Advisory Opinions - 5th Circuit Extends Stay of Vaccine Mandate

Episode Date: November 16, 2021

On today’s podcast, David and Sarah dive into vaccine mandates, religious exemptions, and the Civil War. They analyze a recent court ruling blocking the Biden OSHA mandate, and then discuss what a ���sincerely held religious belief” is in the eyes of the law. Finally, they conclude with a discussion of the Constitution, Abraham Lincoln, and whether he was an authoritarian who “broke” the Constitution before it was rebuilt by the Civil War amendments. Show Notes: -5th Circuit extends stay of OSHA vaccine mandate -Noah Feldman: “This Is the Story of How Lincoln Broke the U.S. Constitution” -New York Times review of Feldman’s “The Broken Constitution” Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Sasquatch here. You know, I get a lot of attention wherever I go. So when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker,

and we're going to cover some really interesting stuff today. Sarah's going to give an OSHA update. I'm going to talk a little bit, and we'll talk a little bit about religious exemptions and the vaccine, about something that I think a lot of people don't understand about religious liberty law that I want to clear up based on a podcast conversation I had last week. And then we're going to talk about this book and this argument from Noah Feldman that essentially that the Constitution was broken and sort of objectively pro-slavery. Lincoln sort of broke the Constitution in the Civil War and then remade it, and the Constitution was remade during the Civil War and in the immediate post-Civil War period with the Civil War amendments. And I have some thoughts on this, both positive and negative, and I'm super eager to hear Sarah's thoughts. But before we get to that, so this is going to be a little bit of history and a little bit of discussion of the founding more than we get into in a normal podcast. So I'm excited about it.

But before we get going, Sarah, you've got OSHA updates, vaccine mandate updates. Yes. So the last time we talked about this, the Fifth Circuit had issued a sort of preliminary on the preliminary on the preliminary stay. And now we have like sort of the next set of that, a slightly more permanent stay. And now we have like sort of the next set of that, a slightly more permanent stay, though with every indication that they will continue issuing stays all the way down as this goes. Now, this is a consolidated Fifth Circuit case with a whole bunch of folks who have all filed in the Fifth Circuit because it is seen as a friendly venue. So first things first, let's talk about what the Fifth Circuit said. And then I want to expand out to what's going to happen next, because this thing may not stay in

the Fifth Circuit, as we have, of course, discussed before. So Fifth Circuit panel, we have Judge Englehart writing, joined by both Judges Jones and Duncan. So this is a unanimous opinion by the three-judge panel in the Fifth Circuit. And remember, David, you and I talked about the various ways that you could challenge this. And I started at the top of the funnel, if you will, and then said, however, a court would start from the bottom of this funnel because you want to get to sort of the smallest issues first and then move up. But I'm once again going to start from the top of the funnel, which is, does Congress have the power to do this under the U.S. Constitution and the Fifth Circuit? Now, mind you,

this is in stay posture. So they're looking at likelihood of success on the merits. They're not actually doing the merits, which is very confusing because they are kind of doing the merits, but they don't do it in sort of the depth that they would. They're just looking like, you know, 51% would you win on this? And 51%, the Fifth Circuit says, yeah, this exceeds your Commerce Clause powers. It was not, and likely could not be, under the Commerce Clause intended to authorize workplace safety, yada, yada. Second, after the Commerce Clause, does Congress have the power to do this. Could Congress delegate this to OSHA? Non-delegation doctrine, right? There's certain things that are legislative functions that Congress has to keep for itself that it cannot give to an administrative agency. The Fifth Circuit said, also, 51%? No. Non-delegation doctrine problem here. Then I said, did Congress delegate this to OSHA? This

is major question doctrine, meaning, all right, the Constitution says that Congress can do it and Congress can delegate this to an administrative agency, but did they delegate it to an administrative agency? This is called major question doctrine, as in, if it's a major question, a big thing, Congress should have explicitly said

that that's what it was doing. I know this will come as a shock to you, David. The Fifth Circuit said major question doctrine problem as well. In fact, Judge Duncan

had basically a whole concurrence, whole meaning, it was like two pages, just on major question doctrine and this problem. By the way, there was a fun little Latin phrase called nositer ossois. Nobody speaks Latin, therefore I can't mispronounce it. But nevertheless, we will get comments on this.

A word is known by the company it keeps, meaning that they're going to interpret the delegation from Congress in a more constrained manner, perhaps, than OSHA wants them to. The words in sort of the company they keep, right? the words in sort of the company they keep, right? The words next to it and all of that. So here, OSHA's attempt to shoehorn an airborne virus that is both widely present in society and thus not particular to any workplace and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch. So this goes to whether OSHA is following its own delegation here. Basically on every single section, the Fifth Circuit said, gnaw dog.

