Advisory Opinions - When Flag Burning Becomes a Crime | Interview: Sanford and Cynthia Levinson

Episode Date: August 28, 2025

Sarah Isgur and David French talk about flag burning and protected free speech in the wake of President Donald Trump’s executive order on the same subject. Then, husband-wife duo Sanford and Cynthia Levinson, authors of Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today, join to discuss why they believe some of our contemporary political problems stem from our founding document. The Agenda:—President Trump's executive order—Texas v. Johnson—Dinkus vs. Dingus—Greenbag.org—NIH v. American Public Health Association—Intro to constitutional law for non-lawyers 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 access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And do we have a show for you? We're going to burn some flags. We're going to talk about the dinkists. And of course, we've got that amazing Supreme Court interim docket decision on grants for one, for what? Plus, special guest, Professor Sandy Levinson of the University of Texas and his wife, Cynthia Levinson, are going to talk about their book, Fault Lines in the Constitution, to answer one of the questions we get a lot on this podcast. All coming up on advisory opinions. If you've run into me in the last couple months,

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Quince.com slash advisory. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing, blue booking, tables, appendix assembly, bait stamping? Or would you rather focus on your argument? Type law can take your draft and exhibits and transform them into a court-ready, rule-compliant e-brief and appendix overnight. They've helped prepare over 10,000 filings in courts across the country,

even SCOTUS. Learn more at typelaw.com and use referral code advisory to save 10% on your first order. That's typelaw.com. All right, David, I think we got to start with some flag burning. The president has issued an executive order, not criminalizing flag burning, because that's not an option after Texas v. Johnson, but saying that the Department of Justice should prioritize other crimes that may have occurred, if a flag was also burned. So think disorderly conduct, you know, incitement, et cetera.

I thought that we should start with Texas v. Johnson, just to give everyone a reminder what the 80s felt like and go from there as to why that dog won't hunt either. So, David, I was actually writing something on Texas v. Johnson a little while ago and did, you know, some good research into the background of that case. can I read you what I wrote that I never published? Yeah, please. I'd love that. Joey Johnson was the last of the true hippies.

As thousands were gathering in Woodstock, he was coming of age as a 13-year-old living on an American military base in West Germany with his stepfather. He was already opposed to the war in Vietnam and spent his time reading about drafty protests. In just a few years, he was back in the United States, a high school dropout,

and a member of the Revolutionary Communist Youth Brigade, ready to be one of those protesters he'd idolized while in Germany. But by the mid-80s, the anti-war movement he had so wanted to be a part of had largely petered out. Bell bottoms and free love had been replaced by pinstripes and greed is good. Michael J. Fox, as the precocious Alex P. Keaton was the perfect encapsulation of a new conservative generation rejecting the worn-out liberalism of their parents. Joey Johnson didn't care. When he showed up to Dallas for the Republican War Chess Tour, he was ready.

The Republican National Convention represented everything he hated. Reagan, the swaggering cowboy, made for the perfect nemesis. Quote, Ronald Reagan, Killer of the Hour, perfect example of U.S. power, he chanted. Not the Johnson supported Democratic nominee Walter Mondale either. Reagan, Mondale, which will it be? Either one means World War III was in the rotation at that protest as well. They weren't just protesting one side. The entire system was rigged. About 100 people had showed up for the protest. Some were there. for the mayhem. They spray-painted buildings, staged die-ins, knocked over the cement ashtrays that still dotted the downtown area. One protester climbed a nearby pole and pulled down the American flag.

Johnson grabbed it and kept moving toward City Hall. He pulled out a bottle of kerosene he'd kept in his pocket, doused the flag, grabbed a lighter from his other pocket. Now it was a proper protest. The First Amendment says Congress shall make no law bridging the freedom of speech, but was setting fire to America's most sacred symbol speech? What kinds of protests were the First Amendment designed to protect? So David, the Supreme Court decided this case 5-4 back in 1986. They invalidated flag-burning laws in 48 states. Justice Scalia, very famously, this is the example he would often give of if you're a judge who doesn't rule against their own policy preferences, doesn't have opinions that they don't like that you're not a very good judge because he abhorred flag burning, but in fact

voted with the majority in this. And I actually thought Justice Kennedy's opinion, his concurring opinion in this case, was quite breathtaking. I'll just read a little piece of this. I write not to qualify the words Justice Brennan chooses so well, for he says with power all that is necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks. The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another branch to share responsibility as when the argument is made that a statute is flawed or incomplete, for we are presented with a clear

and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no doors but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right. Right in the sense that the law and the Constitution as we see them compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression. reminding us that among those who will be dismayed by our holding will be some who have had

the singular honor of carrying the flag in battle, and I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics. With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting members of the court urge. However painful this judgment is to announce, those symbols often are what we ourselves make of them, the flag is constant in expressing beliefs American share, beliefs in law and peace, and that freedom which sustains the human spirit. The case here today forces recognition of the cost to which those beliefs commit us. It is poignant, but fundamental that the flag protects those who

