Advisory Opinions - The Insular Cases

Episode Date: November 18, 2021

On today’s show, David and Sarah bring Neil Weare, president and founder of Equally American, on the pod to teach us interesting things about the Constitution and history, with an emphasis on the unique history of American territories. And then Sarah and David dive into the controversies at Yale Law School and try to answer the question, "What the heck is going on?"   Show Notes: -French Press: “An Airing of Grievances Against Diversity Training” -Reuters: “Yale Law students 'blackballed' for refusing to lie about professor, lawsuit says" -Reason: “More Shenanigans at Yale Law School” -David Lat: “The Newest Insanity Out Of Yale Law School” -David Lat: “Yale Law School And the Federalist Society: Caught In A Bad Romance?” -David Lat: “Doe v. Gerken: A Lawsuit Against Yale Law” Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to the Advisory Opinions Podcast, a special edition of the Advisory Opinions Podcast. I'm David French with Sarah Isker. We've got a fantastic guest today. We're going to talk about what the heck is going on at Yale Law School. But before we're going to get into any of that, Sarah has a wild story, Sarah. Why don't you share it? Well, David, recently I ran into a state Supreme Court justice, and he said that he started listening right before my duck story, and that that really hooked him on advisory opinions um because of course like this podcast has a lot to do with duck rescues and it really i think is a thread that is a you know goes throughout all of our legal commentary so i want to add another

sarah's weird life story i guess um i was out with some friends and my friend's husband collapsed at this restaurant. Yikes. Yeah. And look, spoiler alert, he is fine. He is doing just fine. So this is not a sad story, happy ending all around. But I go into Sarah Stafford mode and call 911, call for a doctor in the place that we are. And so I'm yelling, is there a doctor in the house? It's like, I don't know, like that's what I've seen on movies, right? You just like yell for a doctor. And there was, there was one doctor out of this whole place.

Now, mind you, if I had yelled for a lawyer, we would have had like a mad rush to see who we needed to sue. But in DC, finding a doctor is a little trickier. So I called for a doctor. One came over. In the meantime, I'm trying to figure out like, what do they need to get? Like, do we need to go to the coat check? Do we need their car? You know, how's he doing, obviously. And this doctor comes over and he is fabulous. Just takes over, is so attentive, waits for the ambulance, briefs the EMTs on what's been going on. It's just really, really saved us. And that doctor, David, was Anthony Fauci. You are kidding. You are kidding. I am not kidding.

It was the Anthony Fauci. And look, I know that people have their feelings and thoughts on Anthony Fauci, but I got to tell you in that moment when you need a doctor and your friend's in trouble, Anthony Fauci was fabulous. That's so fantastic. And I'm so grateful to him. So thanks,, Anthony Fauci was fabulous. That's so fantastic. And I'm so grateful to him.

So thanks, Dr. Fauci. Amazing. We know he's probably a friend of the pod. So thank you, Dr. Fauci. We appreciate it. Man, that is the things that happen in DC, Sarah. The things that happen in DC. Yeah, I go to Florida.

I have a family of ducks. I go to Florida. I have a family of ducks. I go to DC. I just have, you know, random run-ins with, um, the most famous doctor in the world right now, I guess. Yeah. Yeah. That's well, I'm glad your friend is safe. Uh, I'm glad Dr. Fauci was helpful. Um, only what happened to Sarah is in that category Only what happened to Sarah. But Sarah, we've got a guest. We've got a guest. We do. So today on Advisory Opinions, we're going to learn. David and I have not done what we normally do, which is invite someone on to talk about something that we already know and care a lot about. Instead, David and I are going to have a guest on to teach us.

So Neil Weir is the president and founder of Equally American, and he's going to teach us both about the insular cases going back 100 or so years, but also a case that was just argued in front of the Supreme Court and a case pending for en banc review in the 10th circuit. We're just going to learn a whole lot in a short amount of time. Buckle up. Also, Neil happens to be married to my husband's best friend from college, even though they didn't go to college together. It's all very confusing. But I've known Neil and his wife now for some time. So Neil, thank you so much for being here. Yeah, very excited to come on and talk insular cases and talk territories. Yeah. So, okay, let's start with the insular cases.

Tell us everything we need to know. Yeah, so the insular cases are a series of Supreme Court decisions that many, if not most lawyers, I would say have never heard of, even though they probably should have. They're a series of decisions decided by the same court that decided Plessy v. Ferguson, and they established a legal framework shortly after the United States acquired overseas territories following the Spanish-American War that essentially established a framework for the United States to have a colonial empire. Now, of course, the United States was founded on the exact opposite of that, a rebuke to colonial rule, an anti-imperial constitution. And yet the United States found itself after 1898, the early 1900s, with these overseas territories,

with large populations of people who didn't look like or speak like, you know, your kind of typical white Anglo-Saxon Protestant person in the United States at that time period. And this kind of presented difficult questions for the United States, both politically, where questions about overseas expansion really defined the presidential election in 1898 between President McKinley and his opponent, William Jennings Bryan. And eventually these issues spilled over to the Supreme Court, where Congress and the executive branch were really looking, and the American people were looking for answers. Can the United States have colonies? Does the Constitution follow the flag? And in a series of very deeply divided opinions, the Supreme Court basically said, no,

constitution doesn't follow the flag to these areas. The United States can have colonies and really began what has now become 123 year period, which is longer actually than half the time the country's had a constitution. So this is like a lot of American history where the United States has essentially been a colonial power because of these decisions that the Supreme Court made in the early 1900s. Now, what's problematic is that, you know, unlike a lot of other kind of racist Supreme Court decisions that have been overruled or, you know, addressed through constitutional amendment. These remain good law. The Supreme Court has not overruled them. The United States Department of Justice continues to rely on them to deny constitutional rights in the territories. So this is still very much a live issue today. Okay. So I think what's

