Unrehearsed Answers

Welcome to another episode of America's Constitution. I'm Andy Lipke here with Professor Akil Amar. Good evening, Akil. Good evening, Andy. So another Yale commencement is behind us and Yale reunions have begun. And last week Akeel addressed a large audience at the Yale Reunion and uh Marica's constitution was featured prominently. So thank you for that. And Andy, how do you know that? My daughter in law attended her Hercul reunion and she said that

Hands down, Professor Amar was the best advertisement for Yale of anything that happened at the reunion. She actually said this and she is not given to gratuitous flattery. I I didn't know that, Andy, but did she also report that I mentioned the podcast and you by name on multiple occasions and flashed a picture of the two of us?

She reported it in a very twenty first century way, which is that I received a photograph on my phone while you were still talking of a photograph of you and I from our website. Okay, very meta. And there we were. So yes, so thank you for mentioning it and I think apparently well received. So there you go. So about three hundred people showed up to hear me and we're doing a second reunion this coming Saturday.

And I gave away all the books that that I had had brought down to the auditorium. I think two hundred and twenty five books in all. And we just gave'em away to people. They were pre signed and it was a great event. And by the way, speaking of books, I think that the Born Equal Book Tour was, if I might use a phrase, unequaled in terms of its sort of book generosity.

And I think that and our listeners are in part responsible for that, with their supporting of donations of books in various ways. We've talked about the Omaha event, but there were other events as well. And this is just a great thing. And really book giveaway sort of thing to further civic education and conversation and discussion is something that I think is catching on. I know you've told me about people that you know that are preparing to donate large numbers of books.

Yes. Going forward and I we'll have some announcements about that uh over time. So I think that's a great thing. Yes, I yeah, I said I'm giving away these books. If you read the books and find them useful, I invite you, I challenge you to maybe buy some and give'em to the your local high school.

So this week we're gonna do a little different format. We're gonna do something we've done before, but not very often, which is we're gonna address some listener questions. And preparing for the episode, I do read the questions as they come in periodically, but I was overwhelmed in how many questions I had to review for this. And wow, it's great to have such an active audience that's so engaged and involved.

And even though they know that we can only answer a fraction of them, let's get to some of these questions. Okay, so we'll start off with a correction, Mikhil, because we always like errata and Of course, first we have to determine whether there is a mistake. But here's a a question from our listener, Dennis Fitzpatrick. Professor, I thoroughly enjoy the podcast and eagerly await each week's drop. So far, everything is correct in that statement. Okay.

Um. On page forty seven of Born Equal, you cite Article I Section nine of the Constitution, prohibiting states from any bills of attainer or establishing titles of nobility. So this have been a citation to Article 1, Section 10. Yes, it was a mistake. Article one section ten limits states. It says no state shall. Article one, section nine uses the passive voice, but is understood to limit the federal government. There are several things that neither the federal government nor the states can do.

Neither the federal government nor the states can have bills of attainer or ex post facto laws or titles of nobility. But Article I Section ten says no state shall Article one, section nine, just says there shouldn't be bills of attainer, there shouldn't be ex post facto laws, there shouldn't be titles of nobility, but the implication is that these are limiting the federal government, which of course it's a federal constitution. So that was just a goof on my part.

I could see where you could do it, but of course it's good to get it precise. Why is it that they felt the need to expressly mention states in Article One Section Ten? when you say they had already implied it in section nine, is it that they felt it was just so crucial that they had to spell it out since that it applied to the states as well? Yes, this is actually at the heart of the analysis of Barron versus Baltimore. It's absolutely connected to the incorporation issue.

Let's just read, Andy, the language of Article I Section nine. There are various clauses, but here are the relevant ones. No bill of attainer or ex post facto law shall be passed. Okay. And then Article one, section ten says no state shall dot dot dot pass any bill of attainer or ex post factor laws or laws on pairing the obligation of contract or grant any title of nobility. And then Article One, Section I goes on to say, no title of nobility shall be granted by the United States. So

In one place they it's just generic. And in another place it says by the United States. And John Marshall says, whether it's generic. Or whether it says by the United States. In both situations, unless the Constitution is really clear and specifies otherwise.

It regulates the federal government. The federal government is the government created by the Constitution and it's the government limited by the Constitution. Whether in express language, no title of nobility shall be granted by the United States. or with the passive voice. No bill of attainer or ex post factor law shall be passed. Now there are certain things that states can't do, and Marshall says when the framers of the Constitution meant to regulate states, they said state.

unless context overwhelmingly implies otherwise, even in the absence of some special state language. Therefore, now let's look at what we call the Bill of Rights. The first amendment says Congress shall make no law of a certain sort, and we've talked about that a lot in our episodes on church and state. It regulates Congress, and indeed Congress can't have a national established church, but states can have established church.