In fact, this was some pretty real na-dog stuff going on here. Comprehensive na-dog-ism, basically. Yeah. And this gets to, of course, what the OSHA rule was, which we have talked about now a long time ago, back in September. Okay. So first, David, the Fifth Circuit found that it was both over and under inclusive what the vaccine mandate itself was. Over inclusive, meaning it includes, you know, two thirds of American workplaces, regardless of, you know, what's going on at those workplaces, whether there is someone with COVID at those workplaces, as opposed to, for instance, lead paint or something that is a toxicity where it's like, if you have lead paint present,

you need to remove that lead paint right now. They can't do that with COVID. But they also said it's under-inclusive. If this is a grave danger to the workplace, which we'll talk about later, then how come employers, sorry, employers with 98 employees aren't covered by this? And OSHA said, basically because this vaccine mandate would be too onerous for a small business. And they're like, well, that doesn't go to whether it's a grave danger. Therefore, both over and under inclusive, they've got a problem with that. Next, they're looking at the actual statutory language of the ETS. It needs to address, quote, substances or agents determined to be toxic or physically harmful or, quote, new hazards. They find that COVID, again, 51%, likely doesn't fit into any of those categories. Not toxic, not physically harmful, not a new hazard, which is interesting. Not physically harmful.

Interesting. So there's something that, as you were talking about the funnel, which I think is a super, super helpful way of thinking about this, there's something that on the top of the funnel, I want to address. Okay. Then we'll get back to our ETS standards. Okay. You address the top of the funnel. Yeah. The top of the funnel. Because I think there, for those people who've been listening faithfully to advisory opinions, and we know that you have been listeners, you're very familiar with this case called Jacobson v. Massachusetts, which is this 1905 case where the Supreme Court of the United States said, yep, you can mandate the smallpox vaccine. And so you might be saying, wait a minute,

how could you say that Congress can't mandate a vaccine if this Supreme Court said in 1905 the state can? Well, the state has the police power. So the state and Congress have different kinds of power. And one thing that's always important to remember, and this is something that became so important during the pandemic as we were looking at all these pandemic regulations, is this, you look at state sovereignty, it's different from federal sovereignty. Think of the police power like this. The state has all of the power that a sovereign has, except for that power that is withheld from it by its constitution or by federal law. The federal government has no power except that which is granted to it by the Constitution under the Enumerated Powers Doctrine. So unless you can look at something in the

Constitution that grants Congress the power to enact a particular law, Congress doesn't have that power in theory. And that's why, you know, Sarah was talking about the Commerce Clause, the logical place we were talking about OSHA, the justification for OSHA, occupational safety and health, is the Commerce Clause. And does the Commerce Clause grant Congress the authority? question than the Jacobson versus Massachusetts question, which is, does a state which possesses the police power have the ability to order a vaccine mandate? Okay, that was my miniature pause. So the Fifth Circuit takes that on really directly, in fact, citing Jacobson v. Massachusetts. And it says, the mandate, however, commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing. The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate non-economic inactivity traditionally

within the state's police powers. Citing, that's right, NFIB versus Sibelius, the Obamacare mandate opinion by Chief Justice Roberts. Now, remember, he ends up justifying that under the taxing power. But the whole first part of the opinion is how it is not under the Commerce Clause power. And they quote the Chief Justice, people for reasons of their own often fail to do things that would be good for them or good for society. Those failures joined with the similar failures of others can readily have a substantial effect on interstate commerce. Under the government's logic, that authorizes Congress to use its commerce clause power to compel citizens to act as the government would have them act. And then goes on to say the federal government has no such authority, no police power. Indeed, the courts have always rejected readings of the

Commerce Clause that would permit Congress to exercise a police power. So that is sort of the ballgame on that top of the funnel. Now we'll go back to the mandate itself. We're now, we've left the funnel and how Congress gets this over to OSHA. We're now to the language of the mandate itself and whether that is lawful under OSHA's ETS powers. As I said, the Fifth Circuit said, not a toxic or physically harmful substance,

not a toxic or physically harmful substance, not a new hazard. So number two, show that workers are exposed to such substances, agents, or new hazards in the workplace. Three, show that said exposure places workers in grave danger. And four, be necessary to alleviate employees' exposure to gravely dangerous hazards in the workplace. And of course, we've gone over the numbers on this, right? Of the seven OSHA ETSs, what, five were challenged? No, seven, sorry, of the nine, seven were challenged and five lost. So OSHA does not have a winning record on these ETSs, the Fifth Circuit. As we have noted in the past, the precision of this standard makes it a difficult one to meet. So, right, an airborne virus is not a substance or agent. And so that's where the physically harmful comes in, David. It has to be a substance or agent that's physically harmful.

