 Trevor Burrus Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Trevor Burrus. Aaron Powell Joining us today is Randy E. Barnett, the Carmichael Waterhouse Professor of Legal Theory at Georgetown University Law Center and the director of the Georgetown Center for the Constitution and a senior fellow at the Cato Institute. He is the author of the new book, Our Republican Constitution. Welcome to Free Thoughts. Welcome back to Free Thoughts. Randy E. Barnett Thanks both of you for having me back. Aaron Burrus So you and I were heavily involved in the Obamacare litigation, the first round of that. And that's how you opened up the book discussing that case and how that case helps frame the argument you're making in the book. So why is that case related to this idea of Our Republican Constitution? Randy E. Barnett Well that is the, my experience in that case and the outcome of that case is what led to writing this book. It's the impetus for that. My last book, Restoring the Lost Constitution, was about the original meaning of the Constitution that both that we ought to be enforcing the text, we ought to be interpreting the Constitution according to its original meaning and that courts ought to enforce that original meaning and then what it was, what that original meaning was. But it turns out that getting the meaning of the Constitution right is not enough. In the Obamacare case, we had five votes for our theory that an individual purchase mandate was beyond the power of Congress to enact under the Commerce Clause the necessary and proper clause and even the tax power. And yet we still lost the case and we lost the case because Chief Justice Roberts adopted what he called a saving construction to change the individual insurance requirement into an option to buy insurance or pay a modest tax and he could do that he said because the tax level was so lowest to be non-coercive and therefore it could be upheld as a tax and not a penalty. Although he said that was not the most natural reading of the statute, he said it was a reasonably possible reading of the statute and he was obligated to adopt this. He said because of the deference he owed to the Democratic branches and it was not up to the courts to save the people from their own political choices is what he said. So isn't that what the whole Constitution's for in the first place? Yes. And so it turns out we had five votes that our theory of the law is right and usually when you win on the law you win the case but in this case we won on the law, we still lost the case because the fifth vote asserted a particular conception of the judicial power or the judicial role to avoid, in fact that's the name of the doctrine, constitutional avoidance to avoid the constitutional problem in the law and so I thought it was necessary to have a to write a book particularly to influence if possible the political process of selecting a president about what the proper role of judges are and it turned out the way to address that was by distinguishing between a democracy and a constitutional republic or you could call it a constitutional democracy and a constitutional republic under a constitutional democracy you have one vision of judges under a constitutional republic you have another vision of judges and that's one of the things that's been dividing both Americans from each other and even conservatives from each other and that's why I wrote the book. So someone might say but it's a republican constitution but John Roberts is a republican so isn't that exactly what you wanted out of that? So obviously when I use the term republican in this book I don't mean the current modern republican party and I also don't mean modern all modern conservatives either I'm talking about the kind of government that we have which can be distinguished from a democracy and the book starts off by talking about first of all starts off by talking about the Declaration of Independence and the philosophy that is of governance that is contained in the first two paragraphs of the declaration which identifies the rights of the individual people the rights to life liberty and the pursuit of happiness all of which are rights individuals possess and the next sentence says it's to secure these rights the governments are instituted among them which establishes that first come rights and then comes government to secure these rights and then comes a republican constitution both to empower government to secure rights and also to limit government powers to the securing of rights and not going beyond that and that's a vision that's at odds with the democratic constitutions deference to majoritarian will. So the Declaration of Independence is not part of the Constitution it's not in the Constitution so why should we care what the Declaration of Independence says when we're setting out to interpret the Constitution? Because the Declaration of Independence was the legal document that separated us from the polity that we were once a member of which was Great Britain and what the founders believed was in order to justify their actions as non-traderists they needed to have it offer a political and legal justification for their acts and the Declaration took on that responsibility it identifies the political theory on which the country was founded and then there were after that two tries at government the first try was the Articles of Confederation and that didn't work out as well as some people wanted then came the Constitution and then came amendments to the Constitution that the Republicans in Congress put together after the Civil War which further changed our Republican Constitution in a more Republican direction. So to understand what is in the Constitution it's important to understand the theory of why we have the Constitution and that's what the Declaration provides us. Some libertarians might say that the Constitution after the Articles of Confederation was something like a coup that was actually undercutting and actually people at the time some people at the time thought that something like this was actually undercutting the kind of promise of the Declaration and creating a much too powerful federal government that was going to usurp our rights and that seems to have been the case so can we really hold up the Constitution as a document that's libertarian when we've had this government authorized under it and many of the things that the people who opposed it said would happen have happened. Right. That's a good question. I'm very familiar with this libertarian position dating back to when I was in law school so I've known about it for a long time and look I think it's a reasonable position for people to take. It's not, you know, obviously false but I do think at the time there was an economic downturn that everyone including anti-federalists conceded was happening and then there was a disagreement about what the cause of that downturn was and the federalists discerned that the cause of that downturn were too much democracy in the states and I don't think there's any question that there was too much democracy in the states. There's so much democracy in the states even after the