful to Professor Marr to have these pre-order numbers be respectable in a variety of ways. Uh for one thing it ha it helps the it it tells the publisher that there's a real incentive to promote the

And what does that mean? It means that it's more likely that Professor Marr will come to your community and and address the local organization about it and whatever else. But no, really, it would be quite helpful to uh pre order it and

Okay. So Akil, so I think we've we we've talked about Marbury here and In the end, just to put this to bed, you've a few times you've mentioned this question of like Marshall was worried that Jefferson might disobey, whatever. You don't find any authority for Trump to disobey an order of the Supreme Court. Um I do not.

Just so it's unambiguous. Thanks so much for the plugging the new book. Let me share with the audience as we approach the end of this episode a segment from the last book. The words that made us. Oh, and that one you don't even have to pre-order. If you don't have it, you can order it and it'll show up on your doorstep soon enough, or you can get it from your local bookstore or your local library for that matter. But that one's already out.

And as the audience knows, it's the words that made us America's Constitutional Conversation 1760 to 1840. It's volume one of this three-volume set. And I want to read three pages all about John Adams because they're remarkably relevant. to what's going on right now. And I wrote this of course long before the current moment. But audience, you'll see some interesting connections, I think, to the current moment, which is all that one really can hope for.

History is that it'll help you see certain things, certain patterns perhaps in the new light. And this is from pages four thirty five to four thirty eight of the book. One, proverbially, is a lonely number. At any given time, one and only one person shoulders the crushing burdens of the American presidency. Events combined to isolate John Adams, making his presidency a uniquely lonely president.

Adams had spent much of the decade from seventeen seventy eight to seventeen eighty eight far from home in France. The next period of his life left him further isolated. A vice president without a branch, an old fashioned statesman without a party, quite, and a politician without a partner, facing emerging two man teams. Hamilton Washington on one side, Jefferson Madison on the other. Thanks to the decision of seventeen eighty nine.

incoming President Adams was entitled to cabinet officers of his own selection, but at the outset of his administration he opted simply to continue with the department heads that he inherited from Washington. Alas, he did not converse well with these men. He was never the best of listeners and did not improve with age. Also he spent more than a quarter of his presidential tenure away from his department half.

back home in Marilogo, I'm excuse me, in Massachusetts, with his beloved, clever, nurturing, and ailing Abigail, rather than in the Capitol with his government. President Washington too had spent time away from the capital, but had wisely used much of this time.

seeing and being seen, mingling with his fellow citizens on a celebrated New England tour in late seventeen eighty nine, on a quick trick to Rhode Island after it rejoined the Union in seventeen ninety, and on the Grand Circuit of the Southern States in seventeen ninety one. Ultimately, Adams discovered to his horror that several of his cabinet secretaries were in tight conversation with Hamilton.

Not all of this was machination on Hamilton's part. He knew how to run government. Adams did not, and it often made sense for Adams' cabinet men to receive and follow Hamilton's operational and policy advice as issues arose. In his retirement, Adams colourfully complained that his initial cabinet had consisted of, quote, puppets danced upon the wires of two jugglers behind the scene and the jugglers were Hamilton and Washington. Wow, that sounds a lot like Trump sometimes. Back to the text.

Pre inauguration, Avas made genuine efforts at outreach. Jefferson wrote Madison, quote, My letters inform me that mister A speaks of me with great friendship and with satisfaction in the prospect of administering the government in concurrence with me, unquote. But Adams enjoyed spirited face to face confrontations.

Jefferson hated oral combat and thus told Madison that he would refuse any position in Adams' executive cabinet, a prospect that conjured up painful memories of his repeated and humiliating cabinet defeats at the hands of Hamilton. Quote, I cannot have a wish to see the scenes of 1793 revived as to myself, and to descend daily into the arena like a gladiator to suffer martyrdom in every conflict. Unquote.

As Adams assumed office, even those who had backed him against Jefferson harbored grave doubts. And I want you to hear this quote, because it sounds a little bit like people who voted for Trump but held their nose. Oliver Woolcott Sr. Connecticut's Federalist Governor had served with Adams in the Continental Congress in the seventeen seventies. In seventeen ninety five, Washington chose Woolcott's son and namesake RFK, no, son and namesake to replace Hamilton as Treasury Secretary.

Two weeks into the Adams administration, Sr. warned Junior what to expect from his new chief. And here's a quote from father to son telling him what Adams is really like. We have done the best we could in our elections. We've chosen a very honest man, a friend to order and to our national independence and honor. But that you may know that I'm not mistaking, I will for once, under a strong seal, that is of secret.

venture to tell you that I always consider mister Adams a man of great vanity, Pretty capricious, of a very moderate chairprudence, and of far less real abilities than he believes he possesses. I therefore sincerely wish that he may have able counsellors in whom he will confide.

though, as he will not be influenced but by an apparent compliment to his own understanding, that is flattery, it will require a great deal of address, again flattery, to render him the service which it will be essential for him to receive. Okay. Wow, that sounds somewhat familiar. Okay, last couple of paragraphs.

Adams did not have his own Hamilton or Madison to support him, as did Washington and Jefferson, respectively. Nor did he have a political party that saw him as his founding figure and essential banner, again unlike Washington and Jefferson. Nor did he have a hand picked cabinet to steady him, nor did he have a vice president willing to work closely with him in a coalitional government.