And it's widely present in society, as I said, non-life-threatening to a majority of employees, either because it just won't be or they're already vaccinated with 78% of adults. already vaccinated, you know, with 78% of adults. Any argument OSHA may make that COVID-19 is a new hazard would directly contradict OSHA's prior representation to the DC Circuit that there can be no dispute that COVID-19 is a recognized hazard. Wah, wah, wah with your previous arguments. I don't know that those two are as

orthogonal to one another as the Fifth Circuit makes it out. Something can both be recognized and new, in my opinion. But I do see the, as this goes on, at what point is COVID-19 no longer a new hazard? Yeah, you know, my issue with the OSHA regulation is top and middle funnel. So the top funnel, the Commerce Clause aspect of this, that is something that I'm very, I'm deeply skeptical of the Commerce Clause reaching this far, but I've been deeply skeptical about how far the Commerce Clause reaches into OSHA for a long time. The OSHA regulations are extraordinarily intricate and intrusive and complicated and universal, and they have been for a really long time. And I've long thought that the Commerce Clause has been stretched beyond recognition. So I'm very concerned about the Commerce Clause aspect of this.

And then you go to middle funnel where, well, wait a minute, what about the delegation here? What about the Administrative Procedure Act? How much can you actually do without notice and comment rulemaking? I really have a problem with the amount of administrative law that's being promulgated without notice and comment through memoranda, through emergency rules and regulations, incredibly intrusive and incredibly complex regulations that are, and consequential regulations and changes of law that are not going through normal process. And this has been something that are not going through normal process. And this has been something that's been going on for years now. So that sort of

middle funnel. So those both the top and middle funnel for me on this have long been of concern. But that top funnel with OSHA in general has long been a concern for me. So I've always, ever since I was a young lad in law school, I was looking at Commerce Clause jurisprudence and saying, come again? It's that broad? Really? So this will be interesting as it goes up, Sarah. This will be very interesting.

OSHA has one other problem in that it has previously said that it doesn't have the power to do vaccine mandates. And the Fifth Circuit cites all of their letters back to them, including a 1989 one. Health in general is an intensely personal matter. OSHA prefers to encourage rather than to try to force by government coercion, to encourage rather than to try to force by government coercion, employee cooperation in a vaccine program. And then even in May of 2020, acknowledges that, quote, it would not be necessary for OSHA to issue an ETS to protect workers from infectious diseases because OSHA lacks evidence to conclude that all infectious diseases to which employees may be exposed at a workplace constitute a, quote, grave danger for which an ETS is an appropriate remedy. And they're like,

look, you can depart from a prior policy, but you can't just do it basically without explanation, sub silencio. And that is sort of the definition of arbitrary and capricious, even if they had followed notice and comment rulemaking, by the way, which they didn't hear. This is under the emergency standards. So the Fifth Circuit basically on every single category of this mandate, gnaw-dogging it. it. Now, David, of course, the Fifth Circuit is not the last word on this. As we discussed, and I wanted to actually get into some of the history here, this will go through a multi-circuit panel. And let's go back to why that exists, because this can seem very silly. But basically, pre-1988, when you would have something like this, it was just a race to the courthouse. Whoever got in first won the race to the courthouse. And so we're trying to prevent that because that has all sorts of not great things

that result from it, which is you're sort of rewarding quickness and sloppiness. It really becomes a true race. Can you get there four minutes after? Oh, nope. You only got there six minutes after, even though you have better standing, a better case, better lawyers, whatever else. And so in 1988, Congress created the multi-circuit petition statute. Although it creates a bit of a different problem, within 10 days after issuance of the order of the agency, basically everyone can file and then if there's two courts of appeals involved, the agency must notify the judicial panel on multi-district litigation. The panel will then, by means of random selection, designate one court of appeals from among the courts of appeals in which petitions for review have been filed and

received in the 10-day period to hear cases. So David, two episodes ago or so, I dogged a little on the RNC's case because they filed in the DC Circuit. The DC Circuit, not as friendly if you're against the mandate as, for instance, the 5th Circuit or the 11th Circuit, maybe probably also the 6th Circuit at this point. Really the D.C. circuits in sort of your bottom four circuits that you want to file in. And that a whole bunch of these other lawyers in these other cases were very annoyed with the RNC and thought they had made a strategic blunder filing in the D.C. Circuit. Now, in fairness, they also just don't think the RNC is a good plaintiff. It's overly political, makes it look like a fundraising operation instead of a

genuine concern with the mandate. But set that aside because their loudest complaint was, how dare you ruin our strategy to get into the 5th or 11th Circuit by filing in the D.C. Circuit. So what happens in the days that follow? Exactly what was predicted by the RNC's lawyers, which is there were then cases filed by so-called friendlies, friendly to the vaccine mandate, the AFL-CIO, for instance, in both the D.C. Circuit and the Ninth Circuit, among others. And what's interesting about this, if you're wondering, well, wait, if they are not a party adverse to the vaccine mandate, how did they do that? Well, first, they could have just said, oh, the vaccine mandate doesn't go far enough. It should cover everyone or there shouldn't be a testing thing.

