Advisory Opinions - Would You Like a Musket to Go With Your Latte?

Episode Date: August 20, 2024

Writing with quill pens, quartering Secret Service agents, and shooting 18th-century guns. A.J. Jacobs joins Sarah and David to discuss his book, It's All Relative: Adventures Up and Down the World's Family, and his experience living by the Constitution. But first, this podcast can’t escape a little bit of legal news, including a shocking decision by the Supreme Court.The Agenda: —SCOTUS blocks Biden’s Title IX Rule —Focusing on culture war, not politics —“Curtilage” and a 9th Circuit ruling —Living by the Bible and then the Constitution —Stoning adulterers —Exploring the powers of private citizens —Criteria for quartering soldiers —How elastic should the words of the Constitution be? 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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Ready? I was born ready. Welcome to Advisory Opinions. I'm going to say I'm David French. That's weird. I haven't done that before. It's so weird. I was anticipating that coming out of your mouth. I don't know why. Isn't that strange? So strange. Okay.

I'm not David French. I remain and forever shall not be David French. I'm Sarah Isger. That's David French. And as part of our August book series of books that are, you know, in the law genre, we're going to talk to AJ Jacobs about the year of living constitutionally, where he literally lives according to the words in the Constitution, though it never says

you have to write with a quill or sign the bill at a restaurant with a quill, David, and yet, and yet. And yet, no, this is a fun interview. I promise folks will enjoy this. But before we get to that, we got something from the Supreme Court, which was, well, David, was it a surprise for you?

It was a surprise for me. It was a big surprise for me. A lot of people talked about this as a 5-4 decision, but it was 9-0 on the core and 5-4 on the periphery. And so what this is was an appeal to the Supreme Court, application for stay, a challenging injunction handed down in lower court against the new Title IX rules that the Biden administration has promulgated. And the main beef was with rules that deal with rights

to bodily privacy and safety, definition of hostile environment and harassment, extension of Title IX to cover gender identity in addition to sex. And what was really interesting about this was that the following sentence, Sarah, it was importantly, all members of the court today accept that the plaintiffs were entitled to preliminary injunctive relief as to the three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity. That surprised me, Sarah. Did that surprise you? So I mean, everything about this had little surprises built into it. Yes, it did.

Not earth shattering surprises, but little ones. So that paragraph had some little surprises. Importantly, all members of the court today accept that the plaintiffs were entitled to preliminary injunctive relief as to the three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation

and gender identity. And I guess I honestly was expecting when I read this that like, yeah, the majority is saying that, let's see if the dissent agrees that that's what they've done. And then they do. Like there actually is nine zero agreement on that point. It's not just the majority Like there actually is nine zero agreement on that point. It's not just the majority characterizing the dissent, you know, beyond what they would agree to. So that was like a little nugget locked in there. Also the five four aspect of it. So it was Sotomayor, Kagan and Jackson in dissent

with Gorsuch. Now, first blush, that's a little surprise nugget. Of course, though, Justice Gorsuch is the author of Bostock, which did expand or recalibrate the definition of sex in Title VII employment discrimination lawsuits, that in fact, lawsuits dealing with gender identity discrimination and sexual orientation discrimination are encompassed in the term sex because those types of discrimination

are about sex basically. But that David, so then you're like, oh, maybe it's not a surprise that Gorsuch is in the descent, except that they agree all nine that this did overstep Title IX's definition of sex. So then you go back to it being a surprise and actually probably more about Justice Gorsuch's views on these over-inclusive, injunctive relief from circuit courts. In this case, it's the Sixth and Fifth Circuit, I believe, that had the injunctions that made it all the way up. And I will say, David, that, and I have not read all of the Title IX regulations that are at issue here.

Right. So I am going with the dissent's description of the other regulations that are therefore enjoined, whereas the dissent would sever the parts that are, you know, in the injunction from these other parts that were not relative to the injunction. So those provisions include, I'll just read one, a provision requiring access to lactation spaces and reasonable modification for pregnant students

such as restroom breaks. Yeah, I kind of agree that the plaintiffs in this case did not allege any harm from having lactation rooms, and therefore it's unclear to me why any injunctive relief would reach that. Now, the majority says it's just not obvious how to sever all of the other provisions and or difficult for sort of a temporary implementation of all these other regulations when these schools won't know what the sort of end will be on

the merits section. So it's just easier to enjoin them all. I'm actually pretty sympathetic to that argument. The Sixth Circuit, I guess, is hearing oral argument in, I believe it was October. So we'll have some resolution. This will go back up to the Supreme Court on the merits in pretty short order. So like the status quo in this case, perhaps favors simply not forcing schools to implement these changes until we know how they all interact with each other and can sort of do this more globally.

That being said, if you're someone who thinks that these injunctions are getting too broad, both in national effect and in what all they put on hold, especially from governments not being able then to do things for years on end until then there's a new president and they withdraw the whole thing and like, what are we doing here? The lactation room thing kind of hit me. Yeah. When I say I was surprised by the outcome, I'm not surprised that the regulation was enjoined or at least part of the regulation was enjoined. I'm

very surprised that the three elements were enjoined 9-0. That's what surprises me. I'm a little bit surprised that there wasn't any real effort by the five justice majority at severability. They just sort of hand-w and said, these things are all just kind of linked together with the rest of the regulation. But as you pointed out, Sarah, some elements of their new regulation don't really seem to have that much connection at all to the three challenge provisions.

But I sort of get it, like think of it like a spectrum, right, yeah, the lactation room thing obviously is easy to separate and severable. And then there's gonna be some things that like don't seem like they're connected, but maybe are a little harder to sever and it's like, where do you draw the line? Do you really wanna spend all the time right now to dive into severability when this is

in a preliminary posture and the merits is coming back soon enough? So I get the majority's point actually. But this is the problem with emergency docket stuff because the lactation room thing obviously could go into effect. That, absolutely. But yeah, I'm completely with you. I understand the argument against severability.

