The Comedy Cellar: Live from the Table - Kermit Roosevelt

Episode Date: February 17, 2023

Kermit Roosevelt is  a Professor for the Administration of Justice at University of Pennsylvania. He works in a diverse range of fields, focusing on constitutional law and conflict of laws. He has published numerous articles and is the author of two novels, In the Shadow of the Law  and Allegiance. 

This is Live from the Table, a Comedy Cellar-affiliated podcast coming at you on SiriusXM 99. Raw Dog and the LaughBot Podcast Network. This is Dan Natterman coming at you from Las Vegas, Nevada, via Riverside. Riverside is, what do you call it, a video conferencing software, I guess. I'm with Noam Dorman, who's in studio in New York, as is Periel Ashenbrand. Periel, I don't see you. You don't see me? I'm right here. I think you'll only see me when you're here. Professor Roosevelt just walked in. So we're just saying hi to him.

We'll bring him out in a minute, but go ahead. Let's start first. Go ahead, Dan. Sorry. And, of course, behind the scenes, the person without whom none of this could possibly function is Miss Nicole Lyons. Nicole, how do you do today? I'm good. How are you? How's Vegas? Vegas? Look, let me tell you something.

I'm here for the paycheck. It's a long week. And, you know, I'm in my hotel room. But the shows have been good. I don't know if you've heard anything, you know, I'm in my hotel room. But the shows have been good. I don't know if you've heard anything, Noam, one way or the other. I have not heard anything, no. The shows have been good?

The shows have been good. Last night was the second show. It was nearly sold out. Last night, of course, was Valentine's Day. Yeah. And I don't know if that is why, but both shows were very full. The second show was almost sold out, which for a Tuesday. Yeah, that's probably Valentine's Day.

It gave a little extra juice. It sells out usually on the weekends, but during the week is, I don't know, 60%, 70%. Well, I was happy to see that the shows here are doing well. Do you have any questions about my Vegas trip so far?

Do you have any questions? No, Dan, I don't. With your permission, I'd like to move it along. I'm amenable to that. I thought maybe you wanted to know how the show is, how I'm enjoying my time here, what my impressions

are, but if you don't want to know any of those things... Are you going to strip clubs? What are you doing, Dan? how the show is, how I'm enjoying my time here, what my impressions are. But if you don't want to know any of those things. Are you going to strip clubs? What are you doing, Dan? Are you getting naughty? I haven't done anything so far. Yesterday was a shitty day. Today, well, I'm only doing the podcast.

Tomorrow, I may get my hair cut. I don't know. Don't caution to the wind. I don't really do a lot when I'm out here. Because, you know, the hotel's not on the strip so it's kind of annoying to get there I mostly stay in the room whatever you do out there

you can get in a lot of trouble don't drink everything bad starts with a drink well I'm not a big drinker as you know or if you don't I'm not a big drinker but basically everything I've ever done in my life that I really regret

has involved alcohol. Really? Yeah, absolutely. Like what? Things I can't even talk about. There's some things I have to take to my grave and they involve alcohol. Yeah. Things I'd never be able to talk about, not even with another human being.

Really? Yeah. Well, I'm sure somebody somewhere knows. No, well. But he, she, or they are not talking. They know. I'm kidding. So listen, I try not to go through my life as a coward.

So I think we should, I'm as afraid of Joe Rogan as anybody else is, but I think that we should talk about it. I don't know. Would you briefly give us the background or should I? Well, so Joe Rogan has stepped in it because he, in a conversation about Ilhan Omar, who in a conversation about, my goodness, I don't even remember what the exact reason was that she was talking about something about Israel, America supporting Israel. She referred to it being all about the Benjamins, baby, which was taken as, you know, an anti-Semitic trope coming on the heels,

I guess, of when she talked about Israel hypnotizing the world, which is also a kind of Protocols of Zion, Protocols of Elders of Zion type thing. So this came up with Crystal Ball, who is – she used to do The Hill? What is she – She used to be on MSNBC, no? Yeah. She's one of these Glenn Greenwald type heterodox people. Anyway. And so Rogan said. Omar apologizing for talking about it's all about the Benjamins, which is just about money. She's talking about she's talking about money, Rogan said.

Then Ball answered, she shouldn't have apologized. I mean, I'll go ahead and say it. And then Rogan went on to say, that's not an anti-Semitic statement. I don't think that is. Benjamins are money. The idea that Jewish people are not into money is ridiculous. That's like saying Italians aren't into pizza. It's fucking stupid.

It's fucking stupid. It's fucking stupid. So let me say what I think. Let me say it carefully. I'm going to preface it at the top by saying I don't think Joe Rogan is anti-Semite. I don't know him personally, but I know many people who do know him. I've taken the temperature kind of his vibe listening to him, I'd be very, very surprised if this man is walking around with anti-Semitic feelings. He is good friends with Ari Shaffir, if that is evident. There's many reasons I could list why the idea that Joe Rogan is some sort of committed anti-Semite would seem ridiculous.

So I'm going to compare it by analogy to another incident, and the incident is much worse, which is going to be the point of why I'm comparing it. I don't want people to think that the reason I'm comparing it is because I think that Rogan's incident was like this. I'm saying that if this incident that I'm about to tell you happened, then it's very easy, even much easier to understand why it happened with Rogan's incident was like this. I'm saying that if this incident that I'm about to tell you happened, then it's very easy, even much easier to understand why it happened with Rogan. So it brought to mind when Anthony Cumia made some horrendous anti-black remarks, including making allusions to the N-word, although he didn't actually say the N-word. He spelled it out with like exclamation point, asterisk, and then he doubled up like the semicolon, you know, like, you know, so it was clear that's what he was saying.

And he said some other stuff and he ranted. And this was a huge scandal and he got fired over it. And what I noticed at the time was that none of the people, none of the comedians who were been part of his milieu – I hate saying that word because I sound ostentatious. But anyway, they were all silent. Not one of them, to my recollection, had the nerve to come out and call him on it. And I don't want to betray confidences, but some people were bothered by that, that their friends were cowed because it was cumulus.

So this was one of the times it occurred to me that friendship can be more corrupting than almost anything else, more than money, more than, more than anything else. It's just, you know, and, and maybe it's, it's his, it was his power too. But anyway, I, I registered that and I was no profile and courage during that, but I did cut ties. I didn't have big ties with him, but I refused to allow him to do any shows at the cellar and I refused to have him as a guest on the podcast we eventually did have him as a guest

later on where I gave him a chance to kind of explain himself but I I behind the scenes anyway and you know this Dan I cut total ties with him. But I don't think I was out there blasting him. That wasn't, to be honest, that wasn't because of him.

That was because I just didn't want to get into it with all the comedians that were working at the club. But anyway, so that's that. So now, Rogan is no anthony cumia but what i've noticed is that okay i've i know a bunch of people i'm not going to say their names people who are very sensitive about anti-semitism very famous people who are very sensitive about anti-Semitism, very famous people who are very sensitive about anti-Semitism. And I've contacted them. What do you think about this? And the answer, well, one person didn't answer at all. And three people said to me, I prefer essentially I'm paraphrasing.

I prefer not to put this in writing. Three people wanted to talk only on the phone about it. Ben Shapiro, who was very, very upset about what Ilhan Omar said, was kind of making excuses for Rogan. You know, he was kidding and he's not an anti-Semite.

I have trouble remembering what he said. And all I would say about it is that it seems pretty obvious to me. Well, first of all, Eric Weinstein tweeted that he thinks Rogan was just joking. But I don't see any of the normal tells of a joke there. I don't see the setup. I don't see the punchline. Yeah, it's like they love money like Italians love pizza. I mean, he could have said that Jews love money like priests love little boys, right? Like you could make some joke in the Italians love pizza thing, but it's still a joke to make a point. And if the point is that as Ben Shapiro tries to say, well, Joseph tries to say that everybody loves money, then I'm left asking, well, if his point is that everybody loves money, then what's his take on Ilhan Omar then?

Is he saying that Ilhan Omar was saying that everybody loves money? Is he not acknowledging or is he avoiding the fact that what she said, you know, is an obvious kind of... Well, when he says Jews love money like Italians love pizza, putting aside the point that I'm not even sure Italians love pizza any more than anybody else, but the implication being is that Italians have a special love of pizza. So that comparison would imply that Joe feels the Jews have a special love of money.

