Scrip for Scripture on the National Mall

To another episode of America's Constitution. I'm Andy Lipka here with the very tired Akil Omar. Welcome, Professor Omar. Thank you, Andy. Today was graduation day at Yale. It's always a very emotional day for me, bidding farewell to some of my favorite students meeting their family and friends, going from one event to another because I don't want to sh short shrift anyone who wants to spend

time with me. It does be the honor of wanting to spend time with me on this very special day. My dear friend David Nierenberg came all the way out from the West Coast. to be involved in this. Our audience hasn't heard a lot about David Nierenberg, but they will in future episodes. He describes himself as my brother from a different mother. He is a huge philanthropist. He's helped send many folks from impecunious backgrounds, from very difficult backgrounds. He's financed.

them and help them come to Yale. So he was out today. Just l lots of emotional stuff going on. I couldn't even remember my password logging onto my computer. So audience members, if I say more stupid things than usual and Andy somehow isn't able to edit them all out. I'm giving you the excuse.

So here's an outline for the episode. We're going to finish up maybe our discussion of religion and American constitutionalism and American history and American life. And then we're going to go over a few things that happened in the news that harken back to things that we've covered on this podcast before. Okay. Now, one thing that we've talked about in the podcast before, before we get to any of that.

We had an episode called Isle's Not Walls and in that episode we talked about a bunch of judges that were appointed by Trump in his first administration who we looked at as having some merit perhaps. So trying to put that narrative out there that people should be judged based on what they actually do and say. But I think we could be criticized in that because okay, where's the episode talking about judges on the other side?

And that's fair, I think. And today, Akil, you told me that you were quite impressed with the judge that you heard from today. Yeah. Judge Jeb Bosberg, I think formerly James E. Bosberg, but his nickname is Jeb. came and gave remarks at the law school commencement as the guest of the law school. He is a very distinguished federal judge. He's the chief judge of the United States District Court.

for the District of Columbia. He's a total Yaley. He went to Yale College and Yale Law School. I think he may have spent some time in between in England. And I he's, I believe, a democratic appointee. Whether or not he's a democratic appointee formally, I think I need to double check that. He has pushed back very hard again.

President Trump, especially Trump's efforts to deport various people, just pack'em on planes and send them beyond our borders. And truthfully, offline, Andy, in conversations with you, I said, gee, I think some of Judge Bosberg's rulings have been pretty Emphatic. Uh, I'm not sure that I know that many other judges in the past who have done things quite as strong as telling.

US attorneys in a courtroom, you need to pick up the phone and call planes back, because I'm issuing a ruling to that effect. And I said, Wow, that pretty uh bold, not even giving the administration time perhaps to seek immediate emergency interlocutory review from the D C Circuit or the United States Supreme

court. So I thought that was pretty gutsy on his part. But here's what I can tell you, Andy, today.'Cause he came to the Yale Law School, his alma mater, and gave very impressive remarks about what he wanted our graduates to think about on this special day. He gave them a lot of life advice and career advice.

Very heartfelt. He put a lot of effort into it. One thing that he he he said is, You at the end of the day have to do something that you believe in. So he talked about how in his own life He began in a firm that were paying him quite well to basically do insurance defense work, which he described as I'm paraphrasing, basically coming up with reasons to deny claims.

of people who maybe deserved not to have their claims denied. And there was a legal basis perhaps for what he was doing, but he just didn't feel great about it. And so he left that. to do something else. He says, that's the most important thing that happened in my life is when I did stop doing one thing and went in instead to public service. And he says, I can't tell you that every single thing I have done in public service

has been something that I I loved doing. It's a package, uh any job and you might th love some parts of the package more than others. But you says try to do something Well, you believe in the core mission of the institution. Even if that it doesn't mean that you believe in every single thing they do every single day, every single thing that you do every single day as part of the organization. So I thought that was genuinely thoughtful. And then he says you have to be willing to take risks. And

So what if some things don't pan out? You can fall back on golden resumes and impeccable credentials. So maybe every so often just go for it. And I'm thinking to myself, yeah, he did that. with these orders, for example, against the Trump administration. Those were risks that he was taking. So he's not just blowing smoke. This is heart fault. And he put a lot of effort into this speech. It was very

stylishly done, Andy, and just admiring someone who actually learned how to write. And the third thing, he says, don't let your career completely get in the way of your life. You have to figure out how all these things fit together. You can say that's all trite and obvious or something, but it's not trite and obvious and not everyone has followed His advice, but he has, and he has walked the walk. And so I came away very impressed by him. He talked about his friendship.

with folks at Yale and elsewhere. He did not mention by name, Andy. some of the specific friends, but I happen to know that he lived with a group of law students who included people who were of a different point of view. I I think the world knows, I think I can just say this, that one of his seven housemates in this time at Yale was a fellow named Brett Kavanaugh. And they played basketball together all the time. Did I mention that Jeb Bosberg is six foot six?

You didn't mention it, no. But now you have. He he's a big guy. I mean he it's he's hard to intimidate, okay? He's gonna stand his ground. And he talked about how this group of eight students have stayed together over the years. They have a reunion, I think he said at least once a year, maybe it was more often than that. They've gone through life's ups and downs.

It was beautifully pendered and so well done, Judge Bosberg. Thank you for coming back to your alma mater and sharing your ideas. And thank you for your courage. Even if I'm not sure I agree with you on every single thing, that wasn't the test. When we talked about the Trump appointed judges who are

But I was gonna say we did a bunch of judges there, but certainly you didn't list the ten things that you might have strongly disagreed with that some of these judges may have ruled on. You talked about their finer moments. Talking about these commencement speeches, I think that

Listening to you, of course, these are pearls of wisdom. But as you say, sometimes maybe that's a little bit try take risks. Okay. That's a very common thing. But a lot of it is in the delivery, right? And you mentioned Judge Bosberg's And I think that the idea of living your life and having your career laced with courage, we can all say it and maybe we want to live it, but we have to believe that it is something that i is the right thing to do in the moment. And when the moment comes,

Sometimes you could think back to an inspirational moment that you had in your past, like when you heard Judge Bosberg tell you this story and actually make you believe that this was the right thing to do. Not just that. It's a the maxim that you can write on a board. Here's the ten things that I want to do, but that you actually felt it in your bones in that moment. And words can do that. We always get back to Abraham Lincoln on this. podcast. And part of the reason is that Lincoln said things

that stay with us at the big moments in our lives. And that's, I think, a lot of the value of these speeches. So I don't know if this speech is going to be available for public viewing, but if it is, we'll put a link up to it and we would encourage you to watch it. So that you can imbue it into your bones for the future. He did mention Andy had experienced when he was a law student and was taught about some of the courageous judges.

during the effort to implement Brown versus Board of Education, especially the Deep South. I was in that part of the world just last week, as I think I mentioned in last week. Podcast. He singled out, for example, Judge Frank Johnson from Alabama. This is a guy who got death threats.