I absolutely understand it. There are elements though that do seem severable if you actually kind of press pause and do this in a deliberate fashion. But I do think the thing that here, if you look at this case in the bump stock case together with Loper Bright hovering in the background as well, this is the case that overturned Chevron,

I think a consistent theme here would be statutes aren't that malleable anymore. In other words, what we've had is a situation where if you have a Title IX and you have a Democratic president, Title IX means one thing. And then you have the same statute exactly. The statute has not been amended at all. Not one syllable of it is amended, not one punctuation mark, nothing amended. And then a new president comes in and Title IX means something different. And then the next president, and so from Obama to Trump to back to Biden, it's a seesaw with the statute not changing at all. And that is the issue that I,

I just find that, it's just not acceptable. This is when you get to Gorsuch...in Gorsuch's book, he talks about the difference between rule of laws and rule of law. And sometimes the rule of laws can be unjust. Rule of law implies there's a hidden sort of justice component implied in the phrase rule of law. But here what you have is just this seesaw back and forth without a change in the underlying statute. And that is a real problem.

And it's indicative of the, you know, well, guess what? We're going to talk about this a little bit in the book, Year of Living Constitutionally, in the conversation we're just about to have about what is it you say you do here, Congress? If the statute is going to fundamentally change, shouldn't the statute change? And so I think that there's an element of that going on as well. Yeah, I mean, this was a lot of the beef with Bostock once you've got to push past the sort of hysterics on all sides about the political culture war aspect. But a real beef is what Congress intended to do with Title VII. They're very aware of changing cultural norms around

sexual orientation and gender identity. They can amend Title VII anytime they want. So is congressional inaction here a sign that they wanted to leave those things out of Title VII, or is the fact that Bostock was from 2018 and it's been six years and Congress hasn't acted to not include sexual orientation, for instance, in Title VII mean congressional acquiescence that Bostock was right? I hate both of those sets of arguments that like we're supposed to read tea leaves when Congress doesn't do something for one side or the other But I think David this also looks a lot like the Clean Power Plan

Regulations where Obama had one Clean Power Plan Trump has a you know rescinds that different one Biden rescinds that he doesn't just put in place the Obama one. He has a different one Yeah, so I think you could have a situation where, you know, if Harris, for instance, were to win the presidency, you still would rescind these Title IX regulations and put in place the Harris Title IX regulations. And remember that these are real people trying to implement this. They have to talk to their lawyers and come up with a whole implementation plan. In fact, I believe some of these regulations require the schools to come up with an implementation

plan. The amount of money and time that takes is real. And the thing I like to point out about all of this stuff that I don't point out enough, money and time are tradeoffs. So the money and time you spend on this and then redoing it when there's a new set of regulations and redoing that when there's another injunction or whatever, is time you're not spending on can my students read? Or is this money that could go to scholarships, or any number

of other things? I'm using sort of the most extreme examples. But I got into this conversation the other day, David, about the the arguments over renaming schools. And Concord Middle School, which is named Concord Middle School, there's a move to rename it after a wonderfully impressive person who I'd never heard of, who had gone to Concord Public Schools, a black woman who was incredible,

just heroic story all around. And perhaps they should name the school after her. To be clear, I don't really care. I think that overall the like renaming stuff has, you know, gotten overboard in some cases. It is exclusionary to some people. It's exclusionary the way it currently is to some people. But my larger point, and this by the way,

also coming from me who desperately wanted to rename Jefferson Davis Highway next to my house. It has since been renamed, thank God. So, like, obviously I'm not against renaming at all times. But it's a trade-off. So let's look at the Concord Public School, you know, success with their students. And then let's look at how much time the school board has spent on this renaming debate and ask ourselves whether that's a good use of time. And the students that they're trying to help, perhaps, even with the renaming, might be more helped if we spent more time on the stuff that's hard, actually. I know why they want to spend time on the renaming debate, because that's something everyone can have an opinion on. It's a lot harder to say, why aren't some of our children reading

at grade level, proficient at math at grade level? And so we spend our time debating school renaming. And that to me is part of a lot of our debates right now. It's a trade off. Are we spending our time on the right things? Our lawyer time, our time time, the money, all of it. And that's what regulations are, David. time, our time time, the money, all of it. And that's what regulations are, David, they're money and time. Well, and compounding all of that. But oh, by the way, when you talk about the renaming, it reminds me of what actually made so many parents in San Francisco go volcanic, was remember when

the San Francisco Unified School District during the pandemic era was spending an awful lot of time about renaming and murals and all of this stuff, and they didn't have a reopening plan. And so, you know, you have all of these millions upon millions of students going back to school in carefully planned, you know, carefully planned reentry programs. And you've got all these San Francisco parents, and not only had the schools not open, they were having trouble finding if there was even a plan to have the schools open, but by golly, they're renaming. And there were, you know, there were, there were electoral consequences there.

Absolutely electoral consequences. But you raise something- Because again, it's about the trade-off. You raise something really interesting, Sarah, that goes to sort of the heart of our culture war. And that is, it's quite possible that one reason why culture war issues predominate in our politics over policy, and I know that there are connections between culture war and policy.

Don't jump down my throat about that. But as far as like economic policy, we spend a ton more time talking about, say, trans athletes, and then we do spend talking about economic policy, foreign policy, etc. And I think one of the reasons is a lot of the culture war stuff, everyone can have an opinion on it. And everyone's opinion in some ways feels equally valid or whatever, because they're rooting it in first principles, this is what I believe marriage is, this is what I believe the rights of the

church are, this is what I believe is a man or a woman. And so you're dealing with issues that really universally resonate, where people universally feel like they've got a thought about it. And whereas if you say, you know, look, Trump's tariffs are going to be inflationary, or Harris's price controls can lead to shortages. People that's just going 10 miles over most people's heads, they don't know the answer. And so when Trump says no, it's not a tax on Americans, it's a tax on China, even though that's not actually quite true, it's just too much for people to dive into.