Well, that, yeah, that's value. Now I'm not, I'm not particularly sensitive about jokes and a joke and come, cannot come off. And goodness knows I've said things that I've had to cut out right before it

even gets aired. So I'm not trying to make this more than it is, but I would just say that if we're going to normalize that kind of talk, I don't think it's, I think that's a dangerous thing. If it's okay now to say, well, you know, Jews love money. I could list 10 other things that should be normalized along with it. And if we're going to say, and it's possible that stereotypes have some grain of truth to them and that there's something cultural about the Jews engagement with money,

blah, blah, blah. And I'm open even to that to that you know i don't think that sanitizes it because just because something is true um is not the only point so uh michael che has made the joke and jonah goldberg wrote about this that like that culturally actually black people do like chicken like he says like they well okay that's fine but I wouldn't I wouldn't say that out loud in a context like like Rogan's because to say it out loud in that way is to make a statement as well. It's just to make a say, fuck that. I know exactly what I'm doing. I know this is take. I know this is offensive to people. I know for some reason this is a negative stereotype. I don't know. I don't know. This is what racists enjoy saying. And I'm just going to say it because it's true in some way. I can I can point to some statistic that shows the diet of this culture eats more chicken. So therefore, I get to get out of jail free card. But that's not the way that's not that's not

that's not emotionally intelligent. That's not enough. And that's really why Omar's statement was troublesome. It wasn't that it couldn't actually be donations behind the decisions of politicians. Goodness knows it might very well be that. It's that when you're going to talk about something which you know is sensitive, you speak about it with a certain care and if you're a congressman in the United States you're presumed to have a special duty to do that kind of thing because you're representative of the country

so people say and she apologized saying that she didn't realize this was a trope so now we're left having to believe that a congressman of the United States of America never heard the anti-Semitic statement that Jews love money.

That's just not plausible, right? Is it? And they've hypnotized the world. This was just another, like the idea of Jews pulling the strings. This is just another coincidence. So Rogan, whatever. So I just want to say, I don't think he's an anti-Semite.

I'd be very happy to talk to him about it. I just don't want to be one of those people who's telling people I'll only talk about it in writing. One person said to me, like literally people who are so fucking outspoken and many of them the same people who blasted Ilhan Omar. So what do you – why don't they want to say anything? Because they're friends with him? They're friends with him? Or, you know what? I don't know.

And I don't want to read people's names. I'm trying to figure out who those people are. Don't speculate. I'll be fucking reached through it, punch you in the nose, Dan, because you do this all the time. There's a reason I don't want to say it. And I don't need you to do that.

I won't speculate to say it And I don't need you to do that I won't speculate It could be because They're friends with him And friendship is corrupting It could be because he's in a position of Extreme power For the careers of the people he invites On the show It could be because they think she loves money

I don't know It could be because they think she was the money i don't know it could it could be because they think he was just kidding right um but then you'd think they would like if they wanted to write and say yeah he listen he was just kidding you wouldn't i wouldn't understand why they wouldn't just write that to me so no what is what is something in writing is because you don't want to put something in writing which could then come out and you have you know writing, which could then come out and you have to clean it up in some way, like something that would be compromising in some way. So that implied to me that they don't actually have good defenses of him, but that they just – So what do you make of why Rogan said it?

Does he believe – do you think on some level that Jews and – there's a special – that Jews have some sort of special relationship with money and, and it's not, and it's, and he feels that it's a bit, it's just as benign as Italians and their relationship with pizza. Do you think he was joking? You didn't, you seem to get the, you know,

I really don't know. It could just be loose lips because comedians do talk this way. We know that. And I don't know. I mean, I would appreciate it very much if he would explain it, you know, because from my point of view if someone's concerned about this stuff,

I'm worried about a kind of regression. I'm not worried about another Holocaust. It drives me nuts when Jews say there's going to be another Holocaust. I worry about regression to the mean, the kind of level of anti-Semitism that my father used to describe, where people spoke very openly in that kind of way about Jewish people. Or is it, I mean, is it perhaps an indication that Jews are becoming so

mainstream and so white that you can talk about them. I mean, if you said about white people, well, white people are, you know, white people are racist. Well, that's just that's a stereotype, too. And that's a very negative stereotype. But nobody would most people wouldn't mind if you said that they they certainly wouldn't be upset about it. I don't think many people believe that Jews are in that position. Many people believe that Jews, and it's true, Jews are very prosperous in this country, and they don't suffer, at least the non-religious Jews are not suffering day-to-day anti-Semitism in their careers. I don't know many Jews who feel that it's a problem that they're Jewish in any circle. But we're also the highest victims of hate crimes. Yeah, I don't think people think

that Jews got a place where you could talk about how they love money and they control the hypnotized people. I don't think people think that, Dan, do you? I think some people do. I think some people look at us just as basically like a spinoff of white people. Well, I would very much appreciate it if Rogan would talk about it. I definitely don't think he should be fired or canceled or anything. I'm not calling on any Spotify to do anything, whatever it is. Just to be mindful of the fact that he's – I'll say one more thing about it. What was interesting about it was that Omar's explanation was that I'm not talking about the Jews.

I'm talking about America and Israel. And, you know, it's always very convenient that people can just substitute the word Israel for the Jews and then have plausible deniability. And, of course, it's true that quite often it is just about Israel. And it's not fair to say that anything said about Israel is anti-Semitic. On the other hand, let's not kid ourselves. Sometimes people will do that in order to avail themselves to that plausible deniability. So Omar said, I was only talking about Israel. And what's interesting is that Rogan, knowingly or unknowingly, just crashed through that and just reacted to it as if she was talking about the Jews, which ought to be, if she's really sincere, ought to be a lesson to her that you can't expect people to parse your words so carefully, even though you may have meant

only Israel. Somebody as sophisticated as Joe Rogan heard it as the Jews. So and you deal with people quite less sophisticated than Joe Rogan in terms of who you communicate to. So this is the reason why you need to speak very carefully when you speak about such things. So the question is, you know, so it's just interesting. So Rogan was defending her comment, which she said was just about criticizing Israel and American support for Israel. But in the end, he just expanded it entirely to the Jews and the Jewish people who are into money. So, you know, that's just, I think, a very good real-life lesson as to why people shouldn't presume careful listening of the way they speak about things. And that's why it's important when you're saying things that can be easily misconstrued to make very clear what you mean.

So that's it. I do want to thank Joe Rogan. I did get an Instagram post out of the whole thing that did fairly well. I found a picture online of this pizza that was made of money. You ever see those money pizzas? I didn't see that. As I said, work for the Italian Jew in your life. Joe Rogan recommends the money pizza.

Anyway. And listen, I'm a guy who makes jokes about that, and I would be willing even to entertain the conversation about whether culturally, like among religious Jews, if there is a, I don't know, a comfort with talking about, I don't know. I'm so sensitive to trying to be honest about things. I don't ever want to pretend that I believe that every ethnic group is the same and no, there's no cultural differences between people and everything

that anybody and any pattern recognition anybody notices about anything is a, is fake because what is culture if not, uh, something which generates patterns that you can recognize. So I'm not even allergic to having a frank conversation about it. Maybe I'm even going too far. But you cannot, like, I don't think our moral obligation as humans is to pretend publicly that we believe what we don't believe privately. I think our moral obligation is to make sure that we treat everybody as an individual, regardless of what we think about the probabilities

of various things in various situations. There's many things, I could use examples from other ethnic groups of outrageous things to prove how wrong this kind of thing would be, even though statistics might – but this is disgusting. I don't even want to say these things out loud. Everybody can probably generate themselves. We do live in a country that requires us to have some sensitivity to these issues. And I'm amazed to hear myself say this because I'm usually the one to dismiss this stuff.

I know people will say you're just saying it because it's about the Jews this time. But that's really not the case because I have at various times drawn this line when it wasn't about the Jews. There are certain times I say, well, you know what? They do cry wolf all the time. Just to summarize what you're saying. Sometimes there actually is a wolf and the people who make their living properly debunking the people crying wolves all the time and properly debunking the woke and properly debunking all the times ridiculous people play these ridiculous cards. That should not blind them to the fact that from time to time, somebody might actually say something that they shouldn't say. And so time to time, you know, that's not okay. Yeah.

No, if I could just summarize your point here, what you're saying is that a stereotype, even in the case that it might be true, one should still broach it with sensitivity and care. Just because something might be true doesn't mean you should be saying it in in a public forum or or or or you cannot flatten entire groups of people whatever i mean i think everybody knows what i'm trying to say um okay well so we'll get to uh oh sorry you usually the guest doesn't have to sit through this this boring part of the show but uh go ahead and introduce it if it's boring then we shouldn't be doing it so i hope you don't really think it was boring i don't if you think it's boring then we shouldn't have been doing it anyhow dan's usually here in person when he's in babysitting kermit roosevelt everybody has joined

us uh kermit roosevelt's a professor of uh of constitutional law at the University of Pennsylvania, which is my alma mater. I went there undergrad and Noam is alma mater. He went there for grad school. A lot of you have to go to law school. I was at the undergrad school. I don't mind telling you, Professor Roosevelt or Kermit. I don't know what you want us to call you.

Kermit's good. I had a terrible time there. I'm so sorry to hear that. Very, very, very sad four years for me, but I won't get into it. But Noam had a better time. In any case, you're also the author of two novels. Yes, yes, he is. Those novels are Allegiance and In the Shadow of the Law. Are these Grisham-like thrillers? Well, they're both supposed to be sort of legal thrillers.

Like the second one actually has a murder mystery, but they're also trying to look at sort of larger questions. So the first one is about legal ethics, really, and the culture of big law firms. And then the second one is historical. It's set during World War II. It focuses on the detention of Japanese Americans and the Supreme Court cases about that. So like the murder mystery actually takes place in the Supreme Court. Oh, that's awesome. I want to read one of those.

I do, by the way, I want to add that he is the great, great grandson of Theodore Roosevelt. He's the guy whose bust is on Native American land. Is that the? And I must say, by the way, when I give deference, you know, some people say, well, it shouldn't matter who your ancestors are. I give extra deference. If you are the descendant of a great American figure, I give you deference. Well, I appreciate that. I think that's actually sort of un-American.

I mean, we're not talking about hereditary privilege. I do it anyway. Thank you, I guess. I do it anyway. I give you extra credit for that. Even if you've done nothing with your life, which is not the case, I would still give you extra credit. narratives of America beginning in 1789 and also beginning again after the Civil War and kind of a recasting of the way to look at America which I found very interesting. I didn't agree with all of it

but I agree with a lot of it and I listened to it twice. It was sent to me actually by a producer at NBC who was very taken with it. So just so you know that. But just before we get to that, I read River of Doubt. Did you read River of Doubt? Oh, yeah, yeah.

It's a story about your great-great-grandfather or just great-grandfather? Well, yeah. So it's about Teddy and Kermit, his son Kermit. Yeah, that's why I first heard the name Kermit. Yeah, the first Kermit. So you're named after your great-grandfather Kermit? No, no. Teddy's wife's family name was Kermit.

Oh, I didn't know that. Yes. Well, so it goes back to her family. They had a friend who was named Robert Kermit, a ship's captain. And then they named a child Kermit, a male child. But he died. And then Edith took his name as her middle name. So she was Edith Kermit Caro.

And then Theodore took that name sort of, I guess, to honor his wife's family and gave it to his second son, Kermit. And that's how it starts being a first name in the U.S. And he's also the character in The Alienist. Yeah. Which is another novel. Gets around. I read. So that's, it's amazing.

Well, actually, River of Doubt is not really a novel. I mean, it's sort of novelish but it's uh it's true right yeah river of doubt is like it's thrilling and for me it was very suspenseful because they're going through all these dangers and i'm like oh no kermit's gonna die i will never be born how do i get out of this um but it's it's historical there is actually a novel based on that trip called roosevelt's beast by louis bayard which is really good and worth reading too so we should tell the listeners river of of Doubt is a story about Roosevelt traveling in Brazil to the Amazon and discovers this river that was called the River of Doubt. Now, there is one scene there, which I've thought about many times, where they come

upon some sort of, from memory now, some sort of cottage, and they're starving. And there's food there. And I think Theodore Roosevelt would not allow them to touch the food of a stranger, even though they were starving. Am I remembering it correctly? I honestly don't remember that. It sounds sort of like Hansel and Gretel to me, actually. I don't know. He knew the witch would put them in the oven. And I just remember reading that. If I don't have the details right, I know I have the vibe right that this was a description anyway, whether it's true or not, of extreme honor. Like just extreme frigging honor that you would imagine even honorable people wouldn't have today.

Like I said, it's a level of honor that we don't even think is even worth having anymore. So that was very interesting. Yes, Dan? level of honor that we don't even think is realist like even worth having anymore so that was very interesting yes dan before i just before we get to the to the meat of uh of kermit's uh thoughts on the constitution on american history i would like to know if as the great great grandson of theodore rodolf if he's got any cool shit at home that belonged to his great-great-grandfather, stuff that – letters, snuffbox, I don't know, family heirlooms, things of that nature. We do. His Rough Rider saddle. I don't know.

Yeah, well, his Rough Rider pistol, actually. Oh, wow. Supposedly that's what we have. It's not me. It's my dad. But supposedly, like, the pistol that he carried up San Juan Hill with the Rough Riders. That should get something good on eBay. We have that.

Yeah. Yeah. And, by the way, is Professor Schulhofer still working at Penn? Yeah. Professor Schulhofer was my criminal law professor. He was the most brilliant professor I've

ever seen in my life. He led us through. He led us by the nose to one conclusion. He goes, right? We all go, right? he goes, you go right, we all go right. He goes, no, that's wrong. And then he tells me the opposite. I mean, he was so brilliant.

I remember Schoelhofer and the other ones who probably wouldn't be there anymore. But Schoelhofer was my favorite. All right, having said that. All right, so do you have like a little like a nutshell version of your lecture that you can give us? Yeah, sure. Good. So basically, the idea of the book is America is facing a problem. And the problem is our national story isn't working anymore. So we have the story that we tell.

It's a version of American history that's supposed to sort of tell us what our values are, where they come from, who most notably in the phrase, all men are created equal. And then we fight for them in the revolution, and we sort of make them into law in the Constitution in 1787 or 1791 with the Bill of Rights. You say 1787. That's because it was written in 1787 and then ratified in 1789? Well, it's written in 1787, yeah. It's ratified in 1789.

The Bill of Rights gets added in 1791. Okay. So if you want to include the Bill of Rights, which I usually do, then you'd say 1791. It doesn't really matter. I put all of that together as like founding America, the America of the founding. And so then the standard story says we've kind of progressively realized these values over time because obviously they're not fully realized in the founding because there's slavery. In 1776, slavery is legal in every state. So we progressively realize it over time. And, you know, what we want to do is live up to

the example of the founders, great people who stated American ideals like, you know, Thomas Jefferson. And the problem with that, of course, is now we know more about Thomas Jefferson and we know that he enslaved his own children. And we talk about that more, and we're more open about the problematic aspects of founding America, of which there were a lot. So now it's not such an inspiring story. And we're like, I don't know, like, look at the founding fathers. Are they really good heroes? Can they be heroes for us? And one answer to that is like, yes, these have to be our heroes. And if you criticize them, you're not patriotic. And I'm not actually going to allow you to criticize them. And yes, these have to be our heroes. And if you criticize them, you're not patriotic. And I'm not actually going to allow you to criticize them.

And I'm not going to allow you to discuss their flaws. And that's like the tack that's being taken in Florida. And that's what the anti-critical race theory bills around the country are doing. And that's like the books they're taking off school library shelves. A lot of it is about that. But obviously, I think that's a bad reaction, reaction right we don't want to shut down discussion we don't want to say some viewpoints are off limits so then the question is well what else can we do can we tell a story about america that's honest and accurate but also shows us a nation that we can believe in should we i mean this is going to

be a big digression but since you you said it and I'm afraid we won't come back to it, I would just want to say I agree that all conversations, no conversation should be taken off the table. But having three kids in public school now in New York, I would tell you that conversations are taken off the table. And it's just conversations from one direction that are allowed on the table and it's intense like like it's intense so i'm not a fan of the florida thing but i also don't think it's accurate to say that if only florida wouldn't do those things that no conversation would be taken off the table like there's no assignment coming to my any of my kids in school saying picture yourself being born in the south, growing up in slavery. Do you think you would you would have the most predictable direction on all these kind of problematic issues. And I object to that.

I would love to see them have an essay like by Coleman Hughes or Glenn Lowry or whatever it is alongside whatever critical race theory they want to read. I don't care about that. But that's really not what they're getting. So I just want to say it. But anyway, so go ahead. But I agree with you in theory a thousand percent. I just feel like in practical reality, it's really not the case. And that deserves to be spoken about honestly.

Like we're not living – it's like communism. Yeah, yeah. I love communism. Words on the page are so good. Let's just never pretend that we're not living, it's like communism. Yeah, yeah, I love communism. Words on the page are so good. Let's just never pretend that we know what communism is like in real life. And then we, you know, we never have an honest conversation about it. Okay, go ahead. Sorry. Yeah. So no, I'll just say I agree with you about that. And I think that's a failure of education, right? And you shouldn't have dogmatic indoctrination. If there's a controversy, you know, you should expose students to that.

