Disestablish SCOTUS or the Senate?

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S1: What do you think it’s wrong to separate children from their parents, to deter immigrants from coming to the United States? That’s a matter of hot political debate in which I can’t express a view or be drawn into as a joke.

S2: The president and this administration have been the greatest failure of any presidential administration in the history of our country.

S3: The American people should have a voice in the selection of their next Supreme Court justice.

S2: Therefore, when he was looking back at the Merrick Garland time, this vacancy should not be filled until we have a new president.

S4: Hello and welcome to Tramcars Time, Virginia Heffernan. I know, I know we were all told to dutifully zip our lips and not mention religion during the Amy Kony Barrett coronation hearings, confirmation hearings. But the Senate doesn’t listen to Trump. So let’s mention religion, shall we, Amy? Connie Barrett grew up, as we all know, and the People of praise, founded in South Bend, the fourth largest city in Indiana, home of people to judge the people of praise, says it’s a Catholic sect, an intentional community, but it’s also somehow Pentecostal. And let’s remember that all cults borrow from one mainstream school of thought or another. Jim Jones was a socialist heaven’s gate where Christians David Koresh as Branch Davidian were an offshoot of Seventh Day Adventists. Nexium was a corporate leadership program, and even Scientology calls itself a church and also claims all of science for itself. But these nut job communities don’t look much like a set of beliefs. They look a lot like a secretive, litigious, cult, heavy uncontrol and misogyny. I haven’t poked around people of praise too much, but a friend of the pod and cult expert, Steven Hassin, has interviewed many ex members. He says it’s dangerous stuff. And I did read Barret’s father’s testimony. He’s a deacon in People of Praise, and it sounds a lot like he went into it seeking more control over his wife and family. God, I also hate a religion. This is just between us. I hate a religion that makes women both be submissive and make all the money. As people of praise seems to mean where sexism is concerned. Pick a lane. I say if I got to be submissive, I could at least sleep all day on the couch. And if I have to go out and work, you’d think I wouldn’t have to suck it up at home anyway, since I don’t know enough about people of praise, except that it’s secretive, sexist and Roman Catholic in name only. That’s Arseneau RCI and oh, and I don’t want to get in trouble for religious bigotry. I will now proceed by innuendo. Ready. So all I hear are whining and complaints about the berrett hearing, what happened to the people of praise. It seems like the Republicans are just going to hand this go to see to it she has it made and made, the senators, especially Kennedy, who talk about the deep state, don’t seem to be communicating in English. Are they speaking maybe in tongues? Maybe Amy CONI Barrett can interpret. And if anyone gets covid at this goofy hearing, just as Handmaid can also perform an exorcism, well, at least Barritt is familiar with the constitution of something. One of the slogans of the people of praise is obedience to authority and submission to headship. That’s men. Headship are active responses to the gifts of God, obedience and submission. So it seems that Amy CONI Barrett, soon to be justice of the Supreme Court, Handmaid and Person of Praise, will swiftly replace the boot on our throats that RBG spent her career removing. Forget activists and originalists on the court in Justice Handmaid. When she gets confirmed, we will have our first ever glossolalia prophetess on the Supreme Court. Glossolalia. We look it up. My guest today is Jed Sugarman. He is neither glossolalia nor a prophetess, but he is a professor at Fordham Law School and the author of the book The People’s Courts. His next books are to Rise of the Prosecutor, Politicians and the Imaginary Unitary Executive. Welcome to Trump, Jed.

S5: Virginia, thank you for having me back.

S6: I got that awesome email from you saying you want to take a step back from the absurdity of the confirmation hearings. And I like that. But that doesn’t stop me from wanting you to tell me your gloss on the hearing in four sentences just to get it out of the way. And I will be counting your sentences.

