Episode 24 - The Third Amendment

Speaker 0 00:00:02 So, uh, good afternoon, Hillary. Speaker 1 00:00:04 Hey Jeff, how are you doing? I Speaker 0 00:00:06 Am, I'm hanging in there. It's the end of the quarter slash semester. Um, I am tired of zoom university even more so than last time we spoke. Speaker 1 00:00:17 Yes, it is the most wonderful time of the year because the semester is ending. Speaker 0 00:00:22 Thank God. Uh, all my students are tired of CME university. We're all done with it. We're all ready to be back. Face-to-face when practical and safe, um, Speaker 1 00:00:35 Which won't be next semester, unfortunately, Speaker 0 00:00:37 Which will not be next semester. And I'm amazed at how Hopeful slash naive slash tone deaf administrations are because they are just, ours is saying, okay, for winter quarter, we'll be week to week decision, but spring quarter, we're pretty sure we'll be back face to face. And I'm like, okay, well, okay, that's false. That's a nice pipe dream there Speaker 1 00:01:06 Because the, I mean, we talked a lot about this last week, of course, but the cases are worse now than they ever were when we first went online. So there's just, it just doesn't make sense to me that they're going to have in person based on the numbers, but what frustrates me. And I've talked to a lot of friends about this in different, um, professions is that there's just not a consensus on what's going to happen. And week to week, they'll be like, we're back now. We're hybrid. Now we're back now. Three people come to the office. Now, five people come to the office. Now people come to the office every other day and you come on Tuesdays and you come on Friday. Like, how are people supposed to function and get things done when there's just so much? I mean, I always joke that like, Oh, dogs are creatures of habit. Like we're creatures of habit. It's not good for us in the workforce to just constantly be on the fly of what's going to happen from one day to the next. I think it's, I think that's, what's causing the fatigue. If there was just one set standard of, this is what we're doing for the next X number of months, I think people would be a little more chill about it. I just, I think it's the constantly not knowing. Speaker 2 00:02:18 Yeah. Speaker 0 00:02:18 I mean, that's that's yeah, definitely. Um, so I was just trying to find some information to see if we've got a decision here. Um, so it's interesting where you went to talk about the third amendment today kind of continuing our constitutional amendment, like mini series, but there's an interesting Supreme court case going on, right. Our filing that was done today. And I was just looking to see if any emergency ruling came out. Um, this has to do with, uh, AGSM the ag of Texas, along with some AGS from some other States filing an Amicus brief, which doesn't mean, which means they're not party to the, but basically the agency of Texas is trying to Sue some States and argue that the way they conducted the election was against their own rules and the Supreme court's considering it today. Most experts, most I have yet to hear a legal expert who feels the Supreme court is going to even hear this thing. Um, Speaker 1 00:03:21 The Supreme court is stacked in conservative favor. So then you definitely know that it's not, this is not partisan even at this point, because if it were, they would hear it and they would, um, you know, put some stock into it. But I don't think they are. I don't want to speak to you soon though. I mean, it's 2020, who knows. Speaker 0 00:03:37 I mean, maybe there'll be breaking news while we're reporting the, uh, recording the episode, but, uh, I mean, the constitution is important and one of the things we're going to get to today through the third amendment is this idea of how to interpret the constitution. So it should be fun. It's going to be a little nuts and bolts as far as getting into the nitty gritty of, of the guiding documents for our country, but, uh, hopefully enjoy it. Um, and it should be a good discussion today. Welcome to an incomplete history. I'm Hillary and I'm Jeff. Speaker 1 00:04:11 And we're your hosts for this weekly history podcast? Speaker 3 00:04:13 <inaudible> Speaker 0 00:04:35 So, uh, before we get into the, uh, constitution, how's the weather in Mississippi. Speaker 1 00:04:43 It's pretty nondescript, particularly for a December day. I mean, it's 72 degrees. It's sunny, it's beautiful out. It feels very much like what I'm used to Southern California weather. Um, it's, it's just a nice day. Nothing, nothing exciting happening. Speaker 0 00:05:04 Yeah. Well, we have beautiful weather today, even though we're still got some smoke, there are big fires just South of us in Tiawana. And those have been kind of blanketing us with smoke, but it doesn't, I can't smell it today and it's pretty clear out. So it's not bad. It's not bad weather for December 10th, 20, 20, all things considered. So today we're looking at the third amendment, which on the surface is a pretty boring topic. Speaker 1 00:05:36 I've been looking forward to this since we started our amendment series last year, and we got a little sidetracked because of just the onslaught of current events being thrown at us. But I'm really excited about this one because it seems so boring, but it's really not boring at all. It's very exciting. The third let's. Speaker 0 00:05:58 Yeah. So, so let me, let's start off with the text. So this is the third amendment. It's the third amendment of what's the first 10, which are called the bill of rights. That's what we call them. So do you want to read the original text? You got that up or you don't want me to read it? You can go ahead and read it. I don't have it up. Okay. So this is the text. Uh, no soldier shall comma in time of peace, be quartered in any house comma without the consent of the owner comma, nor in time of war comma, but in a manner to be prescribed by law period. So it's interesting to note, this is the least litigated and the least referenced amendment in the constitution, and it's never been used as justification for a Supreme court. Speaker 1 00:06:46 That's right. It's um, and I think that it's probably the least known one. I mean, a lot of people know one and two, and then when you start to get to three, I don't know. And it, because it seems so distant from anything that we would even need today. But what I love about this, it's like, there's this comedian who has a bit about, um, you know, when they were coming up with a bill of rights, like the most important things, and there's like laughing about it. It's like, Oh, number three, you can't have soldiers in your house. Like, Oh, like that's important. And it's, it's a really funny bit, but if you know about the 18th century and you know, about this time, you know, that this was a really, really pressing issue to colonists in the 18th century. And it was very much impacted their day-to-day life, where we look at it now, and we're like talking about soldiers