Constitution was founded that states had the power to authorize the enslavement of some of its people by others of its people. It's hard to imagine more democracy than that. Right. And authoritarianism. And the Democratic Party was founded in order to, the modern Democratic was founded in the 1830s and 1840s to defend the extension of that Democratic approach to the territories in which, I mean in part it was founded for that reason, in which a majority would get to vote whether a state was going to be slave or free, not withstand, first of all the minority, the blacks weren't even going to be allowed to vote but even if they were allowed to vote they'd still be outvoted. And that's not a form of government that I think libertarians ought to be very fond of. The original Constitution certainly, well I mean there's argument on this but it allowed slavery to exist in the states. It did. It did. But first of all it empowered Congress to abolish the international slave trade. That's something it did do. It also restricted the state's ability to restrict the impairment of contracts which is one of the principal reasons, one of the principal complaints the Federalists made about states is that they were impairing the rights of creditors in order to favor debtors who are more numerous. It restricted the ability of states to erect trade barriers, creating a free trade zone in the United States that is probably most responsible for the prosperity that we've enjoyed over the Balkanization that was existing under the Articles of Confederation. We can, look I think we can have a reasonable debate about this and there's no question that we have an extremely powerful federal government far more powerful than the founders wanted or designed. And then you could say post hoc, ergo, proper hoc, but that doesn't necessarily follow. I mean one of the reasons why we have the powerful government we have is because the Constitution has been misinterpreted. So the question is if the Constitution were interpreted according to its original meaning, how libertarian would that Constitution be? And I think especially as modified by the 13th, 14th and 15th Amendments it would actually be the most libertarian Constitution ever enacted in the world. It's at least in any major country. What's the argument for interpreting it based on its original meaning that isn't, look if you know the way we've been interpreting it has led to policies that you, Randy Barnett don't like and the rest of us in this room don't tend to like. And so we should therefore interpret it in a way that will point in policies that we happen to prefer and that happens to be original meaning which is I guess seems to have less normative weight than if we can say there's a free standing reason why this is the right way to go about it. Well it's a good question. I think I'm going to have to answer it in two parts. First is the affirmative argument for original meaning which does not rely on policy outcomes and that is that in a Republican Constitution the Constitution is not the law that binds us. It's the law that binds those, it's the law that governs those who govern us. It is the... It's their speed limits and rules of the road and everything. That's right. And if that's the case, if the Constitution has put in writing to provide the law that governs those who govern us, then those who are governed by it cannot anymore change the law that governs them, then we are allowed to change the law that governs us without going through the legislative process or in their case the amendment process. And that yields the conclusion that the meaning of the Constitution should remain the same until it's properly changed by amendment. And that is simply a shorthand for originalism. So that is an argument for why the original meaning should govern because that's the purpose of a Constitution is to govern those who govern us. Now, that's part one. Part two is, secondarily, the threshold question before you decide whether you want to follow a Constitution or not is to figure out what the Constitution means and then you decide whether you want to follow it or not. So the originalism is an answer to the question of what the Constitution means. It's not an answer to whether it's a good Constitution that merits being followed. So the Confederate Constitution, we know what the meaning of the Confederate Constitution is. It was its original meaning. And then the question is, was it a good Constitution or a bad Constitution? So you have to separate the question of meaning, which I think is answered by the originalism theory, the originalist approach, from whether it's a good Constitution or not. But so if you read and you figure out what it means, then you ask, well, is this meaning good enough to merit a duty of obedience in the citizenry? And actually, to be, and this is something I talk about in my last book, more than this book, to be technical, we are not bound by the Constitution. The question is, are we bound by the laws that are passed pursuant to the Constitution? And then we are only bound by such laws if the Constitution is deemed to be good enough to produce laws that are binding in conscience, meaning they are laws that are likely to be necessary and proper. If all of that is true, then that makes the Constitution good enough to be legitimate in my mind. And that's a separate question from what it means. And I think it's really a mistake to collapse. This is what living constitutionalists do. This is what the left does, to collapse meaning into what we want it to say. So we want it to say the right things, therefore, we are going to make it mean those things. And that is to collapse meaning and whether it's good enough into one enterprise. There's an incredible congruence between things that people think is a good idea and things that people think are constitutional. And that's something that, of course, people say to us as Aaron's question said that, like, wow, what you think is constitutional is also things you think are good ideas and we can say that to Jack Balkan. But it's very interesting when someone thinks something is constitutional that they think is a bad idea on a policy level, which doesn't happen that much. Or the other way around. Well, look, in chapter nine of this book, first of all, most of the constraints or the constitution that I argue for in this book are based on federalism and separation of powers. They're not really based on outcomes of particular policy issues. They're about who gets to decide. So for example, at the federal government level, the Congress is supposed to decide on what the law is, not the president through the administrative state. That's not a matter of outcomes. That's a matter of who gets to decide. And federalism, who gets to decide, I think, most decisions that are important decisions should be decided at the state level, regardless of what the outcome is, because that's going to, I think it'll lead to better outcomes, but it's not an outcome by outcome decision. There is chapter nine of the book in which I argue that the outer boundaries that are to be enforced even at the state level are against laws