That Time Sociopaths Tried to Inception a Fake 14th Amendment History into Legal Scholarship

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:10 Thomas: Hello and welcome to Opening Arguments. This is Vapid Response Wednesday, and we are going to do an episode as though there isn't nuclear war happening right now. And if it happens in between when we record it and when you hear it, then it'll be a fun relic in a video game. Like someone Someone will have to go up to like a computer and they'll see a shiny thing and they will be like, hey, check out this last episode before, you know, before it all fell. And then they can see us. So hi to the future video gamer. I'm Thomas. That over there is real life attorney Matt Cameron. How are you doing?

0:00:40 Matt: I'm still riding the high from watching the people we're about to talk about lose before the Supreme Court last week. So I'm doing fine.

0:00:46 Thomas: You know, in the wake of possibly our idiot president nuking a country for absolutely no reason, we're going to have something a little more gloaty, a little bit more fun. A little more fun, right? Right. We get to get to gloat in the positive news because they really did just get their asses kicked regarding birthright citizenship.

0:01:03 Matt: I think I'm going to be able to prove to you by the end of this that there's no amount of birth wrongs that make a birthright. These people are just birth wrong all the way around. These are the people responsible for this argument before the supreme court. The people we were about to feature today, this argument did not exist before and they created it. So yeah, you

0:01:18 Thomas: An argument so bad that this Supreme Court was like, they're like accidentally owning the guy, Sauer or whatever, the sergeant, surgeon general. What the fuck is he?

0:01:24 Matt: Can't have it.

0:01:24 Lydia: I don't know. That's his name.

0:01:32 Thomas: Attorney. What is he, sir? He's not the attorney general.

0:01:32 Matt: But Dijon, Solicitor

0:01:32 Lydia: Attorney General. Oh, no. He's the Solicitor General.

0:01:38 Matt: General.

0:01:38 Thomas: Solicitor general that's it I was like surgeon general

0:01:39 Lydia: Surgeon General. Dear God. I mean, it wouldn't be beyond this administration.

0:01:42 Matt: Might as well be.

0:01:44 Thomas: With the way he was massacring those arguments anyway that over there's lydia how you doing what's

0:01:49 Lydia: Hi. Pretty, pretty good. Pretty good. Happy to be here. Missed you guys. I feel like I get every other week off. So I don't know. I'm pretty sure I wasn't with you guys last week. So happy to be back. I wasn t.

0:02:01 Thomas: Happening were you what was I here were

0:02:03 Lydia: No, we did a different show. I think we did a GG crossover.

0:02:04 Thomas: You here were we here oh yeah but we didn't do it without you well you were in that

0:02:09 Lydia: I know. But you guys get to see each other every Friday. You know.

0:02:14 Thomas: This is the only time we see each other so you're right on board don't worry you haven't missed out on anything

0:02:16 Lydia: You guys get to hear each other. God. All right.

0:02:21 Matt: It's nice to see you too, Lydia.

0:02:22 Lydia: Thanks, Matt.

0:02:24 Thomas: All right. Well, let's see. Do we preview everything, Matt? All

0:02:29 Matt: Yeah, we're just going to be talking about some people that somehow have tenure after making arguments like this. I'm going to suggest maybe that they shouldn't have jobs anymore. But yeah, that's about it. That's most of our show. We've got a fun little surprise amuse-douche up front, but we'll get there when we get there.

0:02:43 Thomas: Right, well, we'll take a quick break and we're going to thank our patrons, which we always do. Our Hall of Famers, our all -time greats. These are the amazing folks who make the show happen at patreon.com/law. They support at the $5 level and above and they get the shout out every time we do the shout. And you can either change your name and do something fun or you can keep the same and be some of the classics going back to the 90s. All right? Right. Thank you too. Ruth Bader Ginsburgler. My house is a mess, but I read a lot of books. Gary the seagull. Hey, we got one of the seagles.

0:03:14 Thomas: So glad that they, not only do they listen, but they're paying customers. You know how many pieces of bread that seagul had to trade in to get an account? They had to get a Patreon account. That's hard. It wasn't just like, oh, I got to afford a pledge. They have to like go get a computer. I don't know how they did it. That's how much they liked the show.

0:03:13 Lydia: Oh yay wow

0:03:17 Matt: Finally contributing. That's right okay

0:03:29 Lydia: Yeah people are throwing away a lot of stuff these days seagulls can find anything thing.