coming into your house, but it was really, um, a part of something that they were worried about. And this even goes back prior to colonization of North America. Um, and it has roots back in England about, um, soldiers and where they belong or where they don't belong. Right. Speaker 0 00:08:03 Well, I, yeah, I think it's that there's this, it is part of an English legal history that predates the United States that the United States kind of incorporates, but it's also part of a public view of the military. We can talk about that, but even more important is it, it seems so for me, it seems so bound within the 18th century, it seems like something that's relevant for the 18th century, but has a little relevance outside of it, but legal historians and constitutional scholars argue just because it's never been used to justify, uh, uh, Supreme court decision or something like that doesn't mean there, isn't something kind of important in here. And I want to kind of start with this and then we can, do we want to do the background? Let's do the background Speaker 1 00:08:56 With that. I mean, let's start cause that's true. I mean, it's really, I see something on the horizon for the third amendment being used and it has to do with in government and intrusion into the home Speaker 0 00:09:10 Domestic privacy, Speaker 1 00:09:11 Domestic privacy. Exactly. And this is becoming a bigger and bigger issue, particularly with the internet. And you're talking about zoom university, right? I mean, there are some really big issues around like monitoring of, you know, classrooms or monitoring workplaces or, um, you know, of course our phones in our pockets all the time, recording what we say in advertising being, um, targeted to us and things like that. I could see that there's this 18th century version of it. And it's talking specifically about physical soldiers entering homes, but it's, it's representative really about government and the state, um, and coming into your private space. Is that fair? Speaker 0 00:09:56 Yeah. I mean, I think that's, that's a way it could be used. It has not been used that way. I look forward to it, but I think it could be, but let's, let's back up a little and talk about kind of where this thing comes from. And I think the thing that people need to keep in mind, and we've mentioned this briefly before on the podcast, but I think the thing people should keep in mind that generally the population of the United States and of great Britain before we were a separate country, were very distrustful of the military. Speaker 1 00:10:32 Well, and this is why, so if you listen to our second amendment episode, the second amendment and the third amendment are very connected. Would you agree with that? Speaker 0 00:10:44 Oh yeah, they are both. They're both representative of this deep seated anxiety that a standing army is a danger to the Speaker 1 00:10:54 Yeah. About standing armies and about having soldiers, just kind of living amongst you and, and monitoring or patrolling or whatever else that it's an infringement on Liberty. It's an, and then, you know, these ideas about home and domicile and property start to become more and more cemented into the 18th century. And the idea that soldiers can just come in and you have to lodge them. People are really freaked out by that, but the quartering act, um, actually says that they can't do that, right. I mean, they're, they come choose this agreement that says, no, they actually can't do that. And this is before the third amendment, this is prior to the bill of rights and everything. Um, the idea from the, from the British was that these soldiers needed a place to stay because there's no, there aren't any barracks. There aren't any military installations in any way that we would imagine them now. And so the idea was when the military comes into your town, you are responsible for housing them, and you can do that in your house with your permission, or you can build them something and they often built them something. Right? Speaker 0 00:12:06 Right. So the, this is the interesting thing, this idea of the barracks. So, so the specific, eh, 1763 quarterback, which comes in the wake of the seven years war, the French and Indian war for those who kind of are very Urus focused. But as part of this broader global conflict, the seven years were, and the main players in that war, France, the United States and our France and Britain and the British government decided in the wake of that war. After the treaty of Paris, after 1763, they needed to actually keep a fairly large number of soldiers stationed in the American colonies. And they needed a place to kind of shelter them. And the prior quartering act didn't extend to the colonies. So parliament 1765 passes this new quartering act. And what it says is the colonist ideally should provide barracks for the soldiers. If they can't do that, then, um, they could be billeted in ends stables and ale houses. Harvey has very strong opinions on this. Um, and then if those weren't enough, what governors could do is then they could move to uninhabited houses, barns, and to kind of other buildings to lodge soldiers. Speaker 1 00:13:30 Yeah. They, and not only could they go into all these different buildings, but they were living amongst the people, which I've always found really interesting in the 18th century context. Because if you think about like 20th century, 21st century military installations, it's so removed from civilization, I guess. I dunno, I don't wanna say civilization, but like, they're their own space. Like they're their own cities. They have their own restaurants, their own stores, their own everything. Like you go onto a military base or installation in the 21st century and you're entering a different, a different space. And again, it's like its own city. So the fact that they were very much in the middle of the city in the center and that they were spread out, they weren't in one specific place where it's like, okay, this is where the barracks are. It's like, they're in, they're in a public house. Speaker 1 00:14:20 You know, they're at the Tavern, they're in somebody's barn with their permission. They're in somebody's home. I mean, they're just everywhere. And that's really freaky if you think about it, like you couldn't even imagine something like that happening now. Um, but I mean, I guess considering our earlier mention about, you know, government intrusion into the home and the, the idea of technology and kind of like ears listening all the time, um, we do kind of have that, but the idea of like physically human beings coming into your house and like eating your food and drinking your beer and, you know, like whatever they're doing, it's, it's a huge burden to people living at that time. And they didn't, I mean, most of the time they would house them in other places now, not only were they responsible for building barracks or allowing them empty or vacant places or going into public houses, they were also responsible for their firewood for all their provisions, food shelter, firewood, um, ale, colonists were expected to provide all of these things for the military. Can you imagine? Speaker 0 00:15:27 Well, and they hate it. The colonists hate this. Speaker 1 00:15:30 Well, often kids insane. Right? Speaker 0 00:15:33 Well, I mean, so that, that quartering act is passed in 1765 and by 1768, British soldiers are having to be increased. Their presence is increasing in Boston because there's so much resentment for this. And Bostonian's, you know, they've viewed this constant presence of British soldiers as a way to put them down a way to keep control of them. And they're being forced. I mean, imagine this, you're also being forced to provide, buy beer for the people that are there to kind of oppress you. Speaker 1 00:16:07 Yeah. And I mean, the idea though is, Oh, they're not there to oppress you. They're there to protect you. But more they're asked for that protection Speaker 0 00:16:15 17, right? 