 Okay, we're back for live. This is think tech community matters. And we're going to talk today about a program that we're setting up for September 30 and days away. And this program is called burning national issues. Legal chicken legal egg. And for this discussion we have to legal people. Not to say whether the chicken or the egg. There's a former dean of the William S Richardson law and a constitutional lawyer of his so I for and Richard Walgrove and he is runs the environmental department, if you will, and William S Richardson school of law. And they're both friends of think tech. And I guess I would, I would start by saying good morning. Thank you for appearing on this preview of the chicken egg program. Morning. Good to be here. So, I'll be, I'm sorry to have to ask you this question, but talking about here with chicken and egg, legal chicken, legal egg. Well, I think the implication may be that we have to be careful and walk on eggshells, but we don't get what we want. And we don't even have to argue about which came first, or crossing the road. This is an intriguing title, as often is the case with what Jay fight comes up with. Okay, and you're going to moderate the program the program includes abortion in America with Kimi, eat a foster gun violence prevention with Chris Marvin. The challenges of climate change with none other than our present company Richard Walgrove, voting rights in America, Sylvia Albert, she joining us from Washington she's in common cause, and beyond insurrection with your friend, Jeff Portnoy, who may or may not be on a cruise ship, sailing the oceans at that time. I want to see how that works. We are, we are coming from all directions on this. So, Richard, you know, if you ask the School of Journalism in the Department of Journalism, what is it the journalism program in the communication department you age but what the most important story of our lifetime is, is they will say without hesitation, climate that's what they will say. Now there'll be some people who don't agree but I think they got a point there don't they. Because this this is an existential threat that we make all other threats, all other legal threats irrelevant. If we do not survive on the planet. So you know you're in a special category here. And I guess on the chicken egg level what do you expect to cover. I think it's an interesting framing, and I think the idea that climate changes and existential threat does make it a little bit different. But on the other hand it's a threat that doesn't seem like it's at hand right we it's not one of these threats that seems soon salient and certain to borrow other people's words. And so part of what I think is interesting to talk about on this issue, particularly as it relates to things like abortion and gun regulation and voting rights, and the right to future generations like we have with some of our colleagues I think that what's interesting is in the legal egg, legal chicken legal egg context is what comes next. I mean how are we putting all these pieces together in a coherent way that ultimately serves the public interest that's what I always want to talk about. We're going to fix things. Yeah, well and know the fix work. You know it's like one great big experiment on all of the topics that I mentioned and especially perhaps you. You take a whack at it, you change the law, sometimes with great difficulty, you spend the money sometimes with great difficulty, and then it's the end of the day you find it didn't work. And then you have to try again, or you found it work but the effects were not exactly what you anticipated. And then you have to try again. It's, you know, it's an experiment. Maybe it's an experiment. I mean everything we do is an experiment right because we don't know what comes tomorrow. But on the other hand, you know if you think about climate change and fundamental terms, Al Gore's got this great quote when he's talking about it. Even if he's unpopular in some circles I think this particular quote everybody can agree on that we already know how to pull carbon dioxide out of the air in fact the most efficient way of doing it is the machine that we call a tree. And if we do that at scale we call it a forest. And I don't know that allowing forest to grow where they're supposed to be is all that much of an experiment really it's maybe more about putting back things the way they were before we disrupted it with our experiments. You know I was telling you guys about Timothy Snyder history at Yale, and he went through a whole hour of orienting his students about history, and then he said I want you guys to give me one word that defines history. History is the essential word for history. And, you know, I figured it out. I gotta tell you I'm so happy with myself. I figured it out. The word he was looking for, which Richard alluded to is change. It always changing history is change. And, you know, the planet is changed to its changing, whether we like it or not, it's changing if we try to fix it or don't. And so, you know, you have you have a challenge there. If I make you King. And I would like to do that. Sorry, I mean I like some other day I'd like to make you came. Absolutely. You know which is not easy. I mean to be King these days and to have absolute power. You know you could think of things that would really help us on climate change. What would be your approach on that. So here's your legal chicken and legal egg question, Jay, is that the answer is pretty simple let's stop dumping carbon pollution into the air at rates that are unprecedented in human history and indeed you know a couple hundred million years to global history. Simple question if you're a king. What would the, what would the ramifications that be right if people feel that we're overstepping our bounds. I read an op ed in the LA Times the other day, pushing back against the idea that we should change the cars we drive and stop burning gasoline. And the central