And so you end up with this situation where it's culture war all the time, because that's what people get. I also think there's a little bit of the, it's funny, as so many other industries move into further and further expertise, journalism has not. And so as you hire younger journalists with less experience who are cheaper and will work long hours and stuff like that, they're a lot more qualified to write about culture war topics than they are to write about FEC filings, economic policy,

because budget negotiations on the Hill. Now, in fairness, it's because there hasn't been a real budget on the Hill in a long time. But if you don't have the expertise, it's really hard to start writing that first article. But everyone can have an opinion on culture war stuff. It's easy to find people to quote on culture war stuff. And so, yeah, it's odd as we move into over expertise

and I think a lot of areas and over specialization, media and politics has moved away from that. It's almost like complexity is making us dumber. Yeah. That essentially what's happening is we're looking at, let's just take for example, hey guys, how do we deal with and ameliorate the effects of 40 to 50 years of terrible zoning

and discriminatory zoning rules that resulted in high degrees of inequality in the city combined with a lack of livability and that has perpetuated pre-existing racial injustice. How do we deal with that? I don't know. It's easy to sort of retreat back to sloganeering or whatever. Yeah.

Well, the equivalent in education is, 50 years ago, it was much easier to say, what should we do about the legacy of racial discrimination and segregation in schools? Oh, well, we need to pay teachers more, put more money into these schools, et cetera, et cetera. So now we have 50 years of doing that and it hasn't worked. It hasn't worked, yeah. So now what do you wanna do? And everyone's like, let's rename the school.

Exactly, let's rename it. Bingo, yeah's rename the school. Exactly. Let's rename it. Bingo. Yeah. Yeah. Exactly. So like, it's easy to have ideas for what to fix, but what happens if you've tried a lot of those ideas and they haven't solved the problem and you start running out of the ideas and it's like, well, I don't have a lot of new ones. Or like universal basic income. Like, oh, welfare hasn't worked.

Well, what if we just try giving people money? Like, okay, now we have the academics on studies on that. Universal basic income, the idea of instead of sort of, you get, you know, money for this specific thing, or you can go to this place to receive a credit for this and it gets so complicated, it creates huge transactional costs that aren't going to the people who need the money, but rather to the people who administer the system. So what if we just give the people who need the money, but rather to the people who administer the system. So what if we just give the people who need the money a check?

Sounds like an awesome idea. Conservatives like the idea. Nope, also doesn't work. And it turns out those people go more into debt than the control group that did not get the universal basic income money. And so you're like, oh no, how do we solve poverty? Let's talk about how we need to take down these statues.

Yeah. Well, you know, and you're seeing a version of this come out, play out in the pro-life world, because for years and years and years and years, you had 50 years of, okay, we have a primary policy goal, and that is the reversal of rope. And then, you know, we've talked a lot about this, there's then the what next, what next, and then you begin to realize, okay, wait, we're in this unbelievably negative, unbelievably

negative political environment for the pro-life cause. What do you do about that? How do you change that? How do you, you know, that how do you, once you realize that, wait a minute, reversing row didn't actually end up decreasing abortions. What now? And there's just an enormous amount of complexity and confusion around the what now, and you almost feel like there's this longing for the simplicity of, well, we gotta get rid of row,

which similarly, you know, you get rid of school segregation and Brown. And then there's a giant what now? Because that doesn't reset everything. It doesn't make everything equal. It just gives you an opportunity to start to change things. And that change becomes incredibly, incredibly difficult. So yeah, the complexity of our issues, I think, is ironically enough driving the stupidity

of our issues, I think, is ironically enough, driving the stupidity of our politics. All right, last thing, circuit decision out of the Ninth Circuit, finding ineffective assistance of counsel, rare that someone wins that kind of claim, that their lawyer screwed up so badly, it was not reasonable. In this case, the lawyer failed to challenge

the police entrance onto the property as a Fourth Amendment violation. And there's just this delightful concurrence from Judge Boumete of the Ninth Circuit because, David, it uses my favorite word, maybe my favorite word in all of law. So I'm just going to read a portion here. A few things are more serious than an overstep of government power. And here we have a literal one. When law enforcement officers enter the property adjoining the defendant's home at night, jump the neighbor's side retaining adjoining the defendant's home at night,

jump the neighbor's side retaining wall, cross the defendant's front yard along a partially fenced off front porch, and arrive just one foot away from the open garage door of the defendant's private home, all without a warrant, they crossed a line. And that line was real. The Fourth Amendment safeguards the people

from unreasonable government searches, absent some well-delineated exceptions that it requires searches to be supported by a warrant and probable cause. The government officers may not intrude on the sanctity of the home, either by physically trespassing or by invading the owner's reasonable expectation of privacy, is central to the Fourth Amendment. That protection isn't limited to the four corners of the home. It can also extend to the areas immediately surrounding the home. Known as

the curtilage. Oh, David, I love the word curtilage. It is fun. It is evocative. It sounds like an onomatopoeia. I don't know why. heightened protections for curtilage is longstanding and predates even the founding of this country tracing its roots to English common law. The Los Angeles Sheriff's Department's deputies violated Harson Chong's Fourth Amendment rights when they entered the curtilage of his home without a warrant or an exigency. Thus, Chong's counsel was ineffective for failing to bring a motion to suppress based on a common law trespass theory of the Fourth Amendment right. As the per curiam opinion establishes, a common law trespass challenge

was a clearly winning argument under modern precedent. Even so, the government counters that the common law trespass threat of the Fourth Amendment is a relatively new phenomenon, and so it was excusable for Chong's counsel to miss it. But that's wrong. As set forth below, protections against trespassing on curtailage is deeply rooted in our nation's history, so it should have been obvious even before more recent Supreme Court cases, uh, articulation of the Fourth Amendment, right? He goes on to talk about the text history and tradition of curtilage, and it uses the word curtilage many times. In fact, 106 times you get the word curtilage in this overall opinion. And David, that to me is a treat. Also, Judge

Bumate is just one of those great judicial writers. So I always like to highlight some of his extra stuff. Don't challenge him on the history of curtilage. Don't tell him that's new. And David, interestingly, and this goes to the writing point, but that's wrong. He used a contraction there. And I think that's interesting in writing

and a bit controversial. That, apostrophe S, not, but that is wrong. So I don't know what you think about contractions in professional writing. I've generally avoided them, but then they come so naturally that it's hard to consistently purge them from your writing. But my general, to the extent that I even think about it, it is a negative. And what do you think about the word curtilage?