interesting about the insular cases is that it is now sort of teed up as the next wrong thing to get overturned. Korematsu was the example everyone used up until Trump v. Hawaii, when Roberts sort of explicitly calls out Korematsu as being, you know, hereby overturned. And sitting right behind Korematsu is the insular cases in a lot of ways, except that they're very convenient for the United States, which is a difference between Korematsu. Korematsu, this is the Japanese internment case from World War II. Korematsu doesn't get overturned because there's not a vehicle to overturn it. Nobody thinks Korematsu is good law overturned because there's not a vehicle to overturn it. Nobody thinks Korematsu is good law in the intervening years, but the insular cases,

while nobody likes to think of the United States as a colonial power, everyone thinks that the constitution follows the flag. And I want to get to what that actually means in a second. Um, the insular cases are convenient and the United States government relies on them a lot when it comes to Guam, American Samoa, Puerto Rico, etc. So tell us what it means that the Constitution doesn't follow the flag in specific. Yes. So, you know, scholars debate a little bit over exactly what work the insular cases are doing, and that can be everywhere from a kind of very robust reading of the insular cases that it essentially establishes almost constitution-free zones for citizens living in the territories where Congress basically gets to make it up as they go, exercising extraordinarily broad powers over these areas. There's also a view among scholars that the answer cases actually, when you look at them, and I would describe to this view, are actually fairly narrow. They addressed a very limited set of questions, particularly constitutional questions about the Uniformity Clause and Downs v. Bidwell,

a number of cases addressing jury trial rights during a period in American history where the Supreme Court hadn't gotten around to incorporating the jury trial right even as against the states. And so the decisions themselves are fairly narrow in scope, but the consequences have been very broad, with really the biggest consequence being this idea that it's okay for the United States to have territories that are not on the path to anywhere. So before 1898, you know, the United States had territories. From the very beginning, the United States has had territories. They were always understood to be on the path to statehood. So the United States could acquire territories in order to create future states. And this is something that

scholars like Gary Lawson have written extensively about. But what switched was it's like, well, you know, we have these new areas. We'd like to keep them. We'd like to have total sovereign power over them, but we really don't want the people there to either have any rights that we don't want them to have, and we certainly don't want them to have any political say over the rest of the country. And so this idea developed, this distinguishing between so-called incorporated territories, which were all the territories up until 1898, and so-called unincorporated territories, which were the territories basically populated by people who spoke a different language and looked different. And the distinguishing factor

between them was that so-called incorporated territories would be destined for statehood, and so-called unincorporated territories would not be on the path to statehood or independence. They would just kind of be in this political limbo. And that's something that Supreme Court justices like Justice Harlan, there's a great biography out about him now by Peter Kanellis. We talk about it a lot on this podcast. Yeah, we have. Yeah. Yeah. Yeah. Great. Yeah. I mean, he has a whole chapter on the Insler cases. And Justice Harlan's view was, you know, this is this is not the Constitution that the founders believed in. And this is not

the Constitution that, you know, the folks who enacted or ratified the Civil War amendments had in mind that this is a complete departure from America's most foundational democratic and constitutional principles. And that's, you know, one reason why you really have folks both who have a more conservative ideology and a more liberal ideology, whether judges and justices or, you know, academic scholars really training their eyes on the Insular cases as this kind of aberration of American constitutional law that yet somehow still survives in 2021. Okay, so Neil, you're raised in Guam. Did you have First Amendment rights? And if so, why? Yeah, so I mean, that's a good question. And this is one of the things that has been a challenge

in overruling the Insular Cases is that Congress has essentially, by statute, extended most, if not all, the Constitution to the territories. And so you have a question like, oh, well, does the First Amendment apply of its own force or does it only apply because Congress says it applies? And what if Congress said something differently? Could Congress do that? And so it's a little bit of an uncertain question, which, you know, is on a day to day basis, maybe not so problematic because it kind of feels like things are applying in the same way. But then, you know, strange situations arise or harder questions arise. And it's like,

well, what does the Constitution require? What kind of flexibility does it provide? And that's when things can get messy. And, you know, as my folks still live in Guam, And, you know, as my folks still live in Guam, lots of friends in the territories, this idea that what every other American takes for granted as their constitutional right is merely perhaps a privilege for folks in the territories is a little bit disconcerting, especially as over the last few years, residents of the territories have been targeted in different ways that have been kind of contrary to their interests, whether that's Puerto Rico and the Fiscal Oversight Board that essentially controls their government today, or questions like in Guam, folks may recall a few years ago, North Korea kind of having a map with a giant bullseye on the island of Guam.

You know, that was a little uncomfortable conversation to have with my parents, you know, like what's going on. But you know what? You didn't tip into the ocean as that one congressman. Yeah, exactly. So y'all are lucky. Yeah. And China talks about their Guam killer. They have a missile that's literally called the Guam killer. And it's like, OK, okay, well, that's uncomfortable. Well, you have probably seen your share of B-52s in your day if you grew up on Guam.

That's been a long-standing base for American strategic bombers. But, okay, this is interesting to me. So when I knew we were going to talk about this, I went back and I was thinking about the territories, including Puerto Rico. We welcome their greater participation in all aspects of the political process and affirm their right to seek the full extension of the Constitution with all the rights and responsibilities that entails. And then, this is interesting, given that a lot of people have said it's just so radical to add states to the union. This is from the Republican platform of 2016, Trump platform. We support the right of the United States citizens of Puerto Rico to be admitted to the union as a fully sovereign state.

