Advisory Opinions - Trump's Executive Orders

Episode Date: January 23, 2025

Sarah Isgur and David French discuss the encroaching powers of the executive branch and what it means for the balance of government. The Agenda: —Teaching sex in elementary school —It really is those darn phones! —WTF David —Trump takes office —DOGE violating FACA —Trump's executive orders —Vivek’s out of DOGE —Biden pardons criminals, some really not good ones —What is the American dream? Show Notes: —United States v. Wong Kim Ark Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French and David, I don't know how long this podcast is going to go. We're just going to have to go until we're done. We're going to start Supreme Court update. We'll do as many Donald Trump EOs and bigger conversations as we can get to. And then we've got sort of three of these big picture questions, the American dream, how to get your name on a SCOTUS case and our law reviews, the problem. We're going to tackle one of those today, the American Dream one, and then we're just gonna have to tackle the other ones

next week as they come. Because David, I mean, I do think it was the point, the 200 or so EOs, executive orders from the president, but it's too much. It's way too much. And some of them we don't even know yet if they're actually significant. You have to wade through all of this stuff.

And a lot of the early reporting is just top line off the EOs that were sort of broadcast and forecast. And he wrote them. And so you were primed to look for say the TikTok EO or the invasion EO or the birthright citizenship. But there's a lot there. There's a lot there. Okay, first up, the Supreme Court granted cert

in a case that we did watch a little bit, David. This is Mahmood versus Taylor. This is the QP. Whether public schools burden parents religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents religious convictions and without notice or opportunity to opt out.

Okay, right off the bat, and I see the word, whether public schools can burden parents religious exercise. And I'm like, well, they're gonna lose because the Supreme Court hasn't seen a free exercise case that they haven't loved in decades at this point, really. Right. You get to the details on this one, and it kind of cuts both ways. It's not all then, oh, never mind, they lose either.

Now I'm just as I mean, David Latt wrote this up too, and he was kind of like, well. So this is about very young elementary school, kindergarten age children, the books that are assigned in class, they initially sent parents the list of books and the parents sort of had to sign a permission slip. They basically was an opt out. And then the school, I think, realized that's insane in terms of administrative burden.

And so they stopped the opt out policy. And so this is the lawsuit that results. And yes, some of the books, I would not want my child reading, not because necessarily they have to do with LGBTQ plus stuff, but because my kid doesn't need to know like, really graphic sex stuff in kindergarten, like the ABCs where they're learning it from a pride parade and there's like, L is for leather and what was it? It was one that was like C is for clamps or something. And I was like.

Oh my gosh. Yeah, really? And again, this is kindergarten, kindergarten. I think this was kindergarten. Oh my gosh. But the other problem you have in this case, David, is that it's not fully developed. This is coming up on that preliminary injunction

type posture, so we don't have a full record. So I don't, I mean, not only do I not know all the details, neither do the justices and neither will the advocates. So this one's gonna kind of be messy, but I bring it up not only because I want us to talk a little bit about the topic, but also because it is probably the last case getting argued this term. So we're now at that point where when

they grant cert to any future cases, they're almost certainly going next term. This is usually the dividing line for the cert grant. So congratulations OT24. You're fully booked now. Well, Sarah, you know what I'm going to do now. You know that I'm going to bring up the case. I have to bring it up once a year in advisory opinion, which is the very first constitutional case I ever worked on in my entire life. I was a 1-2L? Yeah, 2L. First semester, 2L year, I was asked to do

some legal research on a side issue on a case, because I don't ask the 2Ls to do the core work. So I was working on a side issue around substantive due process in a case called Brown versus Hot, Sexy, and Safer Productions. And that's the name of the case. And Hot, Sexy, and Safer Productions. And that's the name of the case. And Hot, Sexy and Safer Productions was a traveling sex ed group in Massachusetts.

You know, a lot of, one of my themes, I mean, folks who've listened to the advisory opinions know that one of my themes that I consistently talk about is that there are, there's nothing new under the sun. A lot of the stuff that you think, this never used to happen before, because you saw this on Twitter, although it has been happening,

and it's been happening for a long time, and there's even been cases about it, you just didn't know about it, because in the pre-social media era, you weren't instantly aware of every outrage, the way you are now. So in my case, here were the facts, Sarah. And I just, if you have small children, I'm not kidding.

If you have small children in the audience, you might wanna turn this down or skip forward like 30, 45 seconds. But here are the allegations in the complaint. The complaint alleges that this group, one, told students that they were going to have a group sexual experience with audience participation. Two, used profane, lewd, and lascivious language

to describe body parts and excretory functions, advocated and approved oral sex, masturbation, homosexual sexual activity, condom use during promiscuous premarital sex. It also stimulated, simulated, sorry, letters matter, simulated masturbation, characterized the loose pants worn by one minor as quote erection wear,

referred to being a deep beep after anal sex, had a male minor lick an oversized condom with the presenter, after which she had a female minor pull it over the male minor's entire head and blow it up, encouraged a male minor to display his orgasm face with her for the camera, informed a male minor to display his orgasm face with her for the camera, informed a male minor that he was not having enough orgasms,

closely inspected a minor and told him he had nice butt and made 18 references to orgasm, six references to male genitals and eight references to female genitals. Okay. Okey doke, feel like I got this one. Yeah, and they were forced to attend. They could not leave.

What? Yeah, when they tried to leave, they were told were forced to attend. They could not leave. What? Yeah, when they tried to leave, they were told they had to stay. These were some Christian students. And so, yeah. And Adam, feel free to cut some of that. No, I think it's relevant. Yeah, I know.

I mean, wait a minute. Did I just shock Sarah? A little bit, actually. This is the first time in our five years that I ever feel like, oh, David. I know. Like, I'm looking at your face and you kind of have this like, look, what are you doing here? And I know I'm feeling terrible. Like, I feel gross. What have I done? Like I feel gross, what have I done? But the students lost, the students lost this case.

And the reason when you go back to this point in time, the free exercise angle of it was toast, done, over, because this was right after Smith, free exercise was at a real low ebb. So you had to go for another theory, one of them they tried with substantive due process, which was just an absolute loser. But the court's reasoning was, wait a minute, look, when you go to school, you're in a in loco parentis situation. You have handed your children over to the school. The school has taken the place of the parents. Now you as a parent, you have input through the democratic process into the curriculum

of the school. You have input through the democratic process by speaking up at school board events and urging them not to hire this group or whatever. But you don't have veto power over curriculum. And so even this, which by the way, Sarah, is actually looks, you know, I think now you might have a Title IX sexual harassment claim. I mean, some of that was just obviously not acceptable. Oh my gosh.

They're telling a minor student, like commenting on his physical appearance in sexual ways, like, no? Yeah, I know. So I want, you know, but they lost that case. And we have other cases. There's one we talked about from the Ninth Circuit years and years ago, which colleagues of mine filed suit where part of the facts is they were exposed to different world religions. And in one of the exposures, they actually participated in something approximating a Wiccan ritual. But here's the problem, David, as we're going to see in this case.

I mean, if I like before oral argument, when we just have the briefs, and this is coming up through the Fourth Circuit, the school won at the Fourth Circuit, the students lost. So exactly the same as your case. I kind of think the Supreme Court's going to uphold the Fourth Circuit because the alternative doesn't really work. Like every parent can now raise a religious objection to any part of a state curriculum that they don't like. I mean, this is why we need school choice, but it goes back to this who gets to decide. And it's the same as the libraries, it's all of this.

And it's like, well, we have a politically accountable system and you just need to get involved in that if you wanna change the curriculum but otherwise we can't have every single person get to have their own opinion on what's taught and how it's taught and which books it's taught with as Absurd as this is so by the way, so I have now it's this was for pre kindergarten and Head Start classroom So three and four year olds David pre kindergarten. Oh boy boy. Now, are you about to shock me now? No.