0:03:34 Thomas: Matthew Cutler, autistic Twitch streamer. Vetinari for America 2028, one man one vote, UnreMerkable, your mom's a palindrome, your mom palindrome, uh Aminah, Donna Treadaway, Mother of Harridans, Mike Lapinsky, oh stone be not so, I like that one, that's a good palindrone yeah it seems deep in some way but is or not it might not not be. Sionitus, a money funneling hole.

0:03:52 Matt: Solid solid

0:03:52 Lydia: It's very poetic. Yeah.

0:04:04 Thomas: Is that a, I don't know what the, it's funny, whatever it is. Grey Pouponderance of the evidence. I always love that one. For resurrection lasting more than 72 hours, please consult your doctor. Oh yeah, for Easter. Sure. Good one. Apprentice of Adventure, Charlie Kelly, attorney at Byrd Law, Probably a real person. Those are two separate patrons, as I always have to point out. And Nick Fish, who was one separate patron by himself. All right. Well, that's our first third of our Hall of Famers. We're going to take a break, which you can avoid at patreon.com/law. And then we're going to get to it. Right, Matt, let's do our Amuse Douche, the best name segment in podcasting slash YouTubing.

0:04:02 Matt: No

0:04:06 Lydia: So good. Yeah me not wrong.

0:04:44 Thomas: What do you got for us?

0:04:45 Matt: I like to try to keep it separate from our main topic and as you just mentioned of course we're living under the shadow of uh well whatever it is that the president was threatening to do this morning to our end uh and you know we've got questions big questions so I'm going make sure that you hear possibly one of the least important questions. This whole clip, we're only going to play maybe 20 seconds of it. If you're not already convinced that capitalism is a bad idea, get ready. Get

0:05:06 Clip: So, Mike, let's talk about tonight, this deadline that President Trump has set, 8 p.m., has threatened to destroy a civilization. How does an investor process that? Is it a bigger upside risk or downside risk? I think the market is trying to stay balanced on both feet because I think it's hard to discern that type of rhetoric as, you know, a promise of something very destructive and long -lasting happening to distinguish it from what somebody might say. They want

0:05:18 Lydia: Who cares home that

0:05:20 Matt: Stop. Yeah, hear it again. It's amazing. It' s such an amazing question.

0:05:25 Thomas: Way.

0:05:38 Matt: With which she asked that question about investor upsides and downsides.

0:05:40 Thomas: Were you just wanting the question?

0:05:42 Matt: Yeah. The question is amazing. Yeah we can hear the the question one more time, it's so good.

0:05:41 Lydia: That is insane yeah

0:05:44 Thomas: That's so good. How, as an investor, I want to, yeah, let's do it again. I want want to hear this again.

0:05:48 Lydia: Go back go back uh

0:05:49 Matt: It's so short.

0:05:50 Clip: So that it feels like there's nowhere to hide. So, Mike, let's talk about tonight, this deadline that President Trump has set, 8 p .m., has threatened to destroy a civilization.

0:05:54 Thomas: Let's talk about, uh -huh. Yeah, mm -hmm. Threatened restoration.

0:05:58 Matt: A civilization.

0:06:00 Clip: How does an investor process that? Is it a bigger upside risk or downside risk? I

0:06:05 Matt: Upside

0:06:05 Thomas: Good,

0:06:03 Lydia: What do we do with our portfolios

0:06:05 Matt: Risk or downside risk?

0:06:05 Thomas: A good

0:06:05 Clip: Think the mark is that the market has threatened us. The market is trying to stay balanced on both. You

0:06:06 Thomas: Question. How does an investor, well, we are pro the jobs the meteor is going to bring.

0:06:09 Matt: Is it an upside risk or a downside risk? I don't even know what that means, but yeah, the destruction of a civilization. Yes, exactly. Exactly. Yeah. And

0:06:10 Lydia: That is crazy wow that is so crazy wow

0:06:22 Thomas: That's, Matt, that is incredible.

0:06:22 Matt: For those, I had to use

0:06:25 Thomas: Well done.

0:06:25 Matt: This, for those listening, and assuming we did not have a nuclear apocalypse this week, and you're listening many years in the future, healthy and happy, the president did this morning threatened to destroy an entire civilization that goes back to 5000 BC, so way older.

0:06:30 Thomas: Oops. Yeah it's older than ours yeah I

0:06:41 Lydia: Because he doesn't like that gas is expensive and people are blaming him which they should be blaming him yeah I think that's a big part of it yeah

0:06:46 Matt: And he an easy win, and

0:06:47 Thomas: But I also just think yeah it is but yes but like I think he can't handle that he was obviously beaten by the obvious thing that they all knew they would do which is close the straight and he's like not going to accept that he that he lost there there.

