Melissa Murray: Reclaim the Constitution

Hello, welcome to the Bullard Podcast. I'm your host Tim Miller. I'd like to welcome back to the show Professor at NYU Law School, co-host of the strict scrutiny podcast. An author of a new explainer on the Constitution,

the US Constitution, a comprehensive and annotated guide for the modern reader. It is out two days, she is holding it, it has a salt rim dead. [LAUGH] It's the best margarita you'll ever read. Happy Synco to my, I'll do some light constitution reading.

I also just found out in the green room. You somehow have a child going to college, which feels impossible.

You look amazing, that was impossible.

Tim, thank you. I'm yes, Melissa Murray has a college age child. Melissa Murray has been her fifth decade. Wow. But what keeps me looking so young, keeps me looking younger than some members of this administration.

What's that? I can read the Constitution, and I do. And that's, that's, you want to turn off the song. What's your song in the truth? It's a real originalism, read the Constitution, look like a younger person.

“How do you think things are going with the Constitution right now?”

Just go for all. It's not great, Tim. I'm not going to lie, we've got Congress that seems to be a sleep. So, we have a president who is asserting what I think is the most muscular vision of executive authority that we see in decades, maybe even ever.

And we have a Supreme Court that basically does what it wants, precedent be damned prior rulings, everything, just, you know, does whatever it wants, and facilitates this administration in some of its worst excesses. So, it's not great, but I think that's exactly the kind of moment where we, the people, need to intervene, read the Constitution, read what the Constitution was about, and reclaim

it for ourselves. Yeah, I was so excited when I saw that this was what you were writing on.

When I heard one summary has a book, and once, you know, you're always welcome on

to a matter of the topic. But I was like, this is great for a number of reasons, but for one, it's like a former Republican, maybe this is not true in the world, but I don't know. But for me, as like, there was a period of time when the Constitution was kind of Republican coded.

But at least wanted to talk about it more. You know, there was like, like, we were the ones, it was the younger Republicans that had our pocket constitutions. I've got a pocket constitution, like six drawers in the house, like an old Catholic brand, he has a, you know, has the pictures of the Saints in every, in every room.

I've got the pocket constitution, and I was a little cringe, I think, for the young Democrats.

“And I do think that in this moment, I think an effort to flip it is important and need”

it, or you can object to the fact that that was ever even a thing. Well, I mean, I think I probably would have hung out with you, young Republican or not.

I was never a young Republican, but I also did have a pocket constitution, and I think

that was the point. I think it's just being a young American means you ought to have a pocket constitution, because the whole point of this was that people would read it, they would debate it, they would grapple with it, and maybe this is more of a tenet of an older brand of Republican partisan affiliation, but the constitution at bottom is a document that's about limited

government, right? It is genuinely about putting restraints on the state, and, you know, I think that's something right now we could all get dealt with. Hell yeah, okay. There's a lot of legal news items, I'll run through with you, and then, you know, maybe

there's some other news items as well, and then I want you to regale me with some book anecdotes. I want some fun constitution facts, so I start thinking about that. There are a couple already spotted from Jimmy in the book. The first one, obviously, the big news is on the Voting Rights Act, you know, the guiding

of it. I'd mark Elias on over the weekend, and we kind of did a deep dive on this.

“I think, kind of, even since we taped on Saturday, we're seeing even more of the southern”

states coming out, and basically saying they're going to try to jam through a redistricting here, even though in some of the states ballots are printed in my state of Louisiana, people have already voted, but they're still going to do it anyway. What is your sense on the state of the play, both like on the politics and the legal side? So, I mean, this is basically a bravo house real housewives of Atlanta who go and check

me boo moment, right? I mean, these states are like, who go and check me? No body, not the Supreme Court probably, no body. This is a break glass emergency moment, I think, for democracy. The Supreme Court, in that opinion, written by Justice Alito, a 6-3 opinion written by Justice

Alito, basically this rated the Voting Rights Act, and it's promise of a multi-racial democracy for this entire country. I mean, the idea that when states seek to remedy racial gerrymandering by thinking about

of their own choice, they're the ones engaging in race discrimination, I mean, that's just bonkers. I mean, this is the court taking its vision of colorblind constitution. It's imagined understanding of the 14th Amendment as entirely colorblind, which does not code with the history of the 14th Amendment at all.

And now extending it beyond the usual context, like college admissions in affirmative action,

“and now extending it to the most important right that we have, the right to vote, the right”

to make our voices heard. It was a dark date for democracy last week. I don't know what else to say about it, and it was even darker because the court was so craving about what it did. And Justice Alito wrote that he was preserving section two of the Voting Rights Act.