For his courage, his physical courage, and his juridical courage in enforcing the mandate of Brown versus Board of Education. So he actually connected his own speech to things that as a sitting federal judge to things that he had learned about. federal judges when he was a law student thirty six years ago or whatever. I think he's class of nineteen ninety.

And finally, on Judge Bosberg, I've uh had the privilege of knowing his father, Tersh Bosberg, who himself is a Yale um, a very distinguished gentleman. One of the things that he did actually was he played a prominent role in making the homestead of Frederick Douglass in Washington available to the public and it's a I think it's a national historic monument or something like that that you can visit and and thank you to him.

Okay, distinguished family. So now on to religion. And of course we've gotten up to the twenty first century here in our chronological at times approach to the matter. And so President Trump, never ending font of controversial matters has provided us with some grist for this mill with an event that took place last weekend, which was this event on the National Mall. That was called Rededicate 250, a national jubilee of prayer, praise, and thanksgiving. So that sounds religious, and indeed it was.

There were a large number of speakers, all but one of whom were Christian. The one that wasn't was a Orthodox rabbi. And there were as far as I'm aware, and I'm pretty sure I'm right in this, there were no speakers that were non believers, or at least Avowed nonbelievers. There were no speakers who were Muslim. There were no speakers who were Hindu. There were no speakers who were anything other than Christian and the one Jew.

And so this was sponsored by, just giving you some facts here, Freedom 250. What is Freedom 250? Freedom 250 is part of the National Park Service. It's a nonprofit subsidiary of the National Park Service, I'm told, that is involved in fundraising. And They issued this invitation in their name, Freedom 250. And I'm not gonna read the whole thing, but rest assured that it has many invitations to prayer and describes the event as prayers. and sent invitations specifically to mostly to

In fact, they had the church engagement toolkit that they provided a link to. They had the three pillars of the day relating to miracles. And so it was avowedly religious event. So how does this fit into the paradigm that we have been presenting about religion in American life and the constitutional approach to ridicule? So Andy, we've been talking about these two institutions that have existed for thousands of years, the idea of the state, the idea of a church.

I mean we're talking about how, at least in our tradition, we wouldn't want those to be one and the same thing, completely few. So that means there's some kind of separation. between the two because they're not the same thing. Now, I don't love the metaphor quite of a strict and absolute wall of separation for certain reasons. I wouldn't, for example, love the idea that, oh Because they're c strictly separate. This is a bit of a straw member, just so you see what I wouldn't love.

Since they're strictly separate the state, the government shouldn't be spending money when the church building is on fire. The church should take care of that. Or if there's a robbery in the church, the government doesn't get involved in prosecuting the robbers or protecting the church from would-be robbers, requiring, for example, that the church have to have private security, whereas everyone else benefits from a public police force. That's the kind of

thing that some strict separationists actually think maybe the government shouldn't be doing any of that. Or if it should, they come up with these very elaborate justifications. The reason that the government is allowed to put out the fire in the church is that right next to It's spread to them next door.

Right. Exactly. Yeah. Okay. And we wanna get the robber because the next day they might rob the jewelry store or a private bank. But that's the only reason. We're not protecting church people and I would say if you're protecting them the same way you're protecting the bank and the jewelry store, then there isn't any favoritism here. It's equality. So I tend to favor the idea of equality more than some absolute separation. Other defenses.

of this separation idea with allowing fire protection and police protection would be fire protection and police protection aren't providing any kind of benefit that is in any way can be used by religion as such. And then they say, Oh, but here's what would be different. Suppose the government gives mass to kids in every school, public and private, and it gives the map to the private secular school. Oh, but you can't give a map.

to a private religious school because the teacher in a private religious school could use that map to teach something about religion. Okay, now we're gonna look at the Holy Land or something, and here's where Jesus was born and here's when he rode into Jerusalem or something.

So some people say, oh, you should never give religion some neutral benefit that everyone else gets that the religion could use for religious purposes. I think that goes way too far. So I believe that certain ideas of separation can lead us astray. Let's think instead about equality. But if we are thinking about separation, some people focus especially on protecting government from religion.

Also we have to worry about religious takeovers of government in any way, shape, or form. And other people worry more about government's takeovers of religion from the other side. Let me begin. by talking about why religious folk who believe in their religion should want to limit the government in all sorts of ways for the benefit of religion itself. And I would say religious equality is the big idea. One key issue in this recent extravaganza that you described is this the government the time.

And that's hugely important because of course the very thing that governments cannot do individuals, non-government people are allowed to do and maybe even have a right to do. Let's just talk about prayer in the schools. Government shouldn't be organizing prayer in the schools. I'm pretty emphatic about that. But private people are allowed to say prayer in school. Some of my friends in high school used to say

a silent prayer before every exam. They're allowed to do that. Indeed, not just allowed to do that, they argued they have a constitutional right before the exam or while the exam is being ministered, to bow their head and quietly ask. For divine intervention. And maybe some of them needed that given that they hadn't studied quite enough. Okay. But so it matters.

Hugely. It's not just some technical little thing, the state action doctrine, as if that's some technical idea. It's a deep principle that. Government can't do certain things that private people are allowed, that non-government is allowed to do and even has a right to do in certain circumstances. So here's the first thing we have to get straight. Is this a government event? This extravaganza. Because if it is, all sorts of rules apply. If it's not, maybe the opposite.

rules apply. I'll uh I've talked uh about religion, but I could talk about other things too. Government shouldn't have a race as such, but I'm allowed to have a racial identity. Government shouldn't have a sexual orientation as such, but I'm allowed to say I'm straight or I'm gay or whatever. So We call that. We haven't talked about this in lots of episodes. I think we may have talked about it at least once in five years, but if we haven't, shame on us.

It's called the state action doctrine. It's not state as in California or Utah. It's the government's action doctrine. And the basic idea is that most of our constitutional rights, Andy, are rights against the government. and not against private entities or individuals. And indeed, I am allowed. I may be a bad human being, but I'm allowed in deciding whom I'm gonna marry.

to engage in race discrimination. I'm going to say, oh, I'm going to only marry someone who has this skin color or that one. Government can't force me to marry this person or not marry that person because of their race, but I get to choose that. Many people I know and I don't think poorly of them. I don't just go around saying they're biggest.

I might say, I only want to marry a co-religionist. This is very important to me, my faith. And if I'm going to spend a life with someone, I have a strong preference for spending it with someone who shares my Faith. Government can't do these things. So Andy, first question is, is this a government event? It depends on how you become a government event, but certainly you'd use government money. So money from the one hundred and fifty million dollars.