hold it in contempt. For all the record shows, the respondent was not a philosopher, and perhaps did not even possess the ability to comprehend how repellent his statements must be to the republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts for speech in both the technical and the fundamental meaning of the Constitution. So I agree with the court that he must go free. David, is Texas v. Johnson a great decision, an abomination, or, as Justice Kennedy describes it, one of those really hard things the court is bound to do? That's a really great way of framing the question, Sarah, because, you know, I think there is a lot of variable responses to this

that are very variable based on how you view the flag. And I get sentimental about what the flag represents. I don't get sentimental about the flag itself. And so I have never really found this flag burning issue to be one that really excites my, you know, gets me excited and angry. I'm much more, actually much more sort of sentimental about this decision as yet another amplification of the principles that the flag stands for.

And so I think of this decision is one of the really good decisions in American constitutional law. And I think it's interesting to look at the lineup of the judges or the justices. So this is not your typical lineup back in the day. The majority is Brennan, Marshall, Blackman. Okay, so those are three very left-leaning members of the court. Scalia and Kennedy. So you run the whole gamut from the most conservative, arguably to the most liberal members of the court with the swing justice at that one of the two swing justices at the time on the opinion as well. Now who's in dissent, Rehnquist, White, Stevens,

O'Connor. That's again, that's a cross ideological dissent. And so it's very interesting to me that it came out the way that it did. It's very interesting that it was the lineup that it add. But here's my question back to you, Sarah, if this case comes before the court today, which I don't think that it will. I don't think they're going to take flag burning again. I think this, any sort of controversy around Trump's EO is going to tap out in the circuit court level. But if it came to the court today, is it 8-1? I don't think it's a question of 8-1. I think it's a question of 7-2. You're presuming Justice Thomas as the one. But Justice Alito has

had really interesting decisions on the difference between speech, valuable speech that the First Amendment was intended to protect and non-valuble speech, the crush video where you kill, you know, kittens with a high heel for sexual arousal, the protesting military funerals, things like that. Now, I think Justice Alito is your swing vote here to the extent we think a 7-2 decision is swinging anything, because he's talking about speech that has no value. in the political arena, whereas, you know, protesting the Republican National Convention in 1984, that is the political arena. That's sort of the definition of the political arena, and burning a flag is, you know, the epitome of that protest. So I don't know where

Justice Alito would come out, but that's where, again, that's, I think, your swing vote. Do I think there's anyone else who would cross over. I mean, I guess you're right. I guess I don't think so. We have a very speech protective court right now. And we have really since Texas v. Johnson. And by the way, I think I said that was 1986. That's crazy. It was the protest was the 1984 Republican convention. The decision was 1989. I can't believe I messed that up. But hours after Taylor Swift got engaged. I mean, how could I not know everything that happened in 1989? Yeah, so I think it's either 8-1 or 7-2. I think this is a very speech-protective court.

But the dissent was talking about this being conduct, not speech, and that there were other ways to get your message across, right? Like, if your message is the R&C and whoever the Republican nominee is, sucks. You don't have to burn a flag to do that. That's conduct. You can write an op-ed or scream it at the top of your lungs or all these other avenues. that was their reasoning for why these 48 state laws could be upheld. That to me is like one of the scarier options is like as long as you have some other avenue, we can ban your method of

communication. So, so yeah, I think it is demanded by the First Amendment because I don't think the like, as long as there's some other way to do it, we can shut off this way to do it works. but I hate it. I mean, I very much ascribe to Justice Kennedy's, like, this is demanded by the Constitution, but it's worth a moment to say this is abhorrent. Like, that's not how you should express your dissent. I also will note that I think burning the flag

has been cheapened over the course of those 30 years since that decision as well. Like, now it's like no big deal. So it's sort of like curse words. You keep having to have to find new shock values. value, if you will. And that makes me sad also, weirdly, that burning the flag no longer even is, you know, the highest form of showing one's disagreement. I remember, and Sarah, I've been looking for this, and this is a call to listeners for help on this. But I remember when the flag

burning argument was raging in the 1980s. And I remember George H.W. Bush, one of the things he was running on was calling for an amendment to the Constitution. banning flag burning, which at least he's asking for an amendment. And I have a memory. I remember watching this. And maybe I'm hallucinating because I haven't been able to find it. Maybe this is a post hoc hallucination. But I remember a Dennis Miller monologue on Saturday Night Live where he talked about this. He actually brought in flag burning as a sort of a concept of that we believe so clearly and our right to free speech, that we will sacrifice our most sacred symbols, our most sacred national symbols to embody that right to free speech. And it was so, as I remember it,