That's like, you know, my teenage or tossing his room and then telling me he cleaned it, like, really? Okay. We rearranged it. Right.

Well, that's basically what he said.

I mean, the whole idea of section two was that you could bring these claims against individuals who were trying to limit the power of minorities to get to the ballot box. That was what the 15th Amendment was about in franchising African Americans, first African American men. And then the Voting Rights Act in 1965 made the promise of the 15th Amendment good for the 15th Amendment. Good for everybody. And the courts pretty much put the cabash on that.

The impact on representation is in me so dramatic. And I mean, some of this is kind of obvious. But I just want to look at a chart that was put out of leaking just like black representatives in Congress over time in history. And you look at it. And there's like a small period with ever some in the south, either before the rules were in place.

The Voting Rights Act remedies to prevent them from having representation.

And then there's a gap of a period where there's basically none.

There's a couple in the northeast. And then the Voting Rights Act passes. And then like you see a big jump to where black representatives like match or get around the percentage of their representation in the population. Which is like community actually being represented. Yeah.

And you're already seeing that kind of trying to tick back down. And I just think that the chart will be so shocking. You know, if you look at it 29 if this isn't fixed because you'll see almost a total reversal. Well, I'll put it in even more stark terms. The house is obviously one aspect of this.

“I think it's even more pronounced in the Senate, which is already a chamber that is somewhat distorted by the whole idea of minority rule.”

And the fact that at least the least popular states get to be represented in the same way as the most popular states. But prior to the Civil War, there obviously hadn't been any black representatives or senators in the Senate. After the Civil War, Mississippi appoints high-room rebels to the remainder of a term. And he serves from 1878 to 1871.

He's the first African-American to be appointed to a seat in the Senate.

He's only there for a year. The whole time he's plagued by claims that he is an illegitimate senator that he's not a citizen. And they invert to 1857 stretch. Scott decision for that argument. There's another senator also elected from Mississippi.

Blanch Bruce. He serves until around 1881. After reconstruction ends in 1875. I think 1875 and the Hayes told him and compromised. We don't get another black senator in the Senate until 1967.

And that's two years after the voting rights act. And we've only had.

“I think now it's 13 black senators in the Senate.”

So I mean, it has been really stark. I don't think we're going to have a congressional black caucus going forward. If this is allowed to stand in large part because it's not just that it's going to decimate black representation throughout the South. Like that's already happening and it will happen. But the fact that Justice Alito left the shards of sections to in place means that it is available going forward.

So non African American litigants can challenge California. For example in California draws an opportunity district to counter act. What is going on now in counter act? The losses that are being made. Now white voters can simply say a section two.

This is racial discrimination and they will sue and under this courts ruling, they will likely be successful. So that's the even more craven part about what the court has done. They haven't been honest about actually eviscerating it. And they've left the shards of it in place so that it can be co-opted and used against minority representation going forward. You talked about the book about the reconstruction amendments put together the 1314-15th.

And the way that they're written, the contained causes that have Congress enforce the amendments through different types of legislation.

I'm just want to talk about that and how for these originalists, how this reflects like what the original intent was.

So those reconstruction amendments. So the reconstruction amendments are passed in the wake of the American Civil War. The bloodiest conflict that's ever been fought on American soil and a true moment of rupture for this country.

“With a country sort of like, how do we put ourselves back together?”

And they recognize that they're going to have to do something drastic. They're going to have to actually remake how they are organized as a country. And this means a series of new amendments. So the 13th amendment abolishes slavery. It basically says that slavery or the badges and incidents of slavery cannot be used going forward.

They do make a provision for forced labor as a punishment for a crime. But otherwise, you're not going to be able to just like re entrench this under some other name. And they enforce it not just against the state, but also against private actors. The 14th amendment deals with the entire question of citizenship.

It is to counteract dread Scott that 1857 decision that said African Americans and anyone descended from African slaves could never be citizens.

They counteract that with the 14th amendment. They also lay out a whole series of provisions of individual rights that the states are not to enfringe upon. And then they realize that that's not going to be enough to guarantee a multi racial democracy. It's not going to be enough to integrate the formerly enslaved into the body politic. They actually need to do something explicit about enfranchisement.