0:06:59 Lydia: Because he's a petulant child yeah

0:07:04 Thomas: Yeah. And it's, it's yeah, I it's it's great. It is interesting. Like, how is he going to is he gonna back out of this? Because we have seen him fold a lot, you know, with different stuff. And so I can't imagine that. I don't know. He's sending the planes. I saw something. I never know if anything's real anymore, but I saw someone saying the planes are heading over because it takes seven hours to get there or whatever. And because nobody will let us use their air bases nearby, which is great. Good job to the world for that.

0:07:06 Matt: He made it worse.

0:07:22 Lydia: I know. Yeah. Yep. Good.

0:07:34 Thomas: Um, yeah.

0:07:34 Matt: I think you're forgetting there could be some real investment upsides to the destruction of an entire civilisation.

0:07:38 Thomas: Well, yeah, I saw, I was going to get to that. And Matt, as an investor, how should I think about the destruction of a civilization? That wasn't even, that was what she did. I did the same thing.

0:07:45 Matt: Fortunately, yeah, that's the question. Yeah. Well, let's get on to stupid lawyers. That's stupid analysts. Let's get onto something we can understand a little better.

0:07:50 Lydia: That's so crazy.

0:07:56 Matt: So we're going to look at the president's favorite lawyer, Mark Levin, someone with whom he is actually in actual off -air communication pretty regularly, we know. And we know that for sure because of the first link I've sent you here on our document. I just want to set this up to show you Trump's recommendation that we watch what we're about to watch. This is going to be a little warm up before we get to the main event here.

0:07:53 Thomas: Man. That was incredible. This

0:08:15 Lydia: It's too bad that the Supreme Court can't watch and study the Mark Levin show tonight on the birthright citizenship scam, capitalizing the first letter of each of those things. If they saw it, they would never allow that money making hoax to continue. They They should use their powers of common sense for the good of our country. They failed miserable on tariffs needlessly, costing the U.S.A. hundreds of millions of dollars in potential rebates for the benefit haters and scammers. Why?

0:08:41 Thomas: The

0:08:42 Matt: Benefit haters. I'm a benefit hater.

0:08:42 Thomas: Benefit haters what's

0:08:45 Lydia: Why? Don't do it again. The country can only withstand so many bad decisions from a court that just doesn't seem to care.

0:08:53 Matt: Yeah, I think that's

0:08:53 Thomas: A benefit hater I'm not even up in this lore like whatever that would be

0:08:56 Matt: Benefit of, but he's missing a word there as usual. For the benefit of haters and scammers, I think is what he's trying

0:09:00 Thomas: Wait what wait wait oh

0:09:01 Lydia: In potential. Oh, I see. For the benefit of haters and scammers.

0:09:05 Matt: To say. I think so.

0:09:05 Thomas: Benefit haters are you sure because benefit oh yeah it could go either way I can see him saying that like because they're ripping off benefits they're like benefit hate I don't you never know with him like I so you think it's the benefit of haters and scammers that does make more sense

0:09:20 Matt: I don't know what the money -making scam is in birthright citizenship, except for the racist birth tourism thing we'll talk about, which is nothing. But I wanted to point out that, oh

0:09:26 Lydia: Open

0:09:28 Thomas: This is that's probably minnesota they probably think that you can just do whatever.

0:09:31 Matt: Somehow, yeah. This is a man who sat through the oral arguments last week and didn't understand a word of it, obviously. He just knows that it should be common sense. And so let's talk about common sense, but Mark Levin, president's favorite attorney. Now this post was from one in the morning. So he's watching Mark Levin and he wants us all to see it. So let's see it, let's take him up on it and let's check out Mark Levin's opening monologue. I'm not going to make you watch more than a minute of Mark Levin, but you're You're about to hear the stupidest argument that you've ever heard against the entire concept. Maybe one of the stupidEST arguments you've ever heard, period.

0:09:33 Lydia: Up daycares hey

0:10:04 Thomas: Here we go gonna hit play on whatever this is oh it's a fox news show okay now

0:10:07 Lydia: Guy yeah wow

0:10:09 Clip: This is my pocket copy of the U.S. Constitution and the Declaration of Independence now in the last half century I've probably read this a thousand times I've

0:10:12 Thomas: You're still doing that yeah

0:10:19 Matt: It's, yeah. And I still don't understand it.

0:10:20 Clip: Looked around it those who wrote it the history at the time what they meant depending on which words which phrase which section which clause were dealing with and I went back and I took a look earlier today and I And I cannot find this phrase, birthright citizenship. I have looked everywhere. I've looked in the penumbras and emanations, and I can't find it.