argument was, I really like working on cars, and I can relate that I'm, I can relate to that I'm a car guy too. And so, what I would want to do is King is to make sure we're taking account of those sort of fundamental rights that people have and that we cherish and that we hold, and convincing folks it's not it's actually not a matter of waving a wand and changing things, convincing folks that fixing this climate problem is in everybody's interest, whether you're a car guy or not, because I'm not going to be able to work on my car with my son. If we are dealing with no food because we know we've ruined our global agricultural system. Priorities. Yeah. Well, I mean, in the end, you've got to get the legislation through King's down well in some countries they still have the power but in democracy you've got to get it through and we have trouble doing that. So, you know, what do you think, what do you think about Richard's approach to this. Is it going to fit within the chicken and the egg. Well, I think is he's exactly right about some of this being so obvious that even the current disputes about, you know, should we listen to science. Look, silly, compared to what he said at the beginning, for example, trees are good for the environment. Why don't we have more trees. I mean that doesn't take a lot of faith in sophisticated science to figure out. Now, there are always counter arguments, of course, and I think a key thing and this gets back to what both of you that kind of at least pointed to is that victory is not forever. So even if you were to win. There's a great Faulkner quote, which is whoever wins it won't be for good, and it won't be for long. And I think that's certainly true. So there is in law, a lot of evidence of that in constitutional law, even more, I would say, and that's kind of shocking to people that you don't get things settled. And they weren't settled by the framers and they weren't settled by the second constitution after the Civil War, and they're not settled by this hope by the current Supreme Court. You know, not that it's directly relevant, but what I heard recently is the Constitution, as far as the original language guys are concerned, has a fatal flaw. It never says that you have to read the Constitution in the. I know you've heard this before, you have to read the Constitution, using the language of 1789 or whatever. And if they were really smart, they wouldn't said you have to keep on reading the Constitution the original context. What do you think would that have improved things. One of the things, one of the reasons that I go back to the Faulkner quote is, and this is something people don't realize, perhaps, until they get to law school at us hope they do, while they're in law school, that you can win at the federal level and lose at the States have their own constitutions, very different state by state. And so, in that sense, it's a never ending dialogue, or more than a dialogue there are a lot of voices. So even if we read the original Philadelphia Constitution, in the meaning it had and one of the strange things about the current so called textualists who seem to dominate the court is they pay no attention to history. And they actually pay very little attention to the words, as they meant something then as they mean something now and I just noticed a new moves that they've got, which is they call something a doctrine. And once they've pronounced something a doctrine, they can do whatever they want with it, and they, they can say well we're not doing anything about the text, we're just construing a doctrine, and they've done this in the environmental area in particular. There's the major question doctrine, where did that come from, where's that written down, it's not, but it's what they use to try to limit the power of the EPA, when it comes to our air. So that's the latest that was at the end of the last term. Is that is that helpful to the cause of saving the planet Richard. I have strong feelings about about this particular doctrine as we're calling it now. I think there's a there's something bigger going on and it's a it's another legal chicken legal egg. It's the abdication of judicial responsibility and it's not just happening at the Supreme Court and it's not just the West Virginia case that Abbey just mentioned, and not just the major questions doctrine, we've got court after court after court saying climate change is such a big deal, we can only solve it by deferring to legislators, never mind the fact that we had legislation, what 50 years ago now that said protect our protect our air please environmental protection agency. The legislation is there I think I think we're seeing a really tragic breakdown of our judicial system. There's a particular case that I think Richard may have in mind a ninth circuit decision, and it was a very important doctrine developed by a federal district court judge in Oregon, and she said we got to take into account future generations and they have standing and we have to take into account their interests as well as people around now. It's a very peculiar nine circuit decision with a very courageous district court judge who dissented, even though she's just a district court judge sitting by designation she's not there most of the time. And the judge who wrote it is a judge I largely admire and he's someone I've known for a long time Andy Hurwitz, and he basically as she said walked right up to the edge, and then he said that there's nothing we can do about this. I think we know that the judges often have complex problems to remedy. They don't remedy them all but all the time they're in their pitching. And it was really striking and scary that he advocated as as Richard just said. Well, you know maybe that's part of the chicken egg thing in the sense that you have all these factors going on you have this deterioration from whatever source whatever source I mean it could be natural deterioration. It could be social deterioration be technological effect deterioration, but then you have the law. The law is also a changing factor, and you throw them all and you know in the hopper. And what do you get these days to get chaos. And I asked, you know, your colleague Kimi E. de Foster, what happens after chaos is chaos lead to order. Anybody got an answer on that she said, she said chaos leads to chaos that is worse. You know chaos comes in gradations you know. I don't think that's what they mean by chaos theory. So you know what is the, you know, underlying theme as you see it now you can change your mind of, you know, moderating this program because you know, just to repeat, and we got abortion issues we got gun violence issues we got climate change. We got voting rights, and we got insurrection we could have picked others but those are the five that seem to be most poignant right now. So, do you have a thought about what the, you know, the common denominator is in addressing the changes chicken egg issues, the chaos possibilities for those five. Well, I think I may differ from Richard on this that our, our essential problem in some ways is paying too much attention to the Supreme Court. The parallel to that or link to that is the Supreme Court paying too little attention to what the impact of their decisions is, which they ought to do, and which many justices over a long time has said they are doing this court says we don't care. And I think, as we are seeing the abortion decision is a prime example, where there was Chief Justice Roberts, who is not a hero when it comes to voting rights, for example, a very activist judge if you will. They're trying to say hey not so fast, right. I don't I'm going to say that Mississippi laws okay, but this is going to have consequences, and the current majority just filed ahead, and they, I think are influencing the next election by doing that. And that wasn't hard to see as something that was going to be a consequence. And so, you know, for good or ill, I mean it's not to say the court should always follow the public sometimes it should lead the public ground versus Board of Education is the classic example. But even there, and they pay too much attention, perhaps the public response with what's called Brown to the implementation wasn't really there. That I think comes out on Richard side of application. Instead of just trying to do it in Brown to they said well local conditions and all deliberate speed, famously or infamously which really allow the buildup of southern resistance. Yeah, well I mean there's some people think Richard that you know the social compact is torn here that you know people do not understand. And, and then you know the government, including the courts are disconnected they don't understand what people want. They don't understand as obviously just about leadership. And you know what's really interesting we we did a survey on Mar-a-Lago, and to summarize in general the results of the survey. And I guess you would say maybe 25 30% of the people said, you know, Trump may be right. He may be entitled to keep those documents or hold them incredible. I really don't know who is on a survey but that's extraordinary. And another, you know, 10% or so said, but they said, and the, and the balance though, said, it's too early to tell. It's too early really, and it's been in the press for a lot of months. It's too early to tell. So what you know what you get out of that is, is that people do not read and understand what's going on in the world. And then you take the legal, you know, the government, the legal apparatus that's supposed to deal with this, and you find they're disconnected, they're disconnected, even from that. So I think we already have a kind of version of chaos and I think it's particularly appropriate to look at it through the lens of climate change. Not only is it existential threat, but I mean people don't seem to care about it even though it will ultimately affect all of us. You can't seem to get all the necessary legislation through. And there's a disconnect between the reality and the government, and there's also a disconnect between the people and the reality. So I'm getting, I think I have to go have lunch now. But how do you, how do you reconcile all of that. Is that one for me today. He wasn't on what to have for lunch chicken. Oh, thank you, thank you. Yeah, I think there's a thread here so I'll plant a seed with Avi in his moderator role. And I think the thread here is that if we're seeing chaos in the sort of that the public and governmental understanding of climate change and the solutions to it and how easy or hard they are and how beneficial they are how costly are who they cost and who will impose costs on who it won't. None of that is an accident. It's an intentional public relations campaign we were the documents are coming out every day right the oil industry being sued the documents come out how there's been an effort to hide these facts to obscure the facts to have folks misunderstand the science to diminish the sort of importance of the science. And so I wonder the question for Avi and other panelists I wonder how much of that sort of PR work is affecting these other issues. We call it gun control that sounds really scary. The last time I checked the Senate second amendment talked about regulation, so why aren't we calling it gun regulation who's making those decisions for us. I really feel the way we talk about these things is not given enough attention. And I'm not afraid of the chaos, we can unwind it people have done this before. You know, we as a humanity have been through difficult times and difficult issues, but if we keep lying to ourselves and we keep allowing people to lie to us just because they want to make a buck. That's a tough one to reconcile. And a nomenclature is everything and that means the media isn't it. It's a media often picks the nomenclature. And if you were monarch, if you were king what would you say to the media about climate change. But it's also, and maybe gun safety is better than regulation in terms of the public response. Well, Chris Marvin is calling it gun violence prevention. That's what he's calling it. Yeah, and he's very good. So tune in to see Chris Marvin as well as everyone else. One of the things that has struck me I just published something about this last week and op ed that is. So everyone's running around talking about their fundamental rights, one example being second amendment rights. The second amendment was not recognized to protect individual rights, until Scalia. There's a very strange reading of the second amendment said I'm not going to talk about the first clause only the second clause and overrule over well over 100 years of Supreme Court precedent, including very conservative courts. Everybody now is running around saying oh yeah second right like they've always been here they're fundamental. Another example and this is what I wrote about. There's the fundamental right of parents right and that's all over politics these days and school boards and so on. Well, where is that fundamental constitutional right. There's no mention of parents there's no mention of children or of education in the Constitution, and where it lies, if you really want to trace it back is to substantive due process the very doctrine that the very doctrine that the court said was illegal irrelevant wrong and egregiously so in Dobbs in the abortion decision can't use substantive process to protect the woman's right to choose, but you can use it for parental rights, which gets back to the 1920s. So, nobody's actually serious of is it in the Constitution, they're just running around saying oh we have these rights I'm not saying parents shouldn't have rights and children shouldn't have rights, but the Constitution is not the only source. And if you go back to your example of read the Constitution, you should read the Constitution, and you would discover it's not there. And therefore you're making an argument, which may or may not be one consistent to talk about in our full discussion about something that's so basic as Richard has been talking about that you don't actually need specific constitutional language. No, you don't. Not to have a free society. And you know you take advantage of all the morality that's been expressed by the courts for 30 years. You know one thing about the media of the I noticed an article in the I think it was the Times in the last couple of days about how there was a case wending its way to the Supreme Court, where they were expected where they are expected to opine on social media. And, and the tension is between freedom of the press, and essentially censorship for arguably the benefit of, of truth. And this is really, really, really interesting because, you know, it's, it's and I hope Richard that you'll agree with me that we cannot be confident that the Supreme Court will do the right thing. And we cannot be confident. God knows what they're going to do. And so we have we have a maybe a very profound change in the way information is delivered on to a good part of our population, who stands on the street corner looking at their telephones and getting all their information, all their opinion, all their thought process out of a phone. And that is, I don't want to say unregulated but that could be regulated in a different way. Once this court gets its hands on it. We don't have freedom of the press on our list. You know but made them maybe in a funny way it's there for every single item on our list of issues don't you think. I mean to the extent that I'm saying the way we talk about these things matters that the journalism is is a mouthpiece for all of that. I don't know that I have this. I wonder how much the sort of social media air as a flash in the pan and there's a natural natural function of our technology. I think that we may have to find new ways to regulate that, but some of the key principles don't change right can say what you want where you want the government can't interfere. If I'm using somebody's private platform. Why is the Supreme Court opining about that why is the taxes legislature opining about that. Is it because we're afraid of what people have to say. Well, we've always been afraid what people have to say right well how did the world work when there was no social media when one person got to decide what goes into the textbook and what doesn't. I think that's just as scary we figured it out then we can figure it out in the future. Yeah one scary part about the Ken Burns series on the Holocaust and what was going on in Germany in the 30s is the book burning. There's footage you have never seen before about the book burning in all the communities that he controlled. And, you know, after a time he controlled a lot more communities than he did at the beginning. And what he did for example crystal knock. He did in all the communities that he control was more more much more than Germany. And so the book burning was much more than Germany. And he's been Ken Burns spent a fair amount of time on that and when you think about the school board actions, particularly in the red states in the south, you know, courtesy the GOP, and how they're taking all the books off the library out of the libraries. You see, you know, is there a parallel. Is there a parallel we should discuss on it. Yes, that was easy. These are, I think, tricky issues. And one of the reasons they're tricky issues is the text of the Constitution doesn't resolve them to the extent it does it was entirely ignored by the Supreme Court and Citizens United, where they said, Oh, press corporations they can make money. Therefore, they went along with money is expression and therefore shouldn't be regulated. Well, there's a problem in that syllogism. And one of the problems is the text of the Constitution actually does protect the press, but not corporate spending. I think the United has a lot to do with our current problems actually, and they have not only not narrowed it they have been expanding it year after year and it's just shocking how much money now talks which gets back to what Richard said at the beginning. I'm sure that we've all revered the Supreme Court for most of our professional lives, and thought that they, you know, they surely make mistakes once in a while and they take the wrong position once a while but essentially they walk on water, I mean, up to a point. And now we find that, you know, you walk through those hallowed halls there. You know, and, and you find that they don't actually understand the concept of corporations. I'm here to tell you corporations are not people in the sense they define that in Citizens United, nor, nor did they think about the consequences of their actions. In any yonkel, and I mean that the broadest possible term, any yonkel could see at the moment that decision came out that it was going to be problematic. But this court didn't see that. I didn't understand the law, the concept that we all learned or should have learned in law school, and they didn't look at the consequences. So I, you know, myself I have, as you know I don't have a lot of confidence in their decision process going forward. And if you're looking for a common denominator, am I right. The Supreme Court is the common denominator for all of these issues. And these issues that we're talking about are going to wind up in that courtroom. Well, certainly they, it's talked about a lot. I think that's an important function of the Supreme Court as we talk about those decisions, even when a decision from a circuit court or another court might be as important or more important. Again, they have been playing games, I think, and they're very significant, not deadly games in some of these matters. And I think you can find their fingerprints these days all over some of our greatest social problems. I think I have to disagree with Jay for once about. Okay, it happened before too, I can tell you the reverence for the court, which I think is accurate in terms of our upbringing, but ought not to be. The court has been pretty bad for most of our history and particularly about things like race. You know, one of the things that in saying, well, it's not in the text in dogs in the abortion decision. There is a slight exception that might be allowed says Alito, and that is for deeply rooted concepts deeply rooted concepts in our tradition. But what's the one of the most deeply rooted concepts of all racism. That's not what he's talking about. And racism, the court has been at least complicit in the growth of Jim Crow and legitimate, you know, and racism throughout most of our history. Well, to talk about dogs for a minute, you know, I think that hits it right on the chicken and egg piece. So you have the court throwing out Roe v. Wade. Okay, everybody disappointed you all of a sudden women have lost rights. People have lost rights. That hasn't happened a whole lot where you have them one day and they go away the next. And extraordinary thing is that they throw it into the, the states and let the states decide, you know, it's kind of perverse federalism. And so now you have chaos, and you have the states doing the strangest things. And now you have an egg. It's an egg. Okay, now you have to have the chicken come back. The chicken has to fix the egg. And but it's hard to fix the egg because the egg is different in 50 places. So just help you out of it or not just be careful here because little biology. So you have the sperm and the egg and maybe this is not where you want to go with your metaphor. I mean, you have, you're right. I mean, Lindsey Graham wants to federalize, right, a particular rule. I mean, this is not our federalism of state sovereignty and stays right. It's the opposite. So you have the switching of sides about the issue as they see it, but no concern whatsoever for consistency and it isn't just the court. I guess I should say it's also and this is kind of where you let off. It is our institutions and it's certainly, you know, people think the filibuster is constantly required. That's nonsense. It's not, it's not constantly required at all. But there we have complete gridlock, because the filibuster is so much honored and the filibuster of course was primarily for racist reasons that we have this hold on what a more enlightened Senate might do. Richard, do you find this as provocative as I do. These issues are fascinating. I maybe unlike Avi that the chicken and the egg to me is working in a lot of ways. But in some ways I don't know that it's a reaction action reaction sort of thing. I think it might be that, you know, we adopt a position based on federalism say or perhaps based on textualism picture poison there. And then all of a sudden, you've got an egg and the chicken that grows from it is not the chicken you want it, because federalism isn't getting you the political outcome you wanted. Textualism isn't giving you the decision about, you know, the administrative power of the environmental protection agency. So what do you do when the chicken you get from the egg isn't the chicken you thought you laid I think that's that's what I want to figure out. That's provocative to me. Oh, I mean, we are so looking forward to this program. We may have trouble. But don't do the, don't do the egg and the abortion context, please. Thank you for that. And we saw for Richard walls grow to the players important players in our program called national burning issues, legal chicken legal egg on September 30 at 10 o'clock in the morning, all over the world, and to examine to see just exactly what our condition is and what it's likely to be going forward. Thank you both gentlemen. Thanks Jay. Great fun. Thanks. Thanks. Thank you so much for watching think tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter and LinkedIn and donate to us at think tech Hawaii.com. Mahalo.