And so what they do is they pass the 15th amendment that says that you cannot deny the right to vote. On the basis of race and that effectively in franchises, African American men. From the start, there is a immediate campaign to cabin the impact and effect of the 15th amendment. The south does all sorts of things much of it race neutral like the imposition of poll taxes and literacy test.

“And you know, they'll say like if you want to vote, you have to pay this poll tax or if you want to vote, you have to pass this exam.”

And you might get a buy though if your grandfather voted in this election or voted in, you know, two elections beforehand. So they do these race neutral very sneaky ways of making sure that the black electorate is absolutely just in franchise. The 15th amendment has a section two and that section two authorizes Congress to pass legislation to enforce the terms of the 15th amendment. The 14th amendment has an analogous enforcement clause. It's section five of the 14th amendment, which gives Congress the power to pass legislation to enforce its terms.

It is under those enforcement provisions that the voting rights act of 1965 is passed in 1965 in the wake of a bloody battle that results in people being killed. People like literally fighting for the right to vote and paying for it in their blood and Congress passes this law that is meant to address the fact that the states of the former Confederacy have four years.

A generation and more been suppressing the right to vote on the basis of race and the terms of the voting rights act and section two, basically mimic the 15th amendment.

So for this court to come back and say, the 15th amendment is race blind. The 15th amendment is color blind. You're not supposed to take race into account. Just belies the whole purpose of what they were doing. They knew that what they were dealing with and they knew that to remedy the impact of race discrimination.

“They might actually have to think about race and race discrimination. And so the idea that you shouldn't or you can't it's impermeable to do so is just literally mind boggling, but that's what this court is doing.”

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You can move on to some of the other court news with the myth pristown case. So on Friday, the fifth circuit issued a nationwide injunction banning the mailing of the drug. Drugmater's appeal to the Supreme Court and in Alito, interestingly, on Monday temporarily lifted the ban on mailing. I'm not really sure what to read into that. I wouldn't read anything into that. I mean, essentially, it's a one week stay of the lower courts order.

First of all, the fifth circuit is on one and has been on one for some time. I mean, it is so far off the wall that even the court has to rain it in.

I mean, the fifth circuit is basically the Supreme Court's PR machine. It does stuff that's so outlandish that the when the court comes in to correct them.

“They, the court basically looks normal and the court is not normal. So the fifth circuit serves an important to go hang out down there. Just going to see what's happening. That's right down there.”

I mean, it's very, very difficult. But they basically implemented this nationwide ban on miffer pristown on the view that these doctors have challenged the distribution of miffer pristown by a telehealth and through the males are effectively thwarting Louisiana's law that prohibits abortion and it is denying

to protect unborn life that it is dangerous to use miffer pristown. This is a little spotty here because they say that two women have had ill effects from the use of miffer pristown.

Yet, they know that thousands of women have been ordering and receiving miffer pristown through the male by a telehealth. So two women have ill effects, but thousands are actually receiving it. I'm not sure what that says about the safety record of miffer pristown. You know that the FDA for years has determined that miffer pristown is safe and that not only is it safe for terminating a pregnancy, it's needed to terminate a pregnancy in circumstances where the pregnancy has already been lost and the woman has had a miscarriage.

The medication abortion is the standard protocol of care in those circumstances and this obviously throws that into disarray in endangers, Belives of many women who will need it. One in three women suffers pregnancy loss and needs to have this kind of treatment to maintain fertility and to have children going forward. So the court steps in there is a request for a stay of the fifth circuit's decision. It comes from the manufacturers of the drug, Danco and another manufacturer and just as a leader who's the circuit justice for the fifth circuit is the one to whom the petition for the stay is directed.

And he grants a one week stay. So that has lifted this bad for a week. Miffer pristown is broadly available through telehealth and through the males for a week and we'll basically get a timeline for how this is going to go before the court. Steve Lattick, a friend of my podcast, Rick Surtney noted on his substack that just as a leader frequently as the fifth circuit circuit justice will have to implement stays and he often implement stays with no deadline and no time limit in issues that he likely agrees with but puts a time limit at staff on the ones with which he disagrees. So the only thing I might read into this is that we already know what just as a leader's vote will be on this case.

“I think the real question is what will be the vote of Brett Kavanaugh who in the dobs opinion talked about the importance of states being able to do as a light in the context of abortion.”

That might weigh in favor of Louisiana and might also weigh in favor of the states with physicians who are prescribing this medication because it's lawful for them to do so in their states. So I mean there are a lot of really important questions here and I will just say in conclusion this court told us they were settling the issue of abortion when they overruled rovers is weighed and dobs and here we are again it's it's just so weird that it's not settled. So Kavanaugh seen as a swing vote I would say I would assume on this or worse.