We further recognize the historic significance of the 2012 local referendum in which a 54% majority voted to end Puerto Rico's current status and 61% chose statehood over the other alternative options. That is fascinating to me that you raise that being a territory was meant to be a transitional process. But the question then is is how does that cut? Does that cut that? Well, the pilot, the political system is just failing and we need to bring greater visibility to reform the political system, or does it cut that this is just inherently alien to the American constitutional system to have this limbo status? Because that seems to

be a lot of what the oral argument was dealing with was, is this a political question or a constitutional question? Yeah, and I would say that it's both and that they interact with each other. So, you know, one of the things that our organization has focused on, and I used to work on the Hill for Guam's non-voting delegates, so I kind of got to see some of the political powerlessness of the territories firsthand, is most folks inside the Beltway maybe don't even realize that the United States has territories, much less that there's a democratic deficit that needs to be addressed. So there's definitely a lack of awareness, although, you know, frankly, what kind of disturbs me even more is working or talking to folks. And, you know, again, this is

this could be on the left or the right who actually know all there is to know about the territories and simply say, well, you know, yeah, I know that they can't vote for president. They're disenfranchised. They're discriminated against in all these different ways. But there are bigger issues out there. This is not something we need to be focusing on. And so one of the strategies and one of the approaches that we've taken with respect to the Insular cases is focusing on the Insular cases as a vehicle for having that broader conversation. So just as you really couldn't imagine in the 1960s, like the Voting Rights Act of 1965 or the Civil Rights Acts, Congress taking those actions in the absence of the Supreme Court overruling Plessy versus Ferguson and Brown versus Board,

I think it's really necessary for the Supreme Court to kind of clear out that underbrush and say, you know, the Insler cases were wrong now, wrong when they were decided. The United States is not a colonial country. And then pushing that back to the political branches to find an appropriate answer. That could be statehood for some territories. That could be a constitutional amendment. It could be independence. There are a number of ways to solve this issue. But absent the court kind of pushing them to say, hey, you actually have to do something, it's not that surprising when instead the message from the court is, actually, you don't have to do anything. The status quo here is completely fine.

It's completely consistent with our constitution. Nothing to see here. And so that's a very important shift that needs to take place and was one of the reasons I was very excited to hear it being discussed at the recent oral argument. So perfect segue, tell us about the social security case at the Supreme Court

and how this affects the insular cases. Yeah, so this last week, the Supreme Court considered a case, United States versus Valle Madero. It's about a Puerto Rican man who was living in New York City. He began having severe medical issues that made it so he couldn't work. He began having severe medical issues that made it so he couldn't work. He's low income, became eligible for supplemental security income benefits, which about up to $800 a month for folks who are elderly, disabled, blind, don't have a lot of income, was receiving the support, moved back home to Puerto Rico so he could be closer to family and a support network.

And unbeknownst to him, under federal law, if you move from a state to most of the U.S. territories, you lose eligibility under the SSI program. He was not aware of that. So he just continued receiving the money for several years. At one point, he changed his address or something with the Social Security Administration. They said, wait a minute, you aren't eligible for SSI anymore. And they let him know that they thought he owed them money, actually, not by even sending him a notice, which would have been nice, but by actually filing a federal lawsuit against him in federal court. I mean, I don't know what the U.S. attorney's office in Puerto Rico, like if they just don't have other things

going on. But coming after a person who only gets federal benefits because they are destitute and asking them to give the federal government back twenty eight thousand dollars. I just think that that might not be on the top of the priority list for most U.S. attorneys' offices. But in any event, they did. And the judge who received the case, Judge Gustavo Helpy, who was recently confirmed to the First Circuit, said, well, I think this guy needs some lawyers. So he appointed pro bono counsel, a firm in New York, Curtis Millay, which kind of interestingly enough is actually a law firm that was involved. It's a very old law firm, was involved in some of the initial insular cases kind of on the right side of things. And so you kind of have this interesting historical arc there. The lawyers arguing the case

at the Supreme Court, Armand Ferre, a Puerto Rican attorney who's a partner at the firm. Puerto Rican attorney who's a partner at the firm. And one of the things that they raised up as a defense was that denying SSI benefits to someone in Puerto Rico based solely on their zip code is a violation of equal protection. And so at the Supreme Court, so Mr. Valle Madero, he won at the district court, won at the circuit court. And then before the Supreme Court, the Biden administration actually appealing, you know, participating in the case, despite having said they were going to withdraw from the case during the political campaign. You know, comes just this discussion of, well, what powers does Congress have over the territories? How can Congress discriminate or not discriminate? What role do the insert cases have to play in any of this, if any at all?

So lots of very far-reaching conversations about the territories at the oral argument. What much broader than I thought it would, I thought that the justices would look at this as kind of a very narrow legal question and not get into a lot of this other stuff, but they really did. Now, so one of the big questions is, as always, a question, well, not frequently a question when you're talking about cases that have not been fully and recently developed and lines of cases not fully and recently developed is, what's the standard of review so is it rational basis or is it strict scrutiny and the government was

wanting rational basis of course the government would always like rational basis review but the counter argument no no no this should be strict scrutiny and because this is the if you dive into the motivation for what occurred and you you alluded to it earlier in the conversation there was a lot of racism going on so what's the sort of kind of chapter and verse evidence that there was a lot of racism going on when the constitution did not exactly follow the flag into these newly acquired territories in the very end of the 19th century and very beginning of the 20th. Yeah, so full disclosure, we did file an amicus brief on this very specific topic to the Supreme Court arguing for heightened scrutiny. And, you know, the kind of core of that, you know,

as anyone who has studied law and maybe even some who, you know, haven't gone to law school. There's a very famous, they call it the most famous footnote in all of constitutional law, a footnote from a case known as Caroline Products that essentially says when the federal government legislates with respect to, quote, discrete and insular minorities, that the court should be more skeptical of whether these laws are discriminatory. And so over the years, the Supreme Court has established different tiers of judicial scrutiny for federal laws that discriminate under equal protection, the highest tier being

strict scrutiny, there being a form of heightened scrutiny, and then for federal laws that discriminate under equal protection, the highest tier being strict scrutiny, there being, you know, a form of heightened scrutiny, and then the most basic, easy for Congress to overcome a rational basis. And you really can't think of a more paradigmatic example of a discrete and insular minority than residents literally of the insular territories. an insular minority than residents literally of the insular territories. You know, these are American citizens. We can talk more. The United States doesn't actually recognize some of them as citizens.

In another case, we're litigating. But these are American citizens who are 98 percent racial and ethnic minorities. They can't vote for president. They have no voting representation in Congress. The political branches are not their friends when it comes to addressing their concerns and interests. And so this idea, you know, basically what the United States is calling on the Supreme Court to do here in the Bayo Madero case and in so many others is, you know, courts, this isn't your problem to solve. Let Congress do its job.

Just get out of the way. This is a legislative question. This is a policy question, not a constitutional question. But of course, that's a hard pill to swallow for folks who have no voting representation in Congress, can't hold the president accountable if he or she does something that they don't like. And so we'll have to wait and see. I mean, the justices were kind of, you know, didn't really show their cards on which direction they were going on that question. I'd have to think that some of them might be skeptical to adding, you know, new categories where the court might have

to, you know, wade further into some of these issues. But I think there's a very strong argument that the courts simply shouldn't just defer to Congress on these issues, particularly given the very clear racial animus that existed in the early 1900s. I mean, reading these decisions in the Insler cases, it's just atrocious language calling the residents of the territories savages who can't understand Anglo-Saxon principles, alien races. The explicit racism that just seethes from these opinions is really kind of uncomforting. And, you know, that history has, I think, continued to this day in a lot of respects. I mean, I don't think if the demographics in the territories were different, say if, you know, the demographics in Puerto Rico look like Vermont or West Virginia, that either we'd be having a conversation about these territories even existing today. They would have long ago been made states.

Or that it's okay to continue to deny them voting rights, to deny needy individuals their basic programs like the SSI that every other American community takes for granted. So there is a very both clear, explicit systemic racism issue here and also perhaps, you know, an underlying less direct one that is nonetheless pretty disconcerting, too. Will you talk to us about this Tenth Circuit case, Fidesemanu? Yeah, so this is a case that we're litigating on behalf of clients who were born in American Samoa and who under federal law are recognized as U.S. nationals. So they have U.S. passports, but they're denied recognition as U.S. citizens. So they have a U.S. passport. You flip to the back and there's a big stamp in it that says the bearer is not a U.S. citizen. So what are they citizens of?

They're citizens of nowhere. They have no citizenship. Their nationality is that they're American, but they and they bear all the responsibilities that come with owing permanent allegiance to the United States as federal law recognizes. Can they be drafted? They can. They can be drafted, and they actually have the highest rate of military service of any U.S. jurisdiction. They're consistently ranked

number one in recruiting for the United States Army. These are folks that serve on the front lines in our wars. They have had a casualty rate actually seven times higher than the national average in America's recent conflicts. And these are folks that aren't just disenfranchised in American Samoa, but our clients are now living in Utah, paying taxes there, going to church, being contributing members of their community. And they not only can't vote for president, they can't vote for their governor. They can't vote for their local school board. And the solution that the federal government

has argued is like, oh, well, you can naturalize if you want, which is just a very strange concept to be asking people born on U.S. soil who are recognized as being Americans being required to go through the naturalization process, which, of course, they could be rejected from. So the United States in these cases, and this is the Biden Department of Justice. This is the Trump Department of Justice. This is the Obama Department of Justice. So it's not something that's kind of partisan or ideological in that sense. They've continued robustly relying on the insular cases to argue that citizenship in the territories is a question for Congress, not a question answered by the Citizenship Clause of the 14th Amendment, which was drafted and ratified shortly after the Civil War, which, you know,

for the history buffs out there, had a lot to do with the territories. More than half the country at the time actually was constituted by U.S. territories, and not a small part of what led to the Civil War was the debate over Congress's powers to either allow slavery or prohibit slavery in those territories. That's really what was at issue in the Dred Scott case. And so, you know, the framers and ratifiers of the Citizenship Clause thought very deeply about this question. And it's clear from the legislative record, from Supreme Court statements shortly after the 14th Amendment was ratified, that they wanted to make clear that if you're born anywhere on sovereign U.S. soil, whether that's a state,

D.C., or a U.S. territory, you had a constitutional right to citizenship that could not be taken away by Congress or a state legislature or elected officials in the territory. And yet this is exactly what the United States is arguing today in the 10th Circuit. At the district court level in Utah, we won our case. The district court judge recognized that based on the text and history of the Constitution, people born in U.S. territories have a constitutional right to citizenship. At the Tenth Circuit level, we lost two to one. There are actually three separate opinions, a very strong dissent by Judge Bacharach, and then Judge Timkovich and Judge Lucero, each writing their own separate opinions. We've sought en banc review of that decision.