Okay. You're not as bad as I am. I mean, let's just keep it real. I'm no David French. So this is that alphabet book again. I was right. L is for leather and lip ring. D is for like drag king and drag queen.

U is for underwear. Again, I'm not objecting to that for religious reasons. And I'm not objecting to it because it promotes an LGBTQ lifestyle. I'm objecting to it because it's way overly sexual and we're just not doing that in my household. At four? Under what, you know, look, I mean, let's put off,

let's just take sort of religion out of for a minute. From what standpoint of childhood development is this acceptable? Or is that, are they, do they have the, even the reasoning skills to comprehend what is being discussed here? I mean- Yeah, it's also by the way, super stereotyping,

caricaturing, LGBTQ folks. Like, everyone has a lip ring and wears leather chaps. Like, give me a break. I would find that really annoying. But in the who gets to decide, I think the proper way to do this is to go and convince the school board, slash run for school board, slash vote out those people

from the school board, or go to the state legislature. And when at that point, there's a lot of actually different levels and accountability when it comes to school curriculum, but I don't think they're going to win this case. But the Supreme Court did take it and just for a percentage chance, of course, they've got about a 60% chance of winning this case. Yeah, I it's a fascinating issue because, you know, the idea, there's no neat, clean answer here because as you say, Sarah, on the one hand, the facts themselves, what is being taught to these kids,

the textbooks that are being provided to these kids are absurd. And look, you know, we've had a lot of anger around the country, around textbooks and things like that. But the fact that a lot of people who've gotten angry about textbooks have gone way too far, way too far, such as in my area of the country where they tried to ban Ruby bridges goes to school,

doesn't mean that there weren't very many instances where people were angry and had a point that when they looked at what was happening with their kids, they saw stuff that they really, really didn't like and activated to do something about it, which is the democratic process at work. But at the same time, so that part of it, you can sort of see that unfold in real time.

But at the same time, is it the case that if you lose, if you run for school board and lose, or you approach the school board and they say, nope, L is for leather for kindergartners, that's the rule. Are you just utterly without recourse except for if you have money or a voucher to go somewhere else? Is that is there nothing does the in loco parentis and the curricular control of the school is it so potent that there is literally once you've lost in the democratic process just nothing you can do.

And that was basically, you know, if you're talking about hot, sexy and safer, that case, unless you could point to a specific incident of sexual harassment against the student plaintiffs, for example, I mean, there was, you were, you know, you were in the school's hands. And is that the rule? Is that the rule? This is one of those cases, Sarah, that I'm going to be very interested to read the briefs and hear the oral argument,

because both sides to me have a very tough kind of real world practical problem. Which is- And I actually think your Ruby Bridges point is really worth underlining because whatever the rule here is, the rule is also gonna be for not having Ruby Bridges in school.

Like what's good for the goose is gonna be good for the gander. So just because this involves leather and lip rings, if I'm gonna say like, well, it's a who gets to decide type of case and like the state gets to decide type of case. And like, the state gets to decide the curriculum for a public school, then the state of Tennessee also gets to decide that they don't teach Ruby Bridges and that that book is banned. Like, that's the exact

same issue being teed up, take out the religious burden question, I suppose. But you know, as the full QP was presented, I'll read the full thing here, whether the Fourth Circuit correctly concluded, consistent with every other court of appeals to have considered the question, that parents' free exercise of religion is not burdened by their children's exposure as part of a public school curriculum to material that the parents oppose on religious grounds, absent any evidence that the parents or their children were coerced to change their beliefs or act contrary to their religious faith.

And I wanna be clear, that's the QP that the school asked to be accepted by the court. It's not the one that the court actually ended up accepting. But that's sort of their version of this case. And David, I'm really uncomfortable with that QP. You have to have proof that the school was trying to coerce the children to change their religious faith?

Like, surely not. No, no, surely not, surely not. No, that's, I am super interested in this case. Can't wait to devour the briefs. But you know, what's interesting, just to kind of circle back to my point about the past versus the present. So I was not that far out of high school when I worked on the Hot Sexy Safer case.

So weird to say that case. But anyway, I was not that far removed from high school. And reading those facts, what's so weird, they were more shocking to me now than they were then. And I'll tell you why, high school was, public high school in the 70s, 80s was crass. I mean, from the teachers all the way down to the students, the data is overwhelming. Like the big three vices of the 70s, 80s, sex, drugs, rock and roll, you know, like the thing,

that's what parents really worried about. Kids were drinking more, kids were more sexually active. There was just a lot more of sort of these classic vices going on at that time. That was the culture. And this shift that I've seen with, say, my kids is when they went to high school, say my kids is when they went to high school, high school was actually a lot more moral in the classic vice sense, like there was less, you know, and this tracks the social science, you know, around the country, less drinking, less sexual activity,

less sort of, less criminality, you know, there was more criminality when I was in high school, more alcohol, more sex, and now there's less of all of that, but it's much more ideologically and religiously wide open. So a lot of, you know, we were all, you know, I was the nerd playing Dungeons and Dragons while all my classmates were out there doing all that stuff, but everyone was doing crazier stuff, but more uniform culturally slash politically and religiously. And now people are more restrained in their conduct, but more diverse culturally slash politically. And so it's interesting how the change to more ideological

slash religious diversity has in some ways created more alarm than the higher degree of vices that some of which could be catastrophic at an early age but when there was more ideological and religious uniformity. That just is interesting to me, Sarah. I also find myself really interested in the reverse of the vices and that actually I now think it's a sign of real mental health problems for this generation. The fact that teenage pregnancies may be a bad example in a lot of respects

because there's a lot of reasons that teenage pregnancy could drop beyond just not having sex. But we do know that in fact, they're having less sex as teenagers. They're not as likely to be drinking. All the things that sort of test boundaries were considered rebellious behavior

have all dropped in this generation and they're not doing well. So I find myself longing for the days of, you know, teenage keggers and people dying to get their driver's license and sex among minors. That's this whole podcast is going to get us in so much trouble. But you take like, let's take the driver's license thing, because it's maybe the best example.

Sixteen year olds, many of them are just sort of like, maybe I don't know. It's not like a huge moment in life. The way that for every one of any generation before, like that was literally your ticket to freedom, finally, unless you lived in Manhattan. And so like this whole, the whole point that you're, the whole change that you're noting, David, I think has actually also had really negative consequences on the vice side. Well, and let's put what you're, you're raising. So I just, I was in San Diego over the weekend

and heard a fabulous presentation by Jean Twinge who has been doing research in generations for a long time. She's, you know, did early research, she did research in millennials, she did some of the most important early research on Gen Z, she's collaborated with Jonathan Hyde, a lot of listeners follow her and know her. She does a fabulous job speaking in person.

And there's an interesting underlying reality here, Sarah. It is not necessarily that students have more moral objections to alcohol or they have more moral objections to premarital sex. It is that they're not spending time together. And when I was growing up, I mean, obviously sex requires time together, but all of the other stuff,

you were eager to get your driver's license to go spend time with your friends. The Keggers and the Ragers or whatever you wanna call them were all group social activities. And so the interesting, the danger element was much more physical by and large, although I will put a pin on, there was the level of also sexual abuse and predation that could occur in those circumstances could have extreme psychological consequences, of course.

But by and large, a lot of the discussions of risk at that time were more physical than psychological. You could drink a drive and crash your car, teenage pregnancy, like you mentioned, or you could get hurt in some way, even if it's not a fatal accident. You could get drunk and do something out of control and have a criminal record and destroy your future. Those kinds of things.

Whereas now it's much more, what do I do with my kid who is so anxious and depressed? And so it's gone from sex, drugs, and rock and roll to concerns that parents have. The big three are depression, anxiety, and suicidal ideation. And one of the things that you see is that all of that suicidal ideation

and depression and anxiety is connected. You know, it correlates very strongly with the rise of the smartphone. It also correlates very strongly with the decline of in-person activity, being with other human beings. And one last thing on this, because we've totally hijacked this podcast.

A little bit, a little bit. But this is the important stuff. One other thing that was really important is, Jean put up a graph of what are the things that make teenagers happier? What are the things that make teenagers more unhappy? So almost everything associated with teenagers becoming more unhappy was screen affiliated, or screen adjacent, you know, the social media use, things like this.

But the top three of the things that actually made teens happier was number one, sleep. More sleep. And now this was fascinating. And also there talk, she was talking about how the screen use actually really destroys sleep. Teenagers call it vamping, being a vampire, you're up late at night doom scrolling. The other thing was regular attendance

of religious services. Another thing was regular in-person interaction with friends. So two of those top three things have in common, community. One of them is just physical, it's just sleep. The older I get, the more I think sleep is like a superpower. But the two of those top three were communal and then all of the stuff clustered at the bottom was centered around screens. And so, yeah, I'm so sold, Sarah,

on no phones in schools, I'm sold on that, sold. Ha ha ha. What's up, Spotify? This is Javi. I remember this one time we were on tour. We didn't have any guitar picks and we didn't have time to go to the store. So we placed an order on Prime

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Now we need to move to Trump's executive orders. Okay, so almost all of these are gonna result in lawsuits. So before we dive into any given one, David, let's talk big picture here. I mean, is there any better example of why, if you love what President Trump has been doing, you should be really concerned because these aren't going to last. They can only last for the length of his presidency, really. And if you're really upset by what President Trump is doing, think about how much power the left in particular has wanted to locate in the office of the presidency.

Is there any better example than the first 24 hours of Donald Trump's presidency that something is horribly broken if a president can change so many of our laws with literally the stroke of a pen on his first day in office. Oh, Sarah, you're singing my song. I have the great fun of teaching a class on the legal philosophies of the American Foundings at Lipscomb. And we've been talking a lot about how the founders, the 1787 Constitution, really was dedicated and remember, 1787 Constitution did not include the Bill of Rights, that's later,

but it was really dedicated to preserving liberty and preserving the American experiment by systematically dismantling anything that looked like royal authority, just systematically. You know, the old kings, they were the warrior, they were the politician, they were the judge, and in England, they were the warrior, they were the politician, they were the judge, and in England, they were the priests, they ran the church. And so you had all of those functions being systematically pulled away or at least diffused

through other branches of government. And that giant sucking sound you hear is the sound of presidencies over the years pulling back all of this, a lot of that authority to themselves that the founders had intentionally divested from the presidency. And we're seeing it now. Now Trump is taking more power than precedent allows, but he, there were a lot of steps to get to where we are today, where he's writing all these executive orders. So the foundation for this week

had been laid a long time ago. So this is not Trump jumping in and doing something that has been, that is completely outside of American norms. We've been building to a moment like this for a while. Okay, so now let's tackle some of these. And as you said at the beginning, David, we can't tackle all of them. It's just going to take us some time to get through all of these, and particularly some of the lawsuits that are being filed. So let's start with the one that turned out to be the quirkiest, which is the Doge executive order. So if you remember, back in November, we have this op-ed in the Wall Street Journal, co-signed by

Elon Musk and Vivek Ramaswamy saying, you know, Doge is going to tackle big government. This is going to be about limiting spending, limiting sort of a runaway regulatory administrative state. And everyone who knows anything about the federal government was like, the FACA much? The Federal Advisory Committee Act. And like, think of Biden's Supreme Court Commission, right? Like, you are welcome to start these commissions with a bunch of non-governmental employees.

They don't have to jump through all the hoops of being government employees. But to do that, then basically everything has to be public. Every meeting, every draft report. I mean, that's why we're getting those draft reports from the Supreme Court Commission, which was super interesting because the draft ended up being pretty different from the final report. And so, you know, as I said, either they were going to violate FACA on purpose or they were going to violate FACA accidentally because FACA is really hard to comply with and you kind of need a whole

separate team of lawyers just to make sure you're FACA compliant. So the day that Donald Trump is sworn in, there's four lawsuits filed specifically arguing that Doge is violating F Doge. And what is this? It's unrelated to what they said Doge was going to be. So instead of it being this sort of standalone Elon Musk, Vakram Swami going pew, pew, pew to a bunch of like government fraud abuse, and waste-type stuff cutting down the federal budget, which, I mean, Jonah Goldberg dedicated a whole column, or sorry, was it Jonah or Kevin? Whatever, they're interchangeable men to me.

Don't tell them that, don't tell them that. One of them, it must have been Kevin. Interchangeable men, that's the podcast title. If you leave that in, it has to be the podcast title. Okay, I know it was Kevin now as I'm saying this. And he wrote basically how it's not possible to cut true trillion from the federal budget through Doge because there's less than one trillion of the kind of discretionary spending that could even be subject to fraud, waste and abuse. Okay, so the Toge executive order comes out. And all they did was rename the existing White House office called the US Digital Service. That's job is came after remember

the whole website crash during Obama's rollout of Obamacare. Yeah. Okay, that's how the US Digital Service comes into being. And it's basically like, make things techie better, IT. It's now been renamed Doge. Vivek Ramaswamy is out. As it turns out, through some great reporting in the Washington Post, by the way, Vivek was in charge of all of the regulatory, administrative, state fraud, waste, and abuse stuff. All the stuff that we all thought Doge was going to be about was all on Vivek's plate. He's now gone.

Elon's not interested in any of that. He basically wants to get his hands on the IT systems that run throughout government and thinks that he can sort of make government more efficient and run better through having better systems and probably lower the number of federal workers needed, all of the stuff that you find frustrating about the government. His argument would be a lot of it is due to these very old decrepit and sort of,

what do you call it when you sort of keep putting like band-aids and like keep building on top of building instead of like starting over and making something better. They're like, that's what he wants to do. That is very different. And David, to start with his first EO, I actually don't know that there's a lawsuit there anymore. That sounds like an actual White House function and not a federal advisory committee. So two things. One, I 100% agree. If all he's doing is renaming the digital service and then Doge becomes, well, we're going to use AI or other, you know, tech technologies to revamp and upgrade

America's tech infrastructure in the government. Cool. Yeah. Great. And he's, by the way, if you think, well, you know, look, I have my beefs with Elon Musk in many areas, but he's right about some things. And one thing he's right about here is that the computer systems and the government, holy cow. When I was in the army, one of the things that was a problem with the VA is in at least some parts of the VA, and I'm sure we have some VA listeners who can tell us more, but in some parts of the VA, they had systems that if they weren't the DOS era,

they were pre-DOS even, or if there's even such a thing. So we were talking about ancient kinds of code where there was just a very small number of people even knew how to run the system. It was so old. Gosh, I could spend an hour talking about how computer security in the Army Reserve was quite efficient at preserving the computer system from use by its intended users, but I'm not sure that

it was good at preserving security. So there are issues there. I don't know how much confidence I have that a Musk run Doge or a Musk adjacent Doge it couldn't do about it because it's a lot of people have been talking about this for a long time. Or whether he'll get bored or frustrated or just be like, I've got other stuff to do or whether he'll fall out of Trump's graces that bromance

I think has an egg timer on it frankly Yeah, I agree But it is also the case that if he starts trying to use the former US digital service now doge To do what they had initially described in that Wall Street Journal op-ed Pretending that you're renaming an already existing White House office is not going to fly So they will have to fall under FACA if they try to do what they said they were going to do. They don't fall under FACA if they're doing what they now say they're going to do. We'll see. But it kind of goes to show, like, don't file your lawsuit until someone's actually broken the law. Just hold your freaking

horses. There was like a race to the courthouse to sue Donald Trump. And I actually think it's, again, part of the problem. Okay, next up, and I've just picked, you know, sort of a few that are interesting here, the Paris Climate Accord. So Donald Trump announced that he the United States was leaving the Paris Climate Accord. This one's interesting, because the actual agreement has this one year notice provision. but so like obviously he violated that. But David, it's sort of like, this is my problem with presidential power. Like what one president can sign, another president can take away because it's clearly not a treaty if the United States Congress didn't sign it.

So I again, don't think that Donald Trump has a huge problem here. Because if one president had the power to create the one-year notice, I think another president has the power to just ignore that. Yeah, this is not a treaty approved by the Senate of the United States. This is a president's unilaterally moving. And even if the, quote unquote, treaty, which has not been approved by the Senate of the United States says it's legally binding. I mean, we have our own domestic system for this, which requires Senate approval. So again, I'm so glad we're bringing we're

talking about this, because this is what is makes everyone freak out so much about presidential elections. Yes, we're watching it right now. And this was never intended to be our system. It is contradictory to the system that was put in place in just profound ways, but I digress. More orders, Sarah, more, go. Okay, next up, renaming the Gulf of Mexico, the Gulf of America, and reinstating the name Mount McKinley instead of Denali.

So, now again, Donald Trump can't force Mexico, for instance, or Thailand to call it the Gulf of anything. I have no idea what Thailand calls that body of water. But if he wants simply like the US Geological Survey to change their maps when they're printing new maps this year. Yeah, I think actually not only does he have the authority to do that, David, this is one of the few things that I think a president 100 years ago would have had the authority to do. I think this is the only executive order that I'm going to be like, yep, two thumbs up legally, policy-wise, everything, you can do it. Sorry, when I say policy-wise,

I mean policy of the separation of powers. Right, it's totally within the president's scope of authority, right. And always has been and always should be. Like, yes, you nailed it, Mr. President. This is what an executive order is actually for. Now, on the reinstating the name Mount McKinley, again, I'm not sure we wanna be in a place

where every four years a bunch of landmarks change names. Yeah. But, you know, President Obama kind of started it, right? Like he renamed Mount McKinley because he wanted to make a political point about renaming it with an indigenous name, because the indigenous people there have always, I guess, referred to it as Denali. Okay, well, then you're opening that up to being unrenamed. Yeah, I'm with you, Sarah. I think for as a matter of law, the executive order very solid.

But are we really doing this now? So every four years, we're going to have like the 100 executive orders undoing the 100 executive orders before we're gonna be changing map and place names. Now the only good thing is you don't have to reprint the atlases anymore, because nobody's buying atlases. Although you might have a cool market in buying a printed atlas every four years with the new names. So that you could have a collector's edition for the 17 names of

the Gulf of Mexico in 17 presidencies. So Google Maps and Apple Maps will just automatically update. But this back and forth on naming, it's a classic example of how we do easy things that are crowd pleasing rather than truly tackling the hard things. Culture war is always easier than tackling and really intentionally approaching more serious issues. But yeah, it's legally fine. It's just eye rolling. Okay. Next up, this one is the DEI executive order, David. And it basically undoes that LBJ executive order that instituted, depending on your point of view, a non-discrimination policy within the federal government or instituted affirmative

action. In fact, it does use the term affirmative action, but in not a noun way. In a like, you shall, well, I guess it is still a noun, but like, and you shall take affirmative action to ensure that there is not discrimination, etc. This one also, I mean, this was a presidential EO from 70 years ago, whatever it's been now. Yeah, I think you can undo this EO. Now we have all of these anti-discrimination laws in place, and the president can't change those. So I'm not sure what effect this EO will actually have because of all of those, both anti-discrimination laws passed by Congress and court cases that we have since then,

defining the parameters of all of those. I don't know, this one falls into my, did this matter? I think it mattered only to the extent that now it's pretty sure, I'm pretty sure that if you are a federal employee, you're not gonna have for at least four years that annual diversity training module that you have to do online.

As I said, did it matter? Well, and I was the second part of that was, guys, look, I know right and left likes to fight a lot over diversity training, but the social science says that diversity training doesn't really matter. That there's a- If anything, it has a slight negative effect on diversity.

Yeah, yeah. It's one of the, you know what it reminds me of, and I hate to say this about my own profession, it reminds me a little bit of the CLE racket. Totally. Yeah. That a little bit of the CLE racket. Totally. Yeah. Hundreds of millions of dollars are spent on continuing legal education. I'm not going to say that none of it is valuable. There are times when you're moving into a new practice area, for example, that CLE can be really valuable, but this sort of rote 15 hours a year requirement

means you spend a lot of money every year and I don't know that you actually become a better lawyer. The DEI strikes me as very similar, the diversity training strikes me as very similar but on a much larger scale. There's just been study after study after study showing no effect of diversity of training or to the extent that it has an effect,

it's a negative effect. And Sarah, I can tell you as a former JAG officer, one of my jobs every year was to give the legal portion of sort of the diversity module. And there's nothing quite like standing up in front of a couple hundred infantry soldiers and for a diversity training module and just looking at the looks on their faces.

And it's like this, there's a hundred, five are eagerly looking at it, going, ooh, interesting. Five are angrily looking at it, saying, this is ticking me off. And then 90 are surreptitiously glancing at their phones going, when, please God, is this gonna be over? And that just is kind of the dynamic. And so I think a lot of activists like to fight

for and against diversity training as if this is the key to the culture when the reality is it's just mostly on a box checking exercise. And so that's why your observation of does this really matter is spot on. or observation of does this really matter is spot on. All right, next up, one that definitely matters. Yes.

Birthright citizenship. All right, so this EO does a few things. Not only does it say that someone who is born to parents who are here unlawfully not automatically attain US citizenship. But it also talks about people who, for instance, a parent is on a work visa, that they are not automatically given citizenship.

Well, this one's gonna matter, David. And this is going to the Supreme Court no matter what. I've never been more sure of a Supreme Court case in my whole life. 100%, 100%. Okay, so we're gonna take a few minutes here and we're gonna walk through, we've done previous podcasts about this,

but just to remind everyone what the arguments here are. The 14th Amendment ratified after the Civil War, 1868. The whole point of this amendment, well, at least one of the big points, was to supersede the Dred Scott decision that had preceded the Civil War, which had held that no person who is black, whether free or slave, was a citizen of the United States. So I'm reading the first part of section one of the 14th Amendment. All persons born or naturalized in the United States and subject to the jurisdiction

thereof are citizens of the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside. So this has been used to say that anyone born in the United States is a citizen, except for two distinct categories, children of diplomats who are here on official diplomatic duty, and at the time of the 14th Amendment at least, Native American tribes who were not considered subject to the jurisdiction thereof. That's what that little clause was referencing in the moment at least. So fast forward, and we have all these questions of like,

well, where do illegal aliens fall on that spectrum? Are they more like, you know, formerly enslaved Black Americans, or are they more like formerly enslaved black Americans or are they more like Native Americans or diplomats kids? And we talked for instance about David, if the ex parte Kieran Nazi saboteurs brought pregnant wife with them when they came in their Nazi uniforms

and they got to the sand for in their little submarines or whatever, took off their uniforms, buried them in the sand, and wife suddenly goes into labor and she has a child in the sand right there. Is that a citizen of the United States? I think the answer is clearly no. They're more like diplomats in that sense in that they're obviously reporting to and acting on behalf of a foreign government in this case as a foreign adversary slash combatant. Okay.