Now, First Amendment says Congress. Other amendments just use passive voice, no deprivations of due process, no takings of property without just compensation. They don't expressly say Federal government can't do this, Congress can't do this. But But following the template of Article 1, Section 9 and 10, the idea is when the Constitution aims to limit states, it says something like no state shall.

And so therefore, says John Marshall in the 1830s, the takings clause, the just compensation clause, does not limit. States but only limits the federal government. So too with jury trial provisions and confrontation clause. rights and double jeopardy rights, etc., etc. Uh and I've written about this in a whole bunch of places and wow that was about Article I Section I and Section 10 and all the rest. So that was just a goof on my part.

Okay. Thank you for that. And as always, we own up to things. The next edition of Born Equal will prominently feature section ten. So thank you, Mr. Fitzpatrick.

Now the next question is for me from Robert Wooley, who is a frequent questioner. And he says, Andy, you must, I repeat, must Title The Inevitable Now Course This was a few months ago, upcoming Trump vs. Barbara Clips Episode, New World, Same Constitution, quoting the Chiefs mic drop line. Now, Mr. Woolley, of course we did title the episode the But I had not read your question yet, which is why you do not get credit for it. Like Субтитры сделал DimaTorzok Yeah.

No Newton acclaimed them to invent calculus as did Descartes and Leibniz and they all did it. And in fact the person that gets the credit is the chief for using the law. But We can give we can give multiple credit. Thank you for Well, I I compliment you, Mr. Woolley, on coming up with a brilliant title for that episode. Marvelous. Well done.

All right. Next question is from a dear friend of ours and listener. This is a contemporary question about something that's going on right now. Paul Slavin asks. Two questions regarding President Trump's 1776 sea weaponization fund. Now the good thing about these questions, Akil, is that You don't have to have gone through this in great detail, I think, to answer these questions. I think they're these are aimed right at your levels of expertise.

So assuming for the sake of argument that the terms of the appropriation of money to the Federal Judgment Fund are capacious enough to support this use of the settlement money. in the context of a collusive settlement. Does the use have an appropriation clause or non delegation problem? How do you think an argument along those lines would fare, assuming a claimant with standing could be found? I think it would be governed by chapter one of America's unwritten constitution.

Blackstone gives two examples of the rule of absurdity, where a certain application falls within the literal meaning of a an enactment and courts probably say, yeah, but the enactment didn't mean to apply to that because it would be absurd. It would violate some deep principle. Now here's the two examples. one anyone who spills blood, who sheds blood on the streets of Bologna, this is Italy, shall surely be put to death.

And we would never put to death a physician who seeing someone stricken by some blockage of the breathing pipe. performed an emergency tracheotomy, saving the life of someone, but in the process literally shedding blood, spilling blood on the streets of Bologna. Okay. That's not what that was about. And unless the legislature said very explicitly, including surgeons in life saving situations, you just don't apply.

the literal words of the enactment to that situation. That's one example the Blackstone gives. The other example that Blackstone gives is where a law says that the Lord of the Manor Dale, this would be like Lord Grantham in Downton Abbey, shall adjudicate all private disputes.

that arise within the Manor Dale, which is the township. And yes, that means that Lord Grantham, the Lord of the Manor Dale, will decide disputes between tenant A and tenant B about whether one of them had allowed their chickens to to cross the line from their tenements to the neighboring tenement or something.

So the Lord of the Manerdale will decide disputes that arise with the Manor Dale, except disputes that involve the Lord of the manor the Lord himself, because it is a general principle that no man can be a judge in his own case. That's actually what Blackstone says. It's relied upon by a very famous case called Bonham's case, that no man can be a judge in his own case.

And if the legislature wanted to say you can do this even involving your own self-interest, it would need to say so very explicitly. This is all, Paul, in chapter one of America's Unwritten. Constitution and it pretty literally or pretty c closely applies to this situation. A general enactment was not designed to authorize a certain kind of self dealing because no one should be a judge in his own case.

