The Daily Beast Podcast - Should We Fear MAGA Riots if Trump Is Locked Up?

Episode Date: June 2, 2024

As Donald Trump waits until July to be sentenced, The New Abnormal team discusses what may happen if he gets thrown in prison. Plus! Andy Levy talks to Professor Madiba Dennie about her new book, The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Andy Levy, former Fox News and CNN-HLN guy and current cable news conscientious objector. I'm a former libertarian who now sits comfortably on the left. Hi, I'm Danielle Moody, former educator and recovering lobbyist. But today, I'm an unapologetic, woke commentator on America's threats to democracy. And I'm producer Jesse Kedden, and I'm here to make sure things don't go too far off the rails. We're here to have fun, smart conversations with some of the most knowledgeable and entertaining people in politics, media, and beyond. Our goal is to try and make sense of our current crazy world, our new abnormal, and hopefully even make you laugh through the tears. Hello and welcome to another Sunday edition of the New Abnormal.

We thank you so much for me. Today we have an extra special guest with deputy editor and senior contributor for Balls and Strikes Mediba Denny. She'll join us to talk about her new book, The Originalism Trap. How extremists stole the Constitution and how we the people take it back. But first, let's have some fun. All right. Are you guys ready to listen to some clips? Clips. Clips. I promise this one's not that bad. Here we go. Oh, God.

Nobody believes you, Jesse. Nobody. Not me, not Danielle, not the listeners. I will show you all to be wrong, just as I did last time you said this. He's going to pull a clip of Martin Luther King. I swear to God. I'd be like, there, you see? Just kidding. Go ahead. Donald Trump, a man whose sociopathie gives the people who study the subject, new lessons to debate for decades to come, has a new entry in the syllabus. We taped before he did a rally in the Bronx last week that was poorly attended. And of course, they lied about how many people attended because it's a rally that Trump did. Well, here he's going to show us what he's got in the sociopathie department. Many of the hostages that you're a terrible thing to say, but I believe it, many of the hostages that you're waiting for and everybody's waiting for.

those hostages, many of them are dead. Many of them are dead. And it's a horrible thing. It's a horrible thing. But many of those hostages are dead. And that's why when you see these negotiations where Hamas is like not getting back, they're saying, man, we could make a good deal. But these people are no longer alive.

When I saw the way they were treated, when I saw they were thrown into the cars and how horribly they were treated, there's no way that those hostages and some will be alive, but many of those hostages are dead. It's a very serious, horrible thing. It would have never happened if the election weren't rigged. It would have never happened if I'm a terrible thing. Well, I think you've already been shown to be a liar, Jesse.

Right, right. So somehow if the election in the United States was not quote unquote rigged and Donald Trump was indeed the president. And after 66 failed attempts of Rudy Giuliani and his fucking die dripping down his face, the fake elector is all that. There would be no hostages because there would have been no assault. Like, is that what he's saying? Is that what I heard?

Hamas is known to respect Mr. Trump. They watched a lot of the apprentice. So they really, really respected the way he ran his business. Oh, my God. And it's like, again, I always say this. It's the people fucking cheering for. me. Yeah. Yeah. Like it's the crowds of just like, is lobotomized a word? I'm making it one today. Lobotomized maga fucking idiots who sit there and clap like seals at anything that he says,

because everything he says makes sense. Oh yeah, boss. If you were president, everything would have been kosher in this country. Everything would be great. How is your life better off? How are those tax breaks treating you? Oh, that's right. You're not millionaires or billionaire. So you're still living hand to mouth. Whatever. I hate this guy. I hate him. I just, it was weird to me because I, that didn't sound like 25,000 people cheering.