I'm a big fan of the word curtilage. In fact, it needs to be, you know, there's a rise in creativity and baby names. Curt. Yeah. Curt. Yeah. Short for curtilage, yeah. What's that short for? Curtilage.

You need to see, you know, somebody needs to go first. That's right. Somebody needs to go first with the curtilage and then it will be all the rage. Also interesting, David, that in this sentence, heightened protection for curtilage, not for the curtilage, doesn't take an article. I didn't, I don't think I really thought that through a lot.

But with that, David, speaking of old tiny words that we don't use a lot, let's talk to AJ Jacobs, our author for this episode and the US. Cheers to taking off this summer. More details at AirCanada.com. And we'll take a quick break to hear from our sponsor, Aura Frames. There are 365 days in a year, which means there are 365 days when you might need to buy someone a birthday present and finding the perfect gift for everyone. That can take weeks.

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AJ Jacobs, author of The Year of Living Constitutionally, thanks for joining us. Thank you, Sarah. Thank you, David. Delighted to be here. I mean, we need to back up, right? Because in 2007, you actually published a book called The Year of Living Biblically, One Man's Humble Quest to Follow the Bible as Literally as Possible. And I will tell you, when this book was recommended

to me, I was kind of snotty about it. And was like, this doesn't sound like my type of book because to me, I assumed judging a book by its cover, as everyone tells you to do, that it was like going to be a snarky take on originalism or the Bible, right? Sort of proving that you don't need to take this stuff seriously because if you do take it seriously, there's absurd, hilarious consequences. So I picked up the book in a very negative frame of mind, and that's not what it is at all. And so I'm curious how you came up with this idea way back to live biblically.

And then some 15 years later, you know what, let's do this again when my kids are teenagers so they can really feel how cool their dad is, you know, wearing leggings and writing with a quill pen. Exactly. That was the motivation that they would be so proud of me. Well, first of all, thank you for the kind words and for giving me a shot despite the initial skepticism.

And I do try to be both absurd and deeply serious. So I would argue that in some senses, this is an absurd undertaking, but I do want to explore the nuances and it's not a hatchet job. And the religion one came about because I grew up with no religion at all, very secular. I say in the book, I'm Jewish, but I'm Jewish in the same way the Olive Garden is Italian. So not very, no offense to the Olive Garden. But I had a son and I wanted to know what to teach him about our heritage, the religion of the Bible. And as a writer,

I like to go method. I like to just dive in. So I thought one way to learn about the Bible would be to follow it as literally as possible and see how it changed my life and what works for me and what doesn't. And so I did. I followed the famous ones, the Ten Commandments, but I also followed the hundreds of more obscure rules in the Old Testament such as not wearing clothes made of two different kinds of fabrics, stoning adulterers. I did use very small stones like pebbles so no one got too hurt, but it was a fascinating year. And I did- Wait, wait, hold on.

Yeah, that bears a little bit of a story. Like you don't just glide over, I stoned an adulterer, but not fatally. Like that isn't something that you just pass over. Yada, yada, yada. Blah, blah, day ending in Y, you know, like. So you have to just like, just pause for a moment there. Like who confessed?

Like what are the circumstances? Absolutely, yes. I'll give you the short story, which is I live in New York City, and as part of these projects, I like to commit. You know, I wear the clothes because I think clothes actually affect your mind. So, I had my robe, I had my huge beard, I had my sandals, and I was in Central Park, and a man came up to me and said, what's going on? And I said, I'm trying to follow the Bible, everything in it from the Ten Commandments to stoning adulterers.

He says, well, I'm an adulterer, are you going to stone me? And I said, that would be wonderful. What a lovely offer. And I took out, I had been carrying around stones for weeks, hoping to run into a self-professed adulter. And they were very small, as I mentioned, pebble-sized. And I showed them to him. I had a handful. He was very aggressive. He grabbed the stones out of my hand and threw them at my face. And I thought, an eye for an eye, also mentioned in the Bible. And so, that's how I threw one at him. He stormed off, but I checked it off my list and I felt good about that.

At the end of the year, I did get rid of my beard, as you can see, and I got rid of the stones, but it did have a big impact on my life in terms of gratitude and forgiveness and the beauty of rituals and all of these things. So it was a mixed bag. I don't recommend stoning adulterers, but I do recommend gratitude, for instance.

So 15 years later, you're like, let's do this again. Well, I'd always thought there could be a semi-sequel with the Constitution because some of the same issues are debated in interpreting the Bible and the Constitution. How literally should we take it? How much do the words evolve in meaning? How much should we try to get to the original meaning? So, I always thought so. And then, a couple of years ago, it became much more timely, in my opinion, because we had five of the nine justices who adhere to some sort of originalism. They have their varieties and flavors, but some sort of originalism. And as you know better than me, originalism means that they think that the most important aspect in interpreting

the Constitution is what did the words mean and what was the original public meaning at ratification. So I thought, let me try it again. Let me see if I can go in and try to get into the mindset of the founders and see what was that original meaning by walking the walk and talking the talk and burying my 18th century musket around New York City and writing with a quill pen, writing pamphlets instead of going on Twitter. And so it was a crazy, fascinating year. So totally endorse pamphleteering instead of Twitter. Totally endorse that.

That really needs to catch on. But the other thing though, you've got to stop again. You don't just walk past, I walked through Manhattan with a musket because sir, there are gun laws in Manhattan. And how, explain that little vignette. Absolutely.

Well, I went, I knew I wanted to express my second amendment rights in the 1789 or 91 way. So I went on ye olde internet and I got an 18th century musket from a shop in Texas and they shipped it to me. And it's actually a beautiful piece of craftsmanship and it's heavy, it's like 11 pounds. And I thought, all right, well, let me do my second amendment right. And it's a little bit of a gray area, whether I can bear it in New York,

because some of my advisors said it's an antique and I won't get arrested. So there was a little, it was nervous making. I put on my tricorn to make it clear like I'm in this, like I'm doing a bit, I'm not trying to. And it did come in handy one time, which was I arrived at a coffee shop at the same time as another customer,

and he said, you go first. I am not arguing with this guy with an 18th century musket. So other people were not as excited to see it, but so it was a mixed bag. I will say you probably were not threatening given that you would have had to, if something was happening, you've had to immediately say,

hold on, I've got to load this thing. Exactly, right. And I did go out and shoot it. I joined some Revolutionary Warrior Enactors and we went to a gun range and it was so interesting to see how different this machine was than modern guns because it takes so many steps to load. take out the ramrod, put in the ramrod, put it back. And so it's almost like building a desk from Ikea. It is not just you point and shoot. And that led to a discussion of when is the technology so different that different rules should apply?