That Congress appropriated for events commemorating the 250th anniversary of the Declaration of Independence was used for this. this organization, Freedom two fifty, that is a a government organization, at least in part. And of course then of course it's held on government property, but that's That's a fact, whether or not it's decisive, it's a fact. And then of course you You also have the participation of the president, the vice president.

the Secretary of State, the Speaker of the House, and numerous other government officials. You also have the White House website promoting this event.

And referring to it in r religious terms as commemorating the United States as a Judeo Christian nation. And that language is used on the White House website. You also have the White House website and the w president himself having a proclamation proclaiming that Americans should spend time each day in prayer and relating this event to that proclamation. From all of those points of view, one might argue that it's a government event. Those are things that to me make it sound like one.

And and this is sometimes tricky because everyone, even the most private persons, can be said sometimes to get some government benefits. Oh, I think I'm a private person, but I get taxed. credits for various things in various ways. If I get a solar panel tax credit or something for my solar panel on my house, that doesn't make my house, I hope, some government site.

where, you know, I've got now to be religiously neutral and racially neutral and sexually orientation neutral and all the rest. No, it's my house and I'm a person, even if I have a solar panel tax credit or something. So, but this seems way beyond a solar panel tax credit for some of the reasons you identified. Now here's what I promised the audience. I was gonna try to begin by saying why people of faith.

Atheists, but people of faith should actually be worried when government starts to itself become too overtly religious and especially sectarian, picking among faith. because I don't want the government privileging some other uh faith tradition over my own. I don't want Alabama to be able, if I'm non white, to say

just as its motto, Alabama the white supremacy state. We've talked about that before. Nor do I want Utah to be able to say Utah the Mormon state. And I have that mm nothing against members of the Church of Jesus Christ of Latter day Saints, Mormons, but I don't want the government saying that's the official religion. And if you're a member of that church, you're an insider, you're a government you're the government approves, specially approves your

understanding of the Almighty. And the rest of you, we're not gonna throw you in jail. Maybe, maybe there's no coercion even that's being directly exercised against you, but we're saying you're out, you're outsiders. So that's easiest of all. to see if the government is privileging one sect over another, even in non coercive ways, if the coins said

In Jesus we trust. And we talked about this in a little bit. Now, I want to introduce uh a phrase that's in our doctrine, that's in Supreme Court case law, and that's in the literature, it's called ceremonial dais. And the thought is, and I've mentioned this in previous episodes, that mere invocations of the Almighty as such, of even a monotheistic God.

Don't quite cross the line, even though, from a certain point of view, it could be said they create outsiders. What if you don't believe in God at all? Okay. And now the government is telling you an outsider. But pull out a quarter, my friend, and take a look at it. I think it says in God Be Trust or the dollar bill. When Andy, you and I how many times have we been at the Supreme Court together? Three? Three.

Okay. And every time there was God save the honorable court, this honorable court. God and so that is perhaps baked into the system. As I said, the declaration talks about all men are created equal endowed by their creator. And we talked about the supreme judge of the world. We talked about all those in past. I think that you can distinguish between it sounds like you're distinguishing between we're saying God because we've said it a million times before.

Not we're not actually invoking God. We're invoking the phrase that we've invoked many times before in God we trust. Because otherwise I think if the point is to not create insiders and outsiders, I think you have to take into account that thirty percent of Americans are not believers. And so therefore you are creating outsiders if you are invoking God in a religious way. If you're just repeating something that's been said for many years, then I think that's a little bit different.

And I think this goes in a way to the Ten Commandments case, right? In some ways. Like you you'll they say, Oh, it's just a historic thing, the Ten Commandments that it's historically important, something like that. But when you have it in every classroom and the senses that either you're brought up with it or you're not, or maybe you're brought up with this rendition of it or that that edition of it, then I think you're creating insiders or outsiders. And that seems to me the real question.

There is a tension between this idea of insiders and outsiders and even the exception that is pretty well established in our doctrines for For example, a national day of thanksgiving, which goes back to Abraham Lincoln. And you're right, Andy. Bigger tension now than it was at the founding or even at the Reconstruction, because there's a much higher percentage of non-believers.

There weren't so many non-Christians. There were lots of different kinds of Christians at the founding, including some deists, but there weren't that many open and avowed atheists. And when Alexander Hamilton accuses, this is a phrase that he uses about Thomas Jefferson. He says he's a fanatic in politics and an atheist in religion.

That was a very serious charge, and it might have been true, but Jefferson and Sales denied it. It was said about Abe Lincoln that he was an atheistic and a blasphemer, that he mocked. the Christian religion and he went o out of his way to deny it. Now, why am I picking those two? Because two out of those four up there on Mount Rushmore are not ordinary conventional

churchgoers, members of a church. Even George Washington, the third of the four, did not take communion actually. And but they They all invoked, especially Washington and Lincoln, the Almighty and Providence and God at many a turn, called for things like national days. Of Thanksgiving. Jefferson did, I believe, in Virginia, he thought that the federal government should have a stricter relationship.

But I believe he actually endorsed public days of th thanksgiving to God, not to the Indians, but to God in Virginia. I think that's right. And but today Oh, it's a different kind of but Andy, do you think I'm just asking you that the coinage is unconstitutional in God We Trust? Or God save the honorable court, God save the United States, stuff like that? That's every day when the Supreme Court convenes for oral argument.

I think I don't think it's unconstitutional because I accept the interpretation that I offered in a sense, which is that if it's done as an echo of that which was done in the past then and it's not offered as a preference or an expression that one should belong to one should believe a particular thing, then it's probably constitutional. Do I like it as a Jewish person? I prefer keeping government out of Religion.

As much as possible because you know, we joke about it, Jews do it. We say, Is this is it good for the Jews? You know, this or that or the other. And in general, we don't think that's too good for the Jews, okay? Because we are the quintessential outsiders historically. And so anything that can remotely be create insiders or outsiders, we don't like. But I'm willing to accept.

in on good faith that in God we trust on the coin is a motto. There's Hebrew writing on the Yale symbol and things like that. That this is a histor. But I do not believe that this event that we're talking about today could possibly be viewed that way, even though there's some lip service given to historically the founders did this, that or the other. But when you have only essentially one faith represented and one Orthodox rabbi who is a Maverick guy anyway.

And no other religions. And again, they talk about the United States as a Judeo Christian nation. The rhetoric is the president reads from some version of the Christian Bible. I don't know which version. There's no way this is a historic celebration. Come on. Oh so given that I would uh you know so that's my sense.

And when we were preparing for this uh episode, there was a certain word you quoted and I said that word is actually maybe the most problematic in some of the materials associated with this event. I think that you said the word prayer and praise and said we have national thank days of thanksgiving and that's a day of prayer and fasting or something. But then there was a certain word I think the word was scripture. I said Oh, that's a little different than just prayer.

and praise or thanksgiving. So whose scripture? This takes us back to the past episode. Which version of the Ten Commandments are you using? Where does the first commandment end and the next? Begin. Andy, what's the passage that has the word scripture in it? You did some research on this? it's in this invitation. So this was issued from Freedom Two Fifty on the freedom two fifty dot org website. And it says on Sunday, May seventeenth, so that was last Sunday.