that are irrational and arbitrary. At that point, the substance of the laws actually makes a difference. But this is an outer guardrail. Within that guardrail, I think state legislature are authorized to enact laws that are in good faith efforts to exercise their proper powers, like for example, the power over health and safety. And if they're really exercising those powers in good faith, then it's constitutional even if libertarians would object to these laws as being unnecessary and contrary to what a libertarian policy prescriptions might be. They're still nevertheless constitutional. There's a big gap between something that's irrational and arbitrary, which indicates it's being enacted in bad faith as rent-sinking laws and a law that's enacted in good faith, but might be bad policy. I was, we did an episode which came out before this one with a guy named Gary Gerstle, I'm not sure if you're familiar with him. He's a historian at Cambridge, University of Cambridge in Harvard. And he has a new book called Liberty in Coercion where he kind of discusses that the big problem that are essentially conservatives and libertarians have not dealt with adequately is states' powers, that states have really, really, really big powers under the original constitution to be almost despotic in terms of how they pass welfare, health, safety, welfare and morals legislation. And a lot of times libertarians say, well, what about states' rights? But then states can be crazy as Madison well knew. And so the question is how crazy are we going to let states be? And you're saying irrational arbitrary is the limit of craziness. But that seems to put a lot of power into judges to decide whether or not a law is irrational and arbitrary, which could go in a lot of different directions. Someone could say, oh, well, the fact that this law doesn't give health care to everyone is irrational and arbitrary. I mean, there's a lot of power. No, irrational and arbitrary has more of a particular meaning, as I talk about in the book. An irrational law is a law where the means don't actually really line up with these purported ends, suggesting that you're irrational. I mean, literally, you're acting irrationally. You're not actually trying to, you're not actually doing what you say you're doing. Now, it's usually, a lot of the legislators are usually acting irrationally when they're not actually pursuing the end, they say. They're pursuing a different end, like helping out their buddies, which is mostly what they do. But is that okay under state power consumption? No, it's not okay. It's not even okay under any kind of good government conception that they're just allowed to help out their friend. But certainly the states in 1795 did a ton of that. Yeah. And a constitution was pretty, well, I mean, that was a huge tariff law to keep it protecting businesses, you know, passing moral legislation because they don't like certain religious, I mean, there was a lot of that. Number one, the original constitution was meant to cut down on that, which is why the contracts clause is there and why the interstate commerce clause is there in order to take those powers away from states. So that's number one. They're still allowed a lot more, enough power to enslave people. And then that power was restricted by the 13th, 14th, and 15th Amendment. So they have less power than they even had at the founding. And where they are enacting rent-seeking laws that are essentially just trying to help out the favored special interests, those should be unconstitutional. And I don't think good government people would defend that. The arbitrary laws, just to get to what arbitrary means, arbitrary laws means, if I'm treating you differently than you and I don't have any good reason for distinguishing you from you, then I'm acting in an arbitrary way. And that's something else that's beyond the powers of Republican legislature, beyond the just powers to use the Declaration of Independence's phrase of a Republican legislature to enact. These are the outer boundaries and they are something that can be determined by argument and evidence, something the Institute for Justice has made a living doing when you ask, well, just why can't these monks make caskets? And just why can't these people braid hair without getting a cosmetology license? Just why can't you engage in horse massages? Just tell us why you can't do that. Show us that it's rational. And it turns out that when challenged, they can't show that it's rational. Now then the question is, is that something that judges should have a say so in? And the answer, I think, is yes, it should. Does it give power to judges? Of course it does. But without that power, then that means both legislatures and also unelected administrative boards, which are usually dominated by the industries that are supposed to be regulated by them, they have unfettered power to restrict the liberties of the individual. And what the book is about is about how ultimately the ultimate sovereign are the individual in persons, individual citizens, each and every one of us. And judges, as agents of us, are there to protect individuals when individuals have a justified claim against other groups, including the legislature? How do we go about assessing if, so we've got to say a novel case in front of a set of judges that hits upon some part of the Constitution and you've got to figure out what that original meaning is of the Constitution. I mean, given that the Constitution is just words, it's often not a whole lot of them. They're sometimes a little bit opaque. Language is terrifically slippery. We've got lots and lots of evidence about what people at the time thought or said or were advocating for against when they were creating this language. And there isn't necessarily a consensus. So how do we go about figuring out what that original meaning is as opposed to? Because someone's got to figure it out. So for example, could quartering soldiers, is that, can we use this? Sure, right. So yeah, walk us through for the constitutional interpretation. So we have an issue of a bunch of police who want to take over someone's house and someone makes a threat. Well, let me ask you something. Do you think quartering soldiers meant dividing them up into fourths and pulling them in four different directions? Like what happened to Braveheart? Like drawing and quartering? Well, it's the same word. So therefore, if we don't believe in the original meaning, then it could mean that then, right? Because that's the meaning. It could be that meaning. Why couldn't it mean that? So it's illegal to cut, it's illegal to divide soldiers into fours. That's right. That's all that that third amendment's about. Well, but that doesn't seem to get us all that far because what that does is says there's, sure, so there's outside boundaries where it becomes very obvious that that's not what it means. I hear a concession. I hear one's already made a concession and just by the example that you've given. I should just say that, you know, I just have to, I love this podcast because I've actually never before thought about quartering as ambiguous. Usually it's