1768, those soldiers moved in there are clearly not to protect Bostonian Speaker 1 00:16:21 Well, and that's interesting. So in 1768 in Boston, if you look at the number of soldiers in Boston, the population of Boston in 1768 sits at around 15,000 people. There are 4,000 soldiers billeted in town, uh, quartered 4,000 soldiers out of a population of 15,000. They aren't there to be to play nice. And the tensions are, are, are real. Speaker 0 00:16:51 And by 1778 explodes Boston mass, Speaker 1 00:16:55 The massacre in 1770 in March of 1776, Speaker 0 00:16:59 You know, the townies throw stuff at, you know, the British soldiers, British soldiers fire, and this, this kind of moment that crystallizes this breakaway from great Britain happens. Um, five civilians are killed, um, and you know, colonists take this up and they say, this is clear evidence that this, this presence of soldiers is an, a front to our Liberty. And that's how they really kind of portray it. And, and that's the thing is I think the second amendment and the third amendment more than any other amendments in the constitution are really responses to the things that directly led to the colonies breaking with great Britain. Speaker 1 00:17:46 Well, and there are things that affected the day to day, right? And that's, we can talk, I know we'll talk about this later, but it's like how relevant is the bill of rights of the constitution to 21st century America? You can make arguments either way, but this third amendment, it was number three. I mean, you're, you're making a list of things to say 10 things. And number three, like obviously this is very important. This is something that's affecting them. Um, financially, probably emotionally and, um, and all that. I mean, they're, they're mad about it. They're scared about it. There's, um, chaos happening, you know, like the Boston massacre creates some, some level of chaos where finally that tension comes to a head where the shoulder, the soldiers actually are shooting citizens in Boston for really no good reason. Um, and they're, they're, they're, they're in huge numbers. Um, but number three, being this quartering of soldiers, it ends up being very important thing. Um, and it's not something that everybody was in agreeance about either about what should be done. Speaker 0 00:18:54 I mean, what I think what everybody did agree with though is standing armies represented a threat to the Republic, whether that Republic is parliamentary Britain or the new nation of the United States Speaker 1 00:19:10 It's wins that debate. We end up with them with the biggest standing army in the world. Right. Speaker 0 00:19:16 Eventually, right. But for a long time, we don't. And I think it's interesting because it, at this moment in 2020, we still are in a period where the public is generally enamored with the military. The public generally likes the military. That is an anomaly in us history for more. Speaker 1 00:19:37 When do you think that starts to happen? What would you say? Speaker 0 00:19:39 Well, I mean, it goes through phases. So like obviously world war two, there is a period of real enchantment with the military. And then immediately post-war, it's not so much disenchantment. People just don't want to see it because they don't want to be reminded of kind of the war they want to move on. Um, Vietnam. And post-Vietnam, it's definitely a period of disenchantment with the military, but I would argue by the time Ronald Reagan's president, we start back on the road of kind of a period of, of loving our army, loving our military. And I don't think that's really stopped since that. So sometime in the eighties, I think that starts to happen. And we're kind of in that phase, it's the longest time in our history that we've been kind of in the phase where most of the public is very happy about a large standing army Speaker 1 00:20:31 When it's interesting too, because the idea of if you're a true Patriot, right? And it's often like a sentiment on the right side of the political spectrum, then you love the military. But really like if you're a true Patriot, like in the sense of like 18th century Patriot, you don't want a standing military, you don't want soldiers around, you don't want them funded. You don't want, you don't want that. Speaker 0 00:20:58 If you're from, if you're from wasta in 1773 from wasta, you don't want a standing army. Speaker 1 00:21:08 Absolutely. Speaker 0 00:21:11 A pool of tyranny. Speaker 1 00:21:13 Yes. And so how are the third and second amendments related though? Because they did not want a standing army. They did not want the military. They didn't believe in it, but what did they want related to this amendment? Speaker 0 00:21:25 Right. Well, what they want is malicious, right? They want local community. Malicious are the things that are going to stand in, right? They're going to do the job that the military that the standing army does. And I think this, this tension was standing armies persists for a long time, even through the civil war, right? I mean, a lot of historians look at and say the civil war is the point of no return where the size of the military increases drastically and it never kind of shrinks. That's not exactly true. The military shrinks drastically after the civil war. Um, I would argue world war one is more the moment where the military suddenly explodes in size and never, right, right. And never shrinks below that. But I mean, this, this fundamental tension between Liberty viewed in a very individual level and what a soldier of the state may mean looms large for a lot of the U S for, uh, uh, for a pretty substantial portion of your us history. It doesn't loom anymore. We don't think about that anymore, except in times of tension. And then, you know, when people start talking about black helicopters and you know, all these things, it is a callback to that, right. I, I think it is kind of a call back to fears about a powerful military in the service of the state and what it can be used for. Speaker 1 00:23:00 