I mean it's a six to three court. I know how I think most of them are going to vote like just as Thomas is definitely not going to be allowing me for Pristone to flow freely throughout the United States. I think the real sort of wild card might be the Chief Justice.

“I'm not sure about Justice Barrett. She's a little wonky on that just as Kavanaugh I think has said a lot of different things about federalism and the right to travel. I just be interested to see what he says at oral argument.”

Going to be then in this session resolved like this summer possibly I think maybe not I mean this session is pretty much winding down. I might be something that they hold over for formal argument in the next term.

There's this New York Times story in the shadow doc yet a couple weeks ago that is so interesting that I haven't had a chance to get to but I'm just wondering if you kind of want to weigh in. I love this article.

“Okay great well it's not a court watcher.”

I guess I didn't realize it's sort of akin to like the filibuster story a little bit right which is like the filibuster was something that was used like a little bit for a while in certain cases that were extra you know where they're extreme cases and then all the sudden it gets institutionalized and now like every bill requires a filibuster and like if you look at the charts like a hockey stick on how often the filibuster is invoked and I guess that's basically what happened with the shadow doc it's starting in the Robert score which is something that I didn't really realize but talk a little bit about that with the implications are.

Sure so you know there's always been a shadow doc it I'm it's usually for issues that have to be resolved very quickly while litigation is pending so it often was used in the context of.

The death penalty or election related cases that came up a lot. It wasn't really used for issues like the issues we see it being used for now like actual substantive issues about. The exercise of presidential authority or whether the executive has intruded upon the progatives of Congress.

“Those questions typically weren't resolved on the shadow doc it those questions were and I think properly resolved on the court's merits document where it would be.”

Set for oral argument there would be full briefing from the parties there would be an oral argument and then the court would write a decision explaining how it resolved the case and maybe there are. Concerns is or descends or whatnot. What is happening now is that more and more cases are being decided. In the interim on the shadow doc it which means that the litigants will run to the court while the litigation is still pending at the lower courts and ask the court to resolve a particular issue so for example.

When the Trump administration tried to dismantle the Department of Education it was sued and a lower federal court implemented an injunction saying that they couldn't do what they wanted to do by stripping the Department of Education of its funding. And then the Trump administration left that trial court that issued that ruling and went immediately to the Supreme Court to ask the court for a stay of the lower courts ruling and the stay would effectively lift the lower courts in junction and allow the administration to continue doing what it was doing while the litigation then made its way through the lower federal courts.

You know my colleague Leah Lipman at Strix scrutiny refers to the shadow docket as the just the tip docket and at first I didn't know what she meant.

Well so as I and I got an education I'll tell you what she explained to Emily why do you call it the just the tip docket she's like well. It's like when people who advocate for abstinence say that if it's just the tip it's not really sex and you're not getting. She's right she's like but you are getting asked and so the court says it's just the shadow docket it's not doing anything they're just interim decisions. They're not changing anything but in fact we're all getting. The super interesting just like the types of things that it was used for like they did part of education think it's just because it's begun to be used for a lot of different things or it's like it's not an emergency actually.

“And then the other thing that I think is the center of the country and Adam Liptack really make clear was that there's a moment where it all kind of comes together and it's in 2016 with the clean power plan where.”

The litigants the the energy industry the states immediately run to the court to challenge this clean power plan hasn't got into effect it has the longest timeline for its implementation I think it wasn't even supposed to go fully into effect until 20 30. And then in 2014 they get a ruling on the shadow docket from the Supreme Court and the memos that are reported in this article in the New York Times makes clear that. The court and John Roberts the chief justice in particular is really on one to decide this and to like like to show the Obama administration who is boss like they really are worried that the Obama administration is thumbing its nose.

You know taking into account all of these out of court statements that EPA administrators and officials have made and like you know newspapers or magazines or on TV but none of it is part of the record because there is no record because this case has not formally.

And the court is just basically of the view that the Obama administration can't do this and they don't wait for formal briefing they don't wait for oral argument they just stop it in its track.

It's a decision that they make and they decide to take this unprecedented procedural step with very little discussion among the justices and there's no discussion of the impact on the environment of.

You know not allowing the clean power plan to go into effect on all the chief justice and the other justices are really concerned about are the effects on the states and regulated industries on the domestic power industry and. The harm to those litigants if the clean power plan is allowed to go into effect and. It's contrasted with the way the court talks about irreparable harm now when it's making decisions on the shadow docket because now when the Trump administration comes seeking a stay on the shadow docket.

The court is very solicitous of the administration's claims of irreparable harm like basically.

Fording the administration and doing anything causes the administration irreparable harm which means the Trump administration almost always wins and so there's a real contrast between.

When the president is a Democrat and when the president is a Republican anything else predict on the court you're watching over the next few months.

“I mean I think the girls are fighting and I love to see it. I just want to know everything that's going on just as sort of my or at the University of Kansas had some sharp comments for.”

These cabinets stops where you can basically racially profile people for purposes of ice detention, how that works in real life and I guess she kind of got some flag from her colleagues about that because she issued. An apology through the court's public information offices and then said that she to apologize to her colleague. But on the same day that she issued that apology. Just as Thomas gave a speech at the University of Texas at Austin and before he actually launched into his speech he acknowledged that sitting in the audience was Harlan Crow and if you think that sounds familiar who's that guy.

Was that guy he was like taking justice Thomas on fancy vacations and private jets and yachts and stuff so just as Thomas wants you to know that he's still paling around with Harlan Crow and he basically doesn't give a fuck if you care about it so there's that. And then he went on to talk about how progressives are basically a scourge that have cultivated the conditions under which Hitler, Mao and other despots have been allowed to rise and no apology was forthcoming from justice Thomas for basically insulting more than half the country.

The only good part that I can think of the only silver lining to Justice Thomas DGF is that if he was purely motivated by ideology instead of self interest he would retire this fall.

I mean I cause he's pretty old and getting up there and and you know if the Democrats take the Senate might be the last chance for him to get replaced for six years maybe maybe not or ten years or maybe that will not happen in and Maggie will stand power forever but it's a risk he's putting he's putting that seed at risk. And he's doing so because he wants to be the longest running Supreme Court Justice for all time and he only cares about himself so knocking on what that in this case selfishness might backfire.

I mean let's all do a brief Bader Ginsburg.

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“The worst thing is the escalating which is relevant in the legal context because I was assured last week that the president and the administration did not have to abide by the war powers act because it was basically over.”

But it was over like we've won and there's a ceasefire, Trump and Bessent and hegs out for saying on different words and so they didn't have to go to Congress about this and you know now we have kinetic fighting starting again.

So I'm just wondering if any broad thought you have in the state of play or welcome but also how it intersects with the war powers act.

“So again, most would say that this war that has been conducted in the absence of any congressional authority much less just letting Congress know hey I plan to do this.”

This is some real constitutional questions right Congress has the authority to declare war obviously the president is commander and chief of the armed forces, but the whole ideas that they're working in concert together and this does not seem to be the kind of coordination that was imagined by the framers in the conduct of war. What kind of whether you could bring a claim under the war powers act whether you know there is some sort of action one could take think that's a harder question. The Supreme Court has often been weary to take up questions around warmaking powers on the view that they present non-justiceable political questions that the idea that the whole power to wage war has been committed by the constitution to the Congress and the president the political branches.

And you know the courts don't have much jurisdiction to weigh in on that so I'm not sure that this is something it's ever going to get to the court but I do think there are real questions for Congress and you know it would be nice to see Congress be to see Congress more jellously protect its own progatives.

Maybe I'm wrong about this obviously there's nobody's won any money in the last decade bedding on Republicans in Congress to show some backbone.

But there is the abstain example not as only a couple of them but we're kind of in the situation now and the majority is so small and the war is becoming such a boom dog and it's impacting people so directly at home. But you do wonder some pressure starts to melt for them actually that act and to kind of use this as a way in.

“All right, this is your belly wick at and so I you know I'm interested to hear what you have to say about it I you know.”

You've got to wonder when some of these Republicans are going to figure out that. It's musical chairs right like one chair is coming out is it yours I don't know like but this guy isn't going to be president forever not clear who the air of slither and will be but. It's not going to be him like how invested are you in continuing to carry water for. I am I your own expense I mean like it's a very impotular war for all manner of reasons. Why continue I just don't get it.

Yeah this is why I wish Marjorie Taylor Green had stayed in Congress. I know that's such a weird thing. If you if you take 20 or 20 years. Why are you saying this you know taking it out of context and showed it to myself and it's like almost with my man shit's getting weird in twenty twenty six who knows why I would have said that but. I think you go to survive it and you know you can you see it only takes like a little bit of backbone for other people to start to jump on board you see this in other areas and and we'll see how mass he ends up in his primary but I just think that a lot of like.

