Reasons for Optimism as We Celebrate America’s 250th

subbasement of the Ministry of Snark in Washington, D.C. and from other undisclosed locations across America and around the world.

“Hello and welcome Deep State radio, I'm David Roscoff, you're host joined by two of our”

loyal dependable inspiring insightful permanent friends, Rosa Brooks of Georgetown University Law Center, How are you doing, Rosa? Very well, David, have you counted a day? Yeah, that's what we're doing to discuss. It's Canada. Yeah, okay, well, Canada is into the round of 16 in the world cup, chair for Canada. So Ed and also by Ed Lewis of the Financial Times, I don't know if you were watching the UK battle, the Democratic Republic of Congo, but it was

a little closer than a lot of your country men would have liked. That's because it wasn't the UK, it was just England. If it had been a clearer victory, but yeah, it was a usual pathetic, you know, England sort of playing against themselves, but I felt sorry for the

“DRC. They were really, really spirited and good.”

For 75 minutes, they were winning for sure. I totally agree with you. All right, well, we're not here to discuss the world cup either. It's the fourth of July week. I want to talk about America, state of America right now, because you guys know a lot about it. Ed, you

just wrote something about it. But first, let me turn to our constitutional scholar, the Supreme

Court, provided more insight into the way that it thinks of the world. And, you know, you and I, Rosa, talked about all sorts of constitutional issues for the many years we've been doing this and what's a crisis and what's not, and I'm just wondering if the Supreme Court comes out sort of roughly five to four on the constitutionality of the Constitution, is that a constitutional crisis?

“Oh, well, I'll say the same thing I always say. The crisis, the crisis is the constitution”

and certain respects, you know, we're still very much like using interpreting the, you know, the tablets handed to Moses out of the burning bush, right, that we treat this document written more than 200 years ago, as if it is divine revelation, rather than a flawed document written by very smart, but human beings, but who were nonetheless limited in all kinds of

ways, and that's the problem is that we have struggled to move beyond this and we have

a document that worked reasonably well for a much smaller, much more homogeneous country when they were able to disenfranchise a good percentage of the population. It turns out it doesn't work as well for an enormous sprawling diverse country. That's the problem. Well, you know, so you're obviously in the side of Thomas and Alito and Gorsuch because, you know, Thomas wrote a 91-page dissent saying that taking the literal words of the

14th Amendment granting birth rights citizenship was a big mistake, even though it's pretty simple. And, you know, they also, you know, have decided to disenfranchise a large portion of the population again with things like their slaughter decision, which essentially gives the president the ability to, you know, fire people willy-nilly and their campaign finance decision, which essentially says this country will be run by people with money and the rest

of us can go pound sand. I found those things disparating, but perhaps you think it's just the best we can do. I don't think it's the best we can do, but I do think it's more artifacts of the constitutional system that we inherited, right? I mean, as we know, there are countries that don't have a written constitution. There are countries like the UK, which have parliamentary supremacy. We have a system in which our constitution and the way it has been interpreted

by our Supreme Court over the generations has enshrined this counter-majoritarian system, where we've decided, we've decided in our infinite wisdom that it makes sense to have

nine unelected people with life tenure, make critical decisions about what is best for a country

pretty bonkers when you think about it. I mean, you know, I think that the, they're doing what

judges are trained to do in our system. And we have a system that sort of says, okay, we're going to do this kind of weird theological angels on the head of a pen parsing of language that language, you know, 14th Amendment is not as old as the constitution itself, but, you know, it's still 150 years ago, more than that, doing my math correctly. You know, we're doing this sort of an angels on the head of a pen parsing of language in very old documents by nine people

who none of us, none of us directly voted for. And that's just not a, it's not a very good

“system, frankly. And I think that both, I think that in recent years, many on the right”

have urged some kind of constitutional convention, many on the more liberal side of the political spectrum have vehemently opposed that, fearing that if you open anything up, you open everything up and that we could end up with something that is even worse, which is a real possibility, but I also think that we have reached that point of empire where we are, our system is just creaking under its own way. It doesn't work anymore. And something's going to break. I'm not

sure what that something is. And I want to talk to about the 250th anniversary of the United

States, about which you have written eloquently and movingly. But first, do you have anything

you want to say about the Supreme Court and what Rosa just said? I mean, I agree with Rosa that it's just not working anymore, but even when it was working, it is very, it is very sort of idiosyncratic to have nine unelected people have so much power over what isn't doable and lawful and so much way of a people's lives. And the fact that they're not removable, they are