They could have done that, but they didn't. Instead, what this actually allows is simply for you to file and say, me too. That's it. You don't have to actually explain why you're there at all. And that's in fact what the Ninth Circuit petition, like it didn't say anything. And that puts in the Ninth Circuit. And even if the RNC case didn't exist, the DC Circuit into that multi-district petition that the judicial panel on multi-district litigation now will consider. And now it's all about what does random mean? And well, we're about to find out. Now, before they announce which circuit court will have it, that's where the Fifth Circuit or any other circuit can act as if they are that circuit that has it because of sort of

the emergency nature of it, et cetera, et cetera. So the fifth circuit doing what the fifth circuit does. But in a few days here, we're going to find out which circuit will actually have these for good. So on the random selection, is there a bowl with ping pong balls in it with circuit numbers? And are you blindfolded and you reach in? Is there like a dice with a circuit number on it and you roll the, how is the random? Does anyone know? Is this,

is this, is this specified? No. And indeed Josh Blackman, um, and the reason website wrote up his whole thing on it. And yeah, it could be that the Chief Justice pulls a ping pong out of a ball. I mean, out of a bowl, who knows? So 28 USC 2112 A3 is what says it will be random. Yes, yes. I mean, we've memorized that.

The clerk of the panel shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein a constituent petition for review is pending. Multiple petitions for review pending in a single circuit shall be allotted only a single entry in the drum. A designated deputy other than the random selector shall witness the random selection. No joke. It's ping pong balls and a drum, y'all. It's amazing. That's fantastic. Well, Sarah, that is, so that's where we are on the OSHA vaccine mandate. Now, there were 10 states that filed a lawsuit this past week on the CMS mandate, which is a different mandate, which is that CMS is the Center for Medicare and Medicaid Services. And this is the health care worker vaccine mandate that is tied to Medicare and Medicaid

funding. And that's a different beast in and of itself. And so that one has, I think, much stronger than the OSHA mandate. If you're tying it directly to funding of Medicare-Medicaid, you're going to have more capability there, I think, to attach a condition to that funding. But we'll be keeping an eye on that as well. So one more thing before we leave vaccines. So this week, or was it, gosh, no, last week, because this is Monday, last week, my days are blurring together, Sarah. Last week, I did an interview, a podcast with the editor of Mediate, Last week, I did an interview, a podcast with the editor of Mediate, the editor-in-chief of Mediate.

And it was about vaccines and lots of different topics. And out of that, he asked me about religious exemptions to vaccines. And we actually had a pretty helpful conversation about it that I think would be that I wanted to relay some of what was said to this audience. Because he was asking you about the sort of flood of religious exemption requests. And I said something that kind of one half of it got picked up on Twitter and the other half did not. So I get to do all of it. Here was the half that got sort of picked up on Twitter is that I was saying that there is not a significant strain of American religion, whether it is the Catholic Church or the Southern Baptist Convention or the Episcopal Church or the Presbyterian Church I'm a part of, that has in place a formal doctrine prohibiting or

re-asking its parishioners and its members and its congregants not to take the vaccine. There is not a traditional anti-vaccine theology, either of this vaccine or other vaccines that exist in mainstream American Christianity. It's just not there. And in fact, prior to the COVID vaccine, even, you know, conservative evangelicals were often quite dismissive of the anti-vax movement that they were seeing and sort of ascribing to the far, far left. So there has not been a traditional religious justification founded in the theology and practice of major American strands of Christianity that justifies a vaccine exemption. That was part one. And there's like, David French says there's no religious basis for the vaccine mandate. Okay. But there's a lot of Christians of all strands who are now objecting to the COVID-19 vaccine, even though their church does not provide them for the basis for the objection.

Now they might say, well, this verse or that verse or et cetera, but what they're doing is essentially saying, my own interpretation of our religious beliefs leads me to object to the vaccine quite sincerely. And one of the points that I wanted to make in that was when you're talking about, there's two arguments. If you're talking about theology, like you and another person from your church are talking about religion and the vaccine, you might be correct in saying our church does not prohibit you from taking the vaccine, but a court doesn't care. The court isn't saying, well, you're the good Baptist and you're the bad

Baptist, or you're the good Catholic and you're the bad Catholic, or we're not going to grant you the protection of the free exercise clause because your church, you're defying your church. That is not what they do. That is what they essentially do is say, wait, is this a sincerely held religious belief? And they don't question the validity of your reasoning, of your religious reasoning. And you wouldn't want the court to do that anyway. Is it the court's job to determine who's a good Catholic? Who's a bad Catholic? No. A good Baptist, a bad Baptist? No. So they're just going to ask, is this a sincerely held religious belief?