domestic violence is the, to protect against domestic violence, that's the usual example I give because domestic violence now means spouse abuse and then it meant like riots in the streets. So does that mean Congress has the power to call out the militia for spouse abuse? Spouse abuse. No, but now quartering is actually equally ambiguous and the answers to what those means are just instinctively, they are what they meant when they were enacted. Now, who is to decide, you know, so you've asked a big question, how do we decide? Well, first of all, you've got to take a look, which is something courts were not doing. At the text. Yeah, and you got to take a look and it's meaning at the time it was enacted and you at least have to look at it. If you do look at it, one of the things you're going to find is it's a lot less open-ended that it seems to be if you don't look at it. Richard Posner just recently said something about how judges shouldn't spend even 10 seconds looking at the original meaning of the Constitution in part because it's so ambiguous and amorphous. Hey, wait a second, how do you- Mostly because he still has his promisculea. How do you know it's ambiguous and amorphous unless you look at it first? What an idiotic thing to say and I will say that about actually sitting inferior court judge. So you have to look at it to know if it's amorphous and it turns out when you do look at each one of these closets which were overlooked for a very long time, they have more meaning there than you think. But do they have enough meaning to get you all the way to an outcome in a particular case and controversy and sometimes the answer is yes and many times the answer is no. They provide a boundary as you put it within which you can make some, you have to make some decisions and then courts adopt and they always have adopted implementing doctrine to try to create rules of law that can be followed in the future and those rules of law are only as good as they are and they sometimes need to be modified and changed as circumstances arise and it reveals that this doctrine doesn't work as well as we thought it would but it doesn't work as against the more abstract or general provisions in the Constitution. So the constitutional text is not enough to decide all cases and controversies unfortunately but that's one of the reasons why it can remain in effect for a very long time because it's not unreasonably specific. Who gets to decide, now if what you're asking is what's the practicality of how you figure out what the original meaning is in practice, the truth is what we really need is a division of labor because it is not realistic to expect judges to be able to do first class originalist research de novo on their own. They don't have the time and the training to do it. Although I think they could do it if they had the time, they don't have the time. We need a division of labor and that means legal academics and advocates but also legal academics should be the ones that are trying to assess the original meaning of each of the clauses in advance of a case arising that we would then argue about because we would then choose upsides on political grounds. We should be looking at the original meaning before that happens as academics and then there should be a intellectual contest amongst academics about that meaning. So I might read a very persuasive article about the original meaning of X and I would say, well look, for all I know that sounds really good to me but I'm not gonna be 100% sure of that until someone else who knows a lot more about X than I do comes along and gives me the best shot about why that's wrong. And after I've read the opening theory and then I rig the critique of it I'll be able to assess better what I think X means. So in the meantime, I'll go with the best explanation I've heard and then I'll wait for that to be vetted but all this should be done outside the courts in advance of a case or controversy by legal academics who specialize in this. If the original meaning is then at least clear then we might expect it to be and it's- Can I give an example of that? Sure, yeah. The Equal Protection Clause is not the Equality Clause. The Equal Protection Clause, you take all the words it's the Equal Protection of the Law. Protection, for example, might end up doing a lot of work in the Equal Protection Clause because unless we're talking about extending the protection of the laws then the Equal Protection Clause does not apply. The Due Process Clause is not about due process it's the due process of law clause. Now the word law might do some work in the entire meaning of that. So a lot of the times these things end up being amorphous because we don't even quote the whole clause much less the original meaning of each of the words in the clause and how they work together. So if we take that and it's as clear that if these are the rules by which the government gets to govern then they shouldn't be able to just kind of make them up as they go along. Then the question is this is not, a lot of people disagree with you. A lot of judges go at it differently. A lot of legal academics think that we ought to adopt different standards. And so why do they disagree with you? Are they, is it that they simply, it's the policy side of it? Like they think that the original meaning would get in the way of- The Department of Education. Yeah, wanting to advance the kind of social engineering that they like, which is, and so they're consciously doing that. They're like, look, I'm gonna reject this because it would stop me from doing what I wanna do. Or do they have more principled reasons for thinking, no, there are better ways to set about interpreting and enforcing this text. First of all, they don't disagree as sharply as you might imagine. And as sharply more, especially. As sharply as they used to. Now, you know what's the composition of the court changes? They may go back to disagreeing more than they used to. Than they are recently. But they basically say, well, originalism, first of all, like Justice Kagan said, originalism certainly bind us with all the hardwired parts of the Constitution, like how many houses of Congress there are and how old you have to be to be president. So they're willing to concede a lot to originalism. And then they just said it's the amorphous clauses that we argue about. So that's a big concession. Secondly, they argue who are not originalists that originalism is one of the modalities in which the Constitution should be enacted. It might be the starting point. So that's a big concession as well. There are a few who do completely repudiate it, like Richard Primus from University of Michigan, but they're outliers. And they may be right, but they're outliers. So number one, they don't completely repudiate. And then you ask me a second question, what motivates their rejection of it? And I hesitate to talk about motivations, but the way, the form of argument they typically make is based on results. And it's either based on policy results or it's based on what you might call the canonical case results, which is that there are certain cases, like for example, Brown versus Board of Education, which are canonically true. They're taken as given. And if you have a theory that would lead to the result that would be contrary to that case, or anti-canonical cases like Lochner v. New York, if you have a theory that would lead to upholding an anti-canonical case, well, then there's something wrong with your theory. And in addition, they might also argue that this is based on policy as well. It doesn't lead to as good a results. Well, if their actual argument is based on policy, then I will take them as their motive is based on policy. And some of the excuses they give for not following originalism, and it's too vague and we can't figure it out, are really secondary to their major motivation, which is policy or the canonical cases argument that we have to reach certain results. And these may not be matters of policy as much as principle. We have to reach certain results because otherwise we're not a country worth having. Well, as you said, it's like they're conflating the one and the two. What's the meaning of the Constitution? And then second, what does it normatively bind us? I think an honest reading, I mean, my friend, Sandy Levinson, who wrote the book Our Undemocratic Constitution, which in many ways was the inspiration for my book. And I credit him in the acknowledgments with having inspired my book. He's a very faithful reader of the text of the Constitution, which is what led him to write his classic article, Our Embarrassing Second Amendment, because he was in favor of gun control, but he said, hey, look, this sure looks like it's against gun control. And he's in favor of a more democratic constitution, but he's willing to say, hey, look, the actual constitution we have is not democratic. That's an honest way of critiquing the Constitution. He's not an originalist because he doesn't think we ought to follow the meaning of the text because it's bad. But he's willing to acknowledge what the meaning of the text is when he criticizes it. So if we're gonna go, I wanna do one more question on originalism. Definitely, we gotta get into the sovereignty part. Yeah, really, that's the last book. I know, exactly, but we actually, it's something Aaron and I have talked a lot about, and we haven't actually had a good episode about why originalism, and a lot of libertarians are- So you're gonna have to have me back on and talk about this book? Of course, yeah, well, all the time. Happy to. But the, so if the law governs those who govern us, and they, so we treat it like a law that governs, and maybe we shouldn't, but if we were to talk about the laws that govern us, the actual laws of tort and crime and things like this, there are doctrines within those laws for not interpreting them very strictly. So for example, a doctrine of necessity in criminal law or tort law, where you can go and break into someone's cabin in the middle of a winter storm as long as you pay them back. Okay, where are we going? Where are we going with this, Trevor? So we have a doctrine of necessity in interpreting the Constitution. That would be one argument against the originalism. So for example, home-building and loan association versus Blaisdell, which is a case about suspending mortgages during the New Deal, impairing the obligation of contracts. Why wouldn't it be, why is it okay to say, okay, usually we should do this, but right now we have a doctrine of necessity problem, like just, so generally we're gonna follow the law that governs us, but just like the law that governs the people, sometimes the government has to go beyond that because necessity breeds that, and that is why we shouldn't be following the original meaning. First of all, the doctrine of necessity in criminal law is an extraordinary doctrine that's supposed to only apply in extraordinary circumstances, like most defenses to obligations, most contract law defenses, tort defenses, they're all extraordinary circumstances. And you don't draw the conclusion from the extraordinary circumstances that therefore there are no ordinary circumstances in which the law ought to apply. So that's number one. And what's ultimately happened with respect to this doctrine of necessity at the constitutional level is it becomes the rule rather than the exception. And this is exactly what Justice Holmes did in his dissenting opinion in the Lochner case where he says, well, people have positive, there's this freedom of contract. Hey, but just the other day, we upheld sabbatarian laws in Massachusetts and look at all the other laws that we've upheld. Well, if you go back to the cases that he has just looked at, they were all justified as exceptions to the general rule that there should be freedom of contract. And now if you accumulate enough exceptions, you allow a guy like Holmes to say, oh, well, there is no general rule. The general rule has been refuted by your exceptions, but they were justified as exceptions in the first place. Well, that's an argument either for limiting the exceptions to exceptional circumstances or possibly not making exceptions in the first place because that leads to what has been called the slippery slope. And in fact, law professors don't like the slippery slope argument. They don't like the slippery slope objection because they think, well, you know, make an exception. You can always stop it. Well, it turns out if you make enough exceptions under a theory of common law, analogical reasoning, you lead to Justice Holmes and all of a sudden the exceptions swallow the rule. That's the slippery slope. So that's an argument against doing that. Okay. So let's go, we can get into the substance of the book. We have time. So we left off, we did this little segue on originalism and then we got into sovereignty, individual versus popular sovereignty. And in the book, you discuss... Do I say individual sovereignty is a form of popular sovereignty? Yeah, as a form of popular sovereignty. You discuss a really important case that people probably read in common law, but maybe you're not paid as much attention is... Never in common law. Chisholm? I read it in common law. Did you read it? You didn't leave it in federal courts? Maybe, oh, yeah, okay, yeah. Chisholm v. Georgia, which is the first great constitutional case. Tell us about that case and why it's important. Right. And you don't read it in common law and you only read it because Chisholm versus Georgia is the case that's reversed, the outcome of which is reversed by the 11th amendment. So there's a current 11th amendment doctrine which limits the... Which protects states from being sued in federal court. And since there is a federal court's doctrine that's based on that, and there's an amendment that's based on that, people have to learn Chisholm in order to understand what the case was if the 11th amendment was enacted to reverse. And that's all they read it for. But in fact, if you look at what the reasoning of... Chisholm involved a breach of contract action brought by a citizen of South Carolina against the state of Georgia for the failure to pay for goods that were supplied during the Revolutionary War. And there's a backstory to this, but I won't get