S7: First of all, we were worried for several years that there would be an October surprise of a Wag the dog scenario. Yeah. And instead, we got a Wag the Dog, a very nice to try and see if they could get Dianne Feinstein and the Democrats to bite. But that dog don’t hunt. They didn’t bite on the dog. Instead, the dog ate Amy CONI Barrett’s homework when she didn’t couldn’t answer. I expected her to hit it out of the park in his confirmation hearings. She has a great story. They scare the Democrats off of the Handmaid questions. And if she was all set to just be charming and delightful and play the mother card and somehow on the way to a smooth confirmation, which is still going to happen, obviously there were several questions that were just like what is what is going on here? What was the strategy? You can only get away with Dodge and 50 percent of the questions if you answer the softballs and she treated the softballs like inside fastballs. So I’m mixing my mixing my metaphors, but it’s I love it.

S6: It’s hitting out of the ballpark. There’s a dog, but there’s dogs, there’s hunting. And this is great. You know, to this exact point about you can only stall the Democrats so long. I’ve been only seeing this in clips. So I saw Amy Klobuchar a question about voter intimidation. I don’t know if you saw this one and would that be wrong? And Amy Koni Barrett said something stalling or can’t answer whatever. And then Amy Klobuchar said, I will read you the law. She read the law. And then she says again, is voter intimidation against the law? And once again, the answer and I realized I have this thing on a loop. It was like accidentally I was watching the same video over four or five times. It seemed to flow that she would get the same question and give this exact verbatim stalling answers. And you could pretty much watch all the Democrats questions on a loop, except that the questions themselves are quite compelling. I think some of them have been really good.

S5: Some I think the Democrats mainly avoided going down a path that could have created sound bites to play into that with the Wag the Dog. I’m referring to when Dianne Feinstein said earlier and when it was nominated for the appellate court, Dianne Feinstein said something like, The dogma speaks loudly and do something to that effect. And, you know, it was a mistake to put it that way.

S7: But the Republicans push back the example that I’m thinking of keeping track of this question of president change the election day. And on two straight days, I don’t know why the answer is just flatly no. The text is clear. And the Constitution that Congress what’s troubling there is it’s a softball. Why is she not treating it like a softball? Why she’s already been nominated. So why does it seem like she’s doing what many Trampas do, which is play to an audience of one? The audience is now to three hundred million people. So so why not hit that softball by just saying absolutely not. Distance herself from the Trump line and everyone knows it’s texturally clear. So why, why dodge that question? It makes me think that there is something deeply strange about the approach here. It’s not just that it’s hiding the evangelical agenda or the Catholic agenda. It’s actually just not smart. It’s not smart, smart as a matter of political strategy to choose those softballs and hit them so that you can do a better job strategically of hiding the rest of the agenda.

S6: I mean, when there was a first a question of can they get her on the Supreme Court in such a short deadline after the death of Ruth Bader Ginsburg, the concern or the I guess the concern was first, of course, are they dicks enough to try it? They answered that question the first night. But the second question was, can this be done? And, you know, even can you get is everyone suddenly has covered. So what are we going to do about getting them in the room but lost in this was something that, you know, Barrett had to be prepped and she clearly was not prepped. I mean, I don’t even know when that would have taken place, but she’s not like an old hand at this like Bill Bar. You know, that people that have skated through conversations with the Senate.

S7: On the other hand, she has not process before. Three years ago, I mean, she was prepped every judge.

S5: What happens is the judges that are spotted as Skoda’s material. Right. What happens is that the opposing party tries to land some punches or test out the case earlier on and see if they can establish some kind of record on the earlier confirmation hearing. This is what Republicans did, for example, to Judge Sotomayor when she was appointed to the bench initially because they identified her as someone who would be up and coming. So they went through this process in twenty seventeen. That’s that’s the other really strange part of it is that it was so recent. And yet I think she’s really she really underperformed. So to go back to my dog metaphor, I was thinking that given I was expecting her to be charming and well rehearsed and to skate through, I thought she would really take all the wind out of the sails of the court reform movement. But she, instead of wagging the dogma move, she may have unleashed a quote unquote, pack of dogs, a court packing of done least I love it unleashed Virginia. We all have our pet issues. This is my pet issue here, you know.