That's such a strange thing. And I know that that's what Trump and the right wing media, that's what they said the turnout was for their Bronx rally. So, yeah, I don't know. Sounded a little muted for 25,000 people. To me, it was really the change of tone. You could hear him reading off the telepractor about the hostages. But then when he gets to talk.

about himself. Oh, he's excited. He's an excited guy. Yeah. You can tell when he pivoted to the rigged election and all that, that that was off-prompter. Really gets some excited. I don't know if you care, but I think the word is pronounced sociopathy. Oh, oh, okay. That's good, good to know. I do use it a lot. So unfortunately, we have to hear his mouth yap a little more. Here we have him doing his thing where he complains outside the courtroom. And I'm going to shock you two. But his argument is very poorly thought out. Outside it looks like it's Fort Knox.

Like they're guarding this. I've never seen so many policemen. Now with Columbia, it's a very sad day for... I really like when right-wing people say the whole world is watching. Like, yeah, they're like a left-wing protest in Vietnam. The whole world doesn't watch Fox, but, you know,

what do I know? What's amazing to me, not amazing, but maybe amazing. We always talk about how, oh, if we do this to Trump, there's going to be riots in the street, blah, blah, blah. So few people turned out to be outside his trial. And he likes to compare it to the student protests or whatever, which was a hell of a lot more people than turned out to support Donald Trump at his trial. And I feel like we've sort of seen this over and over again, that every time we hear, you know, we have. have to be careful. We can't do this. It'll make his supporters mad and they'll ride in the streets. And then they barely show up. Well, don't forget the penis balloons. The penis balloons do show up. I will give them that. They absolutely did. Yeah. I just love with the Law and Order Party, presides like, that they don't run everything off of, like, precedents they've set like they think, like they could discriminate against minorities. But would they put up a lot of blockade after somebody incited an insurrection? Because past might be prologue. Yeah. That it's awful.

Just awful. Yeah. I don't know. Maybe it's like Fort Knox because you're an ex-president and you're surrounded by Secret Service and that's the way it kind of should be. Or maybe not, you know? I mean, look. Yeah, I was speaking more in general than of him specifically.

But I went to dinner down there last Saturday. And I truly could not believe how much they had it blocked off even on a day when there wasn't a trial. But that's because of the fear of what he could incite. Oh, so you agree with Trump. Wow. As usual. Wow.

As usual. No wonder you don't think these clips are bad. All right. Here we have Mike Lindell on Tim Poole's podcast. Oh, God. A place where thought enters hospice care and is quickly smothered by stupid. I have to say, I'm kind of not making my argument that I was joking about agree with Trump because I got to agree with Mike Lindell here. Oh, here we go.

And being proactive in out there and where the hope is. I tell people quit watching, you know, media, and even, you know, if I see people depressed out there, I'd say a lot of them, well, I watch Fox in and day out. Well, they're not going to tell you the hope. It's mostly depressing. Here's what's going on. That's bad. That's bad. And I like to tell people, here's where we have the hope here.

Here's what's going on here. People come in, and you combine what's going on right now that's so sad is with the open borders and the fentanyl pouring in. People that are losing hope are turning to a. addiction or addicts are getting worse. And that's... Okay. So... So, yes, he's right that, you know, if you turn on Fox News, all you're going to hear is how bad it is in Biden's America.

But the hope that he wants is, you know, it's the hope that the 2020 election is overturned. It's the hope that the borders are closed. It's not the good hope. No. You know? No. I hope gay people don't exist. Right.

I hope black people aren't allowed to vote. I hope women go back into the kitchen. Like, that's the hope that he wants, that they want. Why do people listen to the pillow guy? Well, it's the same people that listen to Tim Poole. Yeah, yeah. I mean, that might be the dubbest source of commentary. Mike Lindell might be smarter than Tim Poole.

I have consumed an insane amount of Mike Lindell's thoughts because of a previous podcast I produced where I had to monitor them on a regular basis. The thing I was really struck by is he didn't used to talk in Trump word salad as much, but we always see like with dissatisfitating Trump's speech patterns, they all love to imitate him. Yeah. Taking on the way Donald Trump's structures a thought, not a thing you should be imitating. No. I also find it ironic since he's the person who basically single-handedly funded Fox News and many other right-wing outlets with his ads for years aside from cable news feed.