So, the Supreme Court has had one case directly on point and one case tangentially on point, David. And a third case was Dicta. Wait, I think I'm talking about the Dicta case. Okay. Okay. Well, United States versus Wong Kim Ark is going to be a famous case taught in your, you know, con law classes, et cetera.

This is from 1898, it was decided. Chinese Exclusion Act denied citizenship to Chinese immigrants. Moreover, by treaty, no Chinese subject in the United States could become a naturalized citizen. Wong Kim Ark was born in San Francisco to parents who were both Chinese citizens who resided in the United States at the time. At age 21, he returned to China to visit his parents who had previously resided in the United States for 20 years. When he returned to the United States, Wong was denied entry on the grounds that he was not a citizen.

Conclusion? Because Wong was born in the United States and his parents were not employed in any diplomatic or official capacity under the Emperor of China, the citizenship clause of the 14th Amendment automatically made him a U.S. citizen. It was a 6-2 opinion, David. And that's the big case. Now, the other side argues, yes, but they were legally present here. We had allowed them to come here to work and they had a child. So that Supreme Court case is not on point. Do you want to talk about the Dicta case? Well, the Dicta cases are, I mean, they're just dicta. You have a 1982 case called Plyler v Doe and a 1985 case called INS versus Rios Pineda.

And Plyler has a line, a dicta, again, dicta line, no plausible distinction with respect to the 14th Amendment term jurisdiction can be drawn between resident aliens whose entry in the United States was lawful and resident aliens whose entry was unlawful. So this is just not specifically directly dealing with the issue, but the jurisdiction, it does deal with that jurisdiction question. And then you have three years later, INS versus Rios-Pineta, where this is much more tangential because it's more of an observation

than a direction, so to speak. It talks about how the undocumented immigrant parents in the case had given quote, had given birth to a child who, born in the United States, was a citizen of the country. Now, people who support the Trump EO would say, that's nothing. That's just a statement of fact according to the legal environment at that moment that we're changing.

I think the Plyler v Doe observation, no plausible distinction with respect to the 14th Amendment jurisdiction can be drawn between resident aliens whose entry in the US was lawful and resident aliens whose entry was unlawful, is that's to me more relevant. But the interesting- The facts of that case though,

I think are also relevant to me at least. That was a class action brought by the children of illegal aliens from Mexico who were being denied access to public schools in Texas, arguing that like, well, they're illegal aliens and their children are therefore not relevant to us. And so we would have to spend money on these people to educate them.

They're not entitled to a free public education. And the Supreme Court said, yes, they are. Yeah. So even though the illegal versus legal distinction was dicta in that case, the overall vibe of the decision in saying they're entitled to a free public education sure sounds citizeny to me. Yeah, very much so. And also one thing, if the court is moving much more into text history and tradition precedent question mark, but text

history for sure, then the history here is pretty is by the standards of these historical fights is relatively clear. and it's not good for the Trump EO that the history here is talking about. Wait a minute. Under the jurisdiction thereof obviously does not apply to does not apply to diplomats children of diplomats because they're still under their sovereign and this is manifest in multiple ways. I mean, you can't, the diplomatic immunity, I mean, talk to DC residents about the problems with people with diplomatic plates,

the diplomatic immunity, they're just not subject to American sovereignty. And then similarly, Native American tribes, where at that time, you know, we did not have, there were separate sovereignties within the lower 48 states. There were separate sovereignty's and treaties with Native American tribes where it was not entirely clear the relationship necessarily between someone born, say, in

part of the Sioux Nation. Were they Sioux or were they American? I mean, this is, you know, past, I believe even a little before before before Little Bighorn, you know, and some of the final big waves of wars out West. So, and then the final category, and this is one where some folks will try to sneak in the repeal of birthright citizenship. And it would be the final one be more like your ex parte, Kieran Nazis coming to our shores

was children born of alien enemies and hostile occupation. And what that means pretty clearly is, let's suppose Canada invaded us and its troops were occupying Michigan or Chicago, and they have kids while they're occupying Michigan or Chicago, and they have kids while they're occupying Chicago. The fact that they had kids while they were in armed occupation of American cities does not make those kids Americans.

And so, because under that moment, you're not under American sovereignty, you're under hostile Canadian sovereignty, Sarah. And so, it's honestly very hard for me to see where in you can't count to five on this. In my view, I'm not sure you can count to one on this from the Trump perspective. But you know, of course, we'll see. I mean, there's lawsuits filing and we're about to see, you know, how Amarillo was a very active location in the United States

of America legally during the Biden years. San Francisco, part of the revitalization of San Francisco downtown will be all the liberal lawyers heading there for heading to court. Yeah. And suddenly venue shopping won't be such a crisis for the American judiciary, according to the left. But David, this is also going to be an interesting example of where the district court judge writing the opinion and the circuit court judges potentially writing opinions will know that they're not really writing opinions. They're

writing briefs to the Supreme Court. Yes, absolutely. When judges know that they're doing that, there aren't many cases, you know, max one a year probably where judges already know that this is going all the way. They can read a little bit differently. So I'll be very curious to see how this reads even though it is going to the Supreme Court along the way. All right, last update, let's talk about the pardons. We're gonna leave the rest of the EOs for another day.

Oh God, he makes a sound. I'm so mad, Sarah. We have pardons on both sides to talk about here. Yes. So President Biden, on his way out, pardoned hundreds of quote unquote nonviolent drug offenders, many of whom were no such thing unless you consider the mob boss to be non-violent because he's not the trigger puller. He also pardoned his family, literally, his like sister, brother, etc. kids, and pardoned the members and staff of the January 6th committee, Anthony Fauci, Mark Milley, the former chairman of the Joint Chiefs. I was not on the pardon list.

I know people are shocked to hear that. Sarah, come on. Okay, so those are Biden's pardons. Then Donald Trump gets into office and pardons everyone who was indicted related to January 6, including the leader of the Proud Boys who was indicted for and convicted of seditious conspiracy, sentenced to 22 years. The evidence and what he was convicted of showed that he planned in advance the attack on the Capitol

and planned for violence and instigated the attack on the Capitol. I actually, rereading that indictment, David, made me realize that I think everyone has talked about January 6th incorrectly the whole time. The focus was always on Trump, or Republicans. And frankly, this was planned and carried out by a relatively small number of these men who belong to a terrorist

organization. And we never really talked about it that way. And we should have okay, but he's those sentences, 14 sentences were commuted. Those were the ones who had been members of the Proud Boys basically. The rest were simply pardoned. And then he pardoned Ulbright. This was the guy who had been the creator of the Silk Road.

The Silk Road, yeah. Possible serial killer. Possible serial killer. He was convicted of hiring multiple hitmen to take out some of his perceived enemies, responsible for the largest dark web drug market, which was then responsible for dozens of deaths. I believe I'm remembering this correctly. There was a story of a 13-year-old who ordered, I believe, marijuana or something, and he and his friend ingested it. It was laced with fentanyl and he died and his friend lived. I mean, those are the sort of horrific stories that are coming out of this.

He was pardoned as well as a political prisoner and President Trump referred to the prosecutors in that case as scum. Um, okay. So pardon David, but before, before I unleash you, our friend over at the New Yorker, Kay, who wrote the profile of this podcast. Yeah. He had an idea that I want to run past you. Can I read it to you?