“technically removable, but I believe Rosa, I'm probably you David, no, I have many Supreme Court”

judges have been impeached. Is it like one? Or is it not even one in the history? Now, I live in

a house now, moved to a house in Georgetown, where I discovered that part of the Marbury family

lived here in the early 19th century, this is a 200 year old house. So I feel a sort of metaphysical connection to the Supreme Court's adjudicary role over the Constitution. And it is gone, it is gone in the last 15 to 20 years, way, way off the reservation. And the fact that this sort of basic, easily worded, intuitively sort of part of American common sense, language from the 14th amendment, could be upheld in a five or four vote and 1654 is extraordinary. But some of my friends

were on the left, say, well, look, this is a neoliberal Supreme Court. It gives on libertarian grounds the power to the president, to harinfar, pads, and staffing across all the regulatory agencies to remove that idea of a neutral civil service, to attack the idea of expertise and to, you know, create this personalist situation that Trump will abuse to the health. And yet, it doesn't touch the U.S. Federal Reserve. And it therefore will do anything except rock the stock market.

“And, you know, I don't actually think that's what's motivating them. I think it's just fear of”

taco. It's this taco applied to the Supreme Court. That would finish them. But it's just extremely hard to respect the learning, the wisdom, the sort of quality of mind that we all have been sort of raised to think these justices have. And then to see how they're easing and just how transparently they punitized their reasons. And cherry pick. And as Rosa said, dance on the head of pins, how many angels on the head of... I mean, it's extraordinary how transparent their obfuscation

is. The obfuscation doesn't work. It's just as plain as daylight. So I agree with Rosa. It's a broken system. Hey, it's David. And I hate to interrupt the podcast. But I want to tell you some exciting news. We are now on Substack. Through Substack, we're going to be able to provide you with even more benefits, including live streamed episodes, access to new content, ways to save money and getting content from us, better quality content from us. It's a revolution. It's terrific.

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Anyway, thank you for your support. We are 100% sure you're going to think this is terrific

“development. And that's why we want to get as many people as possible to subscribe to it. And while”

you're at it, go subscribe to us on YouTube. So you get the great videos on YouTube. The more

subscribers we've got, the more support we've got, the more good independent journalism we can do. So we rely on you. We are grateful. Join us on Substack. Thanks. Yeah, I had to say I have all the decisions that came down in the past couple of days, or eight in a Monday to say. The one that stuck in my crawl the most was the campaign finance decision, which essentially says extends the theory of citizens united, which is that donations to

campaigns are speech. And that you therefore can't constrain it. And you should allow people to give as much as they want to political parties to spend. And this, of course, gives billionaires much

“more power than the rest of us. And I think sort of sends us further down the road to olgarchy.”

But Rosa, the question becomes for the average listener sitting at home. Like, what do we do about it? Do we just, I mean, I was sitting with some people who are very close to the activities of the court. And I said, well, obviously, we have to expand the number of people in the court and do term limits. And they were like, well, I don't know if that'll check, you know, I don't know if that's a good thing. And and these were thoughtful people. But I don't know, it seems to me like it makes

a little heck of a lot of sense to change the way it's made up and get rid of term limits. And and find other ways to limit the power of the nine high priests of the US republic. There's nothing to get the constitution itself that says there should be nine people in the Supreme Court. And Congress certainly has the power to change that. Changing, creating term limits

“would be a more complicated process, obviously, because that is constitutional and nature. But I think”

one of the things that illustrates exactly how broken this is is when you look at the gap between public opinion and what we actually have, you know, pretty large majorities of Americans across the political spectrum with support term limits for the court. And with support expanding the court at least a little bit. But we don't, we don't actually, that doesn't happen because just the nature of the system. We have, I mean, this is a consistent gap that we see pretty much

across the board, not just with our Supreme Court, but also with the nature of our first past the post voting system that we end up, we end up, even when there are very large majorities of Americans who support particular policies, the nature of our parties to some our voting system means that it's not necessarily the interest of any particular elected official to do what the majority of people want. So we end up with with policies that are not particularly popular

while the policies that, in fact, are quite popular and never actually get enacted. So I mean,

I think the, I think the brokenness of the system extends well beyond the Supreme Court itself. And I mean, it's sort of don't get me started, right? I mean, going back to the constitution as part of our problem that, that as you know, I'm sitting here in Wyoming, Wyoming has exactly one member of the House of Representatives because the population of this state is so small. The population of the entire state of Wyoming is smaller than the population of Washington DC.