The National Mall will be the scene of historic back gathering, blah blah blah blah blah. We will prepare for the nation's two hundred and fiftieth birthday with scripture, testimony, prayer, and rededication of our country as one nation to God.

Okay. So that is uh to me an you s because as you say, scripture implies texts that have been designated as holy. And that is to me over I think you're wise just to single out that word. Okay. Now, since we talked about history Let's give our audience some historical background. These are complicated questions, and Andy, we're just trying to deepen our audience members' understanding of these issues. This is from my book, America's

Unwritten constitution is chapter two. And I'm talking about certain words that some people have focused on. So Here's what appears in most copies of the Constitution. Article seven. The ratification of the Constitution of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same. Done in convention, by the unanimous consent of the state present, the seventeenth day of September, in the year of our Lord, 1787, and of the independence.

of the United States of America the twelfth. Now here's what some people say. Congress said it, he said it says in the year of our Lord in the Constitution itself, and our Lord is Jesus Christ and so there. Now in America's unwritten constitution, I say actually not so fast. Remember, I I'm Christian, but not so fast. Those words were not part of Article 7. They were not actually ratified. So that's one really interesting point.

And even if they had been part of the Constitution, would it have been different if they just said in the year seventeen eighty seven? What if they said in the year seventeen eighty seven AD? But if they said in the year seventeen eighty seven anoini, it which is not means in the year of our Lord, so Maybe this is just a convention just a dating device and n not picking up members of the opposite sex, not that kind of dating device. Chronologically it's just a way of keeping time.

I think it's fair to say that however you would say if you want the data However you would choose to date it. Is one in that time religion or another? The Jews use a different year, but it still has a religious connotation. Yeah. Today if we're being very PC, we'd say in the common era or something like that. We don't say B C, which is before Christ, we say B B C E, which is before the Common Era or something. Okay. It still dates to the same moment.

So I do not think that language is a justification for all sorts of religion in government. But Congress took the position it was at a certain point and I criticized that in chapter Cellar. Now in a earlier book I say that George Washington uttered the word, so help me God in his first inaugural. And then I got a lot of pushback from some people who've done a lot of research.

And I came to think they might be right. Gordon Wood actually. Gordon Wood thought that George Washington said so help me God in the first inaugural. I don't think he did. And the reason is I couldn't find lots of contemporaneous accounts, first hand accounts published at that moment that mentioned that. I did have one person who was contemporaneous. Is that okay? But I'd like to have more than one. And it turns out the one that I had was five years old at the time.

And he was a long way away. And his name was Wait For It. His name was George Washington Irving, as in the legend of Sleepy Hollow with Ichabod Crane and Rip Van Winkle. And here's the problem with George Washington Irving. He was a famous fabulist. He's not only a fiction writer, he made things up and did hoaxes. So I thought, oh great, my one source here was a five-year-old kid who was hundreds of yards away and makes stuff up.

So I came to think it's possible that George Washington didn't say, so help me God. But even if he did say it, he's saying it after he's finished saying the oath. Okay, so, okay. You gotta say something. Okay. Okay, it turns out that there's debate about whether other presents said it. There's even a debate about whether it was said in Lincoln's second inaugural, but we don't have absolutely rock solid, reliable accounts of so help me God until post Lincoln, but most presses today do say.

Okay. But here is the point. Even though maybe Washington didn't say so help me God, what I wrote in an end note to America's Unwritten Constitution is I have to admit. That there's just a lot of religious elements and sectarian elements, Andy, built into that first episode. So let me just read you a little bit. Now this is not in Washington, D.C. We don't have Washington, D.C. yet. This is in New York. This is the first

Presidential inauguration. But here's what I say at footnote thirty-seven of chapter two, page five thirty-four of America's Constitution, a biography. It is undeniable that religion and religiosity pervaded various parts of this event. Multiple eyewitness accounts, some penned shortly after the inauguration, noted that Washington kissed the Bible. On which he swore his oath.

After the oath came his inaugural address, nearly a third of which was devoted to America's relationship to the Almighty. It's got lots of religious language in it. Washington and other dignitaries then preceded by prearrangements To a religious service at Saint Paul's Chapel, where prayers were delivered by Senate Chaplain Samuel Provost, this is paid for presumably or organized by the government, an Episcopal Bishop.

So then I go on to say revisionists have argued that the phrase so help me God was not used at a presidential swearing inn until the late nineteenth century. And that only in the twentieth century did the phrase become a typical part of presidential inauguration. There is widespread agreement that the vast majority of inaugurations have used the Bible. That's a particular scripture, Andy, and that many have featured Bible kissing and or other religious trappings. So I'm just giving you the data.

So there's that. This is ceremonial deism. There's Lincoln and others calling for days of thanksgiving or fasts and and prayers. But it could be said on the other side. That was a very different world. It wasn't nearly religiously diverse as the world today. And in any event it keel, most of that.

all that Washington stuff was way before the Fourteenth Amendment equal citizenship idea. They had slavery back then in many a place. And so just the equal citizenship idea is inconsistent with slavery or racial supremacy, white supremacy, lack subordination, we shouldn't have certain things that basically conduce to an idea that there's one preferred religious group and another dispreferred religious group. So we should be more sensitive about that today because we have a different

demographic makeup. I thought that's the kind of argument that I heard you make.

It is I would also go in in the other direction a little bit, which is to say if the president in this so let's say you're elected president, okay, and you get up there and you take the oath of office. That's gonna be a pretty emotional moment for you. It's gonna be one of the most important moments in your life. And you as a religious person might very well want to invoke God for your emotions. Mm. I agree. So for the presidency. Okay.

So and we've seen, for example, members of Congress Take the oath on the Quran. You know, so it has not only been so and that's their book that matters to them. Um so and I could imagine an atheist taking it on some secular book. And I don't have any problem with an individual expressing their own now this maybe in France they don't want you even express your own religion and okay. But that's different from spending the money that we all had to pay in as taxes, regardless of our religion.

And invite persons essentially of one religion to commemorate our nation's heritage as if it were centered around one particular religion. That is a very different thing. And and the reason I said especially for a president,'cause our audience knows that I have highlighted just how personal the president is. You're always present twenty four seven three sixty five, even when you're

Sleeping in bed, you're still the president. But Andy, what do you say about some of the other things that weren't quite so individual and personal? Just to remind you. Washington and other dignitaries then proceeded by prearrangement to a religious service at St. Paul's Chapel, where prayers were delivered by Senate chaplain, Samuel Provost, and Episcopal Bishop. I don't love it. Yeah. I didn't think you would.