This is unpopular I mean unlike all the other Trump stuff. He's done other things that are unpopular before at the last time is approval rating was anywhere near this is right for January six January six didn't actually affect anybody. I mean like in the esoteric it did affected our democracy was like nobody's personal life changed on January seven except for like obviously officer sick man couldn't like the handful of people got jailed but like but the rest of the country who was not there that day their life didn't change the people's lives are getting worse.

I do think this is a different situation for that reason. T.B.D. I was intrigued by Marjorie saying today that she had some text messages from Trump that she would be arrested if she released so. She's welcome on the pot anytime and we're happy to challenge that because he is a very bad track record of trying to arrest his political foes so.

“So maybe maybe you should give it a shot.”

The revenge campaign by the DOJ I've a bunch of DOJ questions for you is pretty handy and so how do you balance talking about that versus the obvious threats to the to the rule of law.

So I mean the first thing we have to just be very honest about is that Todd Blanche is working over time to be in America's next top attorney general and.

You know that's what a big part of this is because I mean the sea shells indictment like.

So one like some of this is obviously animated by personal ambition and you know there is there is that and it is what it is. The other thing I will say though is I don't think anyone in the Department of Justice or even in the Trump administration.

“I think that any of this is going to be a veiling like resulting in Jim Komi and you know an orange jumpsuit somewhere.”

Or anyone for that matter everyone knows that the purpose of all of these prosecutions is to cow dissenters into silence. To stop dissent to stop critics of this president and this administration.

You can basically trace those prosecutions those ridiculous prosecutions to what the president is doing with regard to the media.

There is a very important Supreme Court case New York Times versus Sullivan that is basically the bedrock of a free press in the United States and it basically says that. You know reporters will make mistakes in the course of their reporting and they cannot be held accountable as defaming an individual unless the individual can establish that they made the untrue statement with actual malice. It is a very hard standard to meet and it is what's insulates the press because. I'm very meaningful about our free fast versus what you see in other countries. Right, I mean this is not what they have in the UK for example, it's much easier to bring a defamation suit or a libel suit.

But it is what makes the press free here and what enables the press to be able to hold truth to power because they can speak freely so long as they're not doing it with actual malice.

“I'm very confident though in suing these media institutions whether it's CBS or ABC and negotiating these settlements with them, right?”

So these are cases that don't go to a judication and you know most experts, most first amendment experts say that a lot of these cases aren't meritorious.

They're not going to result in the president winning, but when they're settled it basically allows the president to sort of circumvent the high standards that New York Times versus Sullivan and other people. Sullivan and other presidents that would have to be satisfied in order for him to avail, allows him to circumvent them entirely. And basically establish the kind of system that they have in the UK, a system that he has on many occasions said he would prefer and that's the worst part. But only for him, but you know like it means that when other people see the settlements like when the public sees the settlement one they're like well something must have happened or ABC wouldn't have settled or CBS wouldn't have settled and so that.

“You know cultivates in the minds of the public that maybe the press are against him, maybe there is something bias here so there's that aspect of it.”

And then it just cows of people from dissenting because nobody wants to get sued by the president. No, it's a good insight and I think that it was one of the things that frustrated me the most about the White House correspondent discourse and all this where I was just frustrated that the journalists that work with these outlets were going along with the charade while this assault on their rights to free speech was happening. You know there you one thing if it was and I still would have been against it probably but maybe less passionate way if it was just Trump calling them the enemy of the people and it's a big k-fabe dinner and like whatever they call each other names and you know we pretend like that's normal.

Of the one thing but it's he's not just caught in the name. So are these doing in a direct assault on their ability to do their jobs only when it comes to reporting on him and him and his administration. So participating in that to me felt like. You're giving aid to his effort to undermine. It's not just the press he's undermining with us so you know when he's rewriting for himself and cowing other people into. You know basically subscribing to this vision of what the legal landscape looks like for media.

He's circumventing the court the court said what the law was in New York Times versus Sullivan and they haven't said anything different and in fact the court turned down an opportunity to rethink and repraise the whole landscape. I'm in a challenge brought by Steve wind that would have or could have overruled New York Times versus Sullivan and they declined to do so. This is the president basically usurping the court's progative to say what the law is and it's not just in the context of the press he's also doing it with these executive orders against law firms or he's telling law firms that

DIs and permissible and all of these law firms so okay DIs and permissible we're not going to do D. I anymore we're not going to have like you know a women's club or a women's alliance or anything like that.