Well, it gets back to the age old Federalists versus anti-federalists debate that we've talked quite a bit about when we talk about the 18th century, or we talk about the drafting of the bill of rights, whatever. I mean, there's this tension that exists, and this is something I like to point out all the time to students is that people who were Patriots or people who fought, you know, for the continental army are like, we're trying to get out from under British rule, blah, blah, blah. They weren't, they did not have a consensus on the way things were to be run in the wake of independence. They fought amongst themselves just as ardently as we fight now, if not worse than we fight now, in our, in our political arenas, there was no idea of the way that things should be. And this idea of a standing military, it gets to the Federalist anti-federalists debate because it's about a lot of state power control. Speaker 1 00:24:01 Um, the, you know, everybody is United and they're kind of like run over this umbrella government. And everybody has, you know, the same currency and similar laws and blah, blah, blah. Whereas other people were like, no, we're rugged individualists. We want our own militias. We want to go off and live on our own. We don't want state power or control over anything. And we most certainly don't want soldiers who are from outside of our region being harbored and kind of like surveilling us. Doesn't this seem really similar to some of the tensions that we have right now. I can see overlap. Speaker 0 00:24:38 I, I do, I do see that. And here's where I think, um, some historians and some legal scholars have kind of weighed in and said, this is where we may see the third amendment come back into play in the next, in the near future. So Gordon would makes an argument. Gordon would kind of this amazing story. And, um, that I, he's not at, he's not my absolute favorite, but he's really good. I really liked Gordon Wood's stuff, trading cards. Um, yes. Uh, he actually argued, well, he says, you know, this is the only constitutional amendment that deals directly with the relationship of the individual in the military that tries to set some boundaries there in peace time and a war time. And here's the thing, the, in the United States, um, if you are a civilian, the military has no authority over you period. Correct? Speaker 1 00:25:48 Theoretically. Yes. But they could Speaker 0 00:25:52 In what circumstances. Okay. Right. And that's kind of the way out, but I mean, it's in periods when martial law has not declared, does the military have authority over you? And the answer for some constitutional scholars and historians is no, the third amendment says, no, they wouldn't. But in the wake of terror attacks like nine 11 in the wake of, of disasters and as climate change kind of happens, we're going to have more natural disasters. And in the wake of militarization of the police, are we starting to blur that line? Speaker 1 00:26:33 Absolutely. We we've been blurring that line under the guise of this is for your safety and your security. Um, and to it echoes of the late 18th century, uh, where there's this idea that we'll, if there's these people around, like we're securing, what's ours here and all that. Um, so there is an overlap and there's also an overlap. I like what you said about the militarization of police, because it seems like they are separate entities. Obviously the United States, military is not local police forces, but the United States military, um, doesn't fund, but, um, funnels a lot of weapons, a lot of gear, tactical kind of stuff. Vehicles are vehicles comes from the federal government and trickles down into these localities where we have militarized police that are like walking through the streets with these armored vehicles, these flak jackets, these, they look like soldiers going through the streets. Um, and so, yeah, I think that there's a major overlap not to mention like you live in Southern California, how many, like federal checkpoints do you go through at different points when you're like on a road trip through California? Speaker 0 00:27:53 Well, that's, that is a whole other matter. And at some point, right? I mean, it's, this is the thing is the border patrol, what is the border patrol and why do they have authority Speaker 1 00:28:03 In the middle of California? Speaker 0 00:28:06 There is a border patrol. So interstate five is the major North South interstate that goes all the way across the entire coast, right? And between San Diego and orange County, which is the next County North of us, a good, more than 50 miles from the border with Mexico, there is a border patrol checkpoint on interstate five. And it, you know, sometimes if, you know, usually if I'm going through it, I'm on my way to something important like Disneyland. And I don't really want to be like detained long by getting into an argument, crucial, crucial activities. Um, but oftentimes I really want to have a legal argument with the people, Manny, the checkpoint, and say, according to the constitution, you have no right to be here. Needs peace time. Speaker 1 00:28:58 One of my earliest memories as a kid is going up the five with my parents in the car. And every time we'd reach that checkpoint, my dad would say, this is a violation of my constitutional rights. And they never knew what he meant. And like, we would all just laugh about it. Like, ha ha dad says this every time we get to that point, but it's true. I mean, it's insane that there's like this federal entity who is stopping California or otherwise citizens in the middle ish of not even you're out at the border and you are stopped and detained and there's no, they don't have to give you a reason for it. They can just like pull you over. Have you ever been detained? Speaker 0 00:29:40 Uh, did get to once, not at that checkpoint, but at another one. So there's some out in East Speaker 1 00:29:47 County. That's where I got. Cause they go East West also, which is crazy. So I used to drive from San Diego out to the desert. It's about an hour and a half drive in the middle of that drive. There is another border patrol checkpoint and I got stopped there and I was detained for several hours because I had gallon water jugs in the back of my car. I was just a gym rat and I was just drinking gallons of water, leaving water out, but okay. So say I was leaving water up. That's not against the law to leave water for immigrants for like three hours. No joke. This is the thing it's not sorry. Speaker 0 00:30:32 Well, this is the thing I think at, at some point in the near future, the third amendment is going to come up in a Supreme court case and there is going to be, it is going to be used as a rationale for either the military or local police or somebody overstepping their bounds. Um, but I mean, where we get to is this, like, I cannot imagine the framers of the constitution when they put this in here that they're thinking of any of that stuff. Because I think what they're thinking is