That left Abigail, who was generally perceptive and loyal to a fault. But Abigail was in fact too loyal to him personally and too close to him emotionally to give him detached advice on the most critical constitutional decision he confronted as president. a decision about the very structure of American constitutional conversation. And this, Andy, finally in conclusion, is going to take us back to the First Amendment issues that you said we're going to talk about in later episodes.

Large technological, demographic, and geopolitical forces were merging to make American public discourse. far more combative in the mid seventeen nineties than it had been only a decade earlier. This would be like Twitter today and and social media. renewed warfare between Europe's two great powers, England and France, and today we could think about Russia and NATO. Warfare that now had a strong ideological edge thanks to the French Revolution.

exerted a powerful gravitational pull on still tiny America. European politics thus globalized and deepened what might otherwise have been viewed as smaller and local policy rifts between Adamsonians and Jeffersonians, or was what was almost the same thing between Federalists and Democratic Republicans.

heavy immigration from various old world flashpoints, especially France and Ireland on the Jeffersonian side, and England on the Adamsonian side, added still more intensity, anxiety, and emotion to the New World myth. More and more newspapers were now competing more and more fiercely than ever for eyeballs. Many new and ambitious professional writers were reacting with increasingly pointed crow.

When Adams found himself insulted daily in this new and nasty newspaper environment, he chose to back a statute, the Sedition Act of seventeen ninety eight, that promised to put an end to the venom. His decision first to sign and then to wildly over enforce this law seemed plausible to many at the time, including several circuit jurists, and importantly the usually shrewd Abigail.

But these fateful decisions reflected a deep misunderstanding of the American Constitutional Project, at whose core was the idea of a robust right of ordinary folks even if unfair, mean spirited, and mistaken, to criticize all manner of public servants, including the President himself.

So in that we see now Adam's just an undeniably great man in all sorts of ways and a man of law and so impressive and a man who devoted his entire life to public service. So I'm not Saying that he is extremely close to Trump in all sorts of respects. But I think what you can see, Akhil, is that even a man w of some greatness but also of some flaws

Can fall prey to the pressures of a difficult time under in the presidency. So imagine how a man with little virtue and little talent and little insight and little and met by even greater complexity of challenges. can fail to live up to the uh what the public and the constitution.

So just to repeat, I begin saying the awesome responsibilities of the presidency fall crushingly on one man's shoulders. That's a version of the unitary executive. Okay. And Adams is vain. He is a little bit mercurial. He likes to be flattered. That's going to be true of many great people who seek out the presidency. And it's a lonely office. And he doesn't trust other people and he doesn't converse.

well with other people and he attempted to lash out against critics. Those things are constants across many presidencies. He had a greatness to him in so many ways that personally I think Trump lacks, but people in the audience get to decide that for themselves. But I'm picking this passage because I want audience members

quite candidly, to read the books, to know our history, so that they can make their own analogies and disanalogies, recognize patterns and differences. This one that I read from the words that made us It's already out. You can get it at your library bookstore. And the next one, oh, I'm really excited about it. And Andy, I'm excited especially because frankly, I think it may be my best. And if it is.

It's because you have been with me from the very beginning, pushing back and encouraging in the way that you always do on this podcast and else where you helped a lot with the words that made us. You helped a lot with this new one. Can't wait to for our audience to experience that when they're ready.

Yeah. For our thank you for that. But I think regarding this book and our audience, we have a mutual friend David Blight who said that you could always sell books that are about sex, dogs and the civil war. Not all three together necessarily. Yeah, that counters up some weird images. But I think that for our audience purposes One thing perhaps I pushed through a little bit was to write a lot about

And I think that the more that one spends time with Lincoln, the happier one is. And the more one is rewarded and the wiser one. And if I if I had one thing that I pushed you towards again and again, that would be it. And I think if our audience agrees that's a good idea, then you'll be happy. Let me actually, Andy, read a paragraph that I tweaked this morning.

before I sent off this version. And I thought about you a lot. And you're gonna tell me that the list isn't perfect and it probably isn't, but it's done now. So Andy, we just have to let it go. But here's what I say about just that point. And to repeat, I revised this paragraph just an hour before we began this podcast. This is from the post script, which Andy I put in because you

very much pushed me to do it to put it mildly. And you were right. You're almost always right. I was tired. I said, oh that done. You said, no, Akeel, not done. You have to have a post script telling us what it's all about. And I'm I talk in the postscript about my uh admiration of A. I said, I challenge naysayers to identify any major political figure in post eighteen hundred American politics.

Heck, in post eighteen hundred world politics, who is better net net all in, as either a leader or as a human. Don't compare Abe to Christ, although many did when he died.

Compare him to Thomas Jefferson, Andrew Jackson, Daniel Webster, Stephen Douglas, FDR, Ronald Reagan, William Pitt the Younger, Queen Victoria, William Gladstone, David Lloyd George, Winston Churchill, Margaret Thatcher, Otto von Bismarck, Conrad Adenauer, Angela Merkel, Napoleon Bonaparte, Charles de Gaulle, Simon Bolivar, Benito Juarez, Yuajul Neru, Cole Mayer, Nelson Mandela, or anyone else in the last two hundred and twenty five years.

No modern country has ever produced and then picked as its supreme leader anyone better than A. And Andy, you were the one who said Make sure that you spend a lot of time with Abe Lincoln. Our audience deserves that. And you're gonna have fun actually doing it. And oh, you were right. Thank you, and I can't wait to read it in printed form myself, having read it in all these pieces here and there. It'll be great to read it as a whole. Thank you, Andy.

Okay, so next week, Hampton Dellinger, we're very proud of that. We'll see you then.