Briefing on that has been complete now for a couple months without any action taken. So, you know, it seems like the 10th Circuit is doing something here. What that is remains to be seen. And so, you know, query what the Department of Justice's position is going to be on this question of birthright citizenship, Department of Justice's position is going to be on this question of birthright citizenship, on this question of what do the Insler cases mean today. And, you know, we may have some more answers to that here soon. And there may be another vehicle at the Supreme Court where, in some ways, they'll actually be forced to more, potentially more directly address, you know, some of these issues of the insular cases and what the Constitution means in the territories. So let me ask a rather grim hypothetical, because

in reading some of the summaries of the Supreme Court case, it seemed the oral argument wasn't necessarily a fountain of optimism for you. So what is the prospect, if any, for legislative reform? Or is this just sort of mixed up in the, you know, is it just sort of stagnating in the stagnation that is Washington right now? So there's actually, I would agree with you on the prospects of the Supreme Court. The argument wasn't as bad as I thought it would be. And what's kind of interesting, actually, is the court could actually overrule the Insular cases and still rule against Mr. Valle Madero. So the two aren't directly connected necessarily. That would kind of be a worst case

scenario in a certain way. But the Biden administration, the view that they've taken is that, you know, this isn't a question for the courts. This is a question for the political branches. And they actually are pressing hard on that front. So, you know, President Biden has promised to address a lot of these federal disparities issues legislatively with respect to SSI benefits, it's actually in the current draft of the Build Back Better Act, the reconciliation bill. So it looks like Congress may be poised to act favorably on a number of these issues that the territories have been pushing for for decades. I don't think it's an entire coincidence that this is all happening at the same time that a Supreme Court case is happening on these issues.

I think the two go together. But, you know, I would love to see Congress act on this before the Supreme Court issues its ruling, whichever way it goes. And Congress should act. I mean, these are basic fundamental benefits that every American should be able to take for granted, fundamental benefits that every American should be able to take for granted, whether you live in Maryland or Virginia or Puerto Rico or Guam, it's time to address these discriminatory federal benefits programs. But then beyond that, there's more thorny questions of status and voting and other issues that, you know, are perhaps a little bit more difficult for the political branches to act on without some kind of significant push from the Supreme Court. Okay. So thinking of this from a quasi-originalist perspective, a history and tradition perspective, if the United States and the ratification at the time

of the ratification of the 14th Amendment had all these territories that also did not have all of the rights and privileges of citizenship. But to your point, they were on a path to statehood that was by norm, not by law. What is then the argument, the sort of, again, like originalist, textualist, maybe argument that territories were supposed to be treated the same as a state, because if they're treated the same as a state, then why do we have states? Like under your view of this, if the courts were to fix it, what would then be the difference between a state and a territory, or are you asking the courts to kind of get rid of that distinction? No. So even in the Valle Madero case, I think all the parties recognize that under the Territories Clause of the Constitution, which is an Article 4, Congress has extraordinarily broad powers to govern the territories,

certainly at least on a temporary basis. The constitutional problem, and this is what some originalist scholars have had an issue with, folks like Gary Lawson, whose book The Constitution of Empire, I think is a really good primer on kind of the originalist side of this argument, is raising the question, does Congress even have the power to acquire territories that aren't on the path to statehood? And the answer that he would have is that Congress actually doesn't have that power. By path to statehood, you mean there is a metric by which if you meet this metric, whatever it may be, you then are eligible for statehood. Is that what you mean by on the path? Like what would a path look like other than the path is in our hearts? Yeah, that, you know, event that the end point, the goal is for in acquiring

this new territory. The understanding is that one day when it has sufficient population, you know, economic resources, whatever other metrics Congress would want to consider, we're going to go ahead and make it a state. And that this period of territorial status and inequality and lack of political participation is really this temporary transitory period. So, you know, original scholars like him have argued that if the Congress really doesn't have the power to acquire territory like Puerto Rico or Guam, where, you know, at the time, there really was an express intent that these areas not become states. So it's not just like hypothetical down the road.

Yeah, we'll make them equal at some point when we get around to it. It was like, actually, we're acquiring these areas with the intent of governing them as colonies. And that's what some originalist scholars have really found to be completely contrary, both to not just the spirit of the Constitution, but actually the words of the Constitution themselves. But that's not to say that, again, the Constitution gives Congress broad powers to govern on a day-to-day basis that, you know, may kind of make your stomach turn. But what's most problematic about that,

it's been 123 years and there's no end in sight. And so that's what's really fundamentally problematic that I think folks both on the left and right, ideologically, politically and otherwise. And that's another kind of misconception that exists with the territories because these people are racial and ethnic minorities. There's a lot of folks in the beltway, again, Democrats and Republicans that assume, oh, they're voting Democrat. But going back to your question of the, or your comment on the Republican Party platform, if Puerto Rico was a state and there was a Senate election held tomorrow, the person who would win that election is Jennifer Gonzalez-Colón, their current resident commissioner, who's a Republican.

Which is why the RNC was so bullish on this whole thing to begin with. I was at the RNC for the 2014 cycle. Guam's had more Republican governors than they've had Democratic governors. And I think we're seeing this even politically in other elections today. Minority voters, they're not a monolith. And, you know, in the territories, these are religious conservatives, high rates of military service, so many factors that you could check off and say, oh, well, these these are likely Republican voters. And, you know, that's why I think the Republican Party can and should be, you know, reaching out and making inroads and trying to address these issues just as the Democratic Party should. You know, I'm so glad you've put a pin in the military service issue.

When I served in Iraq, there was a ton of guys from Puerto Rico. It was really interesting. So, you know, we had two states or one state disproportionately represented Texas because, One state disproportionately represented, Texas, because, well, the regiment was based in Fort Hood. And what think for a lot of folks that they can just, they could just basically understand once you explain the history here, none of this was intended to be permanent. And if it was intended to be permanent or sold as being permanent, as controversial as the whole colonization project was in the late 19th and early 20th centuries,

it would have been far more controversial than even that if this was intended to be a complete departure from the American practice of transitioning territories. But yeah, I think that's a fascinating point you raise about the transitional period that is now going on indefinitely, which is remarkable. Well, last thing to Neil before we let him go. Neil, we're going to talk about Yale Law School next, where you went. There's been some drama as an alum.