into it. So the state of Georgia sued for breach of contract under a jurisdictional provision of Article III. I think it's Article III. Now I'm drawing a blank. Yeah, definitely Article III. Yeah, Article III, which says that basically federal courts have jurisdiction when a state sued by a citizen of another state. Well, Robert Farquhar, who was the executor of the Chisholm estate and Chisholm himself was a citizen of South Carolina that's another state. It really looks like the federal courts have jurisdiction. So let's go to federal court. And Georgia says, uh-uh, we're not, you don't have jurisdiction. In fact, we're not even gonna show up in court. And they don't show up in court because they said we have sovereign immunity from being plausible. Would they have been arguing that he needed to sue in Georgia court, sue Georgia in Georgia court? Yeah, in Georgia court, but they can't sue in federal court. So we're not gonna show up in the Supreme Court. You have no jurisdiction over us because we have sovereign immunity. Would this be something like- And let me just finish the explanation for you, you're jumping the gun here, Trevor, because the audience doesn't know the story of Chisholm and you do. So the Supreme Court says five to four. Georgia doesn't have sovereign immunity because the people that have immunity are sovereigns, not the states. The states are not the ultimate sovereigns. The ultimate sovereigns are the people. Robert Farquhar and Chisholm were citizens of South Carolina. They have a right to sue the subset of the people which are the state of Georgia in federal court. And it turns out, low and behold, the text of the constitution is perfectly consistent with first principles here. And for that reason, five to four, we say that you can't sue. And then the 11th Amendment is enacted and you'll notice the 11th Amendment says nothing about sovereign immunity. It doesn't say anything about who sovereign is because I don't think an amendment that said the states are sovereign would have ever passed out of Congress. What it says is you can't sue a state we're gonna change the text by saying you can't sue a state, a citizen of one state can't sue another state in federal court, period. End of story, it says nothing about sovereignty. Doesn't repudiate the reasoning of Chisholm. It repudiates the outcome of Chisholm because states objected. Let me tell you why states objected. States objected because part of the deal they were sold in going along with the constitution was they were not going to be held to their revolutionary war debts. Oh, yes. And this is a way, a backdoor way of holding the state of Georgia to its revolutionary war debt. And they said, hey, wait a second, this is breaches. You said this wasn't going to happen and now it's happening, so we protest. And enough states, all the states kind of felt that way about the revolutionary war debt. And they said, let's cut that off and we passed the 11th Amendment to deal with that. So the states actually had a legitimate beef. But unfortunately for them, the text of the constitution, the original meaning of the text of the constitution was against them. And so guess what happened? They changed the text of the constitution. So the analogy I was going to ask you, would this be somewhat analogous to, because I can also see states, especially in the very new federal government, thinking that this sort of foreign court or a distant court bringing a citizen of France bringing suit against Germany in like a European court as opposed to German court. I mean, there was a possessional element to their courts. It's like our court system is good enough to sue our government. USAR is not a distant federal court that might be averse to the interests of Georgia, which seems to be somewhat of an analogy to the EU now, but it's imperfect. Now, why is that? Now, the sovereignty thing that comes out of this becomes a baseline for these Republican constitution versus the German constitution. My point of exciting chism is that the reasoning of Justice Wilson and Chief Justice Jay. Justice Wilson was one of the principal founders, one of the principal framers of the constitution, one of the premier lawyers of the day. Jay is obviously one of the men who wrote the early federalist papers, a great dignitary in the United States. They both argued that it was in the United States it was the individual person who was sovereign. And they called them co-sovereigns, joint sovereigns, and I can't remember the phraseology that's now in chism. And it was because it's the individuals who are sovereign and not their groups that are created that are called governments that are sovereign relative to them, they get to be sued in federal court and the constitution affirms that principle in its text. So they started with first principles, then they went with text, they found they were consistent and they went ahead with that. And then they changed the text. So this identifies the theory of individual sovereignty that was adopted, that was agreed to five, that five to four, I'm sorry, five to four, no, no, it was agreed to four to one, four to one. I might've said five to four earlier in the interview too, but it was four to one, it was five Justices. And that's the theory that I talk about in the book and that's why chism is important. Now was this, we start talking about getting away from the theory of individual popular sovereignty versus collective popular sovereignty. Is that happened, I mean, so we have chism in 1792 and then, is that start happening very quickly? We have this democratic collective popular sovereignty part of constitutional interpretation in say 1810 or it comes along later. Well, it's not entirely clear because it's quite possible there is some collective popular sovereignty concepts that pre-exist the constitution that they were responsible for the original Republican forms of government in the States that were very majoritarian. So it's possible that these two ideas really coexisted but the really ardently collective vision of popular sovereignty seems to primarily have originated with the modern democratic party which was formed by Jackson and Monroe and those guys. It isn't the same as the Jeffersonian party. It's the new democratic party. They call themselves the democracy and I talk about this in the book and their theory was, in fact, they didn't have a two-party system theory. They had a theory was their party was going to be the voice of the will of the people. It was the party versus the government or the aristocracy and so theirs was, they called their party the democracy then they ultimately were called the democratic party as well. And their theory was a Russoian collective will idea as opposed to, and then they said that, actually the founders believe this too but I don't think the founders did believe this. Of course, they wanted to invoke the authority of the founders when they did this. And one of the reasons, one of the things they were trying to accomplish by invoking this was to solve the slavery question. And they did that by saying that it's up to a majority of the people to decide whether a state is