They're going to take a light touch on that. And then is this a substantial burden on that? But that doesn't end it. Then you get into the actual test that's going to be applied. Is there a compelling governmental interest? Is this least restrictive means, et cetera, et cetera? So one thing that I wanted to clear up is you can say at the same time this, the Presbyterian Church of America, my church, does not, as a matter of formal teaching, prohibit you from taking the COVID-19 vaccine. And that doesn't matter one bit in federal court if you're a Presbyterian saying, my religious beliefs say that I shouldn't take the COVID-19 vaccine.

So I wanted to clear that up because there's a difference between a religious argument and a legal argument and the legal argument is not designed to settle the religious argument. Is that clear as mud? Yeah, yeah. But so courts obviously do not look

at whether your sincerely held religious belief fits in with any other particular religious tradition as long as it's sincerely held. But does consistency of the religious, of the stated religious belief matter? So for instance, the COVID vaccine religious objection that I've heard most commonly is that it was developed from stem cells. Now there's plenty of fact checks out there, so I'm not going to do the full history of that. Except like this does sort of come from stem cell lines that were originally derived from fetal tissue back in the 70s and 80s have been immortalized and retained and they are used. And yes, that it appears was part of the COVID vaccine process, but it is also, was also part of the process for Tylenol. So will the court ask,

okay, if that is your objection to the COVID vaccine, have you ever for Tylenol. So will the court ask, okay, if that is your objection to the COVID vaccine, have you ever taken Tylenol? Well, so does consistency factor into whether it is sincerely held? You know, the inquiry into whether it's sincerely held is really, as I said, light. So to sit there and say, okay, and it's not just tylenol it's a bunch of medications oh tons and it's a yeah just a ton of very commonly used medications i mean there there was you know there's been lists flying around that say oh so you must not be taking and the answer to that is in court if i'm their attorney if i'm wearing the attorney hat is your honor in all honesty my client didn't know until this

litigation that these cell lines were used for Tylenol, and they're going to react accordingly. And so there's a very easy sort of way around this. And so it's going to be very, very, very, very rare that you would see a court say, this is not a sincerely held religious belief. This is not, you would almost have to have a document saying, I'm going to make up a fake religious claim. It's sort of an incomplete admission against interest because the free exercise clause protects, you can be a church of one.

Absolutely, yeah. You can be a church of one you know absolutely yeah you can be a church of one you you can be not even a believer it protects the free exercise clause protects atheism every much every bit as much as it protects christianity and so this is one of the aspects of our constitutional system that you can say you know i know that you could walk in as a catholic and and have and I'm just making this up completely. The Pope has written a letter that says, David French, you're a bad Catholic if you refuse. It doesn't matter. You could say, Your Honor, I'm a dissenting Catholic. And the court is going to say, I'm out of that. I'm not a part of that argument. And so, yeah, that's why a lot of people

don't understand it's not the role of the court to adjudicate the religious dispute. What it adjudicates is the clash between your religious belief and the state legal requirements. That's what it adjudicates. And the sincerely held religious belief prong is so easy to pass, it's almost, not entirely, but almost functionally non-existent. Well, at least until Ramirez v. Collier comes down, because there was a lot of discussion in that death penalty case last week

about, now, the whole point, I think, from the conservative wing of the court was we don't want to have courts looking into what is sincerely held religious belief by a defendant. However, they were laying out how would we determine whether a religious belief was sincerely held by someone pending execution. So yes, and I think the consistency issue is really interesting, as you said, just because you can always say, I'll be consistent from now on. And that's enough. Right. Yep. Yep. I'll find a different blood pressure medication. I'll use a different pain relief. Yeah. You can absolutely just say that. And what's the court going to do then? Check up on you in six months?

I mean, that's not how it works. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds.

Certain conditions apply. Details at fizz.ca. Shall we talk broken constitutions? Yes, I'm very excited about this. We've been holding this for a couple of weeks to get through the Supreme Court arguments and we're here. Yay. that it's titled The Broke Constitution. So in essence, what Feldman is contending, and it's book-length, so forgive me, Professor Feldman, if this is the inappropriate four-sentence summary, is that the Constitution prior to 1861, is it too much to say that he argues was essentially and functionally pro-slavery?