it was so powerful and I've been trying to find it, and I have not seen it since. And I, so hopefully I'm not, I'm not just making this up. But the substance that I remember essentially saying that this freedom of speech, that is the essence and that freedom of speech as one of the first liberties in the First Amendment, not the first liberty, that's free exercise, but one of the foremost liberties in the very first amendment to the Constitution really does embody what our republic is about more than the fabric of the flag itself. And I always found that to be just an incredibly persuasive argument. And it really swayed me in the moment when, if you go back to late 80s, early 90s, that's probably the peak of when I would have called myself, you know, like a law and

order Republican, that, you know, this is when violence is at a level that we right now would shudder to think of. I mean, late 80s, early 90s, violence in America was out of control. and I was very much of a sort of a law and order guy, and that possibly mythical Miller model meant a lot to me and sort of parsing this. But Sarah, I think it's two things we have to address here. One is what we've already done, which is Texas v. Johnson and what the Supreme Court has held. The other one is the EO itself, which is not at all.

It is not at all what the White House has produced. portraying what Trump said it was. It's nothing like that. And so we've got to dive into that because this is CEO, I'm not even sure what it does, to be honest. Let me just read Section 2A under Measures to Combat Desecration of the American Flag. So the very first part of it is waxing eloquent about our great American flag. Okay, so that's first part of it. Number two, or Section Two, Measures to Combat Desecration. The Attorney General shall prioritize the enforcement to the fullest extent possible of our nation's criminal and civil law acts or civil laws against acts of American flag desecration that violate applicable content-neutral laws

while causing harm unrelated to expression consistent with the First Amendment. Okay. That's the key language right there. It's basically saying if you can find an example of American flag desecration, that we can prosecute for reasons not related really to the American flag desecration, then do it. So, for example, if you have someone burning an American flag in National Park land where there is an absolute prohibition against lighting fires, right?

Well, then you're prosecuting somebody for lighting fires, not for desecrating the flag. But even that has a problem, as the Supreme Court has explained, in McCullin v. Coakley in 2014, that even if there, and I'm going to take this from Eugene Volick's right up on the Volick conspiracy, even if a restriction on speech outside abortion clinics, for instance, is facially content neutral. If the police do not enforce it equally against clinic escorts and instead selectively target anti-abortion protesters, such allegations might state a claim of official viewpoint discrimination. So in your fire example, for instance, if someone next door lit a fire to warm their hands and this guy burned a flag at the

National Park and they only are enforcing the no fire rule against the flag burners, nope, that doesn't work either. So when it comes to prosecutorial discretion, discretion's fine. It exists. You cannot prosecute all the crimes. We don't want to prosecute every single example. of someone breaking the law. However, if you are using that prosecutorial expression in a non-content neutral way, that's a no-go too. So just to explain the McCullen, right? So it said like there's a safe zone around abortion clinics where nobody can have speech of any kind, which first of all, I don't know how these are still in existence just with a Supreme Court that favors speech. the whole genre of abortion carve-out zones seem weird to me, but that's where we are right now.

So, like, it's like 150-foot buffer zone around an abortion clinic. And what was happening is if you were an anti-abortion protester who was within that buffer zone, you were getting arrested. If you were a pro-abortion escort who was, you know, encouraging someone on their walk-in, like, you know, you're making the decision for your family, whatever else they might have been saying, they weren't getting arrested. Nope, said the Supreme Court in 2014. And so compare that to flag burning.

And again, there's David's example is great, hate crimes, whatever. But like, as long as you're telling prosecutors to prosecute it for content-based reasons and for viewpoint-based reasons, you just undid your whole EO there. Yeah, yeah. I mean, if you have a situation, let's say there is a no burn warning at a national park because, of wildfire conditions and you walk in and there's nine campfires and one flag burning and you arrest the flag burner and you leave the nine campfires untouched you're going to have a problem right because you obviously made a viewpoint slash content based distinction in your law enforcement and so yeah you're at you're absolutely right there's another issue that arose uh mainly arguments that i saw

online from people defending this because they said, well, ordinarily, I would not want to suppress free speech around flag burning. But what we have seen is people prosecuted for desecrating or destroying pride flags. So the American flag is no less sacred and is more sacred than the pride flag. And if you're being prosecuted for desecrating the pride flag, well, then you should be able to be prosecuted for desecrating the American flag. It's a facially compelling argument until you realize their examples are people desecrating other people's pride flags. Yeah, if someone comes and burns your American flag, we're going to prosecute that person. Right, right.