And yet, Wyoming has two senators because every state gets two senators. So California, New York, Texas with their millions and millions and millions of people get two senators. And Wyoming with its roughly 600,000 people also gets two senators. So we have a system that gives, and of course it is the senators who confirm Supreme Court justices and who confirm other presidential appointees. So we give disproportionate power in our system to some groups of people

The logic of that really doesn't make any sense now. You know, if you, if you, if you were a

“space alien and you look down at the, how the U.S. does its system, you'd think, huh?”

Why would anybody do that? That's completely, you know, why would a country that large do it, this way? That's completely crazy. It's arbitrary in on kinds of ways. It's skews towards the

powerful and all kinds of ways. It also skews, you know, much greater political power towards

states that are densely populated and densely populated in the Senate, which translates into the Supreme Court, which translates into certain kinds of legislation. So, I mean, there are so many ways in which our system is now badly badly broken. How do we change it? I think that the problem we have is, I mean, this is why the left doesn't want a constitutional convention, because they're a scared that we would end up with changes that they wouldn't like, and they

might be right. You know, would we end up with birthright citizenship? If there was a constitutional convention, I don't know. Right? If the, if the American public had to decide that question, rather the Supreme Court, I'm not sure. Right? Then the argument in favor of our Supreme

Court that sort of wonky, legal scholar argument has always been that it's actually beneficial to

have a non-majoritarian institution to be kind of a check on what the crowd wants to do, what a simple majority wants to do, and sometimes from the perspective of rights that works out

“well, sometimes not so much. I think there is a real danger that, you know, if you got lots of”

Americans together, they would do some pretty wacky things that the three of us might not like. On the other hand, you know, I think that the pre-requisite for some kind of constitutional convention or some kind of process to amend our rather creaky constitution is trying to overcome some of the incredible political polarization that we see right now and trying to improve the

overall level of civic education, because right now we've got, we've got people who have a lot of

false beliefs about their fellow Americans. You know, when you look at the polling on both left and right Republicans and Democrats are entirely convinced that the other party is, you know, the, you know, walking incarnation of Satan, more or less, which is not a good recipe for some kind of thoughtful process of of changing our fundamental political structures. And in addition to thinking that the other party is Satan incarnate, most of them are absolutely clueless. You know,

ask the average American how many people there are on the United States, ask them how our system is currently structured, a huge percentage don't know. So we, we've got a lot of work to do before we could even get to fixing the system. I don't think we're there yet, and it's quite frightening,

“because I think being in that place where the system is broken, people are angry,”

people are angry across the political spectrum, people don't trust each other. You know, it's extremely volatile. It is, and by the way, all of it traces to its house, because it's house, you know, we had the Marbury family, obviously, that decision was related to the whole principle of judicial review, which, by the way, I should say, I misspoke earlier, I said Salmon Chase, the one's Supreme Court Justice who was impeached Samuel Chase, not Salmon, Salmon presided over the impeachment

of a president, but that's a whole different story. That's it. Okay, but anyway, I did want to note that I was doing some research about the dumb tariff positions and the president wanted to reverse his own North American free trade agreement this week, again, and so I was looking at it as all of his tariff positions. And, and it, I was like, who convinced Trump to go back and embrace the disastrous tariffs of William McKinley, and all evidence suggests it was Robert Lightheiser,

the prior owner of Ed's house. So, you know, you are at, you know, a real epicenter of American dysfunction, and I just, I just want to give you credit for that. Perhaps that is what gave you perspective to write the piece that you have up at the FT today, we're recording this at a Wednesday, about the 250th anniversary and the kind of sour taste it may leave in a lot of people's mouths because of, I don't know, the way the president celebrating it, who the president is. I mean,

as I was reading your piece, I mean, I, I think that the story I had just read moments before had Trump boarding what he called the greatest airplane ever built, one that could not have been built in the United States, I'm sure Boeing company doesn't feel great about that. This was the Katari jet that they gave him to be Air Force One, which is kind of like the president flying around a bribe, freshly painted bribe in front of everybody to commemorate the 4th

flying violation of the emoluments clause of the Constitution to get back to our prior point.

“And I was just wondering if you want to talk a little bit about what was behind your column.”