And it's a complicated topic and thank thank you, Sarah, for acknowledging that I tried to, I didn't try to make it easy, but I tried to present both sides. So we have a lot of, and by a lot, it's a little hard to estimate, but enough that different ones seem to email me on a regular basis of junior high and high school listeners. And I think this would be a really fun book for them. Not that it's written for that level, it's not. So they will just to be clear parents, be reading an adult book.

But I remember when I was in high school, someone handed me, and I'm forgetting the name and it's at my parents' house, but it's something to the effect of like, everything you've been told about American history that's wrong. Oh yeah, I love that book. I history that's wrong. I love that book. And I love that book because it really made you feel smarter

than the teacher, which was a core personality character trait of mine, needing to believe that. This is not going to make your child as horribly obnoxious as I was, but maybe like a little obnoxious in a fun way, because I think it introduces constitutional principles and debates in a more fun way than frankly we do. So if your child listens to this podcast, they already have gone past the fun part. And this is maybe a return. Like, for instance, favorite chapter title,

a complete listing of all arguments for and against originalism that everyone will agree is absolutely definitive and error free. That promises a lot. You talk to a lot of constitutional scholars in this book. This is not just AJ Jacobs read the Constitution one time and has thoughts. A lot of the people you talk to have been on this podcast. Akhil Amar is obviously a fun example. And you even talk about his brother. And how did you, I don't know, how'd you go about starting this? You, like, read the Constitution one day and then you're like, I'm going to need some help with

this. Oh, yes, I needed, I mean, with the Bible book, I had a board of spiritual advisors. So I had rabbis and ministers and priests and scholars, and I knew I had to do the same thing. So I had scholars from all over the political spectrum. So I had, you know, the most liberal people who thought, oh, it's just, it's just Plato and we can make the Constitution mean whatever we want, almost postmodern to people who were so originalist, they will not capitalize the S in Supreme Court, which I love because in the constitution, it's a lowercase s. So let's not

give them the credit of giving an uppercase S. And, and by the way, it, I, I thank you for saying that about kids reading it. I think it is, there's one F word, F-bomb, because I talk about the First Amendment and at the start of our country, there were state laws against blasphemy, against cursing in New York State at our founding. It was 37 and a half cents every time you said the S word or F word or damn, damn was worst of all. And I tried to institute that in my house because I have teenage sons and that not go over well. So I was gonna say, I mean,

none of our 14 year old listeners have ever heard those words as any virtuous 14 year old would not have. So. Don't even know what those words are that you're referring to. Now we're gonna have email questions that we're going to have to deal with. So thank you. Fecundity, the F word of the day.

Okay, so you try to get a letter of mark and reprisal at one point. You also present your constitutional amendment and you actually get a meeting with a US senator. I did, Senator Ron Wyden. Which I will say was a real surprise for me. I'm not saying this is like a page-turner and a thriller sense, but I did not see that one coming. I'm delighted. Yes, it happens that my second cousin works for Senator Ron Wyden of Oregon. So nepotism is not a very founding father value.

They, you know, they were very worried. Well, he's the exception and he, I happen to like him. I think he was a great president, but so anyway, I feel bad about that. But yeah, it was fascinating. I got to meet with the Senator and I was all in. So I had my tricorn in my stockings and he still met with me. He didn't kick me out and I presented my petition, which again was admittedly an absurd idea, but with hopefully a deeper, serious point because the petition was, and that's our First Amendment right, of course, is to petition the government.

I believe that the president, both from Democrat and Republican, current presidential office is way too powerful, and that the founders would have been shocked. Thank you, Sarah. Yes, thank you. Thank you. Well, I am delighted to hear that. I figured that you were on that side. But yes, I mean, you look at, they wanted Congress. Congress was first among equals. It's the longest article in the Constitution. It's the first. George Washington had eight executive orders in his eight years. Barack Obama and Trump both had over

200 in their Canada presidency. What I loved is in the Constitutional Convention, and this was one of my favorite parts of the book, reading about how this document was formed and how fluid the ideas were and how it could have gone a hundred different ways. When James Wilson first brought up the idea of a single president, several of the delegates said, are you jesting?

That's a terrible idea. We just, we just, they didn't say that in those words, but they said, are you effing jesting? They would be fine. They would be in trouble. But they said, we just want a war to get rid of a monarch. Several wanted a council of presidents, three presidents, 12 presidents was brought up. And of course they lost.

It was a long fight though, weeks long fight. But one of them said, having a single president, that's the fetus of monarchy. The fetus of monarchy the fetus of monarchy it's just gonna grow and grow in power and that turned out to be I think a pretty accurate assessment the fetus of monarchy it's not a fetus anymore it's a toddler maybe a teenager and it just seems to get stronger and stronger so my petition was what if we went back and thought about three presidents? And Ron Wyden said, that's not going to work. But he did say,

yes, we have to restrain the president. There are ways of doing it. Trade should go back to Congress. War powers should go back to Congress. And so I was able to not get kicked out and have an actual conversation with him. So my question is, do constitutional arguments really pop when they're written in quill pen on parchment? Well, I will tell you this, and in all seriousness, I wrote a lot of the book with a quill pen and I would make my own.