0:10:22 Thomas: Man

0:10:38 Matt: Nailed it.

0:10:39 Thomas: Well no you haven't looked

0:10:42 Clip: I've look at the invisible ink, I can find it, birth right citizenship. And yet, last week there was a big argument in front of the Supreme Court. And the justices, a couple of them were really wise, but most of them we're like, kind of strange. Change, getting into policy and politics and quirky examples and things of that sort.

0:10:42 Thomas: There there's did you look in the 14th amendment and what boy yeah

0:11:03 Matt: Okay, that's enough. That's more than enough. So that's my favorite argument, is these words aren't in the Constitution. You know what other words aren' in the Constitution, just to name a few? Spaceforce? Definitely not in the Constitution. Shouldn't be having that. Air force isn't in the constitution uh social security privacy these are words that we use all the time in constitutional law um uh but this is yeah

0:11:07 Lydia: That freaking guy right

0:11:21 Thomas: The word privacy is not in there wow yeah it comes from them the search and seizures and whatever. Yeah, Penumbra's. The Penumbras are where we've gotten some of our best rights.

0:11:26 Matt: The penumbra yeah great griswold that's

0:11:31 Thomas: So I like that he tries to make it like a joke. Like I looked in the Penumbas was like, well, no, you didn't because that is where it is. So it doesn't make any sense.

0:11:31 Matt: Hanging out the penumbras yeah that is where it is yeah it's yeah but yeah uh this is like a seven-year-old's argument this is actually that's smart there are seven seven-year-old smarter than this, I'm sure. But like, it's not in the constitution. So what are we doing?

0:11:51 Thomas: Well, his his version is so small. Maybe how do you know he can even read all of it? Like it seems like get a bigger constitution, bro.

0:11:53 Lydia: Especially as he ages yeah large font

0:12:00 Thomas: I, you know, I would have thought they gave up on that whole act. Cause they, you know, they did through the Obama years, you know, we got to hear him crying all the time. We got to hear chalkboard man crying constantly, cry, just tears, literal tears because of the constitution. And then I thought for Trump one, they're like, oh, we're not, we don't doing that anymore. Like we, our side does not care about that anymore, so I thought they would have put away their little pocket constitution, but are they trying to still pretend like they care about that? Wow.

0:12:00 Matt: That's true. So break glass in case of emergency. They got a tough one here. So got to revert to that. It's funny too when he's saying that all he heard was policy because that is pretty much what the government's argument was, was just policy. As I said last week, is a great way to lose usually. It's all you got.

0:12:39 Thomas: Cause Because they were saying we should be able to make the policy that it goes away. So, yeah.

0:12:44 Matt: And also as a policy, it's bad. We don't like it as a right, which is not something the Supreme Court is really going to be able to to consider. So yeah, that is Mark Levin. That's more than enough about him. But let's talk once more about one of my favorites, John Eastman. We're going to get to some John Eastmen.

0:12:50 Lydia: Right friend of the show, friend of the show, John eastman I

0:13:00 Thomas: We have consumed more John Eastman than any other human beings on Earth. Like, nobody is as interested in John Eastmen as we are. Not even John Eastmans' wife is as interesting in John Eastman as, Matt, apparently you are.

0:13:08 Lydia: Think that's true I think Yep.

0:13:14 Matt: I'm going to suggest everyone should be a lot more interested in John East man, not because he's interesting, but because he is behind so much of the evil shit we're dealing with in this country right now.

0:13:21 Lydia: Because he's dangerous. Yeah.

0:13:22 Matt: He is actually. And so he's actually in the process of being disbarred by the Supreme Court like this week, which is funny because if he fell to me, because Because yeah, this case is probably his last brief to the Supreme Court. He filed an amicus in this case.

0:13:28 Thomas: By the Supreme Court? Really?

0:13:29 Lydia: So good.

0:13:35 Matt: Yeah. Because the state bar is investigating him and the Supreme court is now looking at disbarring him from the Supreme board. But he filed him.

0:13:40 Lydia: Man, I want to make

0:13:41 Thomas: Wait, sorry. I actually don't. How can you get disbarred from the Supreme court? It. I actually don't understand that.

0:13:41 Lydia: A cake. I want to make the cake.

0:13:44 Matt: It has its own bar. I need to get around to it at some point.

0:13:46 Thomas: Why would, so why was he barred? So just to be able to argue in front of them as a separate, that's a separate bar. How do you get that?

0:13:50 Matt: It's a big deal. You actually have

0:13:53 Thomas: Do they make you take a different test?

0:13:53 Matt: To be recommended. You have to remember the Supreme courthouse to sign off on it.