Absolutely. And I, I view it as my job as a constitutional law professor to give my students the best argument I can on both sides of these controversial constitutional issues. And of course, they actually don't like that. This is taken to an extreme at Penn, and I will not put you on the spot about this because I'm a gentleman. But I heard Amy Wax on the Glenn Lowry show. And I have to say, I was like, I agree with everything she says. And yet I would never want to be black in her class. Like I really didn't know where I would come down on it because the stuff that she was saying, and again, with the total relaxed presentation was so jarring. But then she was also saying, but listen, these are grown-up kids, and I'm bringing them people that I know is going to disturb them, but they should hear, because a lot of people believe these things. So law students should be able to listen to these

people and grapple with it. And I agree with that, too. But those are law students, not my grammar school kids. Anyway, but I know that pen, that's got to be roiling pen, something awful. Go ahead. Sorry. Yeah. So it is. It has been for years. Yeah.

I mean, we're working our way through it, I guess. Anyway, so back to what I was saying was we got this sort of dilemma, right? Which is we want to be honest about American history, but we also want to be patriotic and tell people that America is a good country and we've got good values. So is there any way? Is there any way that we can tell a story that does both those things? And what the book is saying is, yeah, right, we can totally do it. We can tell a story about American heroes fighting for liberty,

trying to make our values into reality, committed to equality. It just has a slightly different cast. And basically it says American history, the history of modern America, our modern values doesn't start with the Declaration and the founding, because that's really about something very different. And it's a different set of values. It really starts with the Republican Party before the Civil War, I guess, and abolitionists, and Abraham Lincoln, and the Gettysburg Address and the Civil War and when these values enter our Constitution, it's Reconstruction. And Reconstruction is such a dramatic change,

both in terms of its substance and the way that it's accomplished, that we should think of that as a revolution. And that's the revolution that makes America. And those are the revolutionaries we should look to for inspiration. Not a slaveholders' rebellion in 1776, where every state, I said, recognizes slavery, but actually a literal war to end slavery, which is what the Civil War was or what it turned into. Well, I mean, I was listening to your podcast just today where you were talking about Lincoln's

motivation for going to war against the South, and he was quite clear, as you mentioned, that his motivation was simply to save the Union, which he said he would do with or without slavery, even up through the Emancipation Proclamation, right? I mean, even then he was willing to talk, to make a deal with the South. And so you can keep your slaves if you just cool it. Yeah.

So was it a war to end slavery? I mean, in Lincoln's mind, even at the beginning of the war, was he thinking maybe this will turn into a war to end slavery? I mean in Lincoln's mind even at the beginning of the war was he thinking maybe this will turn into a war to end slavery or was that not even in his head? Well, I think he might have been thinking that because Lincoln did want to end slavery. I think that's pretty clear. He didn't think that he had the power to end it directly. He didn't think the federal government had the power to do that. So it's sort of a question how is it going to happen and the republicans had this weird

cordon of freedom strategy where they surround the slave states with free states and somehow slavery dies out. But this is a great story, I think. And like the more I learn about it, the greater it seems to me, because what you mentioned right there is like the turning point in American history, I think. So the preliminary Emancipation Proclamation says to the South, as you said, like, end your rebellion or I will free the slaves. And it's a threat, but it's also an offer. Come back and you can keep slavery. And it says the formerly enslaved, if this Emancipation Proclamation goes through, right, they should be protected and their rights should be respected. And maybe we'll

explore colonization options and see how we can take the formerly enslaved and remove them from the American political community and loyal states, you know, think about ending slavery and we'll pay you compensation. So it's very sort of moderate reformist. And then when the final Emancipation Proclamation comes out, it says, hey, the formerly enslaved, if they can make their way to the lines of the Union Army, they will be received into the military service of the United States. And that's like the crucial pivot, I think. Black military service is what marks the change from this idea that sort of slavery is the problem and black people are the problem and what we want to do is get them away from America

and like and then we can be the great america to black military service leads to black citizenship black people are actually the solution and we need to integrate them into the american civil community so let me let me tell you where i what i really strongly agreed with you on and then maybe discuss what i uh don't totally agree with you on or I see differently. So I had said, I said on this show, I think a couple of times, one of the things that bothers me about the way we, we beat ourselves up for our history. I've made the analogy. I said, you know, if the history of the,

of Germany was that the German people had risen up on their own and sent their sons to die, to defeat the Nazis and had rid up on their own and sent their sons to die to defeat the Nazis and had rid themselves of Nazism. Yeah, we would still talk about the Nazis, but we'd see the German people as somehow heroic. That would be a huge part of that story would be that they did it on their own and they died to do it. And that is the part of the American story which almost nobody talks about. They want to focus on our terrible history and all the stuff we did. And very few of the people who care about making that point will acknowledge. But by the way, they fought a civil war and it was the bloodiest war there's ever been before since in America and people died

to end slavery so that has to go on on the ledger as well and we don't often put it on the ledger do you think that the average Union soldier we had was thinking that I don't know you know I don't know I mean how many Civil War soldiers if you look at their letters maybe they were I don't know. You know, I don't know. I mean, how many Civil War soldiers, if you look at their letters, maybe they were. I haven't studied this, but how many of them were talking about we've got to free these slaves? Well, I don't know. We've got to put down this rebellion. Well, this comes to the point. When I was in high school, they would teach us that the causes of the Civil War were multivariate.

But it's kind of congealed or coalesced lately. It's like anybody who says anything other than the Civil War was fought to free the slaves is going to get in trouble. So I'm just kind of accepting that everybody kind of agrees now the war was fought to free the slaves, not for states' rights. I don't know. Well, it wasn't fought for states' rights. So I mean I think the thing that you're talking about, the consensus now is from the perspective of the south, it was fought for slavery. And I think that's pretty clear because you can look at the secession letters. You can look at what southern politicians said and consistently, very consistently, they're saying we have slavery.

Slavery is great. The north is not cooperating and not respecting slavery the way that they're supposed to and that's why we're seceding. So from the southern perspective, it's about slavery. From the Northern perspective, or the perspective of the United States, you could say is maybe more accurate. At the beginning, it's about union. And this is what Lincoln says, you know, if I could save the union with freeing no slaves, I would do it. If I could save the union by freeing all the slaves, I would do it. It's about union. And then, as we were saying, it changes. And it changes into a war for liberty. And it changes into a war against slavery. And exactly how and when that happens is a very complicated question. And I'm not... But to Dan's point, is this the leadership changes their

reasons, but the soldiers are just tools? Or are the soldiers feeling that in their heart as well? Well, so I think to some extent, soldiers are always tools and it's always like a rich man's war and a poor man's fight. And that's true on both sides. It's definitely true for the Confederacy. But people went off to fight fascism or fight the Japanese. Right. They did it to fight the Japanese. They were outraged by Pearl Harbor.

Right. Yeah. So like, yeah, no, the people who run off and enlist out of patriotism, they know what they're fighting for. You know, in the Civil War, lots of people were drafted, didn't want to be there. Outraged by Pearl Harbor. In the beauty of the lilies, Christ was born across the sea. As he died to make men holy, let us die to make them free. And then there's another variant, which is John Brown's body, same tune, which is honoring John Brown, the abolitionist who raided Harper's Ferry and was hanged for it, but was willing to kill slave owners because that's what he thought was right. So on that, I agree with you. Listen, Dan, these questions are very complex because there is no one reason that any nation does something. And maybe – I don't know. But at some point, we did it. We fought a war and we freed the slaves. And then Lincoln passed the amendments.

And to some extent, you have to credit the country that did that as superior to the country that didn't do it. Right? At some point, you have to say, well, it's not nothing. But going back to the founding, so the way I see it, and you tell me where i'm wrong this is everything that happens uh in this in this part of time in history happens in some way as a compromise between various factions because the big picture is to get this country separated from England. And there was just no way the South was going to give up slavery. And there was no way the various abolitionists, and there were abolitionists right at the table at the time, were going to have their way. And they had to make a deal. But from what I can tell, and I read, like, I don't know if chat GPT is reliable,

but there's quite a few comments here from, even from Madison, who owns slaves, from John Quincy Adams, from John Adams, from Benjamin Franklin, where they're alluding to the fact that there's a conflict between the Declaration of Independence and the way the country is operating, which seems to me that it was not lost on them that what Jefferson was saying, if we took it seriously, would totally upend the entire country. And many of the people felt, certainly some of the people felt that we should take Jefferson's word on its face. But there was a tremendous ability for cognitive dissonance that people have.

And in some way, it reminds me like we used to all be against gay marriage and think that we were very progressive when it came to not being bigoted against homosexuals. Like we really felt that way. I remember when I was at Penn, my first thing was to volunteer for the gay rights, uh, uh, like pro bono thing.