And there is something quite lovely about writing with a quill or more precisely writing offline. I was, I don't think we all have to go back to a quill, but writing and thinking and talking offline, there is something the way it changed the way I thought. I didn't have these dings and chimes and baldness cure ads popping up all the

time. And I feel that it made my thinking, I hope, knock on wood, a little bit more subtle, a little bit more profound. And I think that when you read the writings of our founders, a lot of the... If they had to write that on an iPhone, if they had to do the Constitution on a Google Doc, I mean, I don't know, we wouldn't have a country. For the record, AJ has a full head of hair, glorious hair. He needs no hair. That's because I click on the ads and get all of the potions. So I feel like, not to dwell on this, but the quill thing is a hard no for me because I think I have some sort of, I'm sure someone will tell me what this is called, but like

a texture sound sensitivity to like that feeling of like, like literally saying that's making me cringe. Scratching on the paper. Right. I can sense it while I'm talking about it and the scratching feeling is giving me the tingles. Well, that is funny because my wife is on your side. She hated the sound.

She banished me to another room to write. And it's funny because there are ASMR videos on YouTube of people writing with a quill. And so some people like that little tingly, unpleasant feeling, I guess you don't, but it definitely, I happen to think it, it made me think something was happening. I'm like, I hear a sound,

I'm actually accomplishing something. So, I'm just gonna keep doing this, which is, tell us a story. And one of them is the letters of Mark and Reprisal. So tell the people what letters of Mark and Reprisal are. We don't do a lot of that on our podcast. Because we've done a ton. We, yeah, it has not, although we did have a little bit of a piracy discussion in connection with the Houthis. We did.

Oh, yes. Yeah, because they're sort of a free standing authorization for use of force against pirates. But yeah, but anyway, letters of mark and reprisal, please. Well, I'm honored to fill that pirate sized hole, pirate shaped hole in this show. And one thing I love, just a general note about the constitution is there are some parts

like the preamble that are so gorgeous and resonates so much, the blessings of liberty, general welfare, and then there are parts you get to call where they talk about government sanctioned piracy. And you're like, well, this is not something, this is written in another century because it was. And in Article I, Section 8, Congress has the power

to give private citizens basically a certificate for legalized piracy. It was called privateering, that's the more polite term. But the idea was that we did not have a navy at our country's founding, or not much of one. So during the Revolutionary War, we gave out hundreds of these letters of marks and reprisal where people could take their whaling boat or their fishing boat and put some muskets on it, a cannon, go out and capture British ships and keep the booty for themselves. So it was very, it was like outsourcing.

It was sort of like, you know, black water maybe. And, uh, and we, that we would not have won the war without, we would not have a country without privateers because they caught 2000 British ships. They caught supplies and food and sherry, a lot of booze. So this has not been a huge issue in recent years. There hasn't been a letter of mark issued since 1812, 1815, but I thought I'm living the constitution. Let me try to be the first to get a letter of mark and reprisal in 2024. And I actually, again, I got a meeting with a congressman, Ro Khanna from California. Love it.

And I had written out that I am requesting, my friend was going to lend me his water ski boat, that I am requesting, my friend was gonna lend me his water ski boat and I was gonna go out there and I presented him, I said, "'Keyersman, I want a letter of Mark of Repisal.'" His first reaction was, how can we make this happen? He was very optimistic. Then he's like, wait, what is this? And then I explained to him what it was

and then he was a little more, he's like, well, now that might be a little complicated. But so he was a little more, he's like, well, now that might be a little complicated. So he was a little less enthusiastic when he found out it was about piracy. But he did bring it up. He said that he liked the thesis, the idea of my book, exploring the Constitution. He went to Yale Law School, so he's interested in these issues. So he said he brought it up with his fellow Congressional members. I'm still waiting for the green light. His assistant does email me, he called me Captain Jacobs, so that's the closest I've

gotten. That's something. But you know, it raises this fascinating, like in theory, in theory, of course, it's not going to happen. But in theory, if Congress has kind of ticked that the president's not, you know, aggressive enough against a foreign adversary, grant some billionaires some letters of mark and they can go to it with a little private, you know, private militia. We don't need a space force. they can go to it with a little private militia.

We don't need a space force. Maybe letters of Mark and Reposible could be used in space and Elon Musk can be the space force. Absolutely. That is good. Well, it is funny because Rand Paul did bring it up a few years ago as a possible solution against piracy off the coast of Africa. So it is sort of a, it's a libertarian solution to a,

it's a very libertarian. Because as I recall, the privateers could take a share of the booty. That was one of the- They got it all. They got it all. Got the incentive. 100%, yeah. Know that and people made,

and it's interesting because they are not seen as heroes because it's this, their patriotism is questioned. Was it really the prophet motive? But I say people are complicated. You know, they also, they had, they were patriots and they were capitalists. So I think they do not get the due that they deserve. We will give them due on this podcast. Yes.

Delightful. John Harding them due on this podcast. Yes. Delightful. John Harding, thank you, John. So we need to talk about the Third Amendment because again, like Letters of Mark and Reprise, it has come up on this podcast, but not to the extent that frankly, I think a lot of our listeners would like. I think they tune in weekly just hoping today is the day. And we have gotten many requests of late to talk about a situation that made it into the news. I'll read from one of the stories. A Massachusetts salon owner feels violated

after the US Secret Service broke into her business during a nearby fundraiser for Vice President Kamala Harris. Footage from a ring security camera shows an agent approaching the front door of the business in Berkshire, Massachusetts before coming back to tape over the video camera. They picked the lock and then allowed multiple people to use the bathroom inside over a two hour period. So the question that we've gotten with everyone sending me this news story is can she sue under 1983 arguing that they violated her Third Amendment rights? This is federal law enforcement, et cetera, et cetera.

So, I mean, maybe we can all opine on this thought, but you have done the really on the ground research on the Third Amendment that frankly we have not. So first of all, tell us your Third Amendment experience. Although, as you go through that, I was disappointed that you didn't go all the way, did you? Oh, because he didn't board with me for the whole... Nope, because you didn't kick him out.

Oh, I didn't kick him out. Oh, yes. Great point, Sarah. Great point. He offered and you didn't take him up on it. You said you could kick him out. I know. I'm too gentle.