0:13:55 Lydia: We recommend it.

0:13:57 Thomas: You have to beat one of them in basketball. Yeah. They would be fun if they had like a different way that you get qualified for that. That'd be festive.

0:14:03 Lydia: Man.

0:14:04 Matt: If anybody wants to sign off on it. I might as well just get around to it. I'm sure I know a few people already licensed up there. Anyway, yeah, so John Eastman, as we discussed at length, did January 6th in a very real way. Spoke on January 6, very much involved in the election fraud stuff, and went down for it.

0:14:09 Lydia: That's cool. Of

0:14:17 Thomas: Huge force in the election fraud crap.

0:14:22 Matt: But, also, fun fact, very much evolved in the current fight to try to destroy birthright citizenship, as recorded very clearly in the 14th Amendment.

0:14:28 Lydia: Course he is.

0:14:29 Matt: So, I want to show you two things that he wrote at different times for different purposes, just to show you how stupid these arguments can get. We're just going to pull up the first one just so you can get the headline, and we're not going to read it.

0:14:40 Thomas: Senator Ted Cruz is eligible to be president. All

0:14:43 Matt: Here's John Eastman assuring us that a man born to a Cuban father in Florida... Excuse me, a Cuban mother in Canada. Canada. I'm so sorry, Canada. Cuban father in Canada is definitely a natural -born citizen who's eligible to run for president, no question. And to be fair, Pennsylvania did find this in 2016. I actually don't argue with this. I do think that natural -borne citizens under the Constitution don't have to be born in the physical territory of the United States, I think, as long as they're born as citizens, as you would be with a citizen parent. You remember the whole thing with John McCain, born in a canal zone, that was U.S. territory, no questions.

0:15:17 Thomas: I forgot about that.

0:15:18 Matt: There was a brief fight up over that, but there never should have been a question of his U.S. territory and his parents were citizens. It was not really the thing. So I'm not arguing with what he's saying in this, but I am very much arguing what he was saying in the next one, because this really goes to show where his priorities are and who he thinks should be president.

0:15:32 Thomas: I click on the next one. Ted Cruz is a human. Yeah I disagree. Oh does Ted Cruz for human presence still exist? Hold on. I gotta check just for fun. Does someone still maintain that? That was like that's a lot. Yeah because why would you get why would you get rid of it all right this I'm sorry I just quick quick detour 100 % human candidate I have been incubated from birth to be here this came up like forever ago hello I am Ted Cruz for president I have over 42 years I wish to shut down the space program and destroy all telescopes abruptly and without explanation Ted Cruz beach tips the skin is the enemy of the sun oh boy yeah Ted Cruz for human president was the the funniest thing. Yeah, that was back when that was actually something. I

0:15:47 Lydia: Why a hundred percent human candidate oh I have over 42 years wow

0:15:53 Matt: I've never seen this. Beach tips.

0:16:13 Lydia: That's good yeah if

0:16:13 Matt: Good stuff.

0:16:19 Thomas: Can't believe it's still there. Okay, no, not that. He did that because that we agree with. Our position on the show.

0:16:24 Lydia: John eastman were behind that website I think I would feel a lot differently about him

0:16:29 Thomas: Let's see. So we got one from 2020 here. Let me pull it up.

0:16:29 Matt: So this article from 2020, this op-ed went so well that Newsweek had to run the longest apology they've ever had to write for anything, which we need to take a minute to read up front because it's very funny.

0:16:42 Thomas: You want to read that first? Sorry.

0:16:43 Matt: Yeah, we should read.

0:16:44 Lydia: Wow it's part of the same article

0:16:44 Matt: This one is worth reading. Yeah. It's all up front.

0:16:46 Thomas: Part of the same article. Okay? Some questions for Kamala Harris about about eligibility what is that I don't even know what that means though yeah

0:16:53 Matt: Editor's note.

0:16:54 Lydia: All right Right. This op ed is being used by some as a tool to perpetuate racism and xenophobia. We apologize.

0:17:01 Thomas: Weird yeah

0:17:02 Matt: That's what it is. That's why it was written. It is a tool.

0:17:05 Thomas: This hammer is being used by some to hit nails like idiots inevitably

0:17:09 Lydia: The. The essay by John Eastman, not by us, was intended to explore a minority legal argument about the definition of who is a natural born citizen in quotes in the United States. But to many readers, the essay inevitably conveyed the ugly message that Senator Kamala Harris, a woman of color and the child of immigrants, was somehow not truly American.

0:17:31 Thomas: If you're saying it was inevitable then you're telling it's your fucking fault what do you mