The Owner’s Manual of This Union

After reflecting on the best and worst parts of our country’s founding document for Constitution ...

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After reflecting on the best and worst parts of our country’s founding document for Constitution Day, David and Sarah dive into Attorney General Bill Barr’s Constitution Day address at Hillsdale College yesterday, in which he defended political judgment in bringing prosecutions and railed against federal prosecutors’ propensity to punish as much misconduct as possible. Our podcast hosts agree with Barr that there is an effort by federal prosecutors to expand federal criminal law to an unreasonable degree. But David reminds us that federal prosecutors are not just the instrument to be wielded by the attorney general, they are charged with carrying out laws that have been passed by Congress. “Perhaps we have gone too far with civil service protections,” Sarah explains, “and that we are unable to remove anyone who is part of the permanent federal bureaucracy even for misconduct at this point really.”

Most of the news headlines referencing Barr’s speech highlighted his comparison between career federal prosecutors and preschoolers, as well as his rather distasteful comparison between coronavirus lockdowns and … slavery. “You know, putting a national lockdown, stay at home orders, is like house arrest,” Barr said yesterday in response to a question about the constitutionality of stay at home orders. “Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.” Sarah suggests a new legal truism on today’s episode: If you compare anything to slavery, you’ve already lost your argument.

Stick around for a deep dive into Lochner v. New York its relation to coronavirus lockdown court order, as well as a discussion about whether Trump can win enough Electoral College votes without winning Florida. Sarah and David wrap up today’s episode with a reflection on their biggest career failures.

Show Notes:

-Bill Barr’s speech at Hillsdale College, Three Felonies A Day: How the Feds Target the Innocent by Harvey Silverglate, Yates v. United States, Lochner v. New York, Morrison v. Olson, and William S. Stickman IV’s Pennsylvania District Court decision, The Dispatch30-day trial at .

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  1. Keith Schooley

    David, I was really surprised that you gave carte blanche thumbs up to Article III, and that neither you nor Sarah considered the Constitution's formation of the Supreme Court as, in retrospect, inadequate. David, I take your point that the separation of powers and the judicial authority being separate from the executive power was a great development, but a set number of judges and a clear method of judge replacement would have been nice to have in fraught times like these.

    Moreover, Hamilton's claim in Federalist 78 that the Supreme Court "may truly be said to have neither FORCE nor WILL, but merely judgment" seems hopelessly naive at this point, and one could wish that some limitation on judicial power had been spelled out.

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    AJ

    Sarah’s comment about the Framers splitting the Senate into three classes, and to elect one class every two years, as a genius invention she never would have thought of lead me to a question: when new states are added, how is it decided to which class that state’s senators will belong? Obviously it hasn’t been an issue since 1959, but it happened with some frequency before that. Is it determined in whatever document formally accepts that state into the Union? Does Congress decide, or only the Senate? Plus, I assume they get two senators immediately upon acceptance as a state, but no state’s senators both belong to the same class. So does one unlucky new senator only get a two or four-year term and then has to be elected again with their proper class?

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  3. Nick

    David, you left us on a cliff hanger!

    "Could it lead to sustained minoritarian rule!?" All the arguments I have with my left-leaning friends revolve around this conversation! These conversations usually revolve around eliminating the EC or reforming the Senate!

    What do you think the future brings? What structural reforms can we put in place so a ton of the population doesn't continue to build animus for the 45% of the population who block them, but also continuing to protect that same 45 %?

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    1. Nick

      I just listened to your full podcast with Ezra Kelin and I would recommend everyone go and listen!

      But I think you guys talked past each other on these key problems:
      1) I agree with you that any escalation like eliminating the filibuster will just stoke the flames even more, but what do I say to my progressive friends who want to enact the policies they want and can't because the president and Senate hold political power with a minority of the popular vote?

      2) Do you agree in general that majoritarian rule is the way to govern? But then how do we balance these two competing ideas:
      a) How do we balance the real possibility that the 51% don't "pee in the cornflakes" of the 49%? (Thanks Jonah)
      b) Given (a), how do we prevent Ezra's scenario where we just grow far and far apart and people who want to live in blue states go to blue states and people who want to live in red states go to red states?

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  4. DRHanson

    I agree with Sarah about the unfortunate language of the Commerce Clause. The Framers may have had a clear idea of what they meant, and it may very well have been clear based on the meaning of the words in 1787, but it is open to very different interpretations today. A pretty good argument can be made that the clause was orginally intended to be very broad. For one thing, in the late 18th century the word "commerce" had a broader meaning than just buying and selling stuff, and it was used to refer to a very wide variety of interactions including romantic relationships, social interactions, and the interactions between farmers and their livestock. More significantly, the original language approved by vote of the Convention gave Congress the power to "legislate in all cases . . . to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation." When the Committee of Detail made its editing changes, it changed this language to the current version which was approved without much discussion. Did the delegates regard the "commerce" language as a functionally equivalent but shorter version of the very broad language they had already approved? Or was it considered a substantive change in the clause, either slipped quietly into the final draft by the Committee of Detail to undo the decision made by the full convention, or adopted with everyone's knowledge because of a negotiated agreement that wasn't preserved in writing?

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  5. DRHanson

    I enjoyed the digression into professional licensure laws. When I was an Iowa state legislator I was active in a number of efforts to block unnecessary professional regulation laws, and spent several years as the chair of a commission that advised the legislature on occupational regulatory laws. I'll never forget a discussion with a cosmetologist that perfectly summed up the motivation behind a lot of professional licensing laws. She had contacted me to lobby for a ban on the sale or use of home permanent kits (this was the 1980's, when perms were really popular). I thought she was going to argue that home perm kits were unsafe or too hard to use, but she surprised me with her honesty. She said the problem was that they were so easy that anyone who could read the box could use them; so many people were using them that she was losing a lot of business. The simple solution, she said, was to outlaw them so her former customers would come back to her. Then she concluded with this great quote: "Our licensing law has been a total failure, because we've had cosmetology licensing all these years and there's more cosmetologists now than there ever were!"

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    Aylene Wright

    I thought Sarah's point that even the most committed originalist still needs to practice "living Constitutionalism" in order to apply constitutional principles to the 21st century world, was really good. It's not a stark split between one school of interpretation and another.

    Also liked the approach you guys took to Barr's speech, praising the good parts and where you agreed with him, and where you didn't. I recall Rod Rosenstein once gave a speech that made similar points about prosecutorial discretion at the Federal level.

    However ... Sarah, Sarah, Sarah. How could you *not* know Hillsdale is in Michigan? Especially considering that's where a certain redheaded colleague of yours, went to college?

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      Aylene Wright

      Er, I meant, NOT praising where you didn't. I could also make a case that Barr isn't really walking his talk by cracking down on protestors. Even if his argument is valid, he may not be the best person to make it.

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    Jason Gibson

    Sarah is becoming a hero of mine. Or is that heroine?

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  8. ROBERT

    Caught the second half and so glad I did! This has to be one of the best Advisory Opinions ever. And the last 12 minutes was the best part - the discussion of set-backs and failures. Not only were they interesting they were also educational and informative. You both framed it so well.
    Mercy and Grace - two of the greatest things /experiences in life. David's story at the end about receiving both discipline and grace was quite powerful. It reminded of the vast number of times I've tried to mess up my life - personally, professionally, and financially- only to be rescued at the last minute by acts of grace and mercy. I honestly do not understand why or how I have been the recipient of good fortune over and over again. We all have set-backs and mistakes. But it's amazing how often mercy and grace come to our rescue!
    Thank you both for sharing.

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      WKDawson

      It is reassuring signs that some people still look up to the heavens once and a while and even occasionally listen to what God has to say. For example,
      https://www.biblegateway.com/passage/?search=Matthew+18%3A21-35&version=NIV

      or another way to say the same thing,
      https://www.biblegateway.com/passage/?search=Ecclesiastes+7%3A20-22&version=NIV

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      1. ROBERT

        Good point!! I've always considered the ability of a person to demonstrate grace and mercy to others to be hallmarks of their true character. In my day to day life, I see it all the time. But online I rarely see it. We all need more time offline interacting with others. As David often says, relationships within our local communities bind us together. I need to remember that more often!

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  9. GusABQ

    Pretty sure it's chey-lum, not cole-um.

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    Sam B

    Can we officially refer to Sarah's assertion that if you make a comparison to slavery in a legal context, you've already lost the argument as the "Isgur Infringement"?

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      David French staff-badge Staff

      I like it!

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