I am not... Will the Third Amendment, as your listeners know, says that you do not have to board your quarter a soldier without your consent. And that was a big deal, obviously. Number three wasn't a lot because it was one of the major gripes in the Declaration of Independence because the British would just turn these colonists' houses into Airbnbs without their consent. And I thought, well, this is fascinating. We've got to explore this. It's number three. And the way I thought I could explore it is you don't have to quarter a soldier, but if you give consent, then yes, that is also your

constitutional right to put a soldier up. So I thought, all right, that's how I can do it. And I can always kick that soldier out if they act up. So I, first of all, had a lot of trouble finding a soldier who wanted to quarter. I went to Times Square during Fleet Week and asked a bunch of sailors to come to my apartment. They were not convinced. I finally found a friend of a friend who is in the military, and my wife let him quarter for three days.

I would have let him stay for longer, but he was lovely. And as I was mentioning to David before the show, I loved having this conversation with him because when he quartered, we had dinner, an 18th century dinner, of course, and we talked about such issues as the civilian military divide.

Because I live on the Upper West Side of New York in this complete bubble, and I don't know very many military people, and that is a problem. I think that you see that civilians and military are drifting apart. There's a big divide. So I loved quartering a soldier. And yes, as Sarah said, I kind of went out, I was going to kick him out at two in the morning to show

that I'm an American and I can do that. But he was so nice. That one could just rude. Yeah, it was. It was definitely rude, but maybe my right. David, perhaps we can take a brief detour here. So just to read the text, we're textualists here on this podcast.

No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Do you think that the salon owner has a third amendment claim and I'll just, I'm going to do some issue spotting here. Quartered and house. Oh. And soldier. And soldier. And soldier. So you're saying, Sarah, from a textualist standpoint, it is, it does not hold up because it was a salon and not a house and it was the Secret Service, not soldiers.

And I think it was too de minimis. I think coming in to use the bathroom is not quartering. My point is, I think it was trespass. Like I think you've got them on trespass. I don't even think that's a close call. Third Amendment violation? I don't really think you're close actually. I think you've got too many problems here.

Interesting. But I do think the fact that it was a commercial, presuming this is a commercial zoning and all, you know, it's totally just a business. There's absolutely nothing residential about it. I actually think that's pretty interesting that it says in any house, because obviously they had businesses then and it does not seem to include commercial property in the Third Amendment. So right off the bat, I think I'd toss it on that before I even got to the sort of de minimis aspect versus quartering, which implies a lengthier amount of time.

And even the soldier aspect because the third amendment cases that do exist, and there's none at the Supreme Court, obviously, you know, do contemplate federal law enforcement potentially being included. But like, you don't even need to get to that house. It's not a house. Right? Fascinating. I mean, David, what do you think? Yeah, I'm David.

Oh, well, I mean, so many things. It's not a house. It's an important issue. It's not a soldier. And dumping is not quartering. I mean, like it's a- Dumping? You mean literally taking a dump, you're saying, is not quartering?

It's a dumping ground, is not a residence. So, unless you're gonna like a public restroom, that's not a, nobody would call that a residence. And you know, nobody, so yeah, so it's not quartering, it's not a house and it's not a soldier, but it is a trespass, no question about it, yeah. But also a de minimis damages there. You get the value of your lock if they hurt the lock, but if they just picked it.

Haven't seen the condition of the porcelain. So I'm withholding judgment there on the damages here. AJ, what do you think? Have we made a compelling case to you? Well, I think yes. I would probably have a hard time getting heard in court. But I will say, it brings up issues that I wrestled with throughout the year, which is, how elastic should these words be?

And so you get something like freedom of the press. I mean, we don't have a literal press anymore. Newspapers are not put in a press, but we have freedom of pressing return and going on your sub stack. So does that count, even though it's not literally the press? So you have other issues like the Fourth Amendment, reasonable cause, and do they talk about personal effects? So does data, is that an actual effect or not? So these are all issues that I love wrestling with and I don't have a great answer. But I will overall on the most important issue, I agree with Sarah and David, she should

not take this to the Supreme Court. What did you change your mind about most? Because you went into this, clearly, you know, you didn't go into this with all of your constitutional mind made up by far. You love the United States, you're a patriot, that was all very clear heading into this project. But you're politically on the left. I don't. But you're politically on the left. I don't know if you're legally on the left or right, what you'd consider yourself going into this book. But you wrote some really interesting nuanced things that at times you say cut against your politics sometimes,

at other times it didn't, or your friends or your community. I mean, what's fun about this book is you write it as almost a diary as you're wrestling and learning. So here now some many months after the book has been published, what has stuck? What did you change your mind on? What are you grappling with now? I don't know. How are you doing, AJ? Well, thank you for asking. Like my shrink. I would say, well, first of all, the meta point is, I feel I changed my mind about changing my mind. I was really impressed with the epistemic humility of our founders.

During the convention, for instance, Ben Franklin said, the older I get, the less certain I am of my own opinions, which I love. I don't think you see that kind of humility today in politics. I also, he told a story which I love at the convention. He said, there was this French lady who said to her sister, it's so strange.

Why am I the only person I've ever met who is correct on every single issue? And his point was, we're all the French lady. We all think we're right on everything and we're not. First of all, that's the meta point is be a little more open to changing your mind and not willy-nilly, not because you think it'll appeal to the electorate, but because you look at the pros and cons and the evidence and have a cold take, not a hot take. So that is the meta point.

One that I thought was fascinating was I went into it very skeptical of states as a state's rights, because during the convention, Alexander Hamilton said, gave a speech where he said, why do we have states? It's such a, you know, people can't serve two different masters. It's a, let's just get rid of the states, essentially. He later said he was kidding, cause he got a lot of flack.

JK, JK. Yeah. Especially at that time. Especially at that time. Especially at that time. But I'd always had that sort of feeling. What are the advantages of states when I saw them as sort of impediments to progress? They often would be against civil rights, legislation, etc. But after talking to all these scholars and reading, I do see, I love the idea of they could be laboratories of democracy, where you try out a policy and if it works, then it can spread.

I don't think that's happening very much because I think that it's more of a top-down system now, but I would like to see more. The states have a more free-flowing experimental mindset when it comes to legislation. So that was a big change for me. And yeah, just the whole idea of how we should balance our government was fascinating to me because I definitely came to your side. I should have been there earlier, but that the president is too powerful.