And yes, I was one second, I'm just to sort of build on your point about the Katari plane. That is being managed by the Pentagon, but the Pentagon will then donate it, quotation marks, to the Trump library, quotation marks. It's not going to be a library. This piece of land he's been gifted in Florida for his post presidential. It's going to be a result and a hotel

with a jet. And a $400 million jet with a billion dollars of upgrades that were paid for by the

taxpayers that will then be at the disposal of the ex-president. Indeed, it's just another scan. So I mean, what prompted me, I'm sort of at the age where stuff that happened 50 years ago is in the full memory of people I know. And the bicentennial really interested me, you know, I was eight years old when that happened 1976. And I had, I do have recollections,

“I think, of tall ships in New York Harbour and Gerald Ford, with the Queen probably the Queen's”

visit because she came over to commemorate that. And various sort of images, but I remember it

is being a fairly positive and happy event. I'm pretty much every American I know who's over the

age of, you know, 58, has really quite vivid and positive and warm memories about that commemoration. And of course, it came two years after Nixon had been compelled really to resign to avoid impeachment. And therefore, it was a moment where the system had shown itself to be working. We are not at a stage to put it really mildly to make the understatement of the day at a moment where the U.S. system is working. Quite apart from the sort of freedom to 50,

hijack of America to 50 that Trump's done and the U.S. civilization and him turning this whole thing into a personal branding and grift opportunity. Quite apart from that, even if he was conducting the federal celebrations with high property, this would still not be a moment to feel particularly like celebrating a birthday. But it is an extraordinary moment nonetheless. 250 years is longer than most empires in human history. The durability, survivability of this

“American Republic, it's not something I think, you know, if you'd tell a straw poll of the”

founding framers, they would have predicted. This is an extraordinary moment and it should prompt a reflection on what America is becoming and why it can't unite to commemorate such an extraordinary date. But that is sort of the situation we're in. There is no consensus of what America is. And half of America hates the other half of America, it's an exaggeration. But sort of certainly 20% hates 20% and they're the loudest and most influential parts of America.

There's no possibility of real at least national level commemoration. I know there will be plenty of really quite civic traditional parties and fireworks, et cetera, you know, in people's communities and towns and states. But at the national level, nothing to celebrate. Rosa, you're in the great plains someplace or the Rocky Mountains or, I don't know, it's something between Chicago and California. Are you going to be like wrangling cattle and

branding things and, you know, doing very American stuff for July 4th? I'm going to be, I'm going to be waving my little flag around and singing the National Anthem. That's this but I'm going to be doing all week. I think there is a lot to celebrate despite the many things to mourn and be infuriated about, you know, I haven't given up on us. I'm very, very worried. I'm extremely worried. As I said, I think our system is broken. I think this is an incredibly

volatile situation and the polarization and volatility has been whipped up by President Trump, who I would give most to the blame too. I mean, the trend towards polarization predates him.

But I think this is the first time we've had a president who has actively sought to fan the flames

as opposed to camp it down. So all those things are bad. But I do think that I'm not hopeless. The American people buy in large despite a lot of civic ignorance and mistrust have a fair amount

political violence. You know, I despite the polls where you didn't get these polls that say,

you know, 20% of people think that political violence is sometimes justified. Usually that's an artifact or the way the question is asked. You know, that obviously any of us can come up with a hypothetical, you know, an extreme extreme hypothetical, you say, well, I guess then, but that's not the same as saying most Americans think that they would engage in political violence, you know, if Trump didn't win the

“election or something like that. I think I think there's just a tiny percentage of people”

would support something like that, negligible percentage of people. We have muddled through in the past. I mean, we've muddled through and sometimes after violence, right? The Civil War was a horrific incident of violence. We've had smaller scale armed rebellions in this country that we have

survived. We have managed to make significant changes to our constitutional structure.

You know, one of the paradoxes of the U.S. Constitution and this is something that people like legal scholar Bruce Ackerman, a Yale, you know, famously wrote about is, is that many of the moments of constitutional innovation have essentially been extra legal including the reconstruction amendment, which brought us to 14th Amendment and birthright citizenship and so on. The Constitution itself was arguably extra legal at best illegal at worst. I mean,

the delegates to the Constitution convention exceeded their brief and did a whole bunch of things they weren't authorized to do, but it kind of worked. You know, the reconstruction amendments played fast and loose with the rules that took advantage of power relations at the time

and managed to push through amendments that would not have been supported necessarily by a majority

of the states or the population at that time. It's hard to say. We've sort of muddled through

“and history has, by and large, judged those extra legal change efforts favorably, right?”