very much their lived experience with Britain, right? Speaker 1 00:31:08 Yeah. Very much. But if you think of the sentiment of it, they did not want incursion of the government of any entity into their private life. Speaker 0 00:31:20 Right, right, right. But I think it's a nice segue into the other conversation I wanted to have today with constitutional interpretation. Speaker 1 00:31:29 There's so much to be said about this right now. There's been a lot of historians writing about constitutional interpretation, originalism, et cetera. There's some really good articles out right now. Um, so, so Speaker 0 00:31:42 Simply you have two views, you have originalist and non originalist, and then I'm going to complicate that with 12 other views as well. But, so what is an originalist view Speaker 1 00:31:54 Just that there was, uh, you know, that you have to interpret the constitution like letter by letter word by word, and that there's no deviation from it. It's not contextual. It's just very much by the letter of what they intended. But the problem with that is like, there was no, there was no firm intention, right. That it's a binding. Speaker 0 00:32:20 Correct. And you have to interpret it the way it was intended and the way it was written. And you cannot see it as a living document that changes over time. And there are some interesting reasons that get bandied about, about why you should be an originalist. And one of them is it prevents unelected judges from taking the reins of power away from elected representatives. So it prevents judicial, um, expansion and exp it prevents the judiciary branch from gaining too much power. Um, and it prevents individual judges from imposing their own ideas because they have to stick with the ideas that are viewed as what's originally in the constitution. And maybe, I mean, perhaps the most convincing argument I hear about originalism is it means that the amendment process is where you actually change things that you don't change interpretation of the already extant parts. But if you have, if things have changed, then you have to amend it. And the argument is this originalist approach means that you can actually have serious public debate. And that's kind of the defense of originalism. And there are several originalist Supreme court members at this point. So Clarence Thomas, Speaker 1 00:33:41 But that alone is a problem though, right? Because Speaker 0 00:33:46 Yes, but I mean, we've got at least three con uh, members of the, the judiciary of the Supreme court who are originalists, who are self-professed originalists now Scalia Antonin Scalia, the late justice Antonin Scalia. He was like the penultimate originalists. Um, but on the flip side you have non originalist and not originalist kind of argue, look, even the framers of the constitution didn't want their specific intentions and ideas that went into creating the constitution to control interpretation of it in the future. And they understood that they could not anticipate everything about the future and that the document had to be kind of flexible enough that it could be changed and its interpretation over time. Speaker 1 00:34:41 Well, so there's a new book out that I'll plug real quick by Jonathan <inaudible> called the second creation. Um, Dean app is at Harvard or not Harvard, I'm sorry. He's at Stanford. Um, the book is through Harvard university press, but in this book, um, the second creation fixing the American constitution in the founding era, he kind of complicates this idea that there was an original intention for the constitution. He argues that not only was its meaning kind of fuzzy in those early years, but that it was, it was done so purposefully so that there could be this robust debate over meaning. Um, and that, you know, there's this question about, is the text finished? Is it unfinished? Is it up for interpretation? Is it not? And that when it was created and drafted in 1787 and then ratified in 1788, he argues there was actually over a decade long period where they went through these, all these different iterations. Speaker 1 00:35:43 Um, and this kind of is an explosive, I think, some explosive findings about originalism that we really need to, um, confront. I would also recommend, um, he wrote something pretty recently, um, I guess in 2017. So I guess recently for historian, I guess, but about, um, originalism constitutional originalism in history, and I would recommend you look that up just because it has really strong implications for the questions that we have now about justices and about who calls themselves an originalist. Because whenever I hear somebody call themselves an originalist, I immediately identify them as somebody who doesn't know their history Speaker 0 00:36:30 Well it's, and it's important for me to start to break this down a little bit and say, look original. This does not mean a literal interpretation of the constitution. An originalist looks back at what the people who wrote the constitution considered when they wrote it and the meaning they imbued in that the way they would have understood it, which is different than Speaker 1 00:36:53 Right, which is Speaker 0 00:36:53 Different than a textualist approach, which is where we just simply look at the letter of the law. We look at the text and we take a strict interpretation. And if it's not in there, it's not covered if it's not specifically addressed now, no one claims to be a strict textualist at this point. Right. Nobody says, Nope, I don't care what meaning went into why they did things. I just care about what the actual letter of the law says, Speaker 1 00:37:19 Because then there would be so many things overturned, right? Speaker 0 00:37:22 Yeah. Right. But I mean, so it's, it's important for you to understand even originalist who are viewed as kind of the most conservative interpretation of the constitution are still leaving room for interpretation. But what they're trying to catch on to is what they view as an objectively identifiable idea or embedding of meaning within the text, a public meaning. And that that meaning has not changed over time. Speaker 4 00:37:58 Originally, Speaker 1 00:37:59 These it, that just makes it, did I say these that just makes it, uh, so open though, to just being whatever someone wants to be convenient at the moment, for whatever argument they're trying to make, Speaker 0 00:38:13 They have to argue. It was the original intent. Speaker 1 00:38:17 How can you argue intent? Speaker 0 00:38:20 Well, that's, you know, it's society of objectively identifiable, public meaning, um, that everybody understood what it meant at the time. Speaker 1 00:38:33 But I think what I would argue single time is that they were not in agreement. This idea that the founding fathers all sat around singing kumbaya together and came out, you know, they were pooping out stars and stripes together. Like it's, that's just not real. That's that's, I mean, it's a ridiculous narrative because they didn't even agree on what it meant