Say there's no first amendment then when that happens. Okay. And unlike some other accounts we've read recently about the Constitution, there was a Constitution before there was a Bill of Rights. Of course, I know you think that a lot of this pre preceded the First Amendment, but still there is that.

And if we saw similar ceremonies, pageant in presidential inaugurations after the ratification of the First Amendment, you'd say I think the best argument is All that's before the fourteenth, and in any event, you have to think about the fourteenth differently in an age. with this much more religious diversity. And I'd be with you because I think the key idea is not creating religious insiders and outsiders. Now Stephen Breyer, who's been on our podcast in the past.

Sounds a little bit like you. And he says, when you're just invoking something that's been around a long time, that's very different. That's almost a matter of history. But don't create new religious episodes and ceremonies and events that go even an inch beyond what has been done in the past because now you're just stirring the pot. Briar would say, and making religious identity more central to one's

civic identity than it needs to be or should be. And that way, says Briar, lies the path to thirty years of bloodshed in Central Europe. Brier very much has been shaped by his study of religious warfare in Central Europe. I remember one time, I think I can maybe even Yeah, I th I think I can say it. The statute of limitations perhaps has passed, but at one point I asked him what he thought of the bailout after the financial

crisis in two thousand and eight and he says, Oh yeah, we have to do it. And I said, Why? He says,'Cause the last time the markets crashed like this they tried to kill all the Jews. That was just very visceral for him, Andy, in the same way that I think we're being honest in this podcast about some of the sensibility that you bring to the thing. And Steve Bryar is not particularly religiously observant.

But he has very much been a student of the religious warfare in Europe. And some of that was between Catholics and Protestants, but none of this has ended very well for the Jews in Europe. And look, I think we can exaggerate the what's going on now, possibly, but I do think that the current president's modus operandi is to divide. And this is another way, it seems to me, of appealing to people and s and talking about this is us and they're them.

Now let's just quickly take it from the other side because this is Government action and it can be a threat to religion even when it's seeming to favor religion because it's not favoring all religion as such and even if it were, what about atheists, you say? Okay. Now let's take it from the other side. How religious are people allowed to be if they want to do things that are, and then I'm going to make some distinctions, governmental or political?

or public. And here I'm using some of the categories used by my dear friend. the great Stephen Carter in a book that he wrote called The Culture of Disbelief. Andy, next time you come to the Yellow Law School, I'll take you into a room where there's a portrait of Bill Clinton that he posed for. It was the first portrait he posed for as present. It's a very young Bill Clinton, it's very informally sitting on a stool.

And he's holding a book. He chose actually the choreography of the portrait. And he's sitting on a stool, very informal, and the book is Stephen Carter's book, The Culture of Disbelief. And Stephen Carter's book says we've gone too far in pushing religion to the margins of public life. And Clinton wanted to be holding that book to make a certain statement that he's no Jack Kennedy.

And so he's more in the tradition of Jimmy Carter in featuring some religiosity in his public persona. So let's just go through just some of the hypotheticals. Now, what about? A person running for office, a Bill Clinton, a Jimmy Carter, a James Tal Rico, who is public in his professions of faith, saying, You need to know who I am. I'm a Democrat. I believe in a progressive income tax.

I believe it is strong NATO. Oh, and Christianity is actually very important to who I am. Franklin Roosevelt was once asked to, I think, to describe his philosophy, and he said, I'm a Christian and a Democrat. Is that a appropriate thing for Franklin Roosevelt to have said or for Bill Clinton to say, You need to understand part of who I am, Jimmy Carter, is I'm a Christian.

'Cause Jack Kennedy at times seemed to say that wasn't important. That was just a purely private thing. It's as if he's left handed and he's forced to talk about it, but he doesn't even want to talk about it. It's like what's his favorite sexual position is or something. It's just not an appropriate thing for public discussion. This was in my opinion, which is that it's perfectly legal and constitutional to do so.

And it might even be appropriate in the sense that a presidential candidate might be telling you, This is the way I make decisions. Okay. I'm gonna have to make decisions and you need to know this is how I'm gonna approach it. I'm going to rely on my faith. to help me make this decision, certain moral principles that are embodied in my faith. And if you want to know the principles that I'm going to be guided by.

read Ecclesiastic, whatever. And so, okay, that's information. I can either like that or not like it as a voter. On the other hand, John F. Kennedy might say, I observe my religion, but in public life I do not rely on it to make my decisions. I rely on the w the teachings of Nietzsche or whatever. And that's hopefully not. But and that's that's how I make decisions. So this is actually I think perfectly okay. On the other hand, to say

I am a religious person and I have the same religion as you and that's why you should vote for me. Now I don't like that. Now you can do it, it's legal, but I don't like And Hoover came close to doing that, you said, when he ran against Al Smith. Correct.

That was more like you should vote against this guy because of his religion. Not so much that you should vote for me because I'm the same religion as you, but you should vote against him because we don't like Catholics. Okay, is what he was saying. Now we've been talking about candidates. Let's think about voters. Is it permissible? For a voter to vote for or against someone because of their religion, I think it probably is. Is it a little bit of a little bit of a little Ever

admirable? Or do we say people who do that shouldn't do that? We can't prevent them from doing it. They it's secret ballot. They get to vote all sorts of things. But should we say'cause someone who actually in their head says, I'm never going to vote for a black person. I'm a white person, remember we might say, no, that's not the right way to be. That's bigger. You can do it.

Can't prevent you from doing you have a constitutional right to vote however you want. It's the state action doctrine. The constitution limits the government, but not quite you. Even though you're a voter and you're acting in part, you're using almost public power. But we might say You're essentially a private person, a voter. So maybe you could say that. Should you could think that. Should you ever in a proper society publicly say, I'm voting against this person'cause they're black?

Are you allowed to say I'm voting for this person because they're black and we owe reparations to black folk because of slavery and segregation? And I like Mitt Romney just. Fine or like John McCain, just fine. But I'm gonna vote for Obama because the tiebreaker for me, I think they're all decent candidates, is Obama's black and we need a black president.

And I think that's perfectly reasonable. You could say that it would be good for the nation to have a black president would be a a sign of redemption from from our sins of slavery and so forth, and this is good for the country. So could you say I'm voting for Jack Kennedy because he's Catholic and we haven't had a Catholic before and we're we should be in Clunchst.

You could do that. You could say we didn't do right by Al Smith. And now of course, obviously you might want to say he's otherwise qualified, legacy admissions and this kind of thing. And so you could certainly say that. But I think sometimes you have to get into questions of

Are you doing this for reasons that are ultimately destructive? So for example, are you doing it along the lines of what I was saying before about the we versus they? Are you trying to create insiders and outsiders? Is that your what you're about? But but you're entitled to do it, sure. So now what about we need more people of faith in government? And so I'm voting in general against. Yeah.

against even agnostics. I wanna vote for people who believe in human dignity in a very deep way and I think religious people who share certain Faith attributes, believe in that. And so I hate the death penalty with a passion. I think it's evil. And I'm not that interested in whether it deters or not. Maybe it does deter. I'm not that interested in whether it's too expensive because you have to keep these people on death row and you have to have a gazillion appeals.