S6: And are we going to expand the court beyond the canine only?

S5: Well, play. Thank you. Well played.

S6: Let’s get to expanding the court. Packing the court. Just sounds like stacking the deck. What it sounds like cheating. So let’s call it expanding the court. We’re in so many levels of constitutional crisis. We blew past it so long ago. I remember I think Jacob Weisberg flagged says in a constitutional crisis at the moment of the government shutdown, you know, and that was before the Mitchell report, before the impeachment. So let’s just say we’re deep in constitutional crisis that, like the president and his Trump syndicate, have blown past a lot of the the constitutional regulations that we took as norms and laws. But the Democrats still worry about expanding the court, which is amply provided for in the Constitution. They don’t have to tear split to do it. And that’s the usual. Just the Democrats are filled with compunction. You know, the evil are filled with passionate intensity and, you know, and running on expanding the court, which Pete Boota judge started to do, newly refashioned slayer Pete. And yet Biden and Harris won’t do it anyway. Let’s talk about court expansion, because I know you don’t have the on the nose feeling about it that everyone on let’s just admit it. Twitter has, which is expand, expand, expand. Let’s do it. Now, you’ve got a different way of thinking about this. Tell me.

S5: I do have a different take. And if I if I heard you correctly, I thought you invoked Yates is the second coming there. I did. Nice things fall apart. The center cannot hold. Am I right? Yes, that’s right. This is the concern is that both that we’re going, what is it, round and round the widening gyre. Yes, exactly. And the center cannot hold or conversely, the center will hold. And it’s both of those problems here. So let me say a couple of things about this question of port expansion. Precisely right. About the terminology. Court packing is a packed term. They’ve rigged court packing to make it sound like it is impermissible. But in terms of norms, I mean, once we’re talking about unleashing a court packing of dogs, there are lots of questions about how this plays out long term. And it’s just there are lots of structural and cultural reasons why when you play hard ball, you have to worry that the other side has structural ways of of playing hardball. Harder for a lot, for a lot of reasons. But that’s not mainly my concern at this stage.

S7: And I think that the real problem is more of the Senate than the court. So in terms of which institution has more power over more issues and also has power over the court. Right. If you can’t keep the Senate, you can’t keep the court. Right. So my point is it’s really two birds with one stone. The two birds are long term. If you don’t win presidential elections and you don’t win Senate elections, then you can’t take advantage of any seats you add. And keep in mind. Right, seats will open up. So I would say that given the limited political capital and I’ll say more about this in a minute, let me start with the problem with adding seats to the court.

S5: First of all, Biden and Kamala Harris have publicly either run away from that question or Biden saying he’s no fan of corporate or expanding the court. And I think that there is lots of space to say you’re not a fan of taking a measure. But but sometimes you. So it’s not he doesn’t close the door as a promise, but it’s really difficult to get members of Congress, especially moderate senators, to jump off a plank with you for you if you weren’t even willing to run on the issue. And I think it is quite plausible that they’ve done the math and they realize that they’re going to jeopardize not just I think the presidential race is one thing, but I think they’re going to jeopardize winning some of these Senate seats in red states, which is they need to get a margin in the Senate. And they’ve decided, I think, that that it’s more important to win the Senate while not having a mandate for expanding the court. And Virginia, they’re the professional politicians more than we are, and they have their own self-interest in winning office in mind.

S7: But I also think that they have a read on what could jeopardize this crucial election. And winning the Senate is more important than adding one or two seats to the court.

S6: It definitely seems like moderates. Well, I should say. Whatever is left of the family values, abortion, people, they just hear packing the court as the genocide of the unborn, right. Loving it just they don’t care about these small decisions that benefit Republicans just as a as a as an electoral issue, as a voting issue. It seems like packing court just sounds so nefarious. And since the court is almost entirely identified with this one single issue of Roe, I think he may have made the right decision there. So they’re not allowed to slaughter babies in people’s minds as they go to the polls.