I only did it one day because I realized it was kind of a social club. But that was, that was where my head was at it. But I wasn't for gay marriage at the time. And when Bill Clinton was signing the defense of marriage, I'm Barack Obama. I was like, how dare these bigots say that stuff. So I recognize my own looking back at him like, what the fuck? But at the time, I was able to do that. And in some way, I think that was what was going on with slaveholders as well.

It's just they couldn't process all that. But I feel like in some way, I'll invite people to listen to your lecture, you've gone a little too far in just neutralizing the all men are created equal statement as if it was just a cynical thing. Just it really didn't mean any of that. And nobody took it to mean that everybody really just took it to mean all white people who own property are created equal. But it obviously reverberated more than that, even at the time. Am I wrong? Well, I think it did reverberate more than that at the time,

but it wasn't the declaration that was doing it. It was like enlightenment social contract theory. So I've talked about this a lot with a bunch of people, and a lot of people have said something sort of like what you're saying. And what I would say is you can take enlightenment social contract theory and you can go in different directions with it. And you can definitely make an argument that takes you in an anti-slavery direction and says slavery is wrong and it's inconsistent with slavery. But you can also take it and make an argument where it's not inconsistent with slavery. And a lot depends on how you word it

and whether you say that people are created equal, so we're talking sort of hypothetically because real people aren't created, or whether you say people are born equal, which is what Massachusetts and Vermont said. And in those states, that was considered anti-slavery. But created equal and the Declaration itself really comes more from the Virginia Declaration of Rights. That seems to be the draft that Jefferson was working from.

And Virginia is a state that's pretty committed to slavery. So they didn't think that this philosophy they were articulating was inconsistent with slavery. And there's a reason that they didn't, which I can go into more if you want to hear about how I read the declaration. So when you say all men are created equal, Jefferson means everyone. He means all people. He doesn't mean all men. He doesn't mean all white men. He doesn't mean property owners.

He means all people. But the point of that is this Enlightenment social contract thought experiment. And people were familiar with this at the time. It comes from John Locke, basically. So the idea is if you had a world with no government and no laws, this hypothetical called the state of nature, would anyone have legitimate authority over anyone else? Would anyone be entitled to demand obedience from anyone else?

And if you think that some people are chosen by God to be kings, then your answer is yes, right? God chooses the king, and the king has authority over you. But if you don't believe in the divine right be kings, then your answer is yes, right? God chooses the king and the king has authority over you. But if you don't believe in the divine right of kings, then you're like, no one has any authority over anyone else. And that's what it means to say all men are created equal. All men are created equal in terms of authority. Now, does it follow from that that slavery is wrong? Actually, it doesn't. It follows from that that slavery is not the exercise of legitimate political authority, but no one thought it was. They thought it was justified for other reasons. And it follows that it made, we know that Jefferson knew it was wrong. Oh, yeah.

So he knew. I'm going to find one. It's wrong because it's unjustified. It's not wrong because all men are created equal. Well, Dan, you want to ask a question? I'm going to look up one of my favorite Jefferson quotes. Go ahead, Dan. Well, I don't have anything prepared, but –

Then just give me... Go ahead. I'll help you define your quote. No, go ahead, Dan. Well, Jefferson knew it was wrong, but he also, I guess, thought that given the situation, it would be more wrong to free slaves into a world in which they would have no rights.

I mean, I don't know. Well, yeah, or, you know, you think that slaves can't survive on their own if they're freed, or you think they're going to kill you if they're freed, which is a very pervasive fear in colonial America. So, I mean, I think you're making a really good point there, which is Jefferson did think that slavery was wrong, but Jefferson thought the question was, is what we're doing now justified? And what are the alternatives and what are the practical

consequences of emancipation or abolition now? And he thought they were bad, right? He thought maybe introducing slavery to America was bad. And actually his early draft of the declaration had a criticism of King George where they blamed him for that. But given that slavery exists here, it shouldn't be abolished, right? Are we to give our slaves freedom and a dagger, he said. So just a few things. I'm just going to chat GPT again. I don't know, but I'm sure it's somehow related to something true. For instance, John Quincy Adams in 1837 argued that slavery was a sin before the sight of God and a violation

of the principles of the Declaration of Independence. Thomas Jefferson who owned slaves himself, he expressed the opposition to slavery in his original draft. Whereas Madison made a connection between the Declaration of Independence and the eventual abolition of slavery in a letter to Robert J. Evans in 1819. He wrote, I have long been convinced that institutions, purely Republican, must sooner or later have the effect of abolishing not only hereditary privilege, but the hereditary rule of the rich and that the great sacrifice of the personal interest would be required. Well, this doesn't seem like it's about slavery, does it? Thanks, Chad GBT.

There is something else that Madison said. I should have prepared it. But Thomas Paine obviously made comments like that. And at the Constitution, the governor from, was it New York, Morris? Governor Morris? where he complained about this. Another delegate was opposed to slavery with Governor Morris in New York. Morris, he argued that the Constitution should not condone the institution of slavery, that it was incompatible with the principles of the American Revolution.

So he didn't say the Declaration of Independence specifically. So, I mean, my question is, was Jefferson not aware that what he was doing was kicking up a lot of dust here? Like it's a ballsy thing to say to a room full of people, many of whom he knows think slavery is abomination. All men are created equal. I mean, it's a Rorschach kind of statement. And I feel like in some way we have to credit him for making the statement, even if he didn't have the character to live up to it. I think that's a step different than saying he didn't know what he was saying or he didn't mean it.

I think he meant it. He just wasn't prepared to live up to it. That's the way I see it. Well, I think he meant it, but I think he meant it in a pretty limited way. I think he meant it as a rejection of the divine right of kings, because that's the way the argument of the Declaration works. It's like legitimate political authority doesn't come from God. It comes from the consent of the governed. And if that's so, what are governments supposed to do? And then when can that authority be rejected? The Declaration is about about what he meant in his head but he couldn't have thought that's what everyone signing it thought it meant is what i'm saying he's putting the document there to be signed by

people who he's sophisticated enough to understand that's not what it's going to mean to them they're against slavery and now he's presenting them with document all men are created equal and i feel like and and then i had some of these speeches my people were basically of that generation who who clearly they did see it as incompatible not one of them at least i couldn't find any speech by anybody saying you know he didn't mean he never meant it about slavery i don't see that speech anywhere i see them saying yeah it's not compatible with what we're doing here. We need to stop this. Well, that speech, that speech is there. Tell me about it.

But it's Alexander Smith, representative from Virginia in the 1820s. It's John C. Calhoun. It's Jefferson Davis. So it's people that we now view as discredited, the bad guys. Yeah. But the fact that they're bad guys doesn't mean they're wrong about what Jefferson meant. Jefferson was kind of a bad guy is what I'm saying. And then later on – and you talked about Dred Scott in your – I meant to go reread Dred Scott, but you talked about it in a lecture and saying, well, Dred Scott, as evil a decision as it certainly was, might have been the quote-unquote – I'm making scare quotes here – correct decision based on the text of an evil document or a document that allowed for evil in the Constitution.

But then, of course, this new founding, we had Plessy versus Ferguson. So, you know, why is Dred Scott such evidence about 1789? Why? And then, like, we're just going to ignore that we did the same thing all over again when we had our actual founding? Well, yeah. So we did do the same thing all over again. Plessy versus Ferguson, just talking to people who are not – Plessy versus Ferguson was the case that upheld Jim Crow, I think, correct? Yeah, it upheld the separate. Separate but equal.

That's where the phrase separate but equal comes from. It said it's not a violation of the equal protection clause to segregate. Is that it's not there originally. It's put in mostly by abolitionists, and it does start – like you can find people saying this in the late 18th century, but not a lot of them. And if you look at what people thought was important about the Declaration in 1776, it's not the preamble. It's not all men are created equal. It's the fact that they're declaring independence. But so we have this ideal. It gets made into law through the Reconstruction Amendments. And then, you know, we give up on it. And that's America's original sin. So in my retelling of the story, we've got the founding, which is a moment of idealism, which is just what our standard story says about 1776.

I say it about 1868. And then we've got a betrayal of those principles. And the standard story says that's slavery. And I say it's the abandonment of Reconstruction. It's the period of time that historians call redemption, when white supremacist paramilitaries take over the South again, and they overthrow the integrated Reconstruction governments and the rest of America stands by. And that's what gives you Plessy v. Ferguson. So it's a terrible decision. I actually am of the opinion that Jim Crow is more of a blight on America than slavery. I felt that – not that people suffered worse under Jim Crow than they did under slavery because suffering under slavery is unimaginable.

But that America inherited slavery. There was no practical way not to have inherited slavery. It was the way of the world at the time. And I don't – that's just the fact. But as you say, Jim Crow was something we embraced after we knew better, after we all accepted that we knew better. Well, apparently we didn't know better. Well, no. Yeah, I think I agree with that actually in a certain sense.