Even if it were cost effective and even if it did deter, I just think it's evil and wrong. And my feeling is ultimately religious because I actually think that the commandment says thou shalt not kill, rather than thou shalt not murder. And so I'm gonna not only do I think that, I'm gonna say that publicly. And I'm gonna say I'm gonna ideally vote for someone who says the death penalty is wrong because the Bible says so, because their religion teaches that.

In France, this would be deeply problematic. for people to bring religion into this public discussion about now it's not quite government, uh it's about politics and election, whom we should vote for. And then there's yet a different domain, which is not whom to vote for, but just what public policies to support, like the death penalty. So there's government doing things, that's what happened on the national mall. There's what

People do in connection with elections, when some of the people seeking election are actually not yet government officials. They're challengers, not incumbents. And then there's religion more generally in public discourse. Here's what people like Steve Carter say. They say there's been too much of a push to keep religious expression out of

discourse and that's not fair to religious folks. They say, because if you're an atheist, you can bring your full self to the political domain. You don't have to hide any part of yourself. that if you're a fully religious person, you have to filter out

part of who you are as a voter or candidate. And when you're coming to the quote, the public square, and that makes the public square a naked public square that isn't fair to people of religion who have to somehow pretend that they're not religious when they seek to uh enter the domain of public discourse or seek election. Yeah, yeah.

That's what my thought is that's one point of view, but I think that you have to break down religion into there's questions of ritual, there's questions of morality, there's questions of belief. There's questions of evangelism, there's questions of coercion. So there are a lot of aspects of religion that arguably don't belong in government. Like trying to coerce people to join the religion.

For example, or something like that. So th those aspects of religion you might want to filter out and how do you do that? So I I think that it's more complicated than just saying we need more religion. Which aspects of religion? I'm gonna give you one more subcategory, Andy, and then maybe that's gonna be enough at least for today. Either we there's so many aspects of it this thing. So my student Lipka here, is that what's going on here? No, we're just friends talking. Yeah.

So this is sometimes taught discussed as about the the law of the church, but when government is intruding into religious organizations as such. So let's take employment. Government in general says you can't discriminate in a private entity on grounds of race in hiring people or on grounds of sex or on grounds of religion. But our law permits certain religious organizations to have a principled preference for co-religion.

Notre Dame, for example, says we are open to hiring people of all faith backgrounds, but we actually prefer Catholics. We prefer Catholics as our professors, as our administrators, also actually as our students. And they're allowed to do that and they're not thrown out of the American Association of University Professors, for example, which generally say private schools can't discriminate against a religion, but So yeshiva can have a special plus

as it were, for Jews, Notre Dame for Catholics. Get the extreme Notre Dame says if you want to be Pope, you gotta be Catholic. No Jews. You want to be a priest You can say it's a bona fide occupational qualification or something, but they are discriminating on brethren of religion. And also, by the way, in the Catholic Church, I know

offense is intended against the Catholic Church, they discriminate on grounds of sex. They do not want their popes and their priests to be female. They believe that they should be in the image of Christ and Christ was actually male. So we do have certain Exemption. from ordinarily applicable law. Everyone else has a certain nondiscrimination law that they have to abide by, but religious organizations are actually allowed to have certain exemptions.

You know, I I've known about the ministerial exception'cause you've mentioned it in the past, but I actually find it the way that you phrase it now, I find it wrong because I always believed that it was a a question more of religious law. Okay, that if you're a Catholic, you should be taught by a Catholic or something like that. That this is the Pope says this and this is the way we do it, is the religious law, and that's it. Okay. And I could understand that because if you can't

Basically practice your faith if you don't follow that long, you're not violating certain you know certain other types of laws that don't apply to the exception. But now you're telling me actually we're open to hiring people of all faiths, but we give a preference. What is the basis of that preference? It seems to me that what you're saying is no, they're qualified. We would hire them

If we didn't have a Catholic applying, we'd hire this Jew to do this. He's perfectly competent. We can offer our services and say we're giving you a full fledged Catholic experience. We're so Then what's the justification? Uh that I don't understand why government would permit that. That seems like a mistake.

So to be continued, but audience members, we haven't come to firm conclusions, we've just identified things. In a later episode, Andy, I want to share with people my thoughts about a very interesting case. The majority opinion is authored by a dear friend, Anthony Kennedy. It's called Lee versus Weissman. It's about prayers at a public school commencement. It's a five four decision. Justice Glia is in the descent in the minority

And maybe Andy at some point we'll try to reach out to Justice Kennedy and see if he'd be willing to come on the podcast and talk about it. So lots of stuff still to talk about in this area. We haven't come to firm conclusions. We've just been

trying to identify what some of the issues are for your consideration, audience member. Yeah, and I've got the two things to say before we move on. One is We didn't rehearse this and you've been asking me these questions. And a lot of times on this podcast we're telling you mostly Akila is telling you what the law is or what the cases are or what his expert opinion is on various things. And some of that has been going on in this episode, but

Akila's really just been asking me my opinion, my reaction to some things. And there is no I don't claim to be right about this. I'm just responding in the moment, giving you my take. And I'm sure many people in the audience completely disagree with me. And that's fine. I don't think there necessarily are right or wrong answers on these things. I'm just trying to react based on principles that we've been discussing and my own personal beliefs and hopefully some sense of law.

So that I don't say this is the right answer. It's just my answer. So that's one thing. And then the other thing is we were talking about ritual and the importance of ritual and we have a very important ritual to engage in, which is Okay. to tell you how to uh acquire your continuing legal education credit.

And of course the way that you do that is by listening to this podcast, which you've been doing, and then by going to the website podcast.njsba dot com. That's for the New Jersey State Bar Association. That's where the NJ S B A comes from, obviously. And after filling out their form,

You enter this week's code, which is five two four four seven. Repeating the code, five two, four four four four four four four four four four four four seven. And then if you're in New York, New Jersey or Pennsylvania, voila, you have your by ECT credit and if you're in any other state virtually, you will engage in the ritual of reciprocity that your state bar association has designated. And

Now we're back to the podcast. So before in the time remaining, Akil. Just wanna remark on three things that have happened recently that reflect on lessons or opinions or developments that we've noted in the past. in the podcast. Sometimes we see something that happens and you usually identify that as okay, watch this space. That's something that is going to very likely come back to what to be important.

So I'm gonna mention three of them. One of them is something you mentioned many times on this podcast, which is one of the first works that you did, your tenure piece. of sovereignty and federalism. And you know where this is going, Converse nineteen eighty three, and the idea that just as you can sue your state in federal court.