But the issue is not the flag burning so much as it is the destruction of another person's property. The burning your stuff problem. Yeah, there's a, under American rule of law, you don't get to burn my stuff, right? If I paint a mural, you don't get to deface my mural. And by the way, this came up, speaking of murals, there is a 2023 decision by Judge Rao on the D.C. Circuit, friend of the pod, Judge Rao. And that was about the Black Lives Matters protest. And I bring this up because we hear a lot about prosecutorial discretion only going one way. But this was an example where during the summer of 2020, during the Black Lives Matters protest, the Frederick Douglass Foundation and Students for Life of America chalked, quote, black preborn lives matter. a public sidewalk. They were arrested under a defacement ordinance. And what Judge Rao was writing about was the fact that none of the Black Lives Matters protesters who were all chalking, painting,

you know, storefront, sidewalks, etc. None of them got arrested for chalking Black Lives Matter, but chalking Black pre-born Lives Matter got someone arrested. That's like the best, I mean, that's 23. This EO feels like exactly that. And David, those people have a, would have a point, i.e. there have been, whether it's the abortion clinics or Black Lives Matter, where prosecutorial discretion has been used in a non-content neutral way. But the courts have thrown those out, as in people knew that at the time. So I'm not great with the fact that they were arrested in a non-content neutral way. They were prosecuted in a non-content-neutral way, but we have judicial opinions on this. It wasn't like nobody noticed. Yeah, exactly, exactly.

And then it's also a good opportunity to bring up what is a hate crime, actually, because this is another issue where there's an awful lot of confusion. Thanks to Supreme Court authority, there is really no such thing as a crime that is criminalizing hateful speech. however hate crimes exist and where they are constitutional is they essentially have to be a modifier of a pre-existing crime so in other words if you have vandalized something that vandalism is the crime and then the hate crime element is a sort of a modifier that enhances a penalty enhancer related to the hateful content so if you if you deface a school building with a can of paint and you say, go grizzlies, which is probably almost acceptable,

but if you say, go grizzlies, then that's not, there's no hate message there. It's all love. But if you, but it's still vandalism. If you deface it with a swastika, you've got the underlying vandalism, but defacing it with the swastika creates the penalty enhancer. And so when you're talking about that kind of construct, and people are saying, well, it's a hate crime when you deface a pride flag. Again, there has to be a defacing of somebody else's pride flag. Because if you burn your own pride flag, that's not a crime. And the fact that you burned a pride flag does not then make it a hate crime because it's a symbol of gay rights. If you're burning your own flag, you can absolutely do it. It's the enhancer that exists when you commit another crime.

crime. And so that's the way to think about it. Now, again, as you're saying, Sarah, these double standards have existed, but they've been recognized and they've been dealt with judicially. All right. When we come back, I'm going to call David French a dinkus. With Amex Platinum, access to exclusive Amex pre-sale tickets can score you a spot trackside. So being a fan for life turns into the trip of a lifetime. That's the powerful backing of Amex. Pre-sale tickets for future events subject to availability and varied by race. Terms and conditions apply. Learn more at mx.ca. Here on advisory opinions, we get a lot of questions from listeners.

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Starting at 17 grams per medium latte, Tim's new protein lattes, protein without all the work, at participating restaurants in Canada. Hey, David, you're a real dinkus. I refuse to be insulted by that because that's not. the insult, Sarah. It's dingus with a G. That's the insult. No, I'm talking about something entirely different. I have an early copy of a law review article that has not been published yet. And I wanted to share it with you because it's going to be relevant to our conversation about the Supreme Court. I'll just, I'll read you some of the introduction here. Universal injunctions, single judge districts,

the shadow docket, lurking in the background behind these and other. legal boogeyman is something far more sinister. The dinkus. Derived from the German dingh, meaning thing, a dinkus is a typographical symbol that is used to indicate a minor section break. So, David, it's like those three asteris that you see between, like, right before the conclusion paragraph or whatever. The dinkus is ubiquitous in today's legal writing, but that wasn't always the case. Over the last 25 years, the dinkus has exploded in use, both by judges and by practicing attorneys. It comes in a variety of shapes and sizes, and, if used properly, can be a powerful tool to

guide the reader from one idea to the next. Because of its flexible utility and ease of use, the Dinkus has become the darling of the legal writing community, and especially of appellate practitioners, that most aristocratic subsection of legal authors. This author cannot help but wonder if we've gone too far. What if, by embracing the Dinkas, we've lost the ability to craft an effective transition simply by using words. Masters of the English language that we claim to be,

shouldn't we be wordsmithing enough to tell the readers when we're moving on from a subject without resorting to foreign symbols? This author openly concedes that there is a place for the well-time dinkus, but he worries that it has become a permanent crutch used at the end of an ever-increasing percentage of sections rather than an exception to the ordinary conclusion used when really needed. After offering a short history, this essay catalogues the prolificing the proliferation of the dinkets in American legal writing, it reports, among other statistics,