No, I remember. Mm-hmm. Thank you, Mike. So for the listeners who don't know, the three of us all live in New York, and I want to get some boots on the ground reporting since Eric Trump is on Fox News doing some dubious reporting. No one believes it. The entire city of New York is shut down. You have half of the NYPD guarding the lower half of Manhattan around this trial. They're shutting down the FDR drive every single day. No one believes it because it's not. True. So, I mean, I just, no one believes it. Hard stop after that because we all live here and it's

not true. What are you shutting it down for? Again, the three people waving penis balloons and like the person with the fucking Trump whistle, get the fuck out of here. Like, like, there aren't enough of us on so, like enough of us that can fucking move through the, the bullshit that these people spread? Oh my God, the city is crazy. It's so hard to get through. Uh-huh. Yeah, I don't even have to put my bloodstones on to know that this isn't true, Jesse.

No boots on the ground needed. I really, like, you know how, like, all the news organizations have those, like, Times Square cameras and everything? I really feel like we just need, like, constant cameras on the networks, showing the reality of crime and all the things that they say at this network to be total abject bullshit. Yeah. It's like even we're I just want to say this. We're a Fox News Station situated in Midtown Manhattan. The scariest thing is like the line at, you know, the steakhouse around the corner or the fucking like, oh my God, it's Christmas time and I can't make it to the fucking tree across the street. And the lies that they spew about what's happening outside that window is wild. It's just so wild. My God.

God. Yeah. Yeah. I should say since Danielle, you and I both have taped at my studio that is a block away, we were regularly right there. And I would actually say that the block foxes on is one of the more sleepy, ducy, in all of the city.

And I know, Andy, you worked there many years. No, the biggest thing there was when, uh, when the chick-fil-A opened like a block away. That's our quarter. Yeah.

This was not a fox thing. This was just a chick-fil-a thing. But the line was like, blocks long. Like that was the biggest thing. The wine is still ridiculous and there's like six locations of it. And it's flavorless, unseasoned chicken. Not to mention homophobic.

Just saying. Homophobic chicken. Homophobic chicken. I will argue the biggest chaos though on that corner, though, was when that swarm of bees launched upon that corner, that was really fun. Oh, I don't remember that. Oh, I actually do remember that. Yeah, yeah, yeah.

Also, the chicken's not homophobic. Are you sure, Andy? I'm just, well, I'm just saying, don't blame the. tickets. Okay. And I didn't play the Charlie Kirkwag on it on Beyonce's music clip, so. Oh, you should save that for next week. I declined to be bullied by ghosts any longer.

So writes Mediba Denny in her great new book, The Originalism Trap, How Extremists Stole the Constitution, and how we the people can take it back. She has been a law professor, counsel to the New York City Council Committee on Public Housing, Council in the Brennan Center's Democracy Program, and currently is a deputy editor and senior contributor at the excellent legal commentary outlet, Balls and Strikes. The originalism trap comes out on Tuesday, and she's here now to tell us about it. But Deba, thank you so much for joining us. Thank you so much for having me.

So let's start with the basics. What is originalism? Originalism is this idea that's been promoted by the conservative legal movement that says the Constitution has a single fixed-in-time meaning. The meaning is frozen when the document was ratified. So if we want to know what it means now, it's whatever it meant 200 years ago. And there's no way to change that outside of the formal constitutional amendment process. It's weird how this seems to align perfectly with the tenets of conservatism, isn't it? Right? What a coincidence. Yeah. So the thing is, it's not at all coincidental. It was very, very

deliberate. Originalism arose as a backlash to the civil rights movement when conservatives were unhappy with the advances made by the Warren's court, especially Brown v. Board. And that's the critical background that these tenets of originalism really started to formalize. It was a set path because they knew the direction they wanted to go already. And the idea that they put forth is that originalism means that they are completely objective and that really it's the only objective way of reaching decisions, right? That's their big claim. That's the central claim, yeah. And, you know, folks had considered history or these ideas of like what people might have thought to influence constitutional interpretation, sure, but only when originalism really became