If they had meant to do that, they would have needed to be much more specific about it because otherwise it violates the rule of absurdity, which isn't just about logical absurdity, but about legal absurdity, because there's certain first principles. And one first principle is that no man can be a judge in his own case. This is why

I've always taken the position and I do in chapter one of America's unwritten constitution that uh president can't pardon himself because then he would be a judge in his own case. And now you see, audience members. Why I write these books, because I'm actually trying to figure out what the principles are. A chapter is about how you can't always apply the law literally. The law itself

presupposes certain background principles. The specific issue that I talked about in that first chapter is who presides at the vice president's impeachment trial? And the literal answer would be The Vice President, because the literal words of the Constitution are the Senate tries all impeachments. and the vice president presides over the Senate. And the literal words go on to provide for two exceptions. When the Vice President is not present,

The Senate president pro tem presides, but in my hypothetical, the vice president is present, he's present, he's being impeached. And a second clause says when the president is impeached. uh the chief justice presides. But in my hypothetical, the president isn't being impeached, it's the vice president. So if you put those four sentences into an AI machine,

And you say, what do these words mean in the English language? In the English language, they mean, just to repeat, Senate tries all impeachments. This is an impeachment. Vice President presides over the Senate. Okay. He presumptively, she presides.

Exception when the president is being impeached, but that's not here. Exception when the vice president isn't present, but the vice president is present. Okay? That's what the AI machine would tell you the words literally mean, but that can't be right. I argue,'cause no person can be a judge in their own case. And now, in fact, let's ask Why they said that when the president is being impeached the Chief Justice presides. And the answer is'cause if they didn't say that

Then who presumably would preside? The vice president, and that would be wrong because the vice president would stand to gain too much. A guilty verdict would vault the vice president into the presidency. And then you can say, well then why did they say it if it went without saying? Because technically there the counter would be, oh. The vice president isn't a judge in his own case, but in someone else's case, okay? But and maybe it didn't need to be said, but then you say why didn't they

say where the vice president is being'cause they just didn't think about it. That's how humans are. They don't think about every single possible weird contingency and they weren't really focused, truth be told, on the vice president. Keel, what's your evidence for that? I said, here's my evidence for that. They explicitly say House members shall be paid from the Treasury. Senators shall be paid.

presidents shall be paid and you can't actually increase or diminish their salary. They judges shall be paid and you can't diminish their salary. They don't even mention payment for the vice president. But surely the vice president should be paid something. It's just They weren't quite focused on the vice president, it was a bit of an afterthought. Yeah, and there are a couple of things in there that the this notion that the

president will be somehow immunized by the against IRS audits and that sort of thing. The statute says that you can't do that except if the Attorney General says so. Who does the Attorney General work on? For the president. So there's there's some problems there. Okay. So that's quite interesting. Now here's the second part of Paul's question. He says, Who, if anyone, other than one or both houses of Congress might have standing to challenge this use of the settlement money?

That it's a very good question. I'm not sure the answer. Um But my own view That at the founding, lots of people might have been able to bring suits under certain prerogative risk. Called like Key Tam actions. I'm a shareholder in a corporation. And the corporate officers are just looting the corporation and lining their pockets. Shareholders have an ability to bring a a derivative action claiming that this is a waste of corporate assets. This is a violation of Fideo Sherry principle.

Now you see why I'm a Bivid's person, where there's a right there should be a remedy. This is an obvious wrong and there should be judges should be willing to infer causes of action for people whose rights are violated. Does this violate my common law property right? Maybe it doesn't quite. But so I would favor things like Bivin's actions and the rest.

Now we're back to Converse 1983. The literal language of Converse 1983 might give a citizen in a state that had a Converse nineteen eighty three law the ability to come to court and say this is uh unconstitutional action and it's violating my rights to honest government services as a citizen.

Paul you know and Paul is your friend. He's been your friend since I think second grade. Yes and he's a really sharp lawyer. But Paul, long ago, I thought about things like this when I'm talking when I'm out talking about How you can't just uh construe everything literally, there's the rule of absurdity and blackstone and the Lord of the Manor Dale and no one being a judge in their own case.

And when I said for every right there should be a remedy. And if federal courts aren't gonna infer remedies when federal officials misbehave, states should jump into the action. That was okay. You can fill in your bingo card. That's of sovereignty in federal. Okay. Only ten minutes into the thing, I gotta plug in. Okay. Very good. Thank you, Paul. And I'm glad we got to talk about that a little bit.

Now we have a question from Colin O'Keefe and he getting into some of the little nooks and crannies of the Constitution like you sometimes like to do. His question is, would simultaneously serving as a US senator and representative violate the Constitution? He says the ineligibility clause, Article I, Section Six, Clause Two, makes sitting Congresspeople ineligible to simultaneously hold offices under the United States.