I'm always open to an idea from Kay, and I still want to eat at his wife's restaurant in Brooklyn, so. Okay, he says, a modest proposal. A constitutional amendment to declare a quadrennial pardon moratorium beginning a week before every presidential election and ending on inauguration day. David, I read this and was like, oh my gosh, a thousand times yes. Every, this should be bipartisan

agreement. Everyone should be able to get on board with this. And this reminds me of, you know, the 27th Amendment guy who was a student at the University of Texas. Some student out there could get an A 30 years later on their paper if they wanted to push this amendment through because I think it would get pretty quick ratification. Now, it doesn't prevent Donald Trump's pardons, but it absolutely prevents the post-election pardons spree

that Joe Biden went on with no political accountability. Well, and so it is, I feel like I love the idea. I would support it if that was my only other option, aside from my preferred solution, which is end the pardon power in the sole hands of the president. What would your amendment say? My amendment would be that the pardon power is a joint authority because the pardon power is not intended to be a last minute, I'm slinking out of office covering my friends and family and friends and family of big donors. Okay, this is so remember the Clinton stuff.

So we've had this pattern of I'm slinking out of office and by the way, YOLO, here we go. I'm going to start dispensing favors that solves that problem. But as you said, it doesn't touch the Trump problem, which is on day one, I'm going to issue the kind of parlance pardon people used to issue when they were slinking out of office. But this is a messaging pardon. This is a loyalty pardon. If you are with me, even if you're violent, I got your back.

That's a very scary thing. And the K, and I love it K, it's a great idea, doesn't address this other set of pardons. So my thought would be, there's a pardon commission or a clemency board, sort of like in the state of Georgia, because Georgia is one of the only states of the union to not give the pardon power exclusively to the governor, but you would have a clemency board or a pardon board that makes recommendations that have to be signed off on by the president,

the speaker of the house, and the Senate majority leader. Okay, I'm gonna amend your amendment to Kay's amendment. Okay. Why not just have it be something like the advice and consent rule? So the president proposes pardons and the Senate confirms them basically. Oh, I'm... It seems a lot easier than a pardon board with like, who's getting on that board and blah, blah, blah.

And can we just pause for a minute because I think, I don't think anyone who's listening to us, unless, you know, one of our MAGA listeners who's all about January 6th is an inside job or whatever, but I think our median listener does not need convincing that the January 6th pardons were really bad. I think some of our folks might actually have some questions about the Biden pardons. Why were they bad if Trump had threatened prosecution slash vengeance slash everything. Doesn't that ameliorate the Biden pardon? And my position is that it makes the pardon more understandable, but not more excusable.

I think those are two different things. But yeah, that blanket pardon of all nonviolent offenses for close to an 11-year period, when, by the way, his family has not exactly been running a church for the last 11 years. His son was convicted of crimes, just no doubt conviction, right? And then you have a lot of what looks like influence peddling overseas. This is not your typical family. And his brother was involved in that.

Yeah. I think there's also concerns, how do I phrase this? I think we're gonna learn a lot more in the next, let's call it six months to one year, about exactly what was going on in the White House, not just in the last few months, in the last several years of the Biden administration to prevent people from finding out his mental state,

including cabinet officials, including the vice president who could have invoked the 25th Amendment. I'm not saying I know of any crimes that were committed or by whom, but like, there's a whole bunch of stuff that this looks like it's intended to cover up. Yeah. Well, you know, and the other thing, looking broad more broadly at the pardons and commutations, like the grants of clemency, for example, and some of the commutations of some of these quote nonviolent offenders and the grants of clemency in some of the death penalty cases. Look, okay, I get it if you are saying, look, we should not have a death penalty. And therefore, because we should not have a death penalty, everyone's moving into life imprisonment.

But that's not what the pardon power is for. But that's not what the pardon power is for. That is not it. And so these weren't even reviewed. Half these people aren't even remorseful. They're remorse less. Well that's what I'm getting at. It feels like a lot of these actions in the last month, two months to use Gen Z lingo,

they're giving 80 angry 82 year old. In other words, like they're they're radiating that this guy is angry. He is shedding his restraints. He is, you know, his staff, which was trying to manage him, is checking out. And we get to things like these big blanket pardons. We get to things like, I declare the E-Corps Rights Amendment.

You're just getting all of this stuff that feels a lot more like your super angry grandpa like wrecking things on his way out much more than any sort of deliberate policy choice. But I'm with you, Sarah. I want to know more about the concealment of this person's decline because I can tell you from our perspective, like in our times world, they were freezing out people who were raising questions. It was difficult to penetrate that wall. And it was until they couldn't hide it any longer. I want to read you, by the way, what one of these people who was pardoned as a quote, non-violent drug offender,

this is from the press release in 2018 when he was sentenced to 35 years in prison. He was responsible for manufacturing and distributing large amounts of narcotics, primarily cocaine and crack over almost 10 years. Because he was so adept at manufacturing cocaine base, Witted, that's his last name, obtained tattoos on his chest of a Pyrex measuring cup and a box of baking soda, key implements in the cocaine-based manufacturing process.

In addition to drug dealing, Witted and other gang members were feared due to their propensity for violent home invasion robberies of other drug dealers. Girlfriends of drug dealers were also frequently harmed during these invasions on two occasions. Witted and his accomplices poured boiling water on the victims until they disclosed the location of the drugs and or currency. During one of these invasions, a taser was deployed

on a woman's genital area. The Fayetteville Police Department deemed him priority number one at one point. So, you know, this guy Genesis Lee Whitted Jr. now out and about, remorseless by the way, never, never had anything like he thought he was going to get a pardon. So now he's back in Fayetteville, North Carolina. Thank you, Joe Biden. Do you think he's going to go get a nice job now?

Do you think he's going to put on a suit? No, he's going to go back. I job now? Do you think he's going to put on a suit? No, he's going to go back. I mean, he still has the tattoo, man. This wasn't recommended by his Department of Justice. These weren't even, as best I can tell, reviewed by anyone else. Who came up with these lists? Pretty upsetting. I think some of the lists were outside activist groups, which by the way, the Democratic Party

is starting to realize that a lot of these outside activist groups that have been placing relentless pressure on them for years and years and years and punishing any deviation of any kind from their own ideological, sometimes highly bespoke ideological views, a lot of Democrats are over what they call the groups. And if I was a member or I was an activist in the groups, I would be thinking really hard about maybe trying being reasonable for once and not trying to destroy everybody has slight disagreements, but that's just you. You're alone in that. Ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha Laureate Project. She has chosen to look at how and if the Supreme Court has upheld the original ideas of the American Dream as defined by the Declaration of Independence and later by James Truslow. So for those who are not familiar with James Truslow, 1878 died in 1949, American writer and historian, and he popularized the phrase American Dream in his 1931 book,

The Epic of America. So David, I decided that we should reach out to some of our friends of the pod to get some fun answers to this. Oh, I love this. So I reached out to Professor Randy Barnett. He just has his new book coming out, David, A Life for Liberty, the Making of an American Originalist. We're definitely going to need to have him on the podcast on a quieter day to talk about that book. But here was his

answer to that question. There are far too many examples of where the Supreme Court has upheld the American theory of government that underlies the Declaration of Independence that can be listed here. This is the theory that first comes rights, then comes government. That government is established to secure the inalienable natural rights to life, liberty, and pursuit of happiness. Perhaps the biggest ways these rights have been upheld by the Supreme Court

is by ensuring the separation of powers between Congress, the president, and the judiciary. The second is to preserve our system of federalism that allows for 50 state solutions to social and economic problems, as well as the opportunity for people to vote with their feet and move to the state where the package of laws and policies fits their needs.