arise in use of 100% in Supreme Court opinions since the beginning of the 21st century, and a rise in use of 200% in Supreme Court briefs in just the last eight years. This essay also examines the different dinkist formats employed by jurist academics and practitioners featuring several of the most exotic. It concludes by offering some parting thoughts on whether the dinkus heralded as the sin qua non of a modern summation and a cure to our prolix is really the boon we think it is. So thank you, Jack de Sorbo. I can't wait to post this in show notes when it is published. And if folks aren't familiar with the green bag, this is where law review articles of this style generally end up. The green bag is the one that had all of the

wonderful bobbleheads of the justices, you know, Justice Scalia holding a lemon and holding off a wolf. Well, that's the dinkus. And David, boy, did we get some dinkuses from the Supreme Court? How do you like? Dinkai? Oh, interesting question. We have this interim docket decision from the Supreme Court on grants. This was National Institutes of Health versus American Public Health Association. Right. So it's a little complicated. and the facts don't matter a ton. But basically, the Trump administration has a guidance document saying, don't give any grants to DEI stuff. And they pulled back grants that they felt like were DEI stuff. The court split 414 with Justice Barrett as the swing vote in this

decision. Well, we'll get to that question mark in a second. Basically, Four justices thought this whole thing could go through the normal district courts, in this case, the district of Massachusetts. Four justices thought it needed to go through the court of federal claims where you go if you think the government owes you money. And one justice, Justice Barrett, thought both. And because she was the one, right, she makes up that fifth vote for the majority. so like, she wins. So for your guidance document lawsuit, you need to go through the district court. And for your, the government owes me that grant money lawsuit, you need to go to the court

of federal claims. It is chaos, David. And it was 36 pages of opinions. There were lots of opinions. So you have the four justices, the chief Sotomayor, Kagan, and Jackson saying everything should go to the district court. because this isn't a lawsuit sounding in contract. This isn't a contract dispute.

They're saying the guidance document violates the First Amendment, and so their grant wasn't given to them for a reason that violated the First Amendment. That's a normal lawsuit. Send it to the district court. Then you had Thomas Alito, Gorsuch, and Kavanaugh saying, well, your remedy is that you want money from the federal government, right? That grant money.

Well, that's what the Court of Federal Claims does. So please walk over here and file your lawsuit here. You can still have your whole lawsuit. What's the problem? But we send claims against the government for money because of sovereign immunity issues to the court of federal claims. They're specialists in this stuff. And Justice Barrett says, well, look, part of it is your guidance document First Amendment

claim. And part of it is that you want money from the government. Those can be two separate lawsuits. You then also had a concurring opinion by Justice Gorset. signed onto by Justice Kavanaugh saying why aren't these district courts following our decisions and getting real mad? Like, I feel like I can see the stomping and the red face and the steam coming out of their ears, Looney Tune style, as Justice Gorsuch gives examples of what he believes are district courts ignoring the Supreme Court's interim docket decisions because, of course,

there was a California decision about grant money previously. David, I'll just tell you, that like I found that concurrence a little bit weird when you have a 414 decision to yell at a district court for getting this one wrong. When Gorsuch didn't even get it right, he's on the losing side. In fact, arguably everyone is except Justice Barrett. And then there's a separate Justice Jackson concurring in part and dissenting apart that nobody joined, which is many, many pages long. In fact, it makes up the bulk of the 36 pages. It's 21 pages where she again stomping steam coming out of the ears i believe the money quote here was calvin ball jurisprudence with a twist calvin ball has only one rules there are no fixed rules we seem to have two that one

and this administration always wins david reactions what we're seeing here i think is the real difficulty in resolving really important issues on an expedited docket where there is real confusion about what previous decisions on expedited dockets mean, that we really are in a position where haste seems to be trumping coherence in some of our Supreme Court decisions. And I do agree that, you know, a lot of this haste is working to Trump's favor at the moment. But part of that is due to the unique nature of the cases that are coming before the court right now, which are very much related to sort of the scope of Article 2 powers, the unitary executive, what that first sentence of Article 2 really means, where there is definitely a view of many of the

conservative justices that long predates Trump and Trumpism of a more expansive view of executive power. So you are, this is one of those instances where sort of MAGA law and traditional conservative sort of originalist jurisprudence has some Vendai, overlap, but that's not being made super clear because these cases are not super clear. And so when I read this, the ultimate 401-4 outcome made a degree of sense to me. In other words, you know, wait, should this ultimately, if this is damages, does this ultimately go to the court of claims? That's a resolution that makes sense to me.