And not just sort of pro-slavery, but also created a, was silent on disillusion. And so that in many ways, when the Confederacy seceded, and when the states of the Confederacy seceded, they were properly interpreting sort of their understanding of the federal constitution at the time, and that Lincoln's aggressive military action combined with a lot of the other things that he did, such as the Emancipation Proclamation, etc., essentially broke apart the contemporary understanding of the constitution. To reconstitute the Constitution, you had to have the Civil War amendments, you had to kind of rethink fundamentally the relationship of the Constitution to the states. And it's a fascinating argument. Sean Willits, a Princeton professor, reviewed his book in the New York Times

and essentially says, you know, look, I mean, what Feldman is doing is he's kind of taking the Confederate constitutional argument and saying the Confederate constitutional argument was the correct constitutional interpretation at the time, which is interesting. And then it took this, you know, and then also sort of takes that narrative that exists within the South of Lincoln as the oppressor, Lincoln as the extra constitutional sort of warlord, and adopts that as well to say, essentially what Lincoln did was took a flawed constitution, shattered it through military and executive action, and then that had to be put back together again immediately after the Civil War in a fundamentally different way.

Is that a fair description, do you think, Sarah? I do, yeah. I do think it's fair. Okay. So what's your, I'm eager to hear, I have thoughts, as you might imagine, but I'm very eager to hear yours. So I attended a one week, you know, fellowship program where this was basically the thesis that setting aside some of the Lincoln part, actually, which I find really interesting and highly persuasive.

The thesis being the original constitution has been replaced post civil war that the 14th Amendment transformed that so that when we think about our constitutional order, anything, basically, we should be going back to 1867, not 1770, well, really 1787. And that you almost go straight from the Declaration of Independence and draw that direct line to the 14th Amendment and skip over what happens in between because it's this failed experiment that includes slavery. So you go straight from all men are created equal and endowed by their creator with certain unalienable rights to the 14th Amendment's change in power

between the federal government and the state governments and erase slavery from the Constitution. Now, some things that I find really interesting about this. One, it's a very hopeful reading of American history, and I like that. So just to read the end of- You mean the Feldman reading, I think, yeah, the reading that the 14th amendment is where you start with the current

American constitutional system. Um, you know, whether you want to draw that direct line from the declaration of independence or not. I mean, I think Feldman does actually, but, um, that the I think Feldman does actually, but that the experiment of the initial U.S. Constitution with slavery was failed and was ended. As he ends his op-ed that he wrote in the New York Times about this, persistent inequality still afflicts the United States, including inequality before the law of the kind the moral constitution prohibits. The reality is that Lincoln's moral constitution, like all constitutions, is not an endpoint, but a vow of continuing effort. Through that constitution, we define our national project and strive to achieve it, even if we never fully succeed. If I had a constitutional theory, it would be summed up in that paragraph pretty well.

Because I do think that's a very hopeful, ongoing experiment way of seeing United States history. Some other points, though. The Lincoln as authoritarian usurper, I don't think is wrong. There's no question that Lincoln violated the 1787 Constitution repeatedly, flagrantly, and he did so saying, this is an emergency. This has to be done to preserve the Union. It is the only choice. All things, by the way, that actual dictators and authoritarians say. Lincoln happened to be right in history's eyes. But I would be deeply concerned if I were living through that era that that wasn't the case, you know, that sort of emergency powers are to be disfavored in any self-government. And so I think that there is that side that we have to be very grateful that it was Abraham Lincoln who exercised this power. It would be terrifying in anyone else. That sound you heard as you were talking about Lincoln in that way was the keyboards clicking of our commenters lighting up the discussion of the American Civil War.

But look here. So there's two things. One is let me let me go civil war related first. And this is going to get kind of nerdy. This is going to get nerdy on law of armed conflict. And so bear with me for a second. Okay. So Lincoln had this interesting dilemma, which was this. The Confederacy he refused to recognize as a belligerent power. In other words, by recognizing the Confederacy as a belligerent power, the way you would recognize, say, if the United States was at war with France or with Great Britain, to recognize the Confederacy in that way was to recognize the Confederacy, right? And also to say that there was a valid dissolution of the ratification of the Constitution, which the Constitution does not provide for dissolution. Therefore, if you recognize them, it's already been dissolved. Right. So on the one hand, you couldn't formally

recognize the Confederacy as a belligerent power in the same way that you would do this, because for all the reasons you just said, you're not recognizing, you don't, it doesn't, the Confederacy in the mind of Abraham Lincoln is not an entity that exists. This is not an entity that exists. So at the same time, however, in many ways, the war functionally was conducted as if the Confederacy was a belligerent power. So in other words, the way in which the Union and the Confederacy fought each other was very much in keeping with the way, say, Britain and France would have fought each other. The rules, the formalities, the customs, not entirely, historians who are listening to this AO podcast, not entirely, but in many