Do you have any thoughts on the drama? We're going to explain the drama after you leave, but just overall. Yeah, I, I, I find it. Um, I always find it interesting when, uh, you know, national newspapers or media outlets like cover, um, what's going on just at an academic institution. Like, you know, it's kind of, I mean, when I was there, it's like, we'd, there'd always be like dust-ups over whatever issue of the day, kind of, you know, young students being students. Um, and these controversies, I feel like often can kind of get like blown out of proportion when at the end of the day, it's like, I don't know. Uh, I it's, uh, I guess I'm just sometimes surprised to see that these are issues that

the New York Times or Washington Post are focused on, just because maybe they knew people that went there or whatever. This stuff's going on all over the country and lots of different institutions, yet that's not making the news. So yeah, I just kind of try to steer clear a little bit from it and take it with a grain of salt, but I get why people get fired up about it too. Well, Neil, don't undermine my Sunday newsletter, which is going to be about a different academic institution, Liberty University, the largest Christian university in America, and its total moral collapse. So that is going to be of national interest, I assure you.

But first, we're going to talk about Yale Law School's total moral collapse. Then we're going to talk about Yale's. We're going to let you off the hook here. Thank you so much. Neil is the president and founder of Equally American. You can go to their website, equalrightsnow.org. Really lots of information that you can find on there about the insular cases and what all they're doing now.

If you found this super interesting like I did. Thanks, Neil. Thank you. Have a good one. Here come the carrots making their way upfield, followed by the whole wheat bread over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots that are over the line.

What a goal! How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. All right. Sarah, that was a great guest.

Thank you for bringing another FOS, friend of Sarah, onto the pod. They never fail to disappoint. You have great friends. It's fantastic. Yeah, this is like friend of the husband of the pod in-law. But yeah, Neil's right.

Well, it still counts. All right, your thoughts on insular cases. I think they lose at the Supreme Court, but I think they're going to get an interesting opinion from Justice Gorsuch, of course, of the McGirt, Oklahoma, Indian territory case. Because what I take away from this is that Congress should have metrics by which a territory gets to decide whether they're going to become a state. Now, what gets a little complicated is Puerto Rico did have a referendum in 2012. But then, of course, it was like, well, this isn't the right way to do this. The referendum wasn't worded correctly. And there's been all this drama over the 2012

referendum. So this does get really complicated. But unfortunately, I just think the Constitution, because at the time of the ratification of the 14th Amendment, there were so many territories, it never made the distinction really between this path to statehood idea versus not, even though I agree that it was assumed. So I think there should be a path to statehood metrics that territories have to meet because of exactly this problem. Otherwise, you're just in this forever territorial limbo. America is not a colonizing country. That's not our ethos.

And yet here we are doing it for 120 years. And it clearly, clearly had race-based reasons why these territories were never on the path to statehood. That's not in question even a little bit for me. Yeah, I think there's a distinction between the sort of the constitutional, there's a distinction between sort of the purely constitutional aspects of American citizenship and the day-to-day governance

aspects, and that there might be a different kind of day-to-day governance, including tax structures, et cetera, et cetera, in the territories, strikes me's much less offensive than the idea that the Bill of Rights, for example, is going to have some sort of limited applicability outside of the 50 states in U.S. territories. And that's an imperfect way of saying it. But I see a difference between fundamental social compact stuff and routine governance stuff. And that's where I see kind of a difference between fundamental social compact stuff and routine governance stuff. And those are, that's where I see kind of a difference. Fair enough. Shall we move on to Yale? Let's move on. Okay. There's, there's been a lot since we last talked about Yale. Oh gosh. Yeah. Yeah. Can I just say one thing super fast? Yeah. I'm so glad we didn't go to Yale.

Super fast. Yeah. I'm so glad we didn't go to Yale. Okay, let's catch people up. So the last time we talked about Yale, it was the email from the Native American Law Student Association member sending out an invite to a Constitution Day party that was co-sponsored by the NALSA, the Native American Law Student Association, and

FedSoc. And he referred to it as the NALSA trap house, his home, and said that they would serve basically, not basically, okay, expletive alert, basic bitch American food like fried chicken. This, of course, created a huge controversy. There were complaints. He was called in to the administration where he felt that his bar admission was threatened, that they said that this could affect the moral qualification aspect of the bar admission. So that led to all sorts of feelings from everyone, it appeared. But it didn't stop there. David, we have three more Yale Law School controversies that have popped up over the last month.

I just want to run through them quickly and then we can talk about them. So first, it turns out that the NALSA student is not the only one who was called into the principal's office over that email that he sent. Oddly, the president of the Federalist Society was called in to talk to those same Yale Law School administrators. He spoke about it at the Federalist Society Yale Law Alumni Breakfast. So David Latt has written this up for us. alumni breakfast. So David Latt has written this up for us. So I'll be reading some from David's write-up of the Yale FedSoc president's retelling of this story. Now, remember,

he didn't send the email. He didn't approve the email. He didn't know about the email. His organization had co-sponsored a Constitution Day event, sent out their own email about it that nobody has any issue with. He was told that, this is his quote, him quoting rather the Yale Law School administrator, I think you as a cishet white male decided to have some fun and convinced a man of color with a backyard to send out an email announcing a costume party where it wouldn't be frowned upon if people came in blackface to eat some fried chicken while dancing to trap music. Gosh.

Whoa. And as David Latt mentions, by the way, as a person of color, he says, I'm amused but also annoyed at how white people always seem to be the only ones with agency in situations like this, with everyone else as either a victim or puppet. It's insulting to Trent Colbert, the NALSA student, to assume that he sent the Trap House email only because he was put up to it by a white man.