But my understanding that's Mr. O'Keefe's understanding is that being a representative or senator is not itself an office. under the United States. And of course there are ample precedents of people holding multiple offices in the executive and judicial branches, including in both branches simultaneously. So it does not seem to me that the Constitution has anything explicit that would prohibit Thus any prohibition would have to either be implicit in the structure of the Constitution or

or derived from inherited principles of British constitutional law, neither seems like a great hook for overriding the will of the people in a state or district if for some reason they elected the same person to serve in both houses. Wow, that's a brilliant question. I've never thought of it before. You've mapped out

the kind of lines of argument beautifully. I think I would in the end say, No, you can't do it. Uh there is an implicit prohibition. The best article on this topic is co written by our friend Steve Calabrazi. His co-author is Joan Larson, who is now a sitting federal appellate judge, I believe, on the Sixth Circuit. She was one of the eleven people, Trump appointees, whom we singled out for uh a salute in our episode a couple of years back, Isles, not balls.

So Steve Calabrazi and Joan Larson write an article. I believe it's in the Cornell Law Review. I think it's called One Person One Office. And it's a nice analysis about multiple office holding and it reminds us that you can indeed hold multiple cabinet positions. And Marco Rubio right now holds has held in in recent times, maybe even at this moment, multiple executive positions during the War of eighteen twelve, I think James Monroe held a couple of positions simultaneously in

the Washington administration, I think Hamilton was maybe acting secretary of war and secretary of treasury. There's something you think he may have held a couple of simultaneous cabinet positions, uh at least temporarily. John Marshall, and the time shortly before Marburg vs. Madison was decided, in the last days of the Adams administration, the last month of the John Adams administration was simultaneously Chief Justice and the outgoing Secretary of State. Other

Justices on the court and chief justices have carried out ambassadorial diplomatic responsibilities while Chief Justice John Jay negotiated a treaty while he was Chief Justice called Jay's Treaty. Oliver Ellsworth was a diplomat while Chief Justice of the United States, a diplomat abroad in France. Robert Jackson very famously carried out a cer extrajudicial responsibility in prosecuting at Nuremberg.

Earl Warren was Chief Justice and took on this extra duty to chair the Warren Commission. So yes, you can hold multiple executive positions. Yes, you can hold a position in the judiciary and the executive branch at the same time. But I think the fundamental choreography of Congress is the thesis. two houses are meeting simultaneously. Indeed, there's a clause that says neither one of them ordinarily can meet without the other unless certain special

uh uh conditions obtained for more than three days. They it can be different if the president has called only one of them into session, called, for example, only Senate to special session to ratify a treaty or something like that. But the basic architecture of the system, this is just my instinct.

It's a great question. I'm hearing for the first time. Hadn't thought about it before. But I think the basic architecture of the legislature is there are two houses, they meet simultaneously, and you can't be in two places at once. One thing that occurs to me is that you probably uh wouldn't be allowed normally to be a grand juror and then to be a petty juror in the same case.

And that would happen in the case of impeachment. You would be a grand juror in the sense in that you would be indicting the the president, let's say, and then you would be as a senator, you'd then be a juror. And of course th but Andy, that can happen today and actually earlier today Sir Philip Bobbitt and his family visited me here in Connecticut and I don't want to just who revitigate all my past grievances and disagreements with my dear friend Philip. But you could imagine being in peak.

by one House of Representatives and then tried in a different session. Election in the meantime. And I believe I actually think that there was at least one or two people in the second Trump impeachment Who were senators in the impeachment trial, but they had been House members earlier. I think that's true, but I mean you'd have to look that up, Andy. So I'm not sure that

Quite the reason. But just in general, as a lawmaking body, they're supposed to be in the house and the s the House and the Senate are basically meeting simultaneously and you're supposed to be in one place at a time. But that's not because the text expressly says so. It's just because that implicit in the system. And I don't believe anyone has ever done it in the past. That doesn't mean that that's unconstitutional the first time for everything. But my inclination would be no, that's a problem.

Yeah, I think that there's a s I'm just trying to think uh some more about this problem. I mean there is a structural the two houses are not quite adversarial to each other. But there is a reason that things have to pass both houses. In other words, that w or passing it in one house is not sufficient. So you could see why you wouldn't if you took this to an absurdity, let's say that they had exactly the same people in the Senate and the House.