functional ways, that was the case. So, for example, when you're looking at the Emancipation Proclamation, the Emancipation Proclamation was very much in keeping with the way that a belligerent power would commandeer the laws of another power in the course of an occupation, of a military occupation. We're running the place now. Our word is law. And that would be very consistent with if France and Britain invaded Normandy and was running Normandy, and they say, our word is law at this point. And so that's what, say, for example, the Emancipation Proclamation, essentially what you're doing is you're saying the function of it was we have occupied the territory of an opposing power and we are now imposing our law on this opposing power which

as a matter of law there was no occupation going on at all this was the states say tennessee or alabama and mississippi were never outside of the Constitution, and their constitutional rights were never forfeit because they never left, but they did leave. was, they've never left, the Constitution still applies, etc., that was substituted for a reality on the ground of this is a hostile belligerent power, I'm going to treat it that way in fact, not if not in the way, not verbally, not rhetorically, but in fact, we're going to treat it that way. And that's responsible for, you know, one of the reasons why you actually saw the Confederacy, you know, for example, militarily occupied, you had the states readmitted to the Union, how could they be readmitted if they never left, you know? So you had a lot of this going on that was a product of the ambiguity of,

A, we're not going to recognize the Confederacy, but B, as a matter of fact, there's a giant army that we're fighting represented that is the military arm of a government that we are fighting. And so a lot of what you saw in the Civil War was the tension between these two concepts playing itself out in real time. So that's number one. Number two, the one thing that I would say on the Constitution as originally created, and a lot of people say the original Constitution was pro-slavery, and other people say that counter no, it was permissive of slavery, and that's a separate thing. That's a separate thing. I kind of tend to think that's a little bit more semantics, but I will say this. I will say that the Constitution, by being permissive of slavery while still articulating, even though the Bill of Rights only applied to the federal government initially and not the states, by being permissive of slavery, but at the same time articulating a

Bill of Rights was morally in tension with itself. It wasn't explicitly in tension with itself because the Bill of Rights, again, only constrained the states. It was morally in tension with itself, just in the same way that slavery was morally in tension with the Declaration of Independence. And that, those two things, the Declaration of Independence and the Bill of Rights, I think over time could not, over time, coexist with slavery. It just couldn't. There was too much of a moral contradiction between those two things. So that's my brief divergence. It seems to me that the way to read the original Constitution's view states and states of different regions and states of different economic power to all agree to a single constitution and to join into a union. And that was one of many compromises. It was an immoral compromise. But that makes it complicated in the sense that, yes, then some people

were pro-slavery who joined in that compromise. Some people were permissive of slavery who joined in that compromise. So it is actually both. That's what a compromise is. And to see the constitution as anything else to me is just overly simplistic and not understanding how group projects work. So going all the way back to like second grade collages. That's right. Yeah. Uh, were you permissive of the color blue in your collage advocating for the color blue? No, it was a compromise. That's what a group project is in this case, an immoral compromise. Uh, but I find it a really interesting, uh, argument that Feldman's making. The book, again, is called The Broken Constitution, Lincoln, Slavery, and the Refounding of America. Because in so much of our constitutional

law, we do treat the 14th Amendment as the restart button of the U.S. Constitution. When we look at U.S. Constitution, when we look at original meaning, what was intended. I mean, so much now, the 14th Amendment is in some ways bigger than the Commerce Clause in terms of how often we're going back to it to look at due process, substantive due process, all of the amendments that are held against the states, the First Amendment, the Second Amendment, the Fourth, the Fifth, all of them, that runs through the 14th Amendment because we remade the U.S. Constitution

where the states were no longer entities unto themselves, getting to run their populations as they saw fit. They were now bound by the same guarantees of freedoms, liberties, and duties that the federal government had guaranteed to its citizens. And Lincoln's role in that is fascinating. So it's a really interesting Feldman thing he's got out there. Yeah. And I think the average person, the average constitutionally informed person has trouble grasping that, wait a minute, it's only been a century or so since if my,

that where I would be, my local government could totally censor me. My state government could completely violate my free exercise rights. It could completely violate my free speech rights. Wait, what? Because we're now so conditioned after the 14th Amendment to look at all forms of American government as constrained by the Bill of Rights that it seems odd to us. And so when you go back to, for example, one of the greatest speeches, and I refer to this all the time, one of the greatest speeches in American history is Frederick Douglass's plea for free speech in Boston. And you think, wait a minute, unless you're familiar with this constitutional history, why is he pleading for free speech? Don't we have a first, didn't we have a First Amendment then? Yeah, but it didn't restrain Boston. It didn't restrain Massachusetts. It didn't restrain any