But we just seem to be digging deeper down a rabbit hole of partial resolutions, partial decisions quasi-precedent under-explained. And we're beginning to, I think, reap the consequences of sort of a cascading series of under-explained decisions that are preliminary and could be revisited in several months. And so it's hard to really parse and sort what is the coherent jurisprudence emerging here, which is another reason why I found that that concurrence kind of lambasting district courts to be a little, made my head, you know, cock a little bit. Like, is it, are we sure there's a reason to scold these folks? Have you really provided them with so little wiggle room? So here's where I'm torn on that. I did not like the

concurrence. I thought it shouldn't work because it was only in June that we first saw the chief say that these opinions carry precedential weight. They were on an interim basis. Nobody really knew what they were even. So, but let me read you what the district judge wrote back in May, the district judge that this now at least partially overturns. Speaking of the Supreme Court, just as Robert Jackson famously said, we are not final because we are infallible, but we are infallible only because we are final. As always, the determination of the Supreme Court matter, only here the most relevant Supreme Court determination is not final, at least not yet. And therein lies the problem, because the Supreme Court on a 5-4 vote has seen fit to enter an emergency

interlocutory order in a somewhat similar case, he's referring there to the California case, its language provides guidance in other cases, but without full precedential force. So it is that this court, after careful reflection, finds itself in the somewhat awkward position of agreeing with the Supreme Court dissenters and considering itself bound by the still authoritative decision of the Court of Appeals of the First Circuit, which decision the Supreme Court modified but did not vacate. Okay, well, that makes the concurrence make a little more sense, right? You have a district judge say, yeah, I know that decision that you made is somewhat similar, but I agree with the dissenters, and it doesn't have full precedential value, so I'm going

to ignore it? So in that sense, like, it's a little different, but it also was in May before, you know, they had written that these do have full precedential force. But I, maybe I felt the tone was a little off in this concurrence, given the timing, nevertheless, saying the awkward position of agreeing with the dissenters. That's not awkward. That's not your job. That's where the district court, I think, went awry. I still am in agreement with you on the concurrence. But I think if you're going to critique a district court, critique it based on that specific language where he's like, yeah, I found the dissent more persuasive. Not how it works. You go from the district court to the circuit court to the Supreme Court, and then the district court decides

which side in the Supreme Court fight. Yeah. It's not an opinion. It's a presented for your consideration menu of arguments, right? Yeah. And look, it doesn't help in my mind. This is a senior judge in the District of Massachusetts, Judge William G. Young, very outspoken at 86 years old. For instance, in these grant cases that he's had before him, he has said, for instance, I am hesitant to draw this conclusion, but I have an unflinching obligation to draw it, that this represents racial discrimination. But this wasn't, you know, really the issue here. Again, I understand the Gorsuch concurrence. I think it is helpful to tell lower courts that they are bound by these decisions, the same as they would be bound by a final decision. And of course, remember that when it

comes to the so-called merits docket, those can also be on applications. They can also be interim in that sense. And they can be for oral argument and everything else. The lines between these two dockets are getting a little blurry. By the way, one more interesting note on this decision before we leave it behind at the very top of it. It quotes Philip Morris USA v. Scott 2010 parentheses Scalia J in chambers. And we don't see this a ton the Supreme Court citing an in chambers opinion. And I thought it would be worth just a second to explain what those are. So, when a justice is writing alone, it's called an in-chamber's opinion. This used to be what the now interim docket, how it was handled before. Because remember, those applications go to a single justice. Well,

it used to be that that single justice would just say, like, oh, here's what I'm deciding on this and send it out. That's part of what has made the interim docket explode. Yes, the questions coming to the court on this interim basis are of more national importance, but also the justices themselves are wanting to voice this disagreement. So we don't see single justices issuing those in-chambers' opinions very much, which is why you have the Supreme Court in 2025 having to quote, in-chambers' opinions, because that's really the precedent for these types of applications that they're going to have to rely on because there just weren't many of these before. Let's move on to our guests. A question that we get a ton on this podcast is from non-lawyers saying,

what is a book I can read that is like an introduction to constitutional law? And I'll be honest, I've never had a great answer to that question. I have lots of great books to recommend, endless amounts, but like an intro to con law for non-lawyers? Not really. Until now. So, fault winds in the Constitution, the framers, their fights, and the flaws that affect us today actually is kind of that book. Is it going to run through the whole Constitution? No. Is it like the same as taking con law in law school? No, it is not. What it is going to do, though, is walk through specific lines in the Constitution and why we're having fights about them, how states have dealt with them, how other countries have dealt with those questions.

So everything from bicameralism to gerrymandering, to voting rights, to the electric, College, impeachment, succession, inauguration day, secession, emergency powers, the amendments, and then at the end, they give the Constitution a grade on various things. So, with a little further ado, let's go to an ad break and then hear from our authors. Summer's here, and you can now get almost anything you need for your sunny days, delivered with Uber Eats. What do we mean by almost? Well, you can't get a well-groom lawn delivered,

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with stellist lenses for myopia control. Learn more at slur.com. and ask your family eye care professional for SLO-Stellus Lenses at your child's next visit. All right, David, let's welcome our guest, Professor Levinson from the University of Texas, visiting this semester at Harvard Law School and his wonderful wife, Cynthia Levinson, who have written fault lines in the Constitution, the framers, their fights, and the flaws that affect us today. This is a book that is critical of the Constitution, or at least points out the things that we still fight over. And we just talked about the pardon power on the last episode.