a thing in recent decades was the first time you hear this idea of this is the only way that you can legitimately interpret the Constitution. That part was new. The origins of this legal philosophy, this sort of sham legal philosophy, let's be honest. A lot of people, as you write in the book, trace it back to Robert Bork. But you say no, it actually goes back further. And you say it should be traced back to the Brown-B-Vort of Education decision that you referenced, not to the decision itself that the Warren Court came to, but by the arguments that were made before the court.

Right. So the Supreme Court solicited basically originalist style arguments from the litigants before the court. They said, can you look into the history of the reconstruction amendments and tell us what the Congress members were thinking at that time, whether they thought that it would apply to segregated schools? And so each of the camps sit down, they go to their libraries, and they dig into the archives. They dust off these books. And despite originalism's claims about objectivity, they come to very different conclusions. On one hand, you have the attorneys for the black children who are saying, well, it's quite clear from the historical record that Congress intended to eradicate racial discrimination. And that would mean segregation in schools is bad. Then on the other hand, you have the state, which is saying, we looked at the record and we don't see anything in here about the federal government overtaking the power of the states to regulate the schools as it sees fit, whether that could be segregated schools or not. basically saying we have the ability to decide for ourselves whether to have segregated schools. And you also had the United States federal government chime in. They said, we too looked at the

record. We can't really decide one way or the other. They said it could go either way. However, we will err on the side of segregation is bad. They're just playing it safe. And so the Supreme Court then took all of that information and said, actually, you know what, this is quite a silly way to make decisions. We don't need to cabin ourselves to what we think the framers would have thought. And we can instead look at the underlying principles that we think should be applying here, things like equality and anti-discrimination. And on that basis, that's why the court decided to strike down segregated schools. They actually explicitly reject the idea of turning back the clock that originalism says. The court says very directly, like, we cannot turn back the clock to 1868

when the 14th Amendment was ratified, or even to when Plessy v. Ferguson was decided. We have to look at the context of the entire development of education and, like, what's going on now. And these are such important concepts that the conservative legal movement has worked very hard to shove away. Like now we see in lots of these major decisions coming down, this all in on the ideas of history and tradition. Never mind the quality of that history, the value of those traditions, if they're not analyzing whether perhaps those were bad traditions that we should get away from. And also, even when it comes to the history themselves, there are many professional historians that are looking at the work the court is doing and it's like, oh, God, please. This is not what this history is. That's not how we do things.

So there are multiple levels of their problems with their originalism. Like they're not even doing well what they claim to be doing. And really, even if you were trying to do that, it's still flawed. Yeah. You know, reading the book and you touch on Dred Scott in the book, but I couldn't help but think that even a modern day, quote unquote, originalist would have to think that Dred Scott was correctly decided, right? I think originalists work very hard to distance themselves from that today.

I mean, clearly, there was a time from the opinion because Dred Scott is basically an originalist opinion. They say, we look to the founders, and it is very clear that they did not intend for black people to be within the umbrella of we, the people. Because otherwise, everything else they did wouldn't make any sense. And we're going to assume that everything else they did made sense. So it must be that black people were meant to be. excluded. So that's straight up an originalist argument. But now I think you might have originalists say that by an original understanding, at least by the reconstruction, if you look at the 14th Amendment, that that would foreclose the kind of argument the court was making in Dred Scott.

I think they would try to say an original understanding of the Eagle Protection Clause means that you can't say black people can never be citizens like the Dred Scott Court did. I don't really have any love for originalists, but I would like to do them at least this solid. I don't think they would sign on to dread scots. But you do point out in the book that the Reconstruction Amendment's 13, 14, and 15 are not part of the history originalists care about. And I think it was that line that really got me thinking, man, if push comes to shove, they probably would be like, look, I think black people should be able to be citizens, but, you know, I can only go by what was in the mind of the founders.