other of these states in the slave South, the slave states in the South. And so the 14th Amendment really was a constitutional revolution on a scale that it's really tough for us to comprehend because we have been living with it and we don't have a memory of anything other than this. And arguably, and this is where we still argue over the meaning of the 14th Amendment, was the 14th Amendment basically meant to ratify the Declaration of Independence? Or was its purview far more modest and narrow? And that's an ongoing debate that we still have. And conservatives, and I'm using conservatives here with a small c, of course, conservatives often want a more narrow reading of anything, a more modest judicial role, and read the 14th Amendment

that way. That's sort of the fight over substantive due process. But at the same time, there is something deeply conservative about saying that the 14th Amendment brought into the Constitution the Declaration of Independence. And the problem, of course, with that argument is that it didn't say so and it's sort of like it's major question doctrine in a amendment if you meant to have something so massive and the 14th amendment carries so much water why doesn't it say that at all and there's historical arguments for and against that and everything else and that that's the debate we're still having today but there's no one's questioning that the 14th Amendment remade the relationship between the federal government and the states and the states and the people. Well, and one thing about the 14th Amendment is the language on its face is a combination of very

broad and not very explicit. So if you're a textualist and you're reading an originalist and you're reading the 14th amendment, man, that's some broad and that's a broad language there. That is, there's a lot of play in those joints, but also the historical context says we're trying to do something. We're trying to recreate, we're, we're rec to do something. We're trying to recreate. We're recreating this nation, in essence. This is a new birth of freedom, in essence. And so I think there's a lot of historical support for the idea that that broad language should be, that language that was quite broad should be interpreted in a quite broad fashion and has been interpreted in a quite

broad fashion. Bearing in mind, of course, that this was the opportunity that the union had, because in order to rejoin the union, again, with all the complications that that raises in terms of weight, but they weren't out of the union, they had to ratify the 14th Amendment. And so it was this opportunity for big, bold stuff. Yeah, absolutely. Absolutely. So we're a little short on time. So can I use a couple of minutes

with a book recommendation? Sure. All right. So this is not a brand new book. One thing I do every now and then when I'm between books is I will go to the Amazon Military History Bestsellers list

and just see what's on there that I haven't read yet. And so there was this book called A World Undone, The Story of the Great War, 1914 to 1918 by G.J. Meitmeyer. And I think it was written in like 06. And I was a little mad at myself because I hadn't read it before. Yeah, it came out in May 30th, 2006. And I thought I vacuumed up every new one volume history of World War I. And I hadn't read this one yet. And it was like number two on Amazon right now in 2021. And I so highly recommend this book.

I so highly recommend this book for two reasons. One, if you are interested in the First World War, and you should be, because there's a lot of good arguments that World War I is the war that sort of broke the world in a lot of ways. You should be interested in it just on its own terms. But second, the first part of the book is probably the most compelling explanation for how it started that I've ever read and how much staggering incompetence there was and confusion and bad mistakes and misreading of signals. And it's really absolutely heartbreaking when you know what follows to read this account. And I'm just, you know, I've been beating this drum for a long time that we often in our view of what's happening

in the world today right now, in our view of history, we attribute to plan and intention and intention, what is often actually the product of accident and incompetence. And my goodness, the start of World War I is an example of that. So it's called A World Undone by G.J. Meyer. It's written in 06, but I highly recommend, super readable. You won't regret it. but I highly recommend, super readable. You won't regret it. And on Thursday, we're going to dive into the insular cases. So if you've ever wondered what the insular cases are, that's going to be our first question with a special guest.

And David, we have one more. And I know everyone. Oh yeah, we have one more big thing to talk about. And what is that? The music. Yes, okay, go Sarah. So many of you did not like the change in our introductory music that was made now many months ago. There was a revolt against producer Caleb. Producer Caleb has informed us that the time has come again.

So for those members of the Dispatch, hop into the comments section on advisory opinions on the dispatch website and tell us, have you grown to love the new music? Or do you still hate both the music and producer Caleb because he is in music shopping mode? Or if you've not subscribed to the dispatch, and I know there are many of you who listen who've not yet subscribed to The Dispatch, subscribe now so that we can afford my dream music, the opening guitar riff of Sweet Child O' Mine. Right. We're not going to use the money for that, folks. Just we're not going to. But if you want to weigh in, you can become a member just this month for the purpose of weighing in on the AO theme music for the flagship podcast. This is pretty important stuff. And of course, regardless, we appreciate all of you and appreciate you listening.

Bad music or not. Absolutely. Absolutely. And so we will be back and talking to you on Thursday. And as always, please go rate us on Apple Podcasts. Please go subscribe on Apple Podcasts and get ready to learn more than you ever wanted to know about the Insular cases. And I'm going to be learning right there along with you. So we will talk to you again on Thursday. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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