S7: You’re saying that Trump made the right decision?

S6: No, I think sorry, Biden and I, but I want to hear about changing the Senate because because the Senate seems inviolable and people have the most radical view is to abolish it entirely. But I didn’t even hear Bernie Sanders say anything like that.

S8: I mean, you have to take all of the measures that require amending the Constitution off the table. Yeah, OK, good.

S5: Because that you’re not going to get three quarters of the states to do anything that is progressive. You could maybe cobble. Right. There’s no progressive amendment or you hear some people say, well, let’s let’s just rewrite that. Let’s start over from scratch or let’s have a new constitutional convention. Well, if you want to if you’re going to do that, you’re still going to have to play by rules that require three quarters of the states. And again, you’re only taking a bad Senate rule that privileges small rural states and putting it on steroids, much like a president being on steroids. So the key thing is actually you don’t have to abolish the Senate to improve things. You can’t change the way the apportionment. You can add states. So, first of all. Right, so this is an article for Section three of the Constitution that you can add states out of new territories. And this is, I think, an easier moral argument to make, that D.C. could become a state by. You have to win the Senate first. And again, you don’t want to jeopardize winning the Senate, but you can make D.C. finally no taxation without representation, founding era principle of democracy and representation. So that’s an easy moral case to enfranchise. Six hundred thousand people who have not had a voice in Congress. That’s two senators. I like that for Rico. I think in a referendum now, I think there’s been a question in the past with Puerto Rico voting against becoming a state for complicated reasons. But I think post Trump and post Hurricane Maria that Puerto Rico would would vote for statehood, especially if you don’t have the kinds of buying off of Puerto Rico’s votes. So that’s two states. And that’s that, I think is a pretty clear move. Now, just a little side note. There are people who point out in the amendment that gave the amendment that gave DC electoral votes. So there is so one question is, some people have said if you try and add those two areas as states, this is the six three Supreme Court or five four arch conservative majority on the court would would strike it down. And so I do not think that there is a plausible textual argument for striking it down. But Ian Millhiser at Vox wrote an article last summer where he said, look, if you look at the D.C. amendment, there’s a way to square where you basically redefine the District of Columbia to basically the White House and Congress and just those government buildings.

S7: But the six hundred thousand people who live in D.C., but that becomes a state and that does something else. Then you can have those District of Columbia voters via their own state with their two senators. And then you can have a federal district capital with very few residents, almost no residents. But you can still use that amendment to apportion its electors based on the national popular vote. So that does a little more balancing out of this razor tight electoral college. Looks a little better for the great idea with Millhiser, and that is for Senate seats. And then a little more complicated is the idea that you could split California into north California and south California.

S6: No, Cal. So, Cal. Yes, right.

S5: OK, get into the text of Article four, Section three. There’s a question about whether that’s prohibited or whether you need the state legislature. Because a pre-existing state, you need to divide a state that needs to be ratified by the state government, by the state legislature. But California would do that.

S7: The point is that this is a better way by a majority vote of Congress, of each House not needing an amendment to fundamentally re balance out the Senate, which would allow for both control and more of the judicial nomination process and passing needed legislation to expand the new Voting Rights Act to save Obamacare from people are worried about the Supreme Court.

S8: I think it’s there’s too much concern about a. In order to revamp health care, you need those votes and so that’s one part of it. I’m happy to talk about why I think court packing or court expansion sorry, might be too hard to get through a Senate when you haven’t run on the issue, given the politics of the Senate and how many moderates are simply not going to want to go down. I’m worried that they wouldn’t go down that path.

S6: So how does that procedurally, how does it happen if we wave a wand? And Chris in D.C. and Puerto Rico states, let’s imagine that. I mean, Khandahar, I’m trying not to say this, but let’s imagine we have not Trump, but his opponent as president sworn in in January. What might happen if he and his running mate took seriously this idea?