Right. I think that's correct. There is generally the sense today to not say such things. But if you look at actually like the application of the logic, it's precisely that. Yeah, it really is incredible. And you call it like as you say, if you look at the logic, you call it, which I think is a great term that you use, you call it dream logic. Right.

Like it makes sense when you're dreaming, when you're asleep. But once you wake up, you recognize that this was nonsense. Yeah. Absolutely. So the book is called the originalism trap. So I want to get to the point where you start talking about how we get out of the trap. So tell us about what you call inclusive constitutionalism. Inclusive constitutionalism is this alternative method of interpreting the constitution that I put forward. So we talked a bit about how originalism says there is one set meaning of the constitution. It is fixed in time. I disagree with that. I think that the constitution is as a that the reconstruction amendments gave us guidance on what we should be doing. I think we've also seen throughout basically all time, as long as we've had a constitution, our understanding of that constitution has changed. And so I think the question is not, is there a fixed meaning? It's,

we know there isn't, how should that meaning evolve? And I think that that meaning should evolve in a way that furthers the goals of the reconstruction amendments that takes that liberatory mission and is how do we interpret this document to make sense in light of those goals, to have a more inclusive democracy. So when we're interpreting the Constitution, we need to do so in a way that makes inclusive democracy real and does not force people out of our Democratic project just because they used to be forced out. Yeah, it really is.

I thought sort of an ingenious way of putting it in that basically the Constitution should be looked at as, you know, and when various cases come before the courts, it should be what the judges or justices should be thinking is, how could I rule that would further democracy, that would increase the participation of groups and individuals in democracy that maybe haven't been able to fully participate in the past? And it's such a, like I said, I just thought it was like a really ingenious way of describing it. Yeah, I think some of the biggest issues we've been seeing today is the court either not caring at all about what would further democracy, like it's not part of the calculus, or even worse, they are actively hindering democracy. They are seeking out

the thing that takes us further away from the goals and purposes of the reconstruction amendments. So I think that that is the lens through which we need to view and interpret the whole Constitution. And I thought it was really interesting that you used as an example of this inclusive constitutionalism. The question of Ted Cruz's eligibility for the presidency. So walk us through that. Yeah, the Constitution has a number of requirements on who can be the president. There's an age requirement. You have to be, I think it's 35, if I'm remembering correctly, and you have to be a natural born citizen. And I think there's no real discussion to be had about what 35 means. But as far as natural born citizen, that can be a little bit trickier. I think it's clear that someone who has two citizen parents and was born here, they're very clearly a born citizen. I am very clearly not a natural born citizen. I had two non-citizen parents and I was born in that foreign country. But what about people in between? And Ted Cruz is someone in between because he had an American citizen father, but he did not have an American citizen mother

and he was also born in a foreign country. And so ultimately, when I look at this, I think, what are the sort of democratic factors at play here? And I think we can minimize the impact of a potential biological caste system by saying, actually, we're focused on your parentage and your lineage as for who gets to run for office, even though you are an American citizen, and say, you know what, we'll err on the side of democratic inclusion. You get to count Ted Cruz. Yeah. And again, I think that was great because I think it's very clear that you are not a big fan of Ted Cruz. That is correct. But by the same token, you're like, look, let's not be ridiculous about this. You know, he clearly should be eligible to run for president. So I want to touch on some of the ways that you write about for fighting back against originalism. And the first one you mentioned is social movements. You write that social movements can shape what constitutes common knowledge. And when you know better, you do better. I think, yeah, I think that's very true, obviously, since I wrote it. But I think we have seen evidence of this throughout history.