So if you're talking about America before the Civil War, slavery is terrible. Slavery is something that you're doing to outsiders, people who are not part of your political community. And there's nothing in the American Constitution that says you have to treat outsiders justly. And there's nothing in the American Constitution right before the Civil War that says slavery is wrong. There are several provisions that protect slavery. So America is like a certain kind of nation and it's doing a terrible thing, but it's not betraying its own values because its values aren't anti-slavery. And then, so after reconstruction, we are betraying our own

values because black people are citizens and that's what the 14th amendment says. And they're supposed to be treated equally. And we are denying that. But I, yes, I agree with you a thousand percent, but maybe I've just to make my point clearer, it's not as if we chased the British out and then we said, OK, let's bring some slaves in here. We chased the British out and the slaves were already there is what I'm saying. So it's not – it's almost their original sin. This was the first step in this very long process of turning this ship around. We were maybe even interested. Half the country very long process of turning the ship around. We weren't maybe even interested.

Half the country wasn't interested in turning the ship around. But the fact is America didn't make the decision to begin slavery. It was the fact of life. And we had to get out from under that. And I've said before, but it's the way I look at the world, that the greatest people in history are only able to see just above the heads of their peers. It's not realistic to think that somebody in 1776 would say, yeah, we should have gay marriage. So the people who see a little bit above the heads of their peers at the time, even if what they

were saying by today's standards is outrageous they are the great people in history they are the people moving forward and we need to learn to be able to square that circle yes what so and so was saying was still

totally immoral by today's standards. But he was the guy who saw that what – a little bit better than his peers. And without those people, history is static. But I think that – You're still going to wait for somebody to have an epiphany and move from 1600 to – that's not fucking realistic. I think what Kermit is... So let's be able to say kind things about people who had terrible beliefs if they were great men. Go ahead. I think Kermit is saying that they didn't see, that Jefferson didn't see above the heads of his peers.

Maybe Jefferson didn't, but quite a few of those founding fathers did. Quite a few of those founding fathers were great men. And maybe even Jefferson, even a little bit, was a great man, even if he was a coward and a hypocrite and enslaved his own son. I could excuse anything. But it's not just about Jefferson. It's about the whole crew. Yeah, sure. So like everything that you're saying, I agree with.

And I'm like we should honor Abraham Lincoln. Absolutely. And I'm like we should honor Abraham Lincoln because Abraham Lincoln had some terrible views about racial differences and racial relations and the possibility for integration and blacks and whites living together on a basis of equality. But he moved us in a good direction. So I would honor Abraham Lincoln, and I would honor John Adams I think, but I would not honor Thomas Jefferson for that. I don't think Jefferson moves us forward. Wouldn't you love to be able to sit down and talk to him and really just probe what his thoughts were? He's such a brilliant person. None of this could have been totally lost on him. It just couldn't have been.

Well, so you don't give Jefferson – I mean who do you give credit – by the way, what were your people doing back then kermit uh the roosevelts um i think they were hunting beavers clay's marston's van roosevelt what do you know about him um really i wasn't here for the first year but wasn't he like your 10-time great-grandfather something he was from was from Holland. Yeah, he was. So there are Roosevelt's in New York very early. I think, I mean, it might really actually have something to do with beaver pelts, but I don't know. Now, what's your relationship to Franklin? Well, Franklin is Theodore's second cousin. So I used to think that made me his second cousin four times removed.

But then I was told that's wrong and it's much more complicated. I don't honestly know. So barely related at all. Well, much more closely related to Eleanor than Franklin. How's that? Are you really into your family history? It doesn't sound like you're necessarily that into it. Well, you know, I think that Theodore and Franklin were great presidents.

And that's great. And I think that we should honor them for that and carry on their legacy. And that's all great. I'm not super obsessed with my family history. I would like to have something more to me than that. Well, forget about you. You do what you can do, but these guys – no, I'm kidding. It wasn't a shadow of their last name.

It's a burden, I think. I would love to know what my ancestors were doing, but just the, you know, there's no documentation of it because they were in Eastern Europe. So for me, it would be like, I love it. Is that because Roosevelt wouldn't let them in? Because Franklin wasn't so eager to. No, they got here before Roosevelt. But if you go back another generation, it's kind of all that's lost. So for me, I would love to be able to really know about my ancestors, but I just don't have that opportunity. But anyway, what about Washington? Is Washington not worthy of our admiration?

Well, so Washington is worthy of our admiration for some things, you know, for stepping down after two terms. I think that was great. He freed his slaves when he died, right? And he did, yes. So, like, if you want to say by the standards of the time, is this person progressive or not, freeing the slaves when they die is kind of the thing that the good people do, I guess. I mean, the really good people never have slaves or they get rid of slaves during their lifetime which Benjamin Franklin did. Benjamin Franklin

ended his life as an abolitionist which is better than... But he was from Philly though. It was easy for him. That's right. That's right. I was about to say the same thing as Dan. In some way, you have to imagine it probably was easier for these certain people to get rid of their slaves. You can't put that in Craigslist for the fall.

It's easier to abolish slavery if it's not going to destroy your entire society, right? Because if your society is built on slavery, then it's harder for you. Just your income, just your own personal farm. Was there any case of a Southerner that you know of, of a Southern guy in that class just turning their back on slavery entirely

and just freeing everybody and saying, no, I'm not going to do this anymore. Anybody at that time that did that? Not that I know of during their lifetime. People did do it upon their death. This is why it's such a deep issue, because if you have millions of people and not one of them that you know did this but in order to us consider

them to be decent people they would have had to have done that it's almost like saying there were no good people prior to 1860 or something and that can't be the case at some point we have to just come to terms with the reality of

how human psychology and how we were unable to see it was wrong. Yeah, but I go with you a little bit on that. Like you're born into this society in the south and you're supposed to like destroy your whole family and impoverish everyone by freeing your slaves. That's hard to do. But they didn't see it was wrong. I don't buy that at all because lots of people are saying it's wrong. You know, the abolitionists are saying it's wrong.

The Quakers are saying it's wrong. And also this idea that no one thought slavery was wrong until like the mid 18th century is completely wrong. Slavery had been around for thousands of years and it had been abolished in lots of places because it was wrong. Where was it abolished it had been abolished in lots of places because it was wrong. Where was it abolished? It was abolished in Europe. So there used to be slavery of Europeans in Europe, right? And there was serfdom in Russia and there was something similar in England. And

they got rid of all of it, often on the grounds that people are by nature equal and no one should have that kind of authority over someone else. And then it comes back with a racial dimension with the African slave trade and the new world. But it's a phenomenon that people have long said, hey, this is terrible. You shouldn't do this to other people. Except there's a certain arrogance to it, which is knowing the statistics, we would all have to presume about ourselves that if we were born in that place and time, we would also not have done anything about

it. If you were born a wealthy southern plantation owner, I think it would be very difficult to do something about it. Or whatever it is. Unless you think you're carrying around some preternatural sense of justice that would have – in your DNA. Like it's not – it's not nurture at all.

It's all nature and I've got it and I would have – you could plop me down in any part of the world. And I will not my moral compass is in my blood and I would know. But it doesn't seem like that's actually the way it works. No, I don't think that's how it works. But this is why I'm saying there were lots of abolitionists at the time saying this is barbaric. This is inhumane. This is a crime against human nature. As Dan said, in places where it was easier to be able to, listen, as I said, there is progress. And at some point,

at some point there's a critical mass of progress where I guess it becomes fair to say to people, it's no longer forgivable that you haven't gotten this memo. Like it's just, you're living in a time, like the Nazis, I think. One of the things about the Nazis is that it was happening in the 1940s it was it was no longer plausible that any people could think that this kind of thing was okay um but on the other hand i've i've also been bothered by like Obama was against gay marriage.

Go back to the gay marriage. Clinton was against it. Everybody was against it. Then one day Obama said, you know what? What was the word that he was using? I've evolved. And now I think, of course, gay marriage should be legal. And then he turns around.

And so all the people that he thought exactly like them on Monday. What are you, people are monsters? How dare you think that this shouldn't be gay marriage? I mean, come on. Like you just were saying this. And now because you've decided, you become an abolitionist. Now it becomes fair to say, well, everybody who didn't think better on the day that you finally got it through your thick head. Now they are all monsters.

They weren't monsters when you thought that way. Now they become monsters when you've changed your mind. And there's something about that that's like, you know what? I get it, but it doesn't really hold to me. I think this stuff is not quantifiable. I think Hannah Arendt said the only way to make sense of history is with forgiveness. I think that quote sticks in my head. You can Google it. There's some quote like that. And I think that Arendt said the only way to make sense of history is with forgiveness. I think that quote sticks in my head. You can Google it.