S8: So the first step, I mean, they could make D.C. and Puerto Rico states by majority vote of both houses. And then and then I think the best reading is it still has to be signed into law by the president like legislation. But that could be done very quickly, maybe more legitimately in a way, to maybe get the buy in or of some of the moderate senators on this is to make sure that you had a referendum in D.C., in Puerto Rico that might take a few more months, but then within that two year window and that window closes fast. And remember, under President Obama, they had to save the economy with the stimulus bill and then get the ACA passed. And that took up all of that two year window. So I think you’d have to really hit the ground running on the expanded the Senate platform and then splitting California would take the same process with a little bit more of a constitutional question.

S6: Has Harris tipped her hand in any way about how she feels about will any of these decisions that in particular split in California?

S8: No, but they haven’t been pressed on it. And I think the political effect of how much Biden and Kamala Harris have been pressed on the court expansion question and have dodged it or on on a debate stage, is heavier political weight against being able to do it. And when you really need that mandate to do that on the federal level, whereas I think the moral argument of enfranchising DC and enfranchising Puerto Rico, given, given, think and think about what happened with Hurricane Maria, is that the discourse in America was an assumption that they weren’t even American citizens, that we were getting foreign. I mean, there was a real need to treat it as foreign aid like it was. Right. I mean, there is and this is the effect of not being a state. Is that not treated as citizens? So and the other the other reason why there might be a limiting principle here is that both D.C. and Puerto Rico are larger than the smaller states. If you would worry about like what is the hard ball that the Republicans would play, would they? I think one answer is that adding territories so that they are still as a norm bigger than I mean, what are the smaller states like Vermont, Wyoming population, the populations?

S6: Right, exactly. Yeah. Wyoming has fewer than D.C.. That’s right. And DC, something like, as you said, six hundred six hundred fifty thousand. Yeah. Puerto Rico has three million. So enormous compared to our smallest states.

S8: So do that. And the other point is that if you’re going to engage in court expansion, you know, go big or go home. Yeah. And I’m worried that given that choice, the just senators like Joe Manchin and these frankly, these red state senators, they’re either relying on to gain the Senate now or who will be up in election in twenty twenty two will risk being sent home. But if you’re going to go big, don’t do these all of these little fancy little reforms about term limiting out or ways of having a five five and then letting the judges add five more, they all raise constitutional concerns about playing with the mechanisms in ways that could be struck down by the court.

S7: But as you noted, there’s no constitutional basis for blocking expansion. So just do that. But I guess what I’m saying is put more of the political capital on a long term balancing of the Senate.

S6: I really like this because I’ve realized increasingly that I’m not an anti establishmentarian. I am a dis establishmentarian. Yes. It doesn’t get enough attention because it’s not the longest, not as long as the anti. But I really think we need to start to dismantle even if Biden is elected. Here’s my absolute panic. I just feel as though if I see this on some C-SPAN thing. Biden glad handing with McConnell. Right. I’m just going to like that may be the end for me. That may be worse than even the Trump inauguration, which is we’re going to paper all this over. We’re going to see to having this court filled with Thomas Cavenagh, Barrett and all these reactionaries and with weird, dubious cult and sexual histories. And we’re going to just kind of limp along like, well, at least it’s kind of normal, at least Biden’s low key and doesn’t tweet in weird ways. And we’re going to. Police reform, prison reform and in general, the establishmentarian Nyst agenda that I now strongly support, so I’m going to do two establishmentarian moves, OK, in this case, they’re in establishmentarian.

S7: That’s even a week or yes, this is a way to establish. How about this? To reestablish norms.

S6: OK, establishmentarian, you are OK.