at the time. Right. We like, we glorify these people, we put them on this pedestal and we just completely dismiss their humanity. And we dismiss the complexity of the debates that they were having in the 18th century over these very things. Speaker 0 00:39:17 Right. So, so we've got original intent, we've got textualism and then we've got strict constructionist Constructionism. And what that means is once you kind of decide what the meaning is, no further analysis is necessary. Speaker 1 00:39:38 Oh, you know what I mean, shift based on need, right? Speaker 0 00:39:44 That it's not the court's job to weigh societal benefits and societal detriments. And what's interesting is, uh, Plessy versus Ferguson, 1896. There are some justices who don't personally agree with the decision to uphold separate but equal, but there's the famous statement that you cannot legislate morality. The law cannot make people equal. It can make them equally in front of the law, but it cannot make them equal socially. And Speaker 1 00:40:22 So like they can't dictate people's behavior individual's behavior, right? Speaker 0 00:40:25 You can dictate people's behavior and it's and Plessy versus Ferguson brings us into the idea of precedent, right. Which is another way, uh, often of interpreting the constitution that, that the Supreme court actually takes into consideration kind of originalism and strict Constructionism, Constructionism, and even textualism, but also just looks at how the court has ruled previously. Um, the Supreme court is generally loath to override its own decisions. Is that a fair statement? Speaker 1 00:41:03 It's a fair, yeah, because law is built on precedent. Right, Speaker 0 00:41:06 Right. I mean, that's, the precedent view is that law is built on precedent. Um, then we've got logical interpretation, which is cracks me up, um, Marbury versus Madison Justice. Marshall kind of starts to set this out because he uses logical reasoning to kind of create power for the Supreme court. Um, and what he says is this, if then the courts to regard the constitution and the constitution is superior to any ordinary act of the legislature, the constitution and not so ordinary act must govern the case to which they both apply. Basically justice Marshall uses logic to assert a power of the Supreme court over legislation. That's dangerous, but I mean, that happens in 1803. This is right at the beginning of the whole. Speaker 1 00:42:03 And then it goes back to the idea that like this just wasn't hashed out even by 1803, it just wasn't quite hashed out yet. Speaker 0 00:42:13 And then kind of the last one. And then we can kind of talk about specific specific cases. The last one I to talk about is aspirational interpretations of the constitution. And this is the one that you hear a lot of critiques about when people say activist judges, what they're usually saying is the judge is taking this aspirational approach to the constitution or the law. And it's the idea that it is a, you have to read it as a contemporary text and you're more concerned with the specificities of the case. You're looking at then creating a general precedent that might change things. And it's constantly seeking the balance power of the individual or power of the government with rights of the individual. Speaker 1 00:43:01 And this to me though, is the spirit of, or the original intent or the spirit of the founders. And I would cite Thomas Jefferson here, right? Who we venerate Thomas Jefferson. But he said, very clearly, this is a document that needs to be updated and reconsidered every generation, every 20 years. And so somebody who's aspirational about it, I think that they are practicing the original intent of saying like, Hey, we need to revisit this. The fact again that we have, we have just shrouded this document in, you know, um, w with such reverence. And I think that they would think it's very strange. It's almost religious in a way where we like worship this document, but it's like, it was not meant to sustain until the year 2020. Speaker 0 00:43:56 See, I think that's where you and I disagree because I think, I think the way it's structured it is structured to be modified. And I think some of the original writers would probably be surprised that we have actually amended it so little. Speaker 1 00:44:14 That's what I'm saying. I think that they would be shocked. I mean, are you sure we disagree? I mean, I think that the founders would just be so weirded out that we are worshiping their original document and they're like, yo, we wrote that like over 200 years ago, like your society changed. Speaker 0 00:44:33 I think that they, I think the way it was constructed was kind of in the throws of enlightenment and the idea that they could create a document that would suffice to run a country, but at the same time would change as things changed in society. Speaker 1 00:44:49 And it hasn't really, Speaker 0 00:44:52 He has it. I mean, we have how many amendments, 25, Speaker 1 00:45:00 That's shocking. It's shocking. Speaker 0 00:45:04 We're averaging an amendment. What every, what does that eight years? Speaker 1 00:45:10 He asked me to do math maybe, but I mean, every rapid, you know, they're, they're rapid against her fingers, Speaker 0 00:45:21 Instruction amendments. We get a whole slew of them very quickly. Um, there's a bunch of amendments that at specific points in the 20th century, but, and then we've got the first 10 all come like in a huge block, right? Speaker 1 00:45:34 Boom, boom, boom, right after <inaudible>. Speaker 0 00:45:40 Well, that means there are long stretches where there are no changes to the constitution. Speaker 1 00:45:45 There's been a stretch really, Speaker 0 00:45:49 But I want to get back to kind of, you know, people may be listening to this and thinking, well, this is a really esoteric discussion. I'll go back to Roe V. Wade, 1973, which is kind of the benchmark of aspirational decisions by the Supreme court. Right. Um, Ruth Bader Ginsburg actually says before she died, she actually noted that the Supreme court may have made a mistake that they may have ruled too early Speaker 1 00:46:23 And the, what they used, what, you know, go ahead and talk about it. But I mean, what they use is like, I think that there are just so many holes in it cause they, they went for privacy. Right? That was, Speaker 0 00:46:37 And, and the problem is privacy has never explicitly mentioned. I mean, we talked a little bit about in the third amendment, there may be some way for you to argue domestic privacy's there, but it's not an obvious thing. And you know, what happened is the court decided they wanted to get to a certain place and they made a ruling that even if you support what Roe V Wade stands for is really hard to justify from any, any kind of other approach to looking at the constitution. And since the past, since the decision in 1973, Roe V Wade has served as a real dividing point for the country. True. Speaker 1 00:47:30 Absolutely. And I think that