I think the Supreme Court is too powerful. I think that Congress does, should be, go back to first among equals. I am, and I think that that's what, the founders didn't get everything right. You know, they were, they were racist, they were sexist. It wasn't, it wasn't perfect, but they did have some ideas that we should rediscover,

like Congress being the leading the train. Yeah, so just in walking through it, what was the most enjoyable aspect of this? I think probably stoning, or first being stoned, and then stoning probably is not in the list. Depending on how the soldier was, quartering could have been a lot of fun. Right?

The letters of Mark, I'm just sad you didn't get it because I would have loved to see you mount on a ski boat with your musket and you try to accomplish some privateering. That would have been amusing. But what was the most enjoyable aspect of it? Oh, that's a great question. Well, first of all, thank you.

If I ever get it, I am calling you up and seeing if you will come on the boat with me. Oh, you don't even have to ask. You'd have to inject me from the boat. Okay. All right, we are forming a militia, a well-regulated militia right here. Well, one of my favorite parts was the right to assemble

is in the first amendment. And I expressed that by having an 18th century style dinner party where I invited people from all over the political spectrum. So I had the aggressives, liberals, libertarians, conservatives, and about 15 people. And I made my son cook us an 18th century beef stew, which has a lot of cloves.

They love their cloves. And we had a discussion about what we liked about the constitution, what we liked about America, what we would want to change. And of course, we had very differing opinions. But one thing we did agree on is that we should do more of this, that we need more face-to-face discussions where people can civilly agree to disagree, but almost treating it like a puzzle, a cooperative puzzle instead of a war. Because when I disagree with someone, my default mode is to go into like, here's why you're wrong, here's my evidence. That

rarely accomplishes anything. So instead of saying, trying to solve the puzzle, what do we disagree on? Why do we disagree? Why do I believe what I believe? Why does she believe what she believes? What can we do even if we do disagree? What policies could we go that we do agree on and where can we go from here?

So I love that. And that is a very founding father idea. I mean Ben Franklin had the Junto which was the philosophy club that met and talked about social issues. So that's something that I think we should recapture and I loved it. I loved it. So that was very enjoyable. You have three children. In fact the book is dedicated to them along with your wife, all boys. And I'm just wondering how they have recovered from the incredible amounts of teenage shame

that you must have brought upon them as you walked around publicly. And in many cases, bringing them with you to do such things. Like, I can see it going either way. Like, your kid's like, you know what? bringing them with you to do such things. Like I can see it going either way. Like your kids, like, you know what? If dad wants to be absurd, like that's cool.

That's his beat. You know, it does pay for the food on our table. Like that would be a really healthy attitude, but I could really see another teenager, especially a younger teenager, just being mortified to an extent that like they'll be talking to this about their therapist in a few years. I have both. I have both split. Because yes, I all dads are embarrassing, but I do take

it to a different level. And I apologize to my kids. But for instance, I was trying to only use quills instead of so when I went to a restaurant, but for instance, I was trying to only use quills instead. So when I went to a restaurant, Chinese restaurant, I would bring my quill and ink and sign the bill and they would just slink out and be like, they wouldn't walk within 50 yards. I mean, that was two of them, but one of them, and he's 20 now, so maybe he's a little less embarrassed, but his favorite

comedian is a guy named Eric Andre, who is sort of a performance art comedian who does weird things. He's sort of like Charlie Kaufman. And so he saw me as a very mild, less courageous version of Eric Andre. And he actually came out with me. He would put on the tricorn and he would come with me to ask soldiers to order and so yes one of my sons was was supported which was the first in my life because I've done several of these books and this is the first time anyone in my family was like

hey I'll join you so that. So that was a pleasant surprise. If you ever need somebody to don the tricorn, the wig, the breeches. David just wants the wig because David doesn't have any hair. Get one of the flintlocks. Get one of my flintlocks off the mantle, you know, then, hey, just call me. This is huge and exciting. All right. You are, you are going to be recruited. Look, I mean, next book idea, I've got a replica 1840s handgun.

What are we calling those, David? You know, the kind that's in the guest bedroom that you've stayed in from Texas independence, the war for Texas independence. Yeah. It's a flintlock. It's a flintlock pistol. Yeah, it Yeah, it's a flintlock pistol. It is a flintlock pistol. It's a replica, but still, I feel like

if I brandished it around, it would have some intended effect. So if you wanna do Texas in 1836, like I'm so there. This is great news. All right, I have my next book project. Thank you. Thank you both. AJ Jacobs, The Year of Living Constitutionally. This is just a fun book. It's a diary of a nerd exploring a new area of nerddom.

And there's nothing I love more than that. So thank you for joining us. Thank you for writing this. And thank you for proving once again, as it's been a theme this month, David, that I should really stop judging books by their cover because this is the second book that I thought was gonna really suck that we were doing that proved to not suck at all. So, huh. I'm just waiting for the guest where you say,

this is a book that I thought would suck and it did. And then go from there. Thank you, AJ. Thank you. Thank you. Well, David, that was fun. That was fun. I just, I'm absolutely a sucker for a story

where somebody just dives in, man, and just owns it. And that the letters of Mark and the quartering of the soldier are just, I mean, that's just special stuff right there. And the idea that I had a ski boat, I don't know why I just can't stop laughing about it, but really enjoyed that, Sarah. I look forward to seeing y'all on the ski boat someday,

taking down our country's enemies. My, my wig flowing, cause I'm gonna get a long wig, Sarah, flowing. Yeah, beautiful. Absolutely. I mean, it's nice cause the white wig will actually match your beard now. True, absolutely. It'll all be of one.

Yeah, that's good. Yes, yes. So next up we have David Latt, the return of Latt on Advisory Opinions to talk about his book. He wrote a fiction book about the Supreme Court. And I don't know, he teases that he's working on another one. So I thought we could get into fiction legal writing, which is fun. Yeah, I'm really looking forward to that.

Love fiction legal writing. And so yeah, that'll be fun. And David Latt is, of course, mutually one of our favorite people on the planet. So it's always great to have him back. Next time on Advisory of Any.