S7: Even though Roe has a majority of support, it’s the single issue. Voters, if you’re going to play a battle over court expansion, it’s going to. This is why Trump won in 2016 is he already had Mogra. He got the nomination from the from the Magots. But the question was, would evangelicals vote? And then if Scalia hadn’t died and if McConnell hadn’t put the Scalia seat on the ballot, Trump doesn’t win. And the way that authoritarian model comes back with a more competent fascist right is, is by keeping that coalition together. And so I think one answer is to make sure that if you’re going to expand the court, how do you do it? By making sure that it’s clear that you’re reestablishing norms and not just escalating the hardball.

S6: OK, I consider this a rhetorical challenge. That is an extreme rhetorical challenge. It’s that you like this kind of literary reading of political and legal documents. So I’ll try it out on you. But I mean, I’m sure you’ve heard before that when in the course of human events, it becomes necessary. Right. And then and then the and then the idea that an adolescent nation must break ties with its father. Right. With this sort of parent and that this is a natural progression. I know you heard me say, I think on the last show that biology is the only institution that has held in the form of, you know, people who don’t wear masks and consider them a liberal affectation end up getting the virus because, you know, germ theory is still binding. The founding fathers with the declaration invoke when in the course of human events as though this has to happen. Right. We’re doing this extraordinary break from reality with the American Revolution that, you know, you would want to say you are on fire. This is a problem. We have to put you out and the language to make it seem as though it is a natural outgrowth of the high spirited adolescent that he would want to move away from. His father is just part of the ingenuity of making that. And the same with civil rights, making it continuous, making it not a break with. So even as a dis establishmentarian, I, of course, think that we have to chart a course that makes it look like I was actually thinking of putting up Abidin Harris lawn sign, even though I don’t love lawn signs and the Sharks and Jets war. But if I did, I would want to say obviously Biden and Harris at the top because there’s not a battle between meaningful teams in this case. There’s just the course of events that must restore, you know, something that conforms to natural laws in the in the Oval Office. In any case, the obviousness, the when in the course of human events that this has to happen. You know, you do this with kids to get them to the dentist. Of course you’re going to the dentist. You’re going to have to do this very difficult, painful, difficult thing. And you have to make it seem like it’s, you know, just another Tuesday. And I think some gifted rhetoricians, maybe not quite up to the standards of the declaration, but can do this that is practiced dis establishmentarian ASRM without making it seem like they’re radicals in charge, doing crazy things, making it clear that establishing new states is part of Manifest Destiny or is part of, as you say, no taxation without representation, or is the same impulse that led Trump to want to acquire Greenland. It’s a kind of patriotism, right? It’s this isn’t about stacking the deck with the blue communities that will elect more Democrats. Oh, no, no, no, no, no, no. I mean, that will that will generate more blue senators. This is something that is quite continuous with the the American history. This is not a break with history. That’s what Trump was exactly.

S5: It’s interesting. I didn’t know I was starting a historical discourse back to Manifest Destiny and colonialism. Right. Expansionism so that we could add more states, which is actually how America spread southwest, because, see, you’re starting to write the propaganda with me.

S4: Yeah. I just like. How do you think Wyoming got added to the colonies? You, Johnny, come lately, actually.

S7: Do you know how Wyoming held those Western states got ahead?

S6: I love complaining about Wyoming.

S7: So this was a brilliant Twitter thread. I can’t remember whose it was, but I’m riffing on it, which was that after the eighteen eighty eight election where the Democrats won for the first time. Since the Civil War, the Republicans realized that they had to rebalance the Senate and then added all of those states that were Republican states in the West, and that’s how they added not just Dakota, North and North Dakota. So in that period, around 80, 90, the Republican Party packed the Senate. And that is the story of how we have that was a partisan move in the bud.

S6: OK, yes. But instead of saying this is payback, we have. Yes. And that was that’s the wonderful impulse that we all share in the fruits of enfranchising where countries have giving them more senators, more senators, let a thousand senators bloom.