One can choose to live under the regimes of California or New York or Florida or Texas and still be Americans. Finally, there are the rights that the Supreme Court has chosen to protect. First among these is freedom of speech and freedom of the press, which serves as both a means of securing our other rights and as ends in themselves. Then there's the right to keep and bear arms, which is essential to the security of a free state, empowering Americans to provide for both the defense of themselves and their communities

in times of stress. These are not all the rights we have as Americans, but they go to the four boxes of American freedom, the soap box, the cartridge box, the ballot box, and the jury box. Pretty good four boxes, David. That's great. I mean, that's, wow, that's fascinating. I love that formulation. Okay, then I have an email from Judge Don Willett

of the Fifth Circuit. Don Willett is the embodiment of the American dream, so I'm gonna include a little bit of his bio as well here. Buckle up. Howdy from Texas, he says. First off, kudos. This is written to the teacher, by the way. I'm going to send him all of these emails so he can read them in his class.

First off, kudos to your sharp student. She's 100% correct to define the American dream through the lens of the Declaration of Independence, America's birth certificate. The declaration, aka the greatest breakup letter of all time, turns 250 years old next year. And I fervently hope as the celebration ramps up that all Americans get reacquainted with this magnificent document. When your student talks about the American dream, one familiar name comes to mind, George Washington. He was the indispensable man at the birth of America. But I've always thought that Benjamin Franklin was the nation's Renaissance

man. Franklin rose from penniless runaway to one of the world's most admired figures. He was truly the first embodiment of the American dream. His achievements in science, politics, letters were unrivaled. He was a protean polymath and the most illustrious figure in early America. As the New York Times put it back in 1856, Franklin was, quote, the incarnation of the true American character, end quote. When Franklin famously quipped outside Independence Hall that we had a republic,

if we could keep it, he was on the one hand heartening, a republic, no more royal absolutism. But he was also on the other hand foreboding, if you can keep it. The fate of this new nation is on us, he said, it's ours to keep and ours to lose. The Willett family is one generation from grinding poverty. My mom was a widow truck stop waitress who never finished high school. She waited tables for 55 years, shoving quarter tips in her pocket and barely eking out $15,000 a year. She probably poured enough truck stop coffee to flood the Rio Grande.

My mom couldn't help me with calculus, but she had a PhD in hard work. She embodied the sort of grit that America celebrates, and her heroic sacrifices made it possible for her son to dream big. I can't overstate how tickled she was knowing that the country-fied son she raised in a drafty double-wide trailer in a town of 32 people

interviewed for the US Supreme Court not long before she passed away. America rejoices in aspiration, and the Declaration is a big-time aspirational, laying out soaring, enduring ideals, and declaring a singular, bold purpose for the government to secure our God-given rights. The Declaration debuted a uniquely American theory

of government. It was the first time in history that a nation came into being asserting the inborn individual natural rights and equality of every human being. As Margaret Thatcher put it, America is sui generis because unlike European countries, it was built upon an idea, the idea of liberty. America's founders were aiming for something transcendent, not to enshrine a process democracy, but to enshrine a promise liberty, individual freedom, the essential condition of human

flourishing. Americans generally have a pretty abysmal civics IQ. It's truly dispiriting. But I think the reason that so many Americans don't know the how of our republic is because they don't know the why of our republic. And it's a short trip from ignorance of our founding ideals to erasure of them. Thomas Jefferson called the Declaration an expression of the American mind. The Declaration is declarative.

There's no hemming or hawing. The framers didn't pledge their lives, fortunes, and sacred honors to fiddle around the edges. They upended things. The ideals unveiled in the Declaration flipped the script, and those ideals are timeless, even if America hasn't always lived up to them. My favorite piece of art in my chamber

is an oil painting of Frederick Douglass. Douglass said that the Declaration's promises of liberty and equality are eternal, even if America's original sin of slavery broke those promises. Those founding ideals have laid the foundation for righting wrongs, including the new birth of freedom wrought by our second founding and the Civil War amendments that belong at the center of America's constitutional story. The challenge for us today is not to tear down America's heritage as some want to do,

but to live up to it. As Dr. King said at the March on Washington, our founding documents should not be changed to fit new ideals, rather our government should be changed to fit the timeless and enduring ideals of our founding documents, which he called a promissory note to which every American was to fall heir. To answer your students question, the Supreme Court has sometimes

shamefully dishonored the original ideas of the American dream as described in the Declaration. Think Dred Scott, Plessy, and the civil rights cases of the late 1800s. In fact, our family dog, Amicus, has the middle name Harlan to honor the courageous Justice Harlan, the great dissenter. Oh my god dog amicus. Oh my god, he's so cute too. He looks like a stuffed animal, I will tell you. He's not even real. He sends me pictures, but I'll note, I haven't gotten a video, so maybe it is a stuffed animal.

Named after Justice Harlan, the great dissenter, who dissented from many of those appalling decisions. But at other times, the court has honored and upheld the declaration's ideas, as in Brown versus Board of Education. The quest to live up to America's founding ideals is never ending. It requires constant striving, and judges are front and center.

The Declaration provides the aspiration, and the Constitution provides the architecture. And the Constitution's first three words supersized on the script for all the world to see are iconic. We the people. Not we the government, or we the judges, or we the subjects. American citizenship is not a spectator sport, and the secret sauce is a sleeves rolled up citizenry.

An informed citizenry is flat out indispensable to capable self-government. The constitution that I swore to preserve, protect, and defend is an exquisite charter of freedom, but freedom requires patriots, not passerby. It demands fierce defenders, not feeble spy standards. Self-government isn't self-perpetuating, and the habits of strong citizenship aren't hardwired into our DNA as Americans. Those habits have to be taught

and learned anew by each generation. And I believe that civics education is a core component of judicial service. America boasts the oldest written national constitution on earth. That's such an extravagant blessing, but preserving that inheritance requires a culture of liberty and public spirited virtue.

And that includes always honoring the noblest ideals set forth in the declaration, ideals that remain absolutely essential if America is to remain the world's oldest constitutional Republic. Boom, mic drop. That's fantastic. Wouldn't expect anything less from Judge Willett. No, that was

fantastic. And David, we also have an entire memo prepared by the Eskridge Chambers, Judge Eskridge down in Houston, Texas, looking at how much the Declaration of Independence is actually being used in our courts. But he adds his own brief thoughts on top of the memo first. The student is most likely interested in the aspirations stated by the lead quote that everyone remembers and refers to. The self-evident truths that all persons are created equal and with inalienable rights as endowed by our creator

entailing life, liberty, and the pursuit of happiness. Assuming that's her emphasis, I'd submit that each of those categories is otherwise covered and protected by provisions of the Constitution. and thus, the Supreme Court actually addresses those aspirations often, but under a different textual source. As to equality, the memo touches on this most directly, especially in terms of voting rights. And in that light, the 13th, 14th, 15th Amendments, and then the voting amendments that followed all ground concepts of equality in the Constitution, which of course the justices then deal with directly.

As to life, well, there are provisions that deal with capital punishment and the due process clause refers to it directly. And obviously the whole approach of some justices to substantive due process are animated by general views on this and also as swirling in liberty in pursuit of happiness. I love that swirling in liberty in pursuit of happiness. I love that swirling in liberty in pursuit of happiness. As to liberty, so very many of the Bill of Rights addresses this in various aspects, first, second, third, fourth, fifth, sixth, eighth, especially. And provisions of the Constitution indicate what the state and federal governments can and can't do in certain respects. As to pursuit of happiness, I think one thing to

remember is to compare the Declaration and Constitution to Magna Carta, which you observed covers so many picky little things, wine measurement, hunting and fishing rights, dower and inheritance, etc. And that is still accounted for today at the state level. Importantly, the Constitution does provide for and guarantee strong states, and so all of those items remain fully available for consideration and protection. And on substantive process, and so all of those items remain fully available for consideration and protection. And on substantive process, and particularly some statements by Justice Kennedy, it rests a lot here. So across all those many topics, the principles and aspirations of the Declaration are getting

a workout, just not in a way that requires sourcing to the Declaration itself. Beyond that, I think it is of fundamental importance that Jefferson listed, by my count, 27 grievances against the Crown, things that the King did contrary to right and reason, that supported separation and independence. And those gripes have specific provisions, have recognizable links to the Constitution with provisions that shore up protections in those respects. For instance, refusing assent to laws or suspending their implementation. Very clear legislative executive processes set out as to statutory law, except if it involves TikTok, I guess. Next, calling inconvenient...