It's not impossible that we will find some further way to muddle through. You know, it is not impossible that this period, this very dark period could see a pendulum swing towards Americans just saying we don't like this. We need some change. Let's vote for candidates who will bring that change and let's tamp down the rhetoric and tamp down the polarization. So I haven't given up. I mean, we, we, this is still a pretty great country in all kinds of ways, right? We're, we screw

up really badly. I don't think there's, I, I do think that we should be on guard against complacency and I still see a really shocking amount of complacency, including in this so-called Democratic elites who seem to think, well, you know, things will just kind of go back to normal without me really having to do anything, you know, have normal elections and everything will be okay and, you know, and, and that's long as the federal serves, you know, good, like must stock markets,

good, it all be fine. We'll still all be rich. We'll, we'll muddle through in that way. That I think is, is dangerous because things won't change positively unless we all try to make them change positively and unless we all recognize how perilous this moment is. But at the same

“time, as I said, I'm, I'm, I'm not, I'm not, I'm not bearish on the United States. I, I think there”

is a real possibility that we will, we will survive this and become a better nation, although I don't think that's going to happen. I don't think it's inevitable and I don't think if it happens, it happens overnight. I think it sits at this point, you know, if we're lucky in 50 years, we will be stronger and better. I think we're going to absolutely best case have a period of retreat from the world stage and a period where we are really struggling. You know, that's a plot twist I

did go for it. You know, all of a sudden here is Rosa, you know, taking the positive position, which is, you know, it's not all bad news. I mean, that's way, you know, as you know, we've been doing this for 12 years or whatever, that's, that's over the top praise from her. I'm just wondering if you're sharing her, her dose of lukewarm and fizz, yes, from America at 250. Well, so I, to some extent, I am, I mean, I've been talking to various friends and relations

in across the Atlantic. What I, as I do all the time, like my dad and other people. And because they're more knowledgeable than you are about your own history, they know that there's something called the 28th Amendment to the U.S. Constitution, which says that our shalt have air conditioning, because they are sitting there in these ridiculous sort of heat waves. And being told, no, it's immoral. I mean, the French, you know, whose electricity comes from nuclear power,

think thinks it's immoral. And there's a certain sort of abundance to American life in spite of the extraordinary distorted and indefensible skewing of income and therefore of political power. But do you, do you have air conditioning in your house, huh?

shortly after the British period. And so I think it still got that sort of influence.

“No, I, I would be, I would be, you know, I would be if I were America. I mean, I've got an American”

flag. I inherited at our front doorstep. I'm not ashamed. I don't want to take it down. I certainly not tempted to do a John Roberts with it. I don't, no, sorry. I'm in a Lito.

It wasn't John Roberts, right? Was it, as I'm in a Lito's wife who turned it upside down and had

the Magistars and Stripes? If I were American, and I am a friend, and I'm out of America,

“I would be celebrating today to make a point that it's bigger than this, this man.”

Yeah, I agree with you. I wrote a column for the Daily Beast, just be out a little bit later today,

about all of this, and much I say that, you know, Donald Trump is in many respects the

anti-George Washington, and I enumerate exactly how he is the anti-George Washington. There are a lot of ways he's kind of the opposite of him, but it does, you know, provide you with wake-up call, and it reminds you of why the founders were so concerned that the country without checks and balances, and without a focus on the character of our leaders, would revert, not might revert, but would revert to despotism and tyranny. They were certain

Benjamin Franklin said this will happen. Alexander Hamilton and John Adams warned of this, George Washington, and his farewell address, warned of this. And so, you know, we come to this moment, and it's a difficult moment, but as Rosa pointed out at the beginning, there have been many difficult moments in the history of the United States, and we have somehow grown from them. And there is, you know, at least the same kind of chance that we will grow from this, and, you know,

there is enough in the national dialogue about upcoming elections and about criticism of the president and of the system and about calling for reform to think that we've still got a chance, and, frankly, at this point, in particularly given the situation in other places, that's something to celebrate. And so, we wish to all of you out there in the DSR universe, happy 4th of July, we'll be back discussing the rest of the world as we typically do. Next week in each and every week,

“we'll be in the home stretch of a really, really important election cycle with a lot of really”

important major international issues to cover. So, please join us for all of that. We are not vat casting on Friday, but we will be back on Monday.