S7: Absolutely. But on that question of once you balance out, once you deal with the Senate, and then I think that also is two establishment questions I want to put out there. One is, how do you re-establish some bipartisan norms about judicial appointments? So because the Republicans look, if the shoe were on the other foot, the Democrats would have blocked a seat in 2016 and the Democrats would have tried to put someone on the court in twenty twenty. But we’re talking about Merrick Garland establishment moderates to the Nth Degree. Right. Quintessential establishment moderate. And what do the Republicans do? They put up any bet. And so that is asymmetrical hardball. Right, as other scholars have observed. So here’s the point. How do we balance this out? So two points. One, we could establish a court expansion with a new rule in the Senate by a gang of eight. And the senators agree that they have to create a short list for the president, a list of, let’s say, three, four or five. Many states have this. It’s called the merit selection process, where they give the governor a short list. It would be you have to do it by Norm for complicated constitutional reasons. But the Senate could send that short list to the president and they would agree to reestablish norms on both sides that they would not they would vote against any nominee that didn’t come off that short list. And I think that’s crucial for the Democrats to get to the court instead of being a six three court. This is the only way you’re going to be able to both rebalance the court is by that kind of agreement and also not wipe yourself out electorally in the next several elections. So that’s one one idea, the Gang of eight. The second idea is I think it’s a great idea. Get the establishment constitutional interpretation of originalism. That should be a progressive paradise. Right. And so this is if we can go to this clip, I think this gets teed up for where progressives should be embracing and appropriating originalism as opposed to just reflexively, viscerally rejecting it. So this is where Amy CONI gave an excellent answer to senators, asked about originalism. So we can hear that that we bring that up.

S4: I love it.

S3: We’ve got to collect laws clearly are written in a context. And then the things the circumstances to which those laws have applied would change. Does the Fourth Amendment have nothing to say about cell phones? Unreasonable search and seizure was obviously not written at a time when they had imagined mobile technological devices that addicted our kids. Does the 4th Amendment have nothing to say about cell phones?

S9: No, the Fourth Amendment. So the Constitution, one reason why it’s the longest lasting written constitution in the world is because it’s written at a level of generality that’s specific enough to protect rights, but general enough to be lasting so that when you’re talking about the constable banging at your door and seventeen ninety one as a search or seizure, now we can apply it, as the court did in Carpenter vs. United States to cell phones. So the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesn’t catalogue the instances in which an unreasonable search and seizure could take place. So you take that principle and then you apply it to modern technology, like cell phones or whatever. Technological advances enable someone with Superman x ray vision to simply see in your house. That so there’s no need to knock on the door and go in. Well, I think that could still be analyzed under the Fourth Amendment.

S6: OK, we just got a lot of A.B. County Barrett, and now we’re going to get you seconding her. So tramcars just retreat’s do not equal endorsements on. Just go ahead, Jed.

S7: Well, let’s endorse an appropriate or recognize how any koney Barrett gives you an invitation for why you can take originalism for in the way that modern conservatives have been forced, because originally Originalism 1.0 was pitched at a theoretically thin, incorrect understanding of law, which was about taking something like equal protection and saying what was the original expectation or the original expected appellate? And and you take equal protection and you look around Jim Crow of the of the era of the 14th Amendment in the 18th 60s, and the argument was the understanding of equal protection there was expected to allow Jim Crow racial inequality. And conservatives were forced to because liberals were right. Is that that’s not how they wrote the Constitution. So listen to what they said. They didn’t list out constables and and 18th century kinds of searches. They used what she said, a level of generality. That’s a quote in order to embrace principles. And so the principles, if they had wanted to limit equal protection to a set of narrow applications, they could have done so. But the Constitution, as she says, the Constitution survives two hundred thirty years because it was written at a level of generality that was expansive on principles and so certain what her point there is. Search and seizure is capable of expanding over time to protect privacy. And so my argument back to Amy Barrett on the questions of is, does the Constitution have a right to privacy? She just told you it did. She just told you that the Fourth Amendment was written at a level of generality about principles in the same way that Roe v. Wade was written as finding a right to privacy and things like the Fourth Amendment. She just gave you the argument. So my point is that, first of all, originalism is methodologically correct, but you have to do it right and not as badly and tendentiously and amateurishly, amateurishly as has been done on the court for so many years.