slave or free. And in the territories, which was the burning issue in the 1830s and the 40s, what the territories would be, it would be up to a vote of the people, which they called popular sovereignty, was not something that was originated by Stephen Douglas but he made the concept famous. And a majority would get to decide whether the state would be free or not and they use this Russoian will of the people to justify that. And that's where this collective notion of sovereignty really gets purchased in our politics. How interesting that you actually have a chapter in the book called, which maybe sounds maybe different than what you just said, is how slavery led to a more Republican constitution. Right, because we had a Republican party that was founded in the 1850s. The Whigs couldn't handle this and they fell apart. And the Republican party was founded in the 1850s precisely to oppose this popular sovereignty notion as applied to the territories. It was a non extension of the territories party. And they argued that first came rights, the rights of the individual only then comes voting. And eventually, they can't even take office before the Southerners and the Democrats withdraw from the union. And eventually the Republicans take power and they passed the 13th, 14th and 15th amendments that makes our constitution more Republican than it was at the founding. And this was something that was done by the Republican party. So make this story maybe more concrete for our audience as far as what a properly Republican constitution would look like. What if we were somehow magically today shifted so that judges were applying the correct view of the constitution and government was in line with this, what would look different? What would look different is that the most important social and economic issues would be decided at the state level and we would have 50 state solutions. And the other thing that's very important is that Congress would have to make all the laws in the country and not offload lawmaking to the executive branch in the administrative state. So those are the two things that would be major difference, Congress would have to pass the laws. You know, poor babies, they would actually have to do the work and pass the laws. But they'd be doing fewer things too, fewer areas of. Yeah, right. And states would be making most of the economic and social policy. And as I explained in the book, and I really do rely a lot on Ilya Soman's book on foot voting, it's not the name of his book. Democracy and political ignorance. Right, I think that's what it is. Yes, well, so, I mean, he's got a couple of books. I think that's the book where he talks about foot voting, that the individual sovereign is empowered by the ability to choose amongst 50 different state jurisdictions to the mix of economic and social policy they most prefer, something they don't get to do if everything's adopted at the national level and you have to leave the country if you don't like what happens at the national level. And the other thing that happens if everything's pushed to the national level is you have a Hobbesian political war of all against all because not only do you fight to get your own policies enacted, but if you lose, you have to live under the winner's policies and that's a problem for you. So, devolving most of the important issues to the states within the boundaries of irrational and arbitrary laws. So there is still a federal constraint on what states can do. Devolving these decisions to the states can yield an extremely rich diversity of policy mix that mixes that people can vote with their feet to choose rather than have to try to protect themselves by voting which is a very difficult thing to do. They can simply uproot themselves and go to a state which has a better mix of policy and which is usually getting better results from that mix. The real problem we face is when citizens go to the states that are getting better policy results and then they start voting the way they voted in their best states that had bad policy results and they replicate those, that's too bad. But anyway, the two major changes that would happen is more diversity to pick from and Congress would have to make the laws from now on. Now it seems like the Hobbesian war of all. Do you see how moderate that is? See how modest that is? It seems pretty sure. Does that mean that Bernie Sanders, he said the Hobbesian war of all against all which we seem to be having at least this year in this election and increasingly so we have. Increasingly so because everything's decided at the national level and so you have to fight to the death not to lose. So in this system could Sanders go and rule Vermont in his socialist way or his social Democrat way and then Trump could go and rule New York and they could have their own policies but be as different as they actually are. Yeah, as long as they're not, these laws are not irrational arbitrary and let me go back to that a minute because it's really important to distinguish the irrational and arbitrary standards applies to laws that restrict our liberties. It doesn't apply to tax policy and tax policy is really what mostly, actually most of the federal government stuff is done under its spending power not under its regulatory powers. Some of it's done, but most of it's done under its spending powers which makes conditional spending. You have to do X, Y and Z if you want our money and then at the state level most of what the left wants is redistribution of income which is done by tax policy. It shouldn't be done by regulatory policy. Doing it by regulatory policy is really a problem. I think it actually is self-defeating but doing it by tax policy is what it is and the irrational and arbitrary standard is what we'd use to challenge restrictions on our liberty but this is not a purely libertarian position I'm about to identify but it is under our constitutional regime not considered a restriction of liberty to tax you. For the states. There might be an extreme level of taxation which ultimately amounts to restriction on liberty but at any kind of reasonable level of taxation that's not considered to be a restriction on liberty. So for example, there's a difference between drafting you to make you fight in the army and taxing you to pay somebody to fight in the army. That's the difference and the irrational and arbitrary standard I defend in the book only applies to the making you do something or stopping you from doing something. It doesn't apply to taxing a certain amount of your income in order to give to other people and that's the kind of policies that can differ from state to state and you could have a socialist Vermont if it's done by tax policy rather than by regulatory policy. And would that have a problem within the commerce clause possibly though because two very different states and that gets into the commerce question. They would just be taxing their citizens and using their citizens' tax money for different reasons. I think that in fact, the real constraints provided by federalism in which all the people with money would be fleeing Vermont would be enough to constrain Vermont