There's some quote like that. And I think that's right. There's no way to process this terrible history of the human race without saying, you know what, you just got to let it go. Isn't there a distinction between what you're willing to say publicly and what you know to be true? Like Clinton, Obama, just because they were taking that stance publicly doesn't mean that they didn't know that it's even worse maybe but i i think the point is is that you know slavery is wrong but it's just easier for your life to just keep having slaves i guess i guess i guess i mean the history of zooming out from slavery,

just the history of the human race is just fucking awful. Yeah, I mean, and to your point about the Nazis, it's like, you know, I think that, I don't remember who said it, but there was something about, you know, the guards and everybody, and even coming closer to our lives, like the people who let Harvey Weinstein.

And of course, this isn't, you know, you can't really compare the two. But there are plenty of people who know things are wrong and they're just silent because. Listen, America has its work cut out for it in curing and redressing all the residual effects of this bad history, and we feel it today. And this is our moral obligation as a people. But I'm not sold on this fact that we have to convince everybody that we have to be so ashamed of what we did, which, by the way, is not that different from what every other human group has done. I think this is actually not good for our country. I'm not advocating any kind of propaganda. I think it's we're doing it to a degree which is not actually fair and not realistic to all the things that I've just said

in terms of what you could actually expect of humans during these periods of time and like 1619 like they're blasting Lincoln they say some critical things about Lincoln

which is fair I think we should be accurate about blasting Lincoln. Like they say some critical things about Lincoln, you know, which, which is fair. Like, I think we should be accurate about Lincoln. No, it's not accurate. It's, it would be accurate if they, in a, in a overall picture of Lincoln, they say, well, by the way, I had this, but we also have to remember this was Lincoln. And he did all these fantastic things. No, they don't say that. That's not what, what my kid gets when he reads 1619, what he gets is that people have always said that Lincoln was great, but the truth is Lincoln was a scumbag like the rest of them.

That is the message of that thing. Well, I think that's a bad message. That's not the message I get from 1619. I bet you if you reread it, you'll agree with me. There's nothing in there pro-Lincoln in that article. I think Nicole Hannah-Jones is the one who wrote that article which one the one that actually talks about lincoln and that he didn't care about slavery and i don't remember the details my my mind's gone i'm six years old you have it kermit you have a candidate for the one dollar bill uh would you or would you be okay if washington stayed on it or would you have a better candidate in your ideal situation? Well, so like Washington on the $1 bill, it's a situation that we've inherited.

And maybe it's not ideal, right? But there are serious costs to changing it. So I'm not saying we should take Washington off the $1 bill. I think as we learn more about people, maybe we can reject some people where we find out they're really terrible, like Jackson. Jackson's pretty bad. Trump loves Jackson. So, you know, I'm for revising our iconography and our roster of heroes as we move forward and we understand more and maybe our attitudes evolve and some things we're like now i that's i can't compromise with that anymore so like jefferson i'm done with jefferson you kind of hit on it what i'm trying to what i'm like backing into which is that to the extent that

we set up this psychology that we tell people it's proper to judge the past by these standards then of course we have to take Washington off the $1 bill. Of course, because we've explained to everybody that it's outrageous what these people, how can we have a hero like that? To the extent that you teach people, listen, you have to have a historical perspective. At the time, these people did terrible things,

but these were great men nevertheless because there were no great men in history that didn't do terrible things and to think that there's never been a great man until now till you living in your dad's basement i've had to work like you're you're you're a great man let me put you in fucking valley forge and let's see you know like like it's not let's like grow up this is the world. So if you can teach people a healthier psychology about grappling with the past, then we can have Washington on our bill and we can deal with it. I can imagine how some of these people felt about the Jews. I don't care because that's the way people felt about the Jews then. Like am I going to say you have to take President so-and-so off the bill because I heard that he hated the Jews and he – to me, it would be crazy talk to feel that way.

And no more Shakespeare because I heard that. And no more Wagner. And like this is – I don't think it makes sense. I think it's unhealthy. Yeah. So like I'm not saying cancel everyone. I wasn't even saying take Washington off the $1 bill. If I was coming up with some new bill and I wanted to honor someone, I wouldn't do Washington.

I'd probably do Lincoln. Lincoln's already got his bill. Harriet Tubman. So who are you putting on the one? Well, let's say Harriet Tubman. I think Harriet Tubman is amazingly cool. Maybe there should be 10 different people on the $1 bill. But the point is more like what do you do with the military bases that we named after Confederate generals?

What do you do with Confederate statues? What do you do with um the military bases that we named after confederate generals what do you do with confederate statues what do you do with the bus that honors roger tawney what do you do with the philadelphia world series little league team named the taney dragons named after roger tawney so that are like this is a philadelphia story i don't know if you know it but we've got this great inspirational pitcher monet davis this like 14-year-old girl takes the Philadelphia team to the Little League World Series. And across her shirt, it says Taney, which is Taney, which is Roger Taney, the author of the Dred Scott opinion. We've got to change that. Why should we keep saying that? Now we think Roger Taney was a bad guy and Dred Scott was a bad opinion, and we don't want to honor him.

And we can change that. Was Dred Scott – like you alluded to the fact in the lecture I heard you giving the podcast or a lecture, but that some of these decisions were actually correct from a strictly legal point of view. Was Dred Scott such a decision? Could it be justified on purely constitutional grounds? Yeah, right. So here's a hypothetical case, right? Suppose there's someone who's enslaved in like Virginia, and they escaped to Massachusetts. And Massachusetts law says, as soon as your feet touch our soil, you are free. And the slave owner goes to the Supreme Court and says, no, this person is not free, they must be returned to me. And the Supreme Court and says, no, this person is not free.

They must be returned to me. And the Supreme Court says, yep, they got to be returned. That's a terrible decision morally, right? We hate that. But it's absolutely 100% clearly legally correct under the 1787 or 1791 Constitution, because that's exactly what the Fugitive Slave Clause said.

What should a Supreme Court judge do? I mean, of course, we have the same thing plays out today when we talk about Roe v. Wade, where people are saying, well, it might be constitutionally a bad decision, but it was a good decision morally. So what should we do when a bad moral decision or a good moral decision contradicts the Constitution? Well, I mean, that's like a difficult question about judicial ethics. You know, do you follow the law or do you follow your sense of justice?

You know, what tools do judges have to find justice within the law? That's sort of what my first novel was about. I agree with you that we shouldn't be honoring people if we're honoring them for things that we are shamed of. In other words, if Taney is being – is it Taney or Taney? It's Taney, but now we say Taney. I'm looking at a picture of this guy, Taney. He's got some mug on him.

If Taney is being honored and essentially his claim to fame is Dred Scott, then, of course, we should not be honoring him. If he did some other fantastic things and this was a blemish, then I think it becomes more complex. Of course, ultimately, the democratic process has to decide these things. But again, I would say that I am most concerned about us having a healthy psychology about being able to grapple with these issues. Because depending on what that psychology is, you're going to come to drastically different decisions without being more or less tolerant of current bigotry or anything like that.

It's just a matter of how you see the world. and i at some point it just becomes not plausible to think that every person we live in this wonderful country it's a fucking amazing and not only do we live in it the entire world benefit has benefited from it basically the history of prosperity and freedom and fulfillment in the world is the history of America and following our lead. I think that's not that much of an overstatement. I've seen graphs that show liberty in the world and America, everything follows. So we just can't be that ashamed of the fact that all these people have blemishes. All these people were peers at a time. And Gandhi, by the way, was sleeping with his niece.

And Churchill said bad things about the – was it the Pakistan? I don't know. And Martin Luther King was on tape cheering on a rape. Like, okay, what are we going to do? And O.J. killed his ex-wife. And OJ. So. It was a great, it was a great.

And how do we handle. We got to hold on to OJ. And how do we handle, and how do we handle Martin Luther King? That, that, that incident. We all know about it. We, where we handle it because of our psychology is to say, let's never talk about it.

That's how they handle it. It should never be uttered. It doesn't matter if you just say it out loud, you're some kind of racist. Because we're prisoners of the psychology another person could say you know he did that that was that's fucking horrible but that doesn't change what a great man he was this was just the blemish on this great men because people are human and people have done terrible things but we well there's a spectrum, right? There is.