S6: This is a very literary exercise, as I’m sure you you can tell and know that a reading of something so say the Thomas gloss on the Torah is meant to look like a convincing reading. A strong reading is is meant to look like it grows completely out of the original language. It is nothing in it is incompatible with it. Right. But that itself is a rhetorical move. And then you have to be convincing, which is why the Talmud is filled with disputes over readings of this or that passage and in some cases seem to just jumped the tracks and have nothing to do with the original passage. But that’s how that works. And that’s how biblical scholarship, including the people of praises Amy Amy Barret’s coats, gloss on the Bible. I’m sure it works. And liberals will take, you know, the devil can say scripture for his purpose. I think Shakespeare said so. In any case, I think you’re right. But that are originalism is a kind of is a vibe of a certain kind of reading. So it once again is this particular move in the law has to look like it’s continuous or it evolves from what went before. And I think you’re right that kicking the legs out from under the Constitution or abolishing it altogether are thinking of it as this constantly revised document as opposed to a constantly hermeneutics and interpretable document is a mistake. But I think it’s a rhetorical mistake. I don’t know whether it’s right to be fundamentalist or originalist about about the Constitution or not. I just know that when you’re selling, it’s better to connect the past, to the present, to the future, rather than to represent yourself as a as a disruptor. I just wrote it, reviewed a book about the sophistry of Silicon Valley and the discussion of disruption and creative destruction and and hacking. And that’s just good language to get away from because it can be very cruel and it can be very unsettling. And I want to use any word but disruptive, but any disruption can be disruptive. There we go.

S7: Well, I was going to say you’re the perfect person to be talking to as a terrific literary reader with a footnote in politics, talking about law, but thinking about how to read texts and literature and philosophy. How do we understand the meaning of a text except from its context, especially with law. So originalism is just a fancy way. And in fact, maybe just like court packing, there’s a way that originalism is its own, that language is its own rhetoric. I’d rather reclaim the concept of originals, but put it in the sense of basic understanding. A legal text requires understanding its context, so history matters. Originalism originally came from the nineteen, seventies and eighties as a way of constraining a liberal court. Well, think about it. How now that we have a conservative court, it’s not I’m not saying this as a political move. I’m saying this is the same idea is that for the rule of law to matter, it can’t just be whoever has it, can’t be might makes right. And whoever has six votes or five votes wins. The rule of law is legitimate if it has some normative basis, legitimate basis from the. Democracy and the Constitution has its value because it was not just written by, you know, in the past, it has its value because it was ratified by the people in a historical moment. And those moments give it meaning and those meaning that meaning has larger principles. The eighteen sixties were a revolution of equality. Why liberals and progressives can’t look back and say, yes, we want to go back originally to that, to the Lincoln radical’s of equality and due process and privileges or immunities. We’re chopping off our own hands.

S10: Jed Sugarman is a professor at Fordham Law School. Thanks so much for being here, Jed. Thank you for joining us. That’s it for today’s show. What do you think? Don’t hold back rate and comment on your preferred podcast app and then find us on Twitter. I’m at page eighty eight. The show is at Kapsch. Also, I want to give a quick shout out to talking Feds Women at the Table, which is produced by the team that works on the show of Trump cast favourite Harry Littman. The show is hosted by Trump cast guest Julie Kyum and Ann Milgrom and Melissa Murray. Women’s Perspectives, A Celebration of RBG. You’ve got to listen. Look for it on your podcast. At our show today was produced by Melissa Kaplan and engineered by Richard Stanozolol. I’m Virginia Heffernan. Thanks for listening to Dreamcast.