That was my... I just want to make sure that everyone knows that was me, not Judge Eskridge on the TikTok point. Calling inconvenient legislatures or dismissing them. Very clear protections of timing and dispersal included. Refusing laws to establish judiciary and make judges dependent on his will. See all of Article 3. Erecting a multitude of new offices and sent hither swarms of officers to harass our people and eat out their substance. Well, with expansive reading of the necessary and proper clause, protections on this front were

diminished in favor of the administrative state. But on the other hand, see Doge. That was him, not me. On the other hand, see Doge. Standing armies and quartering of soldiers. Very clear power given to Congress in Article 1 about the military and see, of course, the Third Amendment. References to problems with trade rights, excessive taxes, and jury trial, all with ready parallels to provisions in the Constitution. I hope this is helpful. We will put that full memo, it's only three pages, in the show notes as well. Bottom line, well, research. We surveyed the Supreme Court's treatment and references to the Declaration of Independence prior to 1830 and from 1973 forward, essentially comparing the first

50 years and the the first 50 years and the most recent 50 years. We also consulted secondary sources to make sure that there weren't any major citations and themes missing. Bottom line, drawing inspiration from the ideals of the Declaration is a modern vintage, largely of the Warren Court and after. As far as we could find, the Court in the early Republic

never looked to the Declaration as a source of the American dream. Again, full memo in the show notes so everyone can read it. Okay, David, what do you think? We have the law professor, we have the historical memo of use of the declaration at the founding and today, and then we have Judge Willetts, I mean, just elevating oratory, an ode to the declaration.

What say you about the American dream, the declaration, and how we're doing? Yeah, that's a great question. And it's also very timely for me, because I'm essentially teaching that course right now. And I would argue that from a legal superstructure position, I'm not going to be nearly as eloquent as the three written statements have been,

because this is much more off the cuff. But the legal superstructure in the United States supports the American dream now more than it ever has in American history. There are more robust protections for free speech, for religious liberty, for due process, equal protection of the law, you name it. It's a superstructure of robust legal protections, though it was hard and long and painful in getting here and there's no guarantee we'll stay here.

My concern about the American dream is less related to the legal superstructure, the myriad court precedents, but less related to the legal superstructure, the myriad court precedents, but more related to the political branches and to our cultural conflicts. That's where I think the American dream is faltering in this moment. Look, advisory opinions, one of our positions has long been, and I hope we don't have to change it, but one of our positions has long been of the three branches of government. The judicial branch is the best functioning branch of government right now. It's the one most living up to its intended purpose. Not perfectly. There

are problems. We talk about them here. We've talked about cases that we disagree with strongly, but overall, the judicial branch is at this point imperfectly, but largely upholding the American dream. And I think that the threats to the American dream, primarily cultural at this point and secondarily political, but the judiciary is holding the line. But I agree with everything that Judge Willett said, for example, and other folks said about,

this has not always been the case. There have been points in life, in American life, where the Supreme Court may have been the most dangerous branch to the American dream, thinking about Dred Scott, most notably. But, you know, one of the things that I say, and we take on the road when we talk about this, is our cynicism about government is when we're when you walk into the

judicial arena is fundamentally misplaced that this is actually a functioning branch of government full of people not not all of them but replete with people left and right who are doing serious work in a serious way with an eye towards upholding our constitutional republic. So I'm actually, at this point in American history, I'm relatively bullish about the judicial branch, bearish about others. I just love this podcast. I love having an excuse to get to read these responses. By the way, I teed them up, not at all. I just sent them the email and was like, would you be willing to respond?

And that's, thank you for doing that, judges, professors. Thank you for doing that. Cause that's a lot of time you spent and we appreciate it. And to have three such different responses, I love one on the structure of the constitution and our system of government, one on the structure of the Constitution and our system of government, one on the history, and one on the lived experience of not just Judge Willett, but of Benjamin Franklin and all of these other founders.

I think that itself shows how different the American dream must be in order to be realized. There is no single American dream. Even the way we think about the American dream can be so different and yet three really beautiful answers. I don't know, I'm feeling, I'm feeling bullish, David, feeling bullish on the whole thing. David Willis The whole thing. Well, I appreciate your optimism. I'm more mixed. Lauren Henry I've also been reading Jeffrey Rosen of the National Constitution Center's book on the pursuit of happiness,

how classical writers on virtue inspired the lives of the founders and defined America. And look, this is exactly to your point, David. On the one hand, you read the book and you're like, wow, these are really great virtues to aspire to. And I actually see how they don't just inform, but are almost required by our system of government to have as a citizenry these virtues and at

the same time you can feel pretty depressed as you look around and feel that perhaps America is not only not living up to those virtues but like turning away from them intentionally I mean just our attention spans our even belief in virtue. Yeah. But. And the scorn for virtue ethics. There's a scorn for it. You know, I'm preparing to write a piece about how the morality of the friend-to-enemy distinction is beginning to take over the morality of right and wrong, truth and lies, that the friend to enemy distinction is fundamentally contradictory to virtue ethics. And it is remarkable and jolting to me to the extent to which virtue ethics are scorned,

including by people on the right who otherwise claim to revere the founders and uphold sort of this division and spirit of the founders. Do they realize how much the founders were obsessed in many instances with virtue ethics? So anyway, that's where my head and heart is. But I'm just I'm how can this fail when we have people like Professor Barnett, Judge Eskridge, and Judge Willett willing to take so much time out of their day just to talk about the American dream to a student in France who they will never meet? I mean, it's not even like a high school student alone would be really impressive, but it's not even a high school student in our country.

And yet they are so, we're all so into it, David. That's why we do this. Can I make one final observation on this Rogan Links podcast? Yes. Because we're getting there. What I have found is when I interact with people, especially when I have an opportunity to sit down

and actually teach like a course or a seminar or something like that, it is much easier to pry people from their extreme partisanship when you go back and teach founding principles in ethos than it is to address them issue by issue in the contemporary moment. And because once you address them issue by issue

in the contemporary moment, all of the defenses come up. Here's why I said this about October 7th. Here's why I said this about the January 6th. I mean, you name it. But if you go back and you teach founding first principles, what is the vision here? Why is it set up? What is the social compact that we have? You actually watch, you can watch people's hearts soften because when they understand the system and they understand the reason for the system and understand the role of the system and the role for the aspirational aspects of our system to contradict things like slavery,

contradict things like Jim Crow and the power of those ideas to contradict them, even though we had to wrestle with them for a long time, you can actually watch people's hearts soften. And with that, David, we conclude our Rogan length podcast. On the next episode, we have a Supreme Court oral argument that you and I have been raring to talk about. Do we determine excessive force in the moment of the threat, as it was the police officer's life in danger in that moment,

or do we consider the 30 seconds or 10 minutes before that, if the police officer, for instance, created some of that moment of threat? That is being argued at the Supreme Court this week. We'll talk about it next week because this is now an incredibly long podcast. So with that, thank you all for being part of our American dream. And thank you again to Professor Barnett, Judge Charles Eskridge, and Judge Don Willett for participating.