Then that would frustrate that of course they have different numbers, but still it could happen. You could imagine a house of a hundred members and that could happen. Okay. And since he mentioned Britain, you have to be you typically have to be a lord to be a member of the House of Lords, and you typically have to be a commoner to be a member of the House of Commons. Now, some of these l lines get blurred over the course of English.

uh and British history. There was a nice question about whether Lord Halifax would have been eligible to be Prime Minister as a Lord rather than a commoner. There were other reasons actually that some people didn't want Halifax.

to be Prime Minister. But one of the excuses that was actually put forward is that he might have been constitutionally ineligible. I'm not gonna go through all that in great detail, Andy, but I know you know some interesting things about Halifax and Churchill and all of that.

And and maybe in a later episode we can bring in a friend of yours who can tell us a lot more about Halifax and Churchill and that very fraught moment when The Neville Chamberlain is basically eased out and a new a government comes in led by Churchill. And there's another front moment later when Halifax winds up going to America. Okay. And yeah, I think there Churchill, for example, are there there are prime ministers who refused peerages.

Because they wanted to serve in the House of Commons. But I think that wasn't necessarily the same as not being allowed to be Prime Minister, but they wanted to continue to hold that seat.

Okay, let's just take a moment before we get to our next question for those of you that want to gain your continuing legal education, C L E, by listening to our podcast today. And again, thanks to the New Jersey State Bar Association, you can do so, particularly if you're in the states of New York, New Jersey or or Pennsylvania, where all you have to do is follow the instructions here and you're basically done, which is to fill out the form from the website podcast.njsba dot com.

And then after filling it out, you get asked for the code. The code this week is four nine five two six. That's four nine five two six. And that's it for those states. And in other states you do the same thing and then you follow your state's reciprocity requirements if they have them, which almost every state does.

And I think the only states that don't are the ones that don't require C O E. And that's it. So thank you again to the New Jersey State Bar Association for making this possible for you. Okay, back to the questions. So here's a question from our listener, Joe Cerulo. Professor Moore, I'm a retired municipal lawyer, City of Sacramento, and an avid reader of your book.

I look forward each week to the to America's Constitution. That said, I have a quibble about your latest podcast. And boy, this was not the latest podcast, but it probably was when he wrote it, called the Only Only. I thought that you and Dr. Lipka were a tad cavalier about the pressures on members of the armed forces when they're given potentially unlawful orders.

Do you really expect an eighteen or nineteen year old soldier or marine to competently assess whether an order from his company commander is legal? Even officers like my son, his son that is, a major in the US Space Force. would find it nearly impossible to accurately determine on the fly whether an order is legal unless it were manifestly unlawful, a violation of the natural law or the law written on the heart.

That's in quotes, such as an order to execute civilians or prisoners. William Cowley comes to mind. On this point, I suggest that your former student, Joshua Braver, is more realistic. See his editorial in the Wall Street Journal, disobeying military orders is full of risk. I also recommend David French's article in the New York Times. Trump has put the military in an impossible situation. Perhaps you and Dr. Lipkin can dilate on this topic in your next episode.

And then he recommends that you say hello to Professor Alan Schwartz for him. Because he was a professor of mister Cerulo's at the US C. Gould School of Law. Nice points. Josh Braver is not just a student of mine, but was my former teaching assistant. I was a strong recommender of his he's also Steve Calabrazi's co author on an important

case book in comparative constitutional law. So I'm glad that our audience member thinks that one of the best pieces out there is by someone who actually is part of our world, uh our our friend Josh Braver. And your opinion about the uh illegal order question? T he's right that people are put in a very difficult situation and I don't think Maggie Goodlander denied that or Senator Kelly and it's a point.

Well taken. And he himself begins to answer saying, Yes, but if it were clearly illegal in a Cali situation, and maybe that's what they're especially talking about. And I also would say that the military personnel were quoted in the papers around the time that this was front page news as saying this is something that they're taught At West Point.

They're at Annapolis. They're taught this. So therefore, there is an expectation that they'll be able to. And so I would be interested in hearing maybe from some of our audience who've gone through that training in the military academies, let's say. Grant that is different from just a soldier that's volunteers and goes to basic training and then they're they're in the field. But let's just say that from an officer's point of view, I'd be interested in some more color on the train.

Do they teach you how to make this determination? What level of scrutiny are you supposed to apply to the law? So these are things that I don't know. But the fact that it was so widely stated that there was training on this suggested that it was a reasonable thing to require the the officers to do. Okay. And there were a lot of questions actually about things related to what went on with Senator Kelly and of course with Maggie and some of the other members of Congress.