The court has never said that you could not address the lack of representation or the historic lack of representation of a particular group in your industry.

By having these groups I never said that that was impermeable he's saying it's impermeable and people are just going along with it and so.

We're going to go up to the night and sort of a top top but I think it's going to be more more in the news as the times Democrats take over the representatives on slightly next year but even right now you have house oversight.

“Trying to do oversight on Pambondi I know she's not administration anymore is the former attorney.”

Well the doubt is the doubt back to 15, you know we'll see whether that's she'll be all the testified depending on where the where the Dow Jones says look at that 48 nine it's creeping back up we'll see how long that last.

Two interesting story I just related to this one was that Jim Comer was asked whether they were looking into offering a.

A pardon or Clancy the going Maxwell an exchange for her testimony and he said my committee split on that. So about half of the Republicans apparently are in favor of a going Maxwell pardon and exchange for her testimony. The other thing is harming Dylan has filed indicating she's representing Pambondi in the upstein oversight hearing in her personal capacity.

“>> I think the most delicious day of DOJ watching that I had was the day one harming Dylan was on one I think it was on Twitter and or maybe it's true social I look.”

They're in indistinguishable at this point but she called her critics hose.

>> Did you see that hard did you see that yeah I remember I don't recall what she's calling and I like I you can't take her I don't take like yeah like you're not supposed to have another job when you're the assistant. >> I turned you general for civil rights like that's you're not because we're paying you actually paying you to also on a side hustle represent. The attorney general is covering up pedophile like information about about sex criminals pedophiles and so I don't really want somebody that I'm paying who works the department of justice to be representing her in that in the defense that effort but that's what we're at like real questions just about just.

>> That's the executive like adversity like the whole thing is is the whole thing is we're the run out of lawyers though this may part of the reason why I was doing that's why we can show the DOJ has lost a quarter of its lawyers since January 2025 that is wild.

“>> Not surprising I'm between approaches as a way in which the administration kind of realigned the missions of certain offices I like within DOJ like I'm not surprised at all and like people voluntarily left people were made to leave and yeah.”

>> It'll take a generation to remake the department of justice.

>> All right back to the book stuff how do you have the time when are you doing this you're parenting TV podcast where we're fitting in the book then my actual real job and then yeah teaching. >> When we do in the constitution research in there. >> Well you know I was on sabbatical last year and I was working on another project and then decided to do this in part because. >> It seemed really urgent especially after twenty twenty five after January twenty twenty five just like wanting to know the constitution because every moment I was like can they do that I don't think they can do that under the constitutions I was like looking things up and it's like no I should be writing this down.

>> But the real impetus for the book actually happened back on the day when I was on Twitter do you ever have fun Twitter used to be like I loved it. >> I know I was it was it was it was it was it now it's just it's a gross but back in the day when I was in the Twitter streets I came across a thread from. >> Luther Campbell do you know who this is. >> Let me see how like how Southern. >> I don't have it. >> Luke Campbell Uncle Luke. >> Oh Uncle Luke the rapper from to life crew right so he's in the Twitter like I'm from Florida as you know and you know.

>> Uncle Luke like to life crew was big when I was a teenager anyway so he was on these on these Twitter streets talking about what Joe Biden should be doing and you know Joe Biden should be addressing the price of gas and Joe Biden should be doing this and Joe Biden should be doing that and vaccines and blah blah. >> He's not half the things he want to do Biden to do I was reading it was like Joe Biden can't do any of that half these things he can't do because he's not authorized because the president doesn't have that authority and it just sort of occurred to me that.

>> We're basically creating a whole generation of Americans who don't know how this government works and so I decided. >> As an aspen the sabbatical sitting down trying to explain the constitution and the whole purpose of limiting government so that it doesn't become despotic.

>> Just when it over all but never trumper you kind of like I'm tingling I got a tingle.

“>> And I think the ramifications of this going forward which is let's just let's just be.”

>> Let's be positive let's say I'm not so I'm really it's I'm more you know give myself a talk let's say that the democrats take back the senate. And let's say that. >> Clarence Thomas for some reason is not able to be a spring court just sitting more in the can be replaced this spring court and and the democrats use the. >> Merrick Garland rule it's like oh sorry we'll revisit this in January twenty twenty nine and then in January twenty twenty nine a democrat becomes the president.

>> And it's a democratic cares about the rule of law and loves the constitution and the supreme court is at least it's five four but at least it's a little bit more manageable okay in that world.