Okay, but it goes on. The administrators said they drafted an apology for the Federalist Society president to send out. And worth noting that, in fact, they also had a third person in the meeting whose only role is overseeing FedSoc's budget. The implicit threat being that this could affect their funding. So that's kind of wild. Also unclear what they would be apologizing for, as David Latt said. I'd love to see what exactly the draft apology said, given the organization's manifest lack of involvement

with the email. Are they apologizing for existing? Right. Right. I mean, very strange. And again, similar to the situation with Trent Colbert, um, or Colbert, I'm sorry. I forget which one it is. Um, the implicit threat that if you don't send this apology, like the Yale administrators want you to, they will find ways to retaliate against you in Trent's case through the admission, in the FedSoc president's

case, through the funding for the Federalist Society at the school. Very strange. Okay, so that's number two. Number three is then it comes out that those same administrators, is then it comes out that those same administrators, the one in particular who said that he thought the Federalist Society president had fun with a man of color by convincing him to host a blackface party, even though there is no reading of the initial email where you could possibly think

that blackface was remotely involved, suggested. I mean, nothing. He also suggested to the Yale Law Journal to have a training from someone named Erica Hart. I believe that they have mentioned how much they paid for this training. It was certainly in the tens of thousands of dollars. And at that training, one of the Yale Law Journal editors asked Hart why her presentation had addressed inequities like pretty privilege and fat phobia, but not anti-Semitism. At that point- Wait, wait, wait, wait. Pretty privilege? That's right. Huh. Okay.

You know what? I actually, yeah, people who are attractive, I think do have certain privileges in the world. People, you know, are nicer to them. Although there's interestingly a study that shows that if you're exceptionally attractive, it actually is harder for you. People are a little like- See, that's my problem, Sarah. That's, you just nailed it right there.

Yeah. Okay. Suddenly my life makes sense. Hart responded and said, anti-Semitism is a subset of anti-blackness. She did not recognize there could be anti-Semitism against white people and that anyone who disagrees with her has likely been conditioned to dismiss black people. She is a survivor of white neighborhoods and is always aware of white supremacy when she walks around New York City. She said that she thought the FBI was perhaps making up the data that showed the Jews are the most frequent targets of hate crimes, implying that those statistics had a quote agenda. So this got complaints from the Yale Law Journal that this had been recommended to them by the administration and that this was a wildly anti-Semitic presentation. The response was uniformly negative. 82% of editors saying they would not invite her

back even if she incorporated their feedback. A third expressed distress of her treatment of anti-Semitism, quote, shocking, quote, offensive, quote, upsetting. Three separate editors described it. She said punctuality and objectivity constituted white supremacy. One accused heart of racism. How is it not infantilizing for her to stand up there and say that such traits are inherently white? This sort of neo-racism is not something we should be promulgating at the journal. Okay, so we've got that problem. But David. More, more Sarah.

Now comes the finale. The big finale, which is we now have a lawsuit. Of course. of course so this goes back to the very first time we talked about yale law school drama involving the amy chua situation so without spending too much time on this uh amy chua was told rather agreed that she wouldn't have students over for dinner for the foreseeable future have them over to her house two students of color are having trouble at the school. One is Asian and wants her support as an Asian professor

and what they feel is anti-Asian bias at the school and from the administration. They reach out to her. She is helpful with them. Another student decides that this is violating the rules and takes it upon themselves to create a dossier.

No joke, it's called the doss upon themselves to create a dossier. No joke. It's called the dossier creates a dossier that similar to the Steele dossier, a lot of which has been found to be false. But the administration takes this dossier and according to the lawsuit, tries to pressure these two students into lying about Professor Chua. The dean even gets involved. And in what will perhaps turn out to be the fatal mistake, the administrators, the same ones, by the way, in all of these other examples, go to a professor and tell the professor not to hire these students as what amounts to research assistants, which is a paid position and a prestigious one, not to hire them because they lack candor. They were not hired. The administrators also told them they shouldn't bother to apply for clerkships because the judges will have no doubt

heard about the dossier, which will reflect poorly on them unless they turn on Chua, in which case the dossier won't matter because they will then be part of the solution, not part of the problem. They decline to what they say lie. They do not apply for clerkships, though, as a result. And one has, in fact, taken a leave of absence from Yale. They are suing for damages of at least $75,000 and are represented by a pretty well-regarded New York litigation boutique. So Sarah, so many thoughts. I don't even know almost where to begin on this, but I'll begin. Can I begin with a diversity training point? Cause it connects with something I wrote about.

Yeah. Um, I had a newsletter, uh, last week that we'll put in the show notes that was sort of my own Festivus airing of grievances against the diversity training industry. Because what's interesting about it, so one, you hear these elements of diversity training and they're just not only shockingly dumb, but in many ways, actively racist, right? So, you know, they're ascribing certain kinds of traits to people purely on the basis of race. And it's just, so it's shockingly dumb.

It's remarkably racist, makes a lot of people angry. And I know there are a lot of people who are devoted to it because we keep seeing this stuff. But did you know, did you know it has been studied at length, Sarah, whether or not diversity training has the effect it's intended to have? And I know you already know the answer to this. Because I read your newsletter. That's right. So it's going to be in the show notes. But there's a great study, Harvard University Professor Frank

Dobbin, Tel Aviv University Professor Alexander Kalev, and this is it. Here's the bottom line. Nearly all Fortune 500 companies do training. Two-thirds of colleges and universities have training for faculty, according to a survey of 670 schools. Most also put freshmen through some sort of diversity session. Yet hundreds of studies dating back to the 1930s suggest that anti-bias training does not reduce bias, alter behavior, or change the workplace. And so they've been talking to all of these employers about this research for years. And what they say is that companies, schools, all persist, worried, quote, about the optics of getting rid of training, concerned about litigation, which is a big part of this actually, unwilling to take more difficult but consequential steps, another huge part of this, are simply enthralled of glossy training materials and their purveyors. And so what they also said is that some of this stuff creates anger and frustration and it creates a backlash.