So here's another one. This one's from uh our listener, Ben Walden. He says, there has been speculation that Trump will pardon many of it in his cabinet, including Pete Hegset. This would seem to immunize Hagseth from federal prosecution for giving an illegal no quarter order. But assuming the orders were given in the state of Virginia,

Would Hegseth still be subject to state prosecution for murder? The administration has invoked the supremacy clause when the idea of state prosecution has been raised. But this seems backwards, since criminal law is largely reserved to the states by the Constitution. Would be interested to hear if there are barriers to state prosecution for federal officials who commit state crimes arguably in the course of carrying out their federal rights.

Yes, this is uh ultimately a question of preemption. It's possible to imagine that a federal statute expressly says When you're carrying out a federal order that is either lawful or has been deemed to be subject to a pardon, states can't interfere with that.

But the statute typically doesn't say that expressly. And so the question is whether that's the best reading of the statute. That's what we constitutional lawyers call preemption. And My own nationalistic instinct would be that, yeah, when you are carrying out federal orders within the federal government I'm not sure that I want especially state criminal law interfering with that. And even though I

may not like what Hegzef is doing. I could imagine in a different situation, a different political configuration, and I'm not sure I'd want state to be able to basically undo The federal military system.

I guess we want some sort of judicial apparatus to operate beyond the president simply pardoning everybody that does everything that's bad. In a circumstance where the Secretary of Defense Gives a no-quarter order, which is clearly illegal, I think, under by any standard, then, and the president pardons him for that. He could still be impeached, isn't that correct? That was my next that was Andy who took the words out of my mouth. That was gonna be my next point.

So that would be the judicial process that could operate to the extent that you think of Congress as a having a judicial function in. impeachment. And it you might even take the very subtle position that in an impeachment and conviction in an impeachment court, that conviction would uh open the door to state criminal prosecution. These are very subtle, nice questions.

Yogi Beira very famously was alleged to have said, Gee, if we could only move first base one foot, we get rid of all the closed place. Many of these questions are about very nice close issues, but it's possible to imagine you could say States can't get involved here unless they're in effect invited by the federal government to do it. And one way they could be invited by the federal government to get involved is an impeachment and a conviction and an impeachment court. Interesting.

And back to our friend Philip Bobbit. A resignation by Hegz shouldn't cut any of that stuff off. 'Cause we believe in the propriety you and I of impeaching and trying and convicting and sentencing ex officers. Okay, so now we've got another question from Mr Walden.

Okay. I just came across another question from him. This is an unrelated question. One question that came up in my mind during all of the citizenship arguments, why were babies born to Confederates considered citizens? Were they not born to parents in a hostile invading army and under a different flag? True, the text of the Fourteenth Amendment postdates the defeat of the Confederacy, but it was ratified before the readmission of the Southern States into the Union.

Very nice questions. One point is that remember you can be a citizen even if you're not a birthright citizen under the Fourteenth Amendment. But a second point is that wasn't a foreign flag. They were insurrectionists. And our friend John Witt, who has been on this podcast, talks about

the status under international law and for other purposes of the Confederacy, but Lincoln's position is they're just pirates. They're insurrectionists. There there ain't no real flag there. We might, for certain purposes treat them as prisoners of war and all the rest, so that they treat our that is Union captured soldiers as prisoners of war. But that's not an occupying foreign army. We never recognized them. They weren't recognized internationally. They were just Yeah.

And even under the occupying army exceptions, Uh and I don't know Andy if we talked about this in previous episodes, but it did come up at Oral Argument. There's a certain word postlimini. Let's just bracket the Confederate issue. Let's actually talk about a real occupying army, the Brit. The Brits actually in the War of eighteen twelve captured certain parts of Maine, the state of Maine.

Let's imagine that certain babies were born behind enemy lines, two loyal Americans who were trapped there behind in an occupied British area. But once America recaptured that area A certain doctrine called post limity allowed a citizenship to in effect spring back to life retroactively.

once that area ceased to be under a foreign flag. And th all this is discussed by Joseph's story in a decision handed down long before the Fourteenth Amendment that was briefly mentioned by Cecilia Wang and was also discussed by our friend and student Sam Desak. One other way. Um the eighteen fifty-five statute says that um if you're born to an American father in France

you're an American. Surely then if you're born to an American father in South Carolina behind enemy line, even if you even if we treat that flag as a real flag, which I remember I'm contesting, um U you would be a citizen not because of the fourteenth amendment, because of this eighteen fifty five statute. Yes. A little bit of a difference there because I think maybe because the the American in France presumably considered himself an American, whereas the