again, I think that that's on really shaky ground. I mean, I think that there could be something else that comes and there are, there's lots of things going through the courts right now. And what is so scary to me is like, there's, you know, the court is tilted in one way right now, and there are lots of cases that could come forward that could probably overturn Roe V Wade, um, and go just a different route entirely has nothing to do with the privacy thing. Right. I mean, well, I see that it's coming sooner rather than later, Speaker 0 00:48:05 I would argue this Roe V. Wade sinks, the equal rights amendment. Speaker 1 00:48:11 Well, so the equal rights amendment is interesting because Alice Paul, who was, you know, one of the suffragettes who, you know, worked really hard on getting the 19th amendment passed. And she was one of these like militant, um, suffragettes who organized the protest at the white house and all that. She made it, her life's work after the passage of the 19th amendment to pass the era. And so this effort started for her in 1920, and we still don't have any era in era, the equal rights amendment, right. That says that men and women are equal under the eyes, the law. It's a very simple sentence. Right. And we have not been able to pass this very simple sentence. Um, and you think that Roe V Wade has something to do with that because I mean, there was, uh, uh, into that era, Speaker 0 00:49:01 I was actually in the early seventies, well on its way to finally being ratified. And then in the mid seventies, things change. And I argue, I would argue the, one of the reasons that things change is Roe V. Wade creates an environment where you have a group that while focused on that specific judgment, that specific decision actually become interested in a lot of other things and put their activism into those other things. And Phyllis Schlafly is very involved in this. She is very involved in making sure the equal rights amendment is not passed Speaker 1 00:49:42 A woman as opposed to the equal rights amendment, all Phyllis Speaker 0 00:49:46 Old Phyllis Schlafly. Right. Well, I mean, this gets, Speaker 1 00:49:54 I think we're good. Speaker 0 00:49:55 I have a whole podcast about the equal rights of mimics. I think it's a really interesting kind of moment. Um, and it's such a different thing than what happens for the 19th amendment, but a lot of it has to do with gender roles and fears of this breaking down kind of socially accepted divisions and these things. And, but it's, I don't want to get kind of wrapped up in a discussion about the era this point. Cause I think we really do want to have our own episode about the equal rights amendment, but I, I mean, this is the thing Supreme court decisions have ramifications on other things, even if the things don't seem really related, it can end up causing other things to happen. And I think justice is most of them try to balance that, but I want to, I know we're running out of time, but before we do, I want to get to this one way to interpret the constitution and you may or may not have heard of. Speaker 0 00:50:58 And I wa and it kind of ties into our conspiracy theories episode, um, that I think we are going to have to do a part two of conspiracy theories. Have you heard of constitution in exile? Oh gosh. Now I'm excited. Okay. Um, so in 1937, um, in article one, section eight clause, three of the us constitution, Congress has the power to regulate commerce with foreign nations and among the several States and with Indian tribes, that's in the original constitution and it's been used to justify extensive federal regulation of the economy and our society followers of the constitutional and exile view actually argue that the original intent was not to allow this expansion expansive use of this and that any decision that's based on this that's based on the interstate commerce clause, um, is unconstitutional and what it means, um, by people who use it. So if you hear somebody say, talk about constitution and exile, what they're generally saying is they want to roll back the judicial powers of the federal government and that the judicial branch has far less actual authorized power in the constitution than it has a kind of exerted. Speaker 0 00:52:37 Um, and there was a famous case in 1995, uh, us versus Lopez. Um, and it was basically a decision that Congress cannot ban guns in their public schools under the commerce clause, power only States can. And this decision was seen as a real blow to the commerce clause. And a lot of people rallied, well, not a lot. Some people rallied around this idea that we need to go back through and limit application of that commerce clause that the Supreme court has used it as a ways to, as a way to support federal government's expansion, um, too much. And they need to be pulled back in. Okay. So I'm trying to process this in real Speaker 1 00:53:26 Time. So it's hard to, they're like, they're like the originalists of the originalists. Right, right. Okay. So they're trying to say like the original intent disappeared a really long time ago, and we've been functioning off of this like other set of rules that was never the intention in the first place. Is that, is that true? Speaker 0 00:53:52 Right? Because they're saying you've got a whole set of things, including the commerce clause and the necessary and proper clause, um, that were used to justify basically the new deal, Speaker 1 00:54:07 Massive expansions of government Speaker 0 00:54:09 Power. And they say that since that moment, since that expansion, um, you know, everything that's happened since then is suspect and probably not constitutional Speaker 1 00:54:26 Interesting. It's also us. Well, we're going to have to get into that and we're going to have to get into another conspiracy theory episode, because I was thinking about our conspiracy episode and like, we were almost laughing at it, but now it's not even funny because it is all these things that we're talking about are so mainstream now that they've actually impacted day to day life. I think, um, what I think is interesting though, um, so if there's this idea of like a constitution and exile or originalist or blah, blah, blah, I do wonder how the third, if there's all these originalists, and I don't think that the third amendment will ever go to the Supreme court. Um, but I do like the idea of interpreting it, like we talked about in the beginning of the episode is the idea of interpreting it as government intrusion into private space. Speaker 1 00:55:16 And to me, it seems like if you were to explain the situation to somebody living in the 18th century, they would be like, Oh no, you know, like, I mean, the situation of like our phones know where we are all the time and know what we're saying and know what we buy, um, and that this can be accessed by this huge government power. I think people in the 18th century would be blown away by that really intense intrusion into personal private spaces. And, and to me in the spirit