And yet it's everywhere. It's an $8 billion industry, an $8 billion industry, Sarah. And so this is something that I think is worth drilling down and focusing on at least a little bit, because this is one aspect of the why Yale question. Why talk about Yale? Because it's representative. This diversity training piece is representative of the kind of materials and the kind of trainings that people are being subjected to that an awful lot of people just rightly totally reject and rightly makes them more than a little bit angry. So that's one.

The other one is, look, again, why talk about Yale? look again why i talk about yale um it isn't it is an institution that disproportionately produces american leaders for good or ill it just does it just does and when this kind of bias and extremism and and i understand these you know yale administrators are entitled to a point of view they can be progressive progressive. Fine. Great. Be progressive. But this sort of biased and frankly intimidating way in which they're trying to interact with their conservative students. assumptions, the bad faith assumptions that are inherent in the way they operate with the Federalist Society and others, that is deeply troubling for the message that they are sending to this, again, disproportionate leader class that they're educating right now. So those are my just initial off the top of my head thoughts. Well, it's going to get worse before it gets better, I think, for Yale. So first of all,

Dean Heather Gerken is up for renewal of her deanship. That was supposed to happen like now. It has been put on indefinite delay. So we don't know when or if that'll happen. And nothing has particularly happened to the two administrators in question. One is the associate dean and the other is the diversity dean. However, Dean Gerken did send out a school-wide email where she said that those two administrators did not strike the, quote, appropriate balance in the email they sent out to the school calling the trap house email, I believe explicitly racist was what they called it. But look, here's my beef. They are taking the high horse of, you know, saying Federalist Society has no place on their campus, that it's a racist organization. And

therefore, if they're co-sponsoring an event, there's overtones of racism anytime they're co-sponsoring it. Okay. But then you can't take credit for the clerkships that those students are getting with Federalist Society judges. And that's exactly what's happening. They're reaping all the benefits of having a robust Federalist Society on their campus while acting like, you know, they're doing all they can to quash the Federalist Society in the name of progressive justice. And so the liberal students should be just as upset at the administration for what they're doing when it comes to the ranking of the school, the number of clerkships that they list. If they actually believed what they were telling those liberal students, they would subtract out the Federalist Society clerkships as they see them, quote unquote. Josh Blackman had a nice little post over at Reason.

He suggested that perhaps all of the conservative and libertarian students should transfer out of Yale en masse. I mean, noting, by the way, that Gherkin issued a not-too-veiled threat to, quote, revise the norms surrounding secretly recorded conversations and the sharing of private correspondence without permission. In other words, as Josh put it, we would have gotten away with it if it wasn't for you meddling FedSoc kids.

And he notes that no doubt Notre Dame would be happy to take all of these students who, of course, already have clerkships or will have them, and that perhaps Justice Thomas could even bring his RV over to Yale and drive them on a refugee mission to South Bend. And look, can I just do my brief Federalist Society, make my brief Federalist Society comment again? Look, I know there are members of the Federalist Society who have done, I mean, John Eastman, indefensible stuff, indefensible stuff. But there are members of the Federalist

Society who in the very recent past were absolutely indispensable in preserving American democracy. What does that mean? It means that you cannot make an assumption about the character of an individual based in their membership in the Federalist Society. And it also means that because you cannot make that assumption, the presumption that a lot of these kids are racist, the presumption that they are manipulating people of color

is absurd. And in fact, a lot of the kids that you're going to be casting aspersions on who are in the Fed Soc are high character, intellectually rigorous individuals who at some point in the future are going to do something great for this country. So stop it and stop assuming that

because John Eastman is who John Eastman presently is, that you can cast aspersions and suspicion on the Federalist Society more broadly and rant. There's also this presumption that bothers me that the progressive arc has culminated in this moment that in five years, 50 years, we will still have been right right now with our cultural ideas. And it's just not true. And the things that the progressive movement have gotten wrong through the last hundred years should make them blush by trying to claim a moral superiority now, as should the conservative movement, by the way, because no generation has a full grasp on the moral arc of history by any means or how a future generation will judge them. So have a

little bit more grace toward one another and have a little bit more humility that you are not the keeper of all morally correct positions. It is baffling to me when I hear people with that attitude again on either side. All right. I'm sure we'll talk about Yale again as this lawsuit moves through, and no doubt there will be more outrages to come. David, I have two quick points to make. Okay. One, I have a DM currently in my Twitter feed that says, I do not hate Caleb. I do hate the current music. I am a subscriber. Happy Thanksgiving.

Look, we've been reading the comments, guys. It's not going to be a close race. Producer Caleb is reading the comments. He hears you. He feels you. You have been heard. David, one other thing. I have gotten more mail over my screwing up of the El Arroyo sign from last week than any other topic to date.

So much mail. I get it, y'all. In the moment that I was reading it, I did not understand the joke of the sign that a fear of giants... I was like, phophobia? I don't get it. I know. I know. If you just read it a little more slowly and not

while you're doing a podcast, it's very clear. But here's another DM I just got. Just got, mind you. It's been like two weeks, a week and a half. Okay. I think that billboard joke was fifi phobia homie thank you yeah yeah and whenever you say i got a dm and you don't identify the dmr i'm always wondering is that a federal judge who just said that, but we will, I will allow you to plead the fifth on all of that.

So, yes, you have been heard. Now, given that your intense interest in the music and your intense hatred of Caleb's selection, will you have as much interest in creating a

GoFundMe for poor Caleb's therapy after reading all of these comments? Send him some love this time. Send him some love. We couldn't do this without LPC legendary producer Caleb. So true. But with that note, we have heard you. We've heard you. And we will be back on Monday.

And in the meantime, please rate us on iTunes. I mean, I always do this, Apple Podcasts. Please subscribe on Apple Podcasts. And thank you for listening. 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. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my

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