American in South Carolina might not have at that point. And so for example, the American in France would not have been subsequently disqualified under section three of the fourteenth amendment from certain offices, whereas they m such an American in South Carolina might have been. So that the people are not exactly the same necessarily under those circumstances. My question for you though, Akil would be

Yes. Clearly they would be a citizen, as you say, this under the statute. But would they be a birthright citizen? if they were born let's say this happened after the fourteenth amendment was passed. So it happened today. And there's an invasion and Maine is under foreign occupation. Someone is born there. Then afterwards

We recover the territory. Are those children birthright citizens under the post liminy doctrine? Or are they citizens just under this doctrine, which is some form of statutory similar to statutory authority because there is a difference in terms of whether your citizenship can be revoked and things like that, I believe, between being a flight citizen or not. my position is it's sufficient

that you're born in the United States and under the flag. And if you weren't that, there are other ways of being a citizen and it just might mean that you're not a fourteenth Amendment citizen. Your citizen because of post limity doctrine or because of an eighteen fifty five statute or for some other reason. But my question though is could it be a little bit more than a little bit? Because it seems to me that a c being a citizen by constitutional fiat. is more r robust than being

And it may be that there's always gonna be a line and some people are always gonna be on the wrong side of the line. And if you're born in Canada, it's different than if you're born in the United States and if you're born behind the uh occupied enemy lines, you that was unlucky for you, but maybe it's more like being born in Canada until

America gains the the patch of territory back and that's the post limini wrinkle. And especially if you're born to loyal Americans, it does seem weird that you'd have less of a claim to citizenship than if you had been born to loyal Americans in France. It might seem weird, but might s ne nevertheless be true.

That's the point we were making in the case, right? Time and people saying, Well, isn't it strange if some birth tourist comes over and gives birth and then somehow the child it might seem weird, but that's what the that's what it says and that's what they meant. Yeah, uh there's sometimes asymmetries between rights against government and and r rights of government and proof beyond a reasonable doubt works in one way and

I would th this is like the rule of absurdity. I would read that eighteen fifty five statute to say not only does it apply if you're born in France, it sensibly applies if you're born to a clear, allegiant American. Be behind enemy lines in in Maine. Sure. Yeah. I really agree with that. Yeah. Yeah.

Okay. Our listener Jesse A doesn't un give his entire last name, just a unless perhaps it is just A. Actually w I have a friend whose last name is P just the letter P. Okay. So here's What was Harry S. Truman's middle name? Yeah, yes. Well, what what was Robert Q Moses' middle night? No clue. He did not have a middle name. This is one of the points in The Power Broker, is that Robert Carro says that the newspapers were so impressed with Robert Moses.

that they in they went to great lengths to bestow a middle name on him, saying that believing that it gave him greater gravity. So they referred to him by all sorts of middle initials and s even though he did not have no middle Okay. So anyway, so to this question. Kentucky currently prohibits its governor from appointing a temporary senator replacement in the event of a senator's death or retirement. Instead, a special election must be held within approximately sixty to ninety days.

Other states restrict what kind of temporary appointments governors may make in the event of a senator's retirement midterm. Does Professor Moore have a view on whether such restrictions on a governor's temporary appointment power are constitutional under the seventeenth Amendment? The expert on that is indeed Professor Amar, but alas, it's the other Professor Amr. Vic has written about this and actually testified in the Senate about this.

Some states, for example, have laws that say the governor must pick someone of the party. of the departing senator. Are those permissible? Maybe the legislature can say you can do it or you can't do it, but can it actually regulate how you do it? And I can't remember off the top of my head specific views on this, but he does have views. He testified before the Senate on this exact question. He worked with a senator from Oklahoma, a Republican senator, a physician.

Republican Senator and I think no longer with us, Senator Coburn. Tom Coburn, I believe. on some of these issues. And so I would refer the audience member to Vic Amar's testimony on this topic, which I don't have in front of me, but I know Vic wrote about it. Okay. So here's a question from Michelle Smith. And I believe we're going to be meeting, or I'm going to be meeting Michelle Smith at an upcoming Ever Scholar course.

I'm catching up on past episodes and was listening to your pre publication comments about Born Equal and the design of the jacket. It is striking, but I wonder about the typography of the Q. Okay, so here's the Q. Usual topography shows a slant or curved line coming from the O shape of the letter, but your Q is a curved line underneath.