>> Within the confines of the constitution that you just annotated like what are some reforms. >> You think that the democrats could do that they could actually do because I do think a lot of times in progressive. >> Podcast space you know there's a lot of talk about like. >> We just need to do this or that at the other thing that what we're going to make them sound kind of like on the look. >> You know they want this immediacy right like we're going to change everything immediately and it's like well now we we still have a system here.

>> So what are some things that come to mind you know that might be worth thinking about. >> So when we have to address partisan gerrymandering because it not only affects the composition of congress it affects the composition of state legislatures. >> It affects the composition of local like county representation all of that but.

“>> Really important the state legislatures are necessary for going to amend the constitution so the fact that the state legislatures are so skewed and one direction especially.”

In states that are like the political divide is much closer than the representation of the state legislature would suggest.

>> That has to be addressed or you're never going to be able to amend the constitution like realistically.

>> How do you address the whole question of partisan gerrymandering will certainly congress can pass some laws. >> States can also pass laws that make it a violation of either state statute or in some cases the state constitution to organize your state legislatures in ways that. >> In fact democratic or representative in the way that partisan gerrymandering might be so those are some steps. >> As an additional matter you know we the people can step up and actually take voting seriously I know lots of people who listen to this podcast do.

>> But a third of the electorate sat out the twenty twenty four election and. >> If those people come out maybe we have a just an entirely different outcome here like you know we can't be apathetic anymore but. >> And not only cannot be apathetic it hurts us to be apathetic because right now we need the numbers in order to counter act the level of distortion that gerrymandering and suppressive border laws are doing to the electoral landscape so. >> You actually have to rise up in quite significant numbers and you know that's part of why they're doing this if you're able to do all of that and you're able to do.

“>> Actual constitutional change through the amendment process I think we have to get amendment.”

>> I don't know that it is if you can change the state legislatures maybe you know I think democrats did really think about. >> D.C. and Puerto Rico and statehood I mean like truly I mean if you read the chapter in here about the amendment that allows D.C. to vote in presidential elections. >> It is so unbelievable how much race shapes the history of the constitution and our entire relationship with the district of Colombia so you know there's that. >> I agree on that one Supreme Court stuff. >> I think we have to think about court reform we are the only constitutional democracy in the world where the Supreme Court has life tenure like every other constitutional democracy has implemented.

term limits for their justices some say that this can't be done without a constitutional amendment. >> Yeah I think there are ways that you can structure it where justices of the Supreme Court don't lose their life tenure they simply move to a different role within the federal judiciary and I think that might suffice the whole for the whole question of not avoiding.

>> The court that is perhaps more reflective of where the country is as opposed to this sixty three conservative supermajority which feels not reflected at all at least half the country.

“>> Other kinds of electoral reforms I think we really have to talk about the electoral college and we came so close.”

To amending the constitution to get rid of the electoral college nobody talks about virtually by but virtually pushed through a whole bunch of amendments and he got so close with some of these others including. >> And amendment that would have eliminated the electoral college the electoral college is about minority rule it is about the framers just trust of the populace of ordinary people you don't live in that world anymore and we shouldn't be governed by that.

>> I like one of the fun constitution facts and I got reading it which I may have known at one time but I didn't know anymore was that there was a committee on style.

>> And so they agreed to kind of certain language or whatever the rules and it got sent to the committee on style which again my mind are kind of some handsome looking men. >> It's like Miranda priestly and only.

“>> It's like the this artorial drafters you know the ones where the best taste and I loved the committee on style was when they changed the preamble.”

>> I've listed at the 13 states and they change that to we the people what do you imagine.

>> I mean like just like think about like law roach being like I hate it let's change it we the people it's not giving. >> We the people is giving I know given serving there other good of constitution facts in there. >> So many you asked constitution a copy of an annotative guide for the moderator Melissa Murray is the author she's got it right there for the youtubers looking goods looking cute little. >> What is that the feather pen the quill. >> Well it's okay to me I got it.

>> Looking nice looking chic committee on style approved. >> It's giving. >> Well it's a very thank you so much. >> Thank you for having me friend I appreciate it of course we back tomorrow.

“>> I think we got a double header for you go check out the next level if you want the politics talk today.”

>> And I will say everything alright. >> Go get the book. >> Peace. >> The board podcast is brought to you thanks to the work of lead producer Katie Cooper associate producer Ansley Skipper. >> And with video editing by Katie Lutz and audio engineering and editing by Jason Brown.