I think Kermit is saying that Jefferson didn't do that many great things. No, no. I might agree with you about Jefferson. I mean, my gut doesn't make me want to agree with you, but I'm no expert in Jefferson. I feel like Jefferson should still, we should go tread easy on Jefferson. At a minimum, by the way, at a minimum, the words of the Declaration of Independence

were pretty damn poetic, at a minimum. If you're going to give him any credit, right, should you at least give him credit for saying the magnificent words of the preamble to the Declaration of Independence, the poetry of when in the course of human events and... Yeah, so I mean, he does a nice job

of condensing Georgeorge mason's virginia declaration of rights okay you're saying he ripped off yeah he kind of he did people said that at the time and he was like you know i wasn't trying to say anything new i was trying to put before mankind the common sense of the subject he did it well stylistically like i give him that you know am i wrong about this obviously you know much more than i did i i tried to read. Fretless Douglas wrote three autobiographies, am I correct? I was reading one of them.

And again, this is a long time ago, but the vibe I remember taking away from it is that he had a healthier psychology about all this than we do now he was able to process these contemporaries of him within their evil in a more uh almost i don't want to use the word forgiving but with a lot more depth and complexity than we seem to be doing from and he was a slave yeah he was a fucking slave well yeah he had a perspective on it that was way ahead of uh ours i think that's probably true and psychologically that makes a lot of sense because for frederick douglas having been born a slave and escaped from slavery um you know didn't really question his anti-slavery bona fides or wonder whether he was really the bad guy and i think a lot of the extremism that you get, particularly among white Americans that you're describing,

is sort of coming from a suppressed fear that if I'm not really stridently left on this, then I'm the bad guy. So yeah, there is that, and I think that's a problem. And I agree with what you were saying before that we should look at people in terms of how they compare to people, other people of their time. And I think we learn a lot more about people from the ways that they're different from other people and not the ways that they're the same. So, like, everyone else has this attitude. They have this attitude, too. It doesn't tell you that much about them. So, yeah. You know, but I also think, like as Perry was saying, it's a question of degree. And you've got to evaluate everyone on a case-by-case basis. Do you still listen to Michael Jackson?

I don't own any Michael Jackson. I don't turn off the radio. I'll be honest. I stopped wearing my Michael Jackson T-shirts. I think that's the right thing to do. So, I mean, you're basically going back to this age-old adage of separating the artist from their art. It's not the same thing with these people, but it's a cousin of that, absolutely. Right.

These unanswerable questions. So Joe Rogan can still be a great podcaster even if he might be a raging anti-Semite? Well, I mean, the interesting thing about the Rogan thing, I meant to say it. I was even thinking that maybe I should say it and cut it in the future. I don't think Rogan is going to care that much if people criticize him for it. For sure not.

I don't actually think he's going to be outraged if he gets wind of what I've said. I don't think he'd be fuck him, you know, who does he think he is? I hope he wouldn't be. No, I don't think he'd be, fuck him, you know, who does he think he is? I hope he wouldn't be. No, I don't think he would be at all. So, like, a lot of people are just afraid to, like, you can say things without people freaking out and getting mad. Especially at Rogan.

I don't think he's going to be furious. You know, he might be furious if I shallowly called him an anti-Semite, blah, blah, blah. But I don't think I was unfair with him. Anyway. You heard the whole Rogan thing. What did you think about what I said? I don't know much about Joe Rogan. It did seem like a kind of insensitive,

casually anti-Semitic thing to say. What do you think of the Jews? My children are Jewish. Oh, your children are Jewish oh your children are Jewish my children are not this is how the Roosevelt line ends huh I don't think of it that way I don't know if

Clies von Marsden von Roosevelt would like that but he's long dead so forget about him but I tell everybody look up Marsden von Roosevelt would like that, but he's long dead, so forget about him. Anyway, I tell everybody, look up Kermit Roosevelt's lecture. You're right. It's a lecture, which is a distillation of a book that you've written. I didn't say that at the top.

Oh, yeah. So the book. The book is The Nation That Never Was. That's like the key point to take away. And the lecture is on C-SPAN or Great Lectures in History or something. It's a podcast. So it's also on the internet, on YouTube. It's everywhere.

Yeah, there are some different ones. I think there are a bunch on YouTube. There's also C-SPAN. It's possible to find it definitely. It's very good. What do you think – you came in here. You knew it was the Comedy Cellar podcast. People are often surprised at how serious this podcast can be. I don't know if that struck you one way or another. Well, I wondered when I got the invitation. I was like, what is this about?

And then I tried to look you up and I saw some of the other guests that you had. I was like, oh, yeah, look, they have law professors. They have serious conversations. Yeah, we like that. Well, here's the thing you got to know about. I'm a comedian, oddly enough, and you probably wouldn't know it from this conversation, but Noam is a former attorney. I have a law degree. I never practiced. Noam never practiced, but Noam, his affiliation with stand-up comedy is serendipitous, really.

He just sort of happened into it. But he's more of a musician. His true passions are music and debate. Yeah. And he really doesn't give a shit about stand-up comedy. I didn't love law school. I loved first-year law school. That was really a happy time.

I really found it. Chris Goodman was my con law teacher. Oh, yeah. I know Frank. And he was kind of like a disheveled, but I thought he was brilliant. And I loved first year law school.

And then I loved it less as it went on law school. But then when I worked as a summer clerk and I saw the life of an actual practicing attorney, I'm like, oh no no way this is not for me and i you would have been a great litigator though in court like arguing you would have just you would really shine in those moments litigators are probably you i think litigators are probably happier than the corporate lawyers are.

At least it's more fun in some way. I don't know. But all the lawyers I know, with very few exceptions, they're all like, oh, you're so lucky you didn't go into the law. You did the right thing. And they're all rich. Some of them, they all made millions. The only person, my happiest lawyer friend is my friend Chuck. I went to law school with Michael Smarkanish also. Oh, yeah.

But my friend Chuck, who is a labor lawyer, union side labor lawyer. And he was a he was a dedicated to that cause in at Penn. And he's dedicated his life to that cause. And he hasn't made a lot of money. I mean, he made decent money. And he's very, very happy because he feels like he's doing something he believes in he's fighting for workers rights dershowitz seems pretty happy but dershowitz what is uh as a as a proof was a professor who you know fair enough and chose yeah fair enough picked and

chose picked choosed anyway we don't have cheesesteaks here at the Olive Tree Cafe. Cheesecakes? We have cheesesteaks. Cheesesteaks. Really? Cheesesteaks. Oh, cheesesteaks. Yeah.

But you are welcome to eat half off. No, you're on the house. I'm actually – I keep booking this because I'm worried about your train. Oh, I thought you were coming to see a show. No. Well, he has to get back. It depends on how much time we have. So the last train back is at 8.30. Oh, well thought you were coming to see a show. No, he has to get back. It depends on how much time we have. So the last train back is at 8.30. Oh, well, you can see from Penn Station.

I'll see whatever I can. Yeah, yeah. Well, the show starts at 7? Yeah, so you can watch a few comedians if you want. I can stay here until like 8. It's easy to get back to the train station. It doesn't take long. Thank you so much for coming. The last train is at 8? 8.30. Yeah, which is crazy. crazy like why is that no one

wants to go back to philadelphia from new york after 8 30 well noam can always give you uber money right now i'll drive you back it's only 90 miles i used to drive it all the time all right well uh uh professor kermit uh it was a pleasure to meet you you didn't disappoint great to meet you thanks so much. I thought we kept the show accessible. I don't know if that's true or not. Nicole, any thoughts? Did you find this accessible?

Yeah, it was great. I learned a lot that I didn't know. By the way, Kermit, for Nicole, that's great excitement. The whole question is what's your baseline? Yes. Well, Nicole's from Binghamton. you know they're very even-keeled people there they don't you were against the jobs decision yes but dobbs is which one is dobbs again the abortion is overruling row yeah oh you were against overruling did you think that row was good law i think that low row was not written the most persuasive way it could be.

I agree with the outcome. I've always criticized the reasoning. And then like this pops up periodically. Conservatives are like Professor Kermit Roosevelt says that Roe is terribly reasoned. Hilarious. Yeah. Sometimes you may be coming. I have another conversation about that.

I have a lot of thoughts about Roe. But my thoughts are good. Neil Cotillel told me I should write an op-ed. I told him what I thought and he told me I should write an op-ed. I never did, but he, he thought, he thought I had a good take on it, but that's it. All right. Uh, Kermit, thank you very, very much for coming. Yeah. Thanks for having me. And, uh, Dan, you want to sign off? Thank you, everybody. Podcast at ComedyCellar.com for thoughts and suggestions and constructive criticism. Also, if you're interested in Kermit Roosevelt's novels, In the Shadow of the Law and Allegiance, I believe. Is that correct? That's right. Those are available, I assume, on Amazon, Nook, or wherever books are sold. Okay.

Good night, everybody. Good night. And bookstore, too, I'm sure you can find.