I give a couple examples in the book, some are from recent history, such as the gay rights movement. There are quotes from the Supreme Court itself and from lower courts that heard these beginnings of the gay marriage cases as they percolated up, where they said, you know, the meaning of the Constitution didn't change. but our understanding of what it actually means to be a gay or a lesbian person in America, that changed. We didn't consider that before. We weren't aware of that. We didn't, well, they didn't consider it. I won't say they weren't aware. They didn't fully consider it and value it. But because of social movements, because of the advocacy of LGBTQ people and their allies, the court reevaluated because this was what the people demanded. And I think you see something very similar in the civil rights movement as well with the push to get segregation recognized as unconstitutional. Because again, it wasn't like the court suddenly

woke up and said, just kidding, we change our minds about this. It was because of hard work that a bunch of advocates and regular people had been doing to change how people understood the Constitution and what they thought the law required. And so I think that is such a important thing for people today to hang on to and to learn from that we can decide what we think the law requires and push government actors to adjust their behavior accordingly. Yeah, and we went through a period with the Supreme Court where we had, you know, we had Griswold and Eisenstadt, which were about legalizing birth control. We had the loving decision, legalizing mixed race marriage. Roe, obviously, Lawrence v. Texas, which said, hey, gay people can have sex and it's

legal. Who would have thought? I know. And then, you know, as you mentioned, we had Obergefell for same-sex marriage. But then we look at now and we have Dobbs. And it feels like all of those cases, which were, I guess you could say, were not based on originalist theory. Suddenly, they're all in danger because of Dobbs, which was, at least according to Alito's claims, an originalist decision. I think that's correct. And I think that is deliberate. Like, they're really. reason why originalism developed, as I mentioned, was against the backdrop of Brown v. Board, that sort of pushback. And then it became even more formalized in Ronald Reagan's Justice Department, where they pretty explicitly said it is the position of the Reagan Justice Department

that there is one appropriate way to interpret the Constitution. That way is originalism. and because of originalism, we need to roll back and cut back all of these victories that you had just described. So it wasn't that they happened to be originalist and it leads to these results. It was that they wanted these results and so they became originalist. Yeah, it really is amazing how that happened. So another thing you talk about in the book, what can lawyers do to help usher in, you know, maybe an era of post-originalism? Oh, man, there are so many things that lawyers can do. And one of them I'm attempting to do right now, which I think is communicating.

Come on my podcast. That too. That's part of it. I think lawyers have an important role in educating the public and speaking with non-lawyers. Because I think that when things are so dressed and couched in legalese, it can be hard to see what the actual impact of what a court's decision is. Or it can be hard to see how what they're doing is so flawed. Like, I as a lawyer can clock the deficiencies, but they may not be readily apparent to someone who doesn't have that background.

So I think that we have a responsibility to the public to make that clear for people. I think that we also have a responsibility to support the work of these social justice movements that are trying to fight for their rights. and trying to reshape the idea as well as what the law prohibits and what it requires. I think you're seeing the law sometimes used to directly attack people and other times to remove their rights. And so I think as people are trying to imagine what am I owed under the law or like what am I entitled to or what can the government actually not do, I think lawyers have a job to assist there in providing technical assistance, helping with any legal cases, or helping draft model legislation to push forth different laws at local levels since the federal level is a hot mess. Yeah, there are a range of steps we can take to support social movements.

I also think, in addition to talking with the public, we need to talk amongst ourselves too. I think that lawyers sometimes forget that we are not just non-playable characters in a video game about the law, but that we have agency and we can make decisions about what kind of vision of the law we want there to be in much the same way that originalists did. They decided that they wanted people to think about the law another way. So they did that, whether it was by pushing legislation or funding candidates, getting judges in places, is forming communities and networks like the Federalist Society to really inculcate these ideas. I think they're not the only ones that can do that. We can also exercise these same skills.

The book is The Originalism Trap, How Extremist Stole the Constitution and How We the People Can Take It Back. It is out Tuesday. Mediba Denny. Thank you so much for being here. I really enjoyed talking to you. Thank you. This was a delight.

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