And lo and behold, chapter 13, the pardon power. Do you want to give us your top line on the fault in the Constitution with the pardon power? The Constitution presupposes a kind of character and tries to try. trustworthiness of public officials, most importantly the president. And so the Constitution, I think correctly read, gives the president basically limitless power to pardon. And Hamilton in, I think it was Federalist 77, has a very good defense. of the very broad, pardoning power. But I would combine it with Federalist 68, in which Hamilton, sincerely or not, I don't really care, says, we are guaranteed trustworthy presidents because of the

Electoral College, that the Electoral College will be the guardrail that will prevent the selection of a demagogue, it obviously hasn't worked out that way. What it means is that even an untrustworthy president really has limitless power on pardoning. I think we now believe that's a fault line. Professor, whatever we have now, the Electoral College we have now, is not what was envisioned by the founders. They envisioned something like a super committee meeting, a very well. wise figures in the body politic. And so you could see how that would be a firewall against a terrible person if you did have the electoral college as envisioned. We don't have that at all. Do we see any value in the current electoral college system, which is, I think, should be

acknowledged very different from the electoral college system as envisioned in the original constitution? Yeah, I can answer that very quickly. No. I see no value in the current electoral college system. But I was saying one other thing. Cynthia and I don't engage in founder bashing. The people I bash are ourselves who are unwilling to think audaciously in the way that the framing generation did. Instead, we think reverentially of what they did far more than they themselves did. They did not believe that they had gotten it just right. I mean, there are people who defend the electoral college. The issue of the populations of different sized states has been persistent from the very beginning in regard to enslaved people, in regard to representation

in government. And there are people who say, well, we need the electoral college to protect big states or small states. So there are arguments to be made, though I agree with Sandy, certainly the way it's panned out now. I don't defend it. But Sarah, perhaps you do. I'll defend the Electoral College. I agree 100% with all of you that it is not serving the function that the founders thought it would serve. Fair enough, right? They didn't ever envision a popular vote. And I think the waves of populism that the United States have experienced over the last 230 years. Nevertheless, the electoral college basically mimics the bicameral, you know, Connecticut compromise of having popular size representation from the House, plus you get your,

you know, plus two from the Senate. And so in a country that has gone from rural to urban where we have such a massive, heterogeneous country, the electoral college actually balances out that popular vote to make sure that presidents don't just spend all their time in New York, Los Angeles, and Houston campaigning, but have to actually go to these swing states, and the swing states change really frequently. And I think that is a good thing for a Republican system of government that presidents don't just want to get elected, need to get elected by the same few cities and really high population centers

that would make it basically an all-TV election, there wouldn't be much retail politics. I actually think the system as it is, not the one envisioned, I'll give you that, works better than the alternative. It's interesting that you mentioned Texas. We live most of the year in Texas, which rarely sees a political presidential political candidate except for raising money

because it's so obviously in the Electoral College going to swing strongly toward Republican vote. Not in your lifetime, though. In your lifetime, Texas has been a swing state. The major problem I see with the Electoral College is the winner-take-all feature. It completely distorts the campaigning. so that almost all advertising, most all campaigning, takes place in the swing states. I would not pound the table about the Electoral College if we had a different way of allocating the votes. What it does is basically to make the votes of Republicans in California and New York irrelevant. I just don't think there's a defense for that.

There's also the issue of candidates who win the popular vote and not the electoral college vote. I find it hard to defend that, frankly. I mean, why would we have an electoral college if it always reflected the popular vote? Like, that would sort of defeat the purpose. But I absolutely agree that moving to the Nebraska main system where it's not, you get all of the electoral college votes from the whole state would be fine with me. me. I like the Nebraska main system better. But I also like federalism, and I like states to get to make their own decisions about stuff. You like federalism, which like a lot of liberals I have rediscovered over the last eight years. It happens to be the case that I'm just finishing an essay on secessionism.

Because I do think that what explains federalism as a political phenomenon is the existence of a diverse population, where people basically don't trust one another very much. They might not like one another all that much, but federalism offers a way to live together in a somewhat uneasy relationship. But, you know, maybe as with presidential pardons, you expect people adhering to conventions, forbearance, knowing the limits. I do think that the arguments for federalism, when pushed, and I don't mean this critically, when pushed, end up taking you at least to considering seriously the issue of secession, rather than dismissing it out of hand as unthinkable. You raise a great point there, Professor,

because I think that one of the ways of looking at the Constitution, and you raised a very good point earlier, about how the founders did not look at this Constitution, is this thing that was fixed and immovable. That's why they included an amendment process. And I think they would perhaps be surprised that, you know, 200 plus years later, we only have, you know, a little more than two dozen amendments.