but it would have the legal power to do so and it's the reason why the progress has pushed everything up to the national level is because the ability to vote with your feet is such a powerful constraint on policies that they wanted to prevent people from escaping and that's why they had to do their things at the national level. They also wanted everyone to enjoy their beneficence. The more the merrier, right? I'm just, I'm being a little facetious with that. It was back at the beginning of our discussion, you mentioned that one of the reasons you wrote this book or at least one hope for publishing this book was that it would influence political decisions in the right direction. So how is that working out or is there, are you at all optimistic now where we are now versus where you were when you wrote the book? I blame my publisher. The original deal was supposed to come out in September and then it got. You could have stopped it all. I could have stopped it. If my book had only come out in September none of what, none of this would have happened. I can't say that that's wrong. Yeah, I challenge you to disprove that. Exactly. So yeah, I mean I had assumed when I wrote the book that there would be the chance, this would empower a Tea Party-ish candidate to become the Republican nominee and they would inform their administration should they win. And so I had in mind a Rand Paul who I, as you know, I work for on his presidential campaign team and or Ted Cruz who I also know and it would inform what they would do in the future and it isn't how things have worked out. So that's true. Is there hope? Is there hope? There's always hope. As I said on my Twitter feed this morning that the upside of the fact that you have two, there's no law that says there has to be a lesser of two evils and if both evils are equal then the upside is that whoever wins the other evil has been avoided. How's that for hope? That seems a little depressing. I guess I'm a little depressing at the same time. That we're not ruled by both Trump and Hillary is a good thing. As a team that would be the worst evil. Yes, exactly. That's even worse. So as long as we have a written constitution that hasn't been repealed there's always the hope that it can be resuscitated and revived and the words of my last book restored. That's the reason for putting it in writing in the first place. But the reason why this book is important and notwithstanding our current political situation I urge your listeners to buy it and read it. So the why it's really good. Yeah, I mean of course buying it is more important than reading it. So first buy it and then if you want to read it that's also good. But the reason why it's still important is that I think the only way we get back to a better country, and I shouldn't say get back because we never really had this perfectly. The only way we get to a better country governed by our original constitution is to remember our republican heritage. So a book can only do so much. And what this book attempts to do is provide a republican narrative that explains what a republic is, what this constitution was supposed to do and why that's a good thing. Getting back to policy. Why it's a good thing? Therefore it's something to be aspired to and this book provides that argument and that argument has been lacking on the right. On the right. Which means even when the right has won elections they still pick bad judges because they've lacked this understanding and this is something that you need to read a book like this in order to get and then a republican narrative can lead to a republican politics. And you're not going to get a small republican politics unless you're carrying around in your head a republican narrative and that's what this book is meant to provide. Now does this mean that judges and justices should be in the future striking down Medicare and Medicaid is unconstitutional? Those are all spending power laws. And so that's the question of what the spending power is. I don't talk about that in this book really very much. I don't talk about it in restoring the lost constitution very much. And the reason is because the debate about the proper scope of the spending power goes all the way back to the beginning between Hamilton and Madison. And I think any debate that really does exist at the beginning of the country is a debate in which there really probably are two sides to that debate. But aside from the spending power itself much of the government is unconstitutional under your view and so if judges and justices struck it down. But possibly not that part. Remember there's a constitutional amendment that provided for the income tax which fuels the federal government and allows it to effectuate all of these policies and that's part of the constitution. But if a justice is faced with a decision to strike down the Department of Education is beyond the commerce clause which is a pretty good argument. Should they do it? I mean should they, that's very disruptive. Look, in reality, there is a question of how you get from here to there. And we have a multi-member core, in reality we have a multi-member core nine justices and they get appointed at different times and they have to reach a consensus. And so therefore a single judge with a single opinion is not going to get their way. And the only way that this outcome will happen is if enough justices are appointed over time for this to happen and for that to happen there's going to be a popular, there's gotta have to be a political consensus that it should happen. It isn't gonna, if I could press a button and make it happen overnight I would press that button. But there's no such button in our world. The metaphysics of our world does not allow for button pressing. Therefore that's not the way it's going to go. And there's no particular reason why individual programs like Medicare or Social Security could not be kept going while a court then says, assuming that these were improperly decided in the first place, a court then says, look, that's a decision that's been made. We're not gonna revisit the decision about those programs but we're not gonna take the principle that upheld those programs and apply them in the future. That's really what James Madison was saying when he said that a bank was constitutional even though he deposed it as unconstitutional. He didn't reject his previous reasoning as to why the bank was unconstitutional. He said that was still valid. But the issue of the bank itself, that had been settled. Banks are okay. And so Social Security, you could say, a court can say that's been settled. We're not gonna undo Social Security but we're not gonna take that principle and allow the government to run riot. Using the Homsian idea that because we've made this exception here perhaps a wrong one, we're gonna now use that as a precedent for everything else we wanna do. That's the illicit move that can be stopped. Thanks for listening. If you enjoy Free Thoughts, please take a moment to rate us on iTunes. Free Thoughts is produced by Mark McDaniel and Evan Banks. To learn more about libertarianism, visit us on the web at www.libertarianism.org.