If they violate your constitutional rights, your federal constitutional rights, so too you should be able to sue the federal government in state court if they violate your constitutional rights. And some states have picked this up, particularly in the wake of ICE and obvious questions of misbehavior, possibly. And we mentioned that Maryland was considering such a law, and this week Governor Westmore of Maryland signed the No More Kings Act. Akil, your reaction.

Yeah, earlier in the episode Andy I put you on the hot seat and then you said I'm not necessarily sure that I, Andy, am right about everything, but here are my thoughts. So this last segment and it's gonna be short, it could be captioned, oh I was right. Okay. So three times. I'm gonna say I was right. So Converse 1983. It's not so much about state court. As about state law.

And the question is when federal officials violate your constitutional rights, what law enables you to sue? What law gives you a remedy? And often it isn't. state law, it's state trespass law. When the government searches and seizes something of mine, it's often state property law, state trespass law that gives me a remedy. But what happens if it searches or seizes, but doesn't technically

violate my property rights. It just surveils me from afar with some high-tech gizmo or something. Enter Converse 1983. The thought is whenever the federal government violates my constitutional rights, state law should give me some sort of remedy. Another example. Suppose the federal government doesn't Pick my pocket or break my bone. That these are actually words that Thomas Jefferson used, but just privileges another religion.

It just says, let's say I'm a Protestant and it says Buddhism is the religion here in Hawaii or or what have you, or Catholicism is the official religion in Maryland, or Evangelical Protestantism is the official religion here in Arkansas. Now that doesn't intrude upon any property they have, but it violates my equality, my rights to equal inclusion. But without a state law giving me a cause of action, maybe I can't easily get damages for the violation of my

equality. If the government gave only special benefits to whites but not blacks, that's not violating any property right of blacks. So a keel a long time ago Nineteen eighty seven, the Bicentennial of the Constitution wrote this article, it was my tenure piece, had a lot of ideas in it, but one of them was Converse nineteen eighty three.

When states violate someone's constitutional rights, the federal government often lets you sue. It's called nineteen eighty three. And I said when the federal government violates your constitutional rights, states should be able to let you sue. The Fed should do it too, but the Feds might not want to do it because if you sue the officer and they're carrying out federal orders, the federal government will have to

Pay them back, then that's going to come out of federal coffers, and the federal government might not want to do that. So you can't count on the feds. But conversation and I wrote that a long time ago and people said, Oh, well done and they patted me on the head and they eventually gave me tenure for this and other things. But it went down the memory hole. And yes, Andy, This week Maryland passed.

This. There are other parts of the No Kings Act, but they passed this. We will talk about this more in future episodes. There are lots of little wrinkles. Maybe we'll have their. Amar on as a guest and we can go through it. And other states have passed versions of it. Illinois, for example, and many other states are considering versions of it. Right now, I can tell you, among others, California, New York, and Massachusetts are all considering versions of this. But for now

This is my first I was right in that Maryland has passed this law. Now it could fail, the Supreme Court could smack it down, but at least someone's taking seriously. And it only took forty years, Andy. Kill just on the you were right realm. You were right to correct me gently for once.

on when I said that it's not so much a matter of state court, because of course, even if you did file such a suit, you might have to file it in federal court. And that Or if you did file it in state court, the federal officer would uh exercise an option called federal officer removal and shuttle the thing over to a federal trial court across the street.

And one of the provisions of this act, fortunately, is that it says that it's a severable. So if they made a mistake like that and maybe they made some other mistakes, that it's severable. So hopefully it would still be around. Okay, so that's one.

And now the second one that happened is Louisiana has been which has been up to lots of mischief lately, has been attempting to interdict the flow of Mifepristone from other states through the mail. There is a federal regulation that says that it can be ordered w without an in person visit. And that's been upheld by the courts repeatedly, but Louisiana says you can't do it. And so

There were applications for stays in a lawsuit that attempted to say this is unconstitutional, or at least it's in violation of the Supreme Court opinion that is that said that it was okay. And The court lower courts issued various stays of the law and then it went to the Supreme Court and what happened? The Supreme Court basically said that Louisiana can't stop. people from ordering this drug through the mail and with with other interstate

shippers, FedEx and the rest. And so Louisiana can't Prevent. folks in Louisiana from getting their abortion drugs from out of state with Tellahouse. conferences with physicians outside of Louisiana. What I want to say about that, just briefly, we're going to have maybe future episodes on this. And I'm not nearly an expert on all the aspects. Andy, you are more expert on some of the issues of medical ethics and

and medical licensing and who can practice medicine beyond the limits of their own home jurisdiction. So we're going to get into this in much more detail later episodes. Here's what I want to remind our audience. We were right way back in Dobbs. We had nine episodes on Dobbs, and we said, here's one of the most important issues. Can you even if your state can prohibit you from getting an abortion in your state?

Are you allowed to go out of state and get an abortion? Let's say Texas says you can't get an abortion here, pal. But are you allowed to go to New Mexico and not just go to New Mexico and get an abortion, but come back to Texas without penalty? And we said, that's gonna be really important because if the court upholds a right to travel or affirms a right to travel, even in the course of saying states can prohibit abortion within their boundaries.

Wow, as a practical matter, mm a lot of people are going to be able to get abortion. And someone could say, Yeah, you say that, Aquil, because you're a wealthy family and anyone in your family could afford a trip from Texas to New Mexico. But what about indigent women? And now we're back to state action, all the rest. private individuals could fund indigent women who face all sorts of very difficult medical choices. We could have GoFundMe's and non profit institutions

designed to to help women in distress, help them get from Texas to New Mexico safely and securely and then get back. And In the Dobbs case, one justice paid particular attention to this issue, and that was Justice Kavanaugh, who actually said that he thought it was pretty obvious that you should be allowed to get an abortion elsewhere. Now, yeah.

One way of doing that is for Muhammad to go to the mountain, but what about the mountain coming to Muhammad, so to speak? What about people who stay in Texas but get out of state? medical assistance because the doctor's in New Mexico and the doctor is a phone call away or a Zoom conference away. And so This issue of telemedicine and telehealth across state lines and then shipping pills from one state to another state. is a version, Andy, of what we talked about before and

You know much more about this than I do, but I was reading stuff that a huge percentage of abortions today are actually occurring this way. They're earlier actually than abortions were being done in days past, maybe that's a good thing. If you're gonna actually do an abortion, why not do it when the fetus is a very small developing entity rather than a much more developed entity with maybe more a nervous system maybe more capable of feeling pain and insult and injury and all the rest. But anyway

Andy, we were right. This is an important issue, this interstate issue. It's part of federalism, rights to travel, but also dormant commerce clause, which we haven't talked about in great detail in from getting medical assistance electronically and require that you only get it in person, then it can force physicians to come to Texas, for example. And that's a kind of discrimination against medical providers who are out of state, who are in New Mexico, or wherever.