amendments and 10 of them were all in the first couple of years. I think that would actually surprise them a bit. But I do think that there is a difference between saying this is the ideal form of government that they could create and that versus this was the best they could do. And I think that that's a very big historical distinction. I think a lot of people are taught, well, the founders, sort of this worshipful sort of view of the founders, is, look, these guys created the best system of government on earth. And if you're trying to mess with the Constitution, you're messing with the best. I think the better view of it is they did the best they could reasonably under the circumstances to create a Republican form of government

with many, many, many real strengths. But there are weaknesses, and those weaknesses have been exposed. And that's why I think the constitutional amendment conversation is so fascinating. I think it is the germ of real reform. I would look at an electoral college constitutional amendment as the most remote of possibilities simply because it would require too many of the small states to voluntarily give up their influence. So it makes it very tough to think that they would ratify it. But I do think there is a way that it is absolutely still respectful of the founders to say, okay, after 200 plus years, this was the best you could do under those circumstances. We have new circumstances. We have new circumstances and we can do better now. And I think that conversation is really important to have.

I think it counts against the American Legal Academy that the higher you go in the pecking order, the more you're likely to believe there's only one constitution in the country. And if you look at the American states, you discover that there have been about 235 state constitutional conventions over the last 200 years. Most states have had multiple constitutions. But the real point is they treat state constitutions instrumentally. So they're always being amended. And I think that's a good thing. David has mentioned how few constitutional amendments are at the national level. I think that's a bad thing. I wish that we the people of the United States had more of the same attitude that we the Texans or we the New Yorkers or we

the Californians, et cetera, have about their state constitutions. You mentioned Nebraska. Nebraska was one of my favorite states because in 1934, we the people of Nebraska came to the rational conclusion. They didn't need a Senate. And so they just abolished it. And you you've got the unicameral. And whatever one thinks of Nebraska, it seems to work just fine with a unicameral legislature. Now, I think Texas is too big to be unicameral, and therefore the United States is way too big to be unicameral. But states ought to be studied more at elite law schools. And one of the things I like about, our own book. And one of the reasons that I unabashedly will be assigning it to my students of the

Harvard Law School beginning in three weeks or so is that it is the only book readily available that, in fact, compares the U.S. Constitution with state constitutions and invite students to say, okay, here's what we do at the national level. what Texans do. Nobody living in Texas, and Sarah comes from Texas, can take the idea of the unitary executive seriously. That's not the Texan way. It turns out to be not the way of 95% of the states, which have so-called unbundled executives, decidedly ununitary executives. Students ought to know about that and really ought to debate why it is that almost all states separate the governors from the attorneys general and whether it's really such a great idea that the attorney general

is the president's hand-picked person, and it can include his brother. The most disgraceful appointment in my lifetime was Bobby Kennedy to be attorney general. I would like to add, we talked about the Electoral College, which in terms of issues regarding the Constitution, controversial issues, is in a way low-hanging fruit. I suspect that many readers are not aware of the background for issues that are very current right now. For instance, emergency powers, the status of Washington, D.C., we have a chapter about each one, of those that goes into how they came about, what the framers were thinking at the time, what has evolved since then, that sort of thing. And even though people may well be aware

that we hope people are aware that every state, regardless of the size of the population, has two senators, I think it's likely that many readers are not aware of how that plays out, what the implications are for our politics today. So the example we give in the Senate chapter is the pervasiveness of corn products, including corn syrup in the American diet because the 10 senators from the low population upper Midwest states grow a lot of corn and they have an effect on agricultural subsidies. So we think there's value in a number of different chapters of the book, and I can say that honestly, because I learned so much about it. Professor Sanford Levinson and Cynthia Levinson, thank you so much for writing this.

I thought it was a fun read. As you say, there's sort of something in this for any constitutional literacy level person. If you're just wanting to start learning about the Constitution, this shows you where the fault lines are and where the interesting arguments are of things we could change in our Constitution. constitution if we wanted to get the political will to amend it. But it also has at the end of every chapter, how states do it, how other countries do it. I just thought it was an incredibly fun read all the way up and down the constitutional levels. Thank you guys. This was a real treat. If you want to hear more and you happen to be in the Austin area, there is going to be a November 7th conference about this book in Austin called Educating for a Shared Civic Future Challenges and Possibilities. It will also be live over Zoom if you want to join that. You can find out more at cynthia

levinson.com as well as find teacher guides because I know we have a lot of students and teachers who listen to this podcast. So cynthia levinson.com for teacher guides, including one of the guides that has been updated even as of this week with the flag burning stuff. So really fun book. I'm so glad they were able to join us. On the next episode of advisory opinions, I think we need to talk about this argument that Justice Jackson was making, right? The idea that we have two rules, the Calvin Ball won and that this administration always wins, because Professor Jack Goldsmith of Harvard Law School, he has some pushback on that. So next time on advisory opinions.

Thank you. Thank you. I don't know.