That curved line is the mathematical symbol for about or similar or around. With two tildes, it's approximately equal. I thought this was an interesting comment on what equality means. Was it on purpose? I wondered about that too. It wasn't on purpose for me, but when my publisher Laura Heimert basically says, This is how we're gonna do it. I say, This is how we're gonna do it. And in fact, big shout out to Laura. She's resigning after many years of brilliant.

publishing. Uh this week she actually steps down as publisher of basic books. She's going to be succeeded by Brian Distelberg, who's been her assistant who's helped me on multiple books. So I wondered about that too, but I never peeped because with Laura sometimes it was best is to say yes. Mm-hmm. And Andy, you know that to be true from all sorts of conversations we had about all sorts of other issues, I was a rather submissive thing. Okay. Here's a question from a Roger Green on Converse 1983.

Thanks to you and your brother for offering to work pro bono for a state legislature trying to craft a statute that will be upheld as constitutional. My question is why wait? ALEC, the American Legislative Exchange Council, frequently drafts model legislation for conservative state legislators to adopt in order to overcome constitutional challenges.

Why not research and publish model legislation and then let your readers and followers call their state representatives to ask them to adopt Converse nineteen eighty three legislation? I did just that. I actually drafted the language 30 years ago and Oh, all you have to do is cut and paste, dudes, but instead you think that you have to do something different.

And I wish you didn't because if you just cut and pasted, it would be better. So I did that. It's in an article called it's in an article in the Colorado Law Review and we'll put it up on the show notes. Okay. Thank you. So now, Mr. Green, you know what it's like to work with Professor Omar and make suggestions to him about what he should be doing. I no it's a great suggestion. That's why I actually c drafted the Why you took it? All they had to do was just copy it. Yeah.

And by the way, you have done this a similar thing for term limit. Yes. Andy, just we actually Yes, we drafted the legislation and they didn't follow it. Okay. So we're getting to the end, but I think I'm gonna give my our friend Paul one more one more shot at it because this is a Converse nineteen eighty three question. Also.

He says in the Converse 1983 episode, you address potential state, civil, and criminal liability of federal agents in two scenarios: actions that violate the U.S. Constitution and actions that are authorized by federal law. You do not address a third scenario, actions that could constitutionally be authorized by federal law, but are not.

For example, assume hypothetically that the Constitution would permit federal agents to make arrests in state courthouses, but that federal law unambiguously prohibits. Could a state hold a federal agent criminally or civilly liable for making such an arrest? Okay, so Paul, another great question. And in fact, my Colorado piece directly addresses that issue. And I take the position that if Congress has made something illegal federally, but they could have made it legal.

then states shouldn't get involved there. Congress should have the middle ground option of saying, we're going to actually make it illegal, but we don't want there to be sanctions. uh or we want the sanctions to be thus and so and no more. So for me, Converse 193 kicks in when the federal government has done something that Congress could not have authorized.

when the federal government has done something that the federal government in no proper constitutional world should have been allowed to do. But to repeat, if a federal official violates a federal rule that didn't have to be promulgated. then Congress should be allowed to establish the consequences of violating that federal rule. They didn't have to have the federal rule at all.

And then states couldn't complain because it would have been illegal. So why can't they have a federal rule and say no consequences or a federal rule and hear the consequences but no more? All of that is different, Paul, from a situation where federal official did something that no federal entity could have properly authorized. So that's why I made my Converse 1983 bill limited to constitutional violations. And I kind of defined what counted as a constitutional violation.

in just the way that you're asking about. Andy, I think that's not what Maryland did did in its recently enacted legislation. And that's why I was spouting off just five minutes ago say, oh, why didn't they just cut and paste? Because there was a reason I put certain things in took other things out of my very carefully crafted proposal. Just as, Andy, there was a reason in this eighteen year so t term limits bill for the judiciary that I did certain things and not other things. And I

did the work already so that you don't have to. But Hope I can make a suggestion then. I don't know, when you do these things perhaps include the rationale as a I did. Oh. I did. I did all of those things in both pieces and here's what's in, here's what's out, here's why. So we'll post uh Colorado piece and you'll see, Paul, I addressed just your question. Okay.

Great. Look, this has been a lot of fun answering these questions. I think we we covered all over the landscape and I just want our audience to know we did not rehearse this. Akil did not know what the questions were. And so I just think it's a lot of fun to get this off the cuff expertise. And I told Akile beforehand if there's a question that

You just think I I'm not gonna be able to answer that or who cares or it's gonna be too whatever, just tell me and we'll just I'll just edit it out. And we didn't do that once. So everything that I asked Ikeel, he Stepped up to the plate and answered it. So way to go, Howard Cosell. That's right. Okay, till next week. Ok, bye.