of it, and I don't know what that makes me, I guess, what was it, what'd you say it say, um, what are the people who have interpretations of it? Um, I'm drawing a blank aspirational to me that is a really good example of aspirational, constitutionalist of like, what can we say, how can this amendment in the 18th century apply to us today? And to me, that's where I see a major connection is just this idea of, we don't want the federal government able to come into our homes and invade our spaces and kind of influence what we do on a day-to-day basis from all this like data mining and collection. We don't want that. Speaker 0 00:56:40 I mean, here's my perspective on it. I wish there was a part of the constitution that specifically dealt with privacy and I am by no means an originalist, but at the same time, I don't think there is any part of it because it's not a concern in the late 18th century. Speaker 1 00:56:59 See, isn't a concern early 18th century. I don't think it is. Hmm. Speaker 0 00:57:04 I think, I think this feeds into kind of origins of a lot of the ideas we have in our country, which I also want to have an episode about, um, a lot of our ideas come from our Puritan background and Puritan worldviews kind of precluded privacy for the most part, because if you're living in a community of saints, you can't really have privacy where you wouldn't want privacy with all the saints. You wouldn't want privacy. Speaker 1 00:57:33 That's interesting. But again, to me, it always goes to the, the debate in the 1790s. And I think that some people would say that that's all they want is privacy. That's all they want is to be left alone, but that's Speaker 0 00:57:49 Different than privacy. That's the thing I think no government interference is different than privacy, because remember what well, think about all the decisions that have turned on ideas of whether or not privacy is included in the constitution. Roe V. Wade, right? Um, some of the, uh, Supreme court decisions that have to do with homosexuals and state sodomy laws, um, Griswold versus Connecticut. You've got a lot of these decisions, which is asked you with birth control. A lot of these decisions turn on privacy. It's just not really in the constitution. And I think the third is there, right? I mean, that's the thing I do. We need an amendment now, do we, at this point, need a privacy amendment. I mean, something interesting. I found out. So if the police stop you and you have a phone and they want you to unlock your phone. Speaker 1 00:58:55 So Speaker 0 00:58:56 If you use a code to unlock your phone, they cannot force you to unlock it. Even with a warrant, they cannot force you to unlock it because it's, self-incrimination however, Speaker 1 00:59:08 Using it's using information from your brain to, Speaker 0 00:59:12 However, if you use your fingerprint or your face to unlock your phone, they can force you to do that with a warrant. So everybody go change, turn off face ID and thumbprint and switch to a code. I mean, Speaker 1 00:59:31 It's so convenient. Speaker 0 00:59:32 Well, I know it's so convenient, but that's, that's the problem. Since we don't have strong privacy protections in the law, that's the problem. And you have to, and this is the thing, I'm not saying you do this because you have something to hide. I mean, this is a friend of ours. Famously always talks about how I have the right to hide nothing, which means that I don't, even if there's nothing that will incriminate me, I still don't have to show it to you. Right. And I, you know, I think this is where the third amendment may come into play. Hopefully if this privacy thing, if people really start to take it seriously, there will move to, there'll be a move to make a constitutional amendment say, look, we actually need to talk about privacy explicitly. Speaker 1 01:00:17 I think that's one route. I think another route that we didn't touch on very much, but I think that it's also a part of this, the quartering soldiers. Isn't just about a lot of times, it's, it's confused. It's like, Oh, soldiers just bombarding into people's houses and knocking things down and pillaging and raping the women. It's like, it's not really about that. It's about the people's responsibility for supporting, for housing, them, for feeding them for doing all this. If you look at the amount that our, of our budget and our tax dollars that go to supporting the military, we are quartering them. We are bordering the military. I mean, isn't it like 80% goes. Speaker 0 01:01:00 I mean, we, right. I know we spent as much on our military is the next 30 countries together. Speaker 1 01:01:10 Yeah. So to me, it's not just about the physical, putting them in a domicile. I mean, it's, it's more about whose responsibility is it. And it turns out that like, we're still doing this. We are burdened with the responsibility with no option whatsoever. If we were able to like tick off and Mark where our tax dollars went, I guarantee you, the military wouldn't be funded very highly and we have no option. Our money just goes to them. And it's, to me is a violation of the third amendment because we are paying for everything, for everything for the military. Speaker 0 01:01:49 I mean, you may be able to get away with that in an originalist view, you might write, Oh, this Robert hour. And I, you know, we could go on, I mean, this is, this is the thing. I think it's this little disgust amendment that is a window into very interesting ideas that I think everybody needs to think about. Um, but, uh, so next week, um, I'm guessing I'm springing this on Hillary right now. She's hearing this live. I think we should talk about Christmas that early America. Okay. I'm down, not just early America, but just like Christmas in America and how it's changed over time. So it was fun because I think it's an interesting topic. It's kind of light. Um, and you know, it can be kind of fun and I'll love to soundboard up with Christmas music and distract. Speaker 0 01:02:46 Um, but I think it also gets us to something that I really do want to have in the new year, an episode devoted to, um, and I'm going to plug it a little bit here. Uh, oftentimes I hear people, you know, they say, well, the United States was not founded as a religious nation bollocks to that. It is so Puritan ideas are so embedded in our founding documents. So incredibly embedded. I think I'm ready to have a debate about that. I'm excited. Good. That's good. I'm glad I hope we disagree on it, but I just, I see the fingerprints of Luther and Calvin and Knox all over the shape of how this government is formed. Um, and good. Well, that's something to look forward to the new year's Hilary Knight knock-down drag-out about, but next week will be fun. We can talk about Christmas in early America. Yeah. Okay. Great. All right. Well make sure you join us next week. Thanks for joining us. I'm Jeff and I'm Hillary. Have a great day. Welcome to an incomplete history. I'm Hillary Speaker 3 01:03:56 <inaudible>.