And that's connected to what we talked about, Andy. Yes, a lot of this is complicated and we'll get into it later, but I think that There are open questions on telemedicine. For example, my wife and I traveled to Florida earlier this year and we were not able to do a telemedicine visit to Florida.

We could do one when we were in Florida, we couldn't do one to Florida. So the Florida physicians, as a matter of their Florida licensure, because that's state based, were not allowed to conduct those visits. So it's not the patients that were limited, but the doc And similarly, the ability to prescribe out of state is also a state by state question. Y you talk about full faith and credit, but the question is some states will honor prescriptions.

from other states and others won't. And I actually had this situation happen to me when I when I was in France, I developed this is not states, but I developed COVID and when I was in France and I have and I wanted to get a medication prescribed for me from the United States. yet another uh issue like that. So anyway, these so these things can be complicated and we'll talk about them some more. And Andy, just since you mentioned I said dormant commerce clause.

Earlier I talked about the right to travel. You raised yet another doctrinal category, full faith and credit. And I just want to remind our audience, since people this is yet another way we will write, truthfully. All sorts of people said, Oh, if Dobbs is decided and Roe falls. Obergefeld is going to be repudiated and loving versus Virginia is going to be repudiated. Loving is about interracial marriage. Obergefeld is about same-sex marriage.

And I said nonsense and I was right about that. Obergefeld is still rock solid and so is Loving versus Virginia and both of them have a right to travel aspect to it and a full faith and credit aspect to it. Even if Virginia could make it illegal for a person and a white person to get married in Virginia. What about they go to Niagara Falls, get married, and then as a matter of full faith and credit, isn't that a valid marriage in Virginia? On same sex marriage.

Even if a jurisdiction could say two people of the same sex can't get married in our state. Again, what happens if they go to Niagara Falls for the weekend, get married, uh have a same sex marriage, and celebrate and consummate it? Those are technical legal terms, celebration of a marriage and consummation of a marriage, and then come back to their original state. And I said

The dissenters in Obergveld never even address the full faith and credit issue and shame on them because even if you don't buy the fundamental right to marry arguments as a matter of substantive due process or privileges and immunities or Glucksburg.

Even if you don't say this is sex discrimination that violates the constitution or sexual orientation discrimination, what about full faith and credit? You've been married in one state. Why shouldn't that be valid in other states? So just to repeat, Andy, for our audience.

We talked about very briefly in Methopristone rights to travel And we've talked about dormant commerce clause, and we'll talk more about these things, but also there's some complicated possible questions of full faith and credit that you identifies.

And then finally our last. example is one that maybe we were right, maybe we're not so happy that we were right in this case. Who knows? But as there's been a race to the bottom in terms of gerrymandering and redistricting and redoing congressional maps and things like that this year. And one of the states that was involved with that was Virginia.

for reasons having to do with when's election day and things like that. The Virginia Supreme Court interpreted the Virginia State Constitution to say that the redistricting plan from the Virginia legislature was in violation of the Virginia state constitution, struck it down. So what happened? The Democrats in Virginia, some of them appealed that decision to the United States Supreme Court.

and said should invalidate this ruling of the Virginia State Supreme Court. They're misinterpreting the Virginia state constitution. Really what they said is that they're violating federal law in certain ways, but anyway, so they lost. And why is this an example of us being right, Akil? Or you being right. Here's what happened, just to remind our audience, just what you said. The Virginia Supreme Court

invoking the Virginia State Constitution said the Virginia legislature couldn't do a certain thing. And even though the Virginia State Legislature was regulating congressional elections, But the Virginia Supreme Court said yes, but you're doing so in a way that is inconsistent with certain procedures in our state constitution. Now here's our position. It was our position in War versus Harper. The Virginia State Legislature is not free-floating. It doesn't exist outside.

It's state constitution. It's a creature of the state constitution. It's bound by the state constitution, typically as construed by the state supreme court. It's not independent. It's not an independent state legislature. It's a dependent state legislature. And it's dependent on the state constitution. And state constitutions. ordinarily mean what state supreme courts say they mean and not with the US Supreme Court.

that the state constitution means. That's federalism one oh one. State law is decided by state courts. So when the Virginia Democrats tried to take their case from the state Supreme Court to the US Supreme Court, Our principal position would have been and was that this is not a matter for the U.S. Supreme Court to decide. This is a matter for of state constitutional law in Virginia to be decided by the highest.

state court in Virginia, the Virginia Supreme Court. And that's just in effect what the Supreme Court did do by not hearing the case, by just letting the matter stand. And there was an amicus prefile. by West Virginia against this attempted appeal to the US Supreme Court. And at page eight. of an amicus brief that was filed. We'll put it up in the show notes, Andy. This is the brief of the state of West Virginia. Here's what was said at page eight of that brief.

that the US Supreme Court shouldn't get involved Quote, as long as state judges are engaged in the same kinds of judicial processes and doing the same kinds of interpretive things they've historically done under state law in resolving State election contest. So this was a congressional election law, but if it were a state election law, redistricting Virginia state legislature, US Supreme Court generally wouldn't get involved. That's the Rootcha case. And the same rule should apply

for congressional districts. Who is cited for that proposition that the US Supreme Court basically shouldn't get involved? Vikram David Amar and Akeel Reed Amr, our article on independent state legislature. theory, which is the article that our brief in Moore versus Harper was based on. And we thought the Supreme Court basically agreed with our brief. There was a little bit of a loophole that some people said existed. And we said, no, that loophole shouldn't really exist. That language

That West Virginia decided was exactly on this point, and we try to be principled people. So we basically said, Vic and I, this is a matter for Virginia courts to decide, it's a matter of Virginia. State constitutional law, the US Supreme Court should basically butt out and but out they did, so we were right. It's interesting because after Moore versus Harper I think we are starting to get that logic into the lexicon.

So with the New York Times, for example, in its coverage, and obviously the Times wasn't happy about this, so I'm not happy about it, even though I think it's the right decision. I don't know whether the Virginia Supreme Court was right, but Anyway, so Abby Van Seckel writing for the New York Times has a paragraph here. It says the Supreme Court does not ordinarily review rulings by state Supreme Courts interpreting state constitutions. Just a little bit.

And on that note. We bid you goodbye for this week and we will probably have more to say about redistricting and things like that, as we've been promising you at some point, whether it's next week or something else, maybe depends on the Supreme Court itself, as well as our president, who had some stuff to say today about

giving billions of dollars to people that voted for him. I'm sorry, that that uh that feel they were wronged by the Justice Department or something. And I don't think he has Jim Comey in mind when he says that. But anyway, so that that's probably something we're gonna have to think about and talk about down the road. So more to come in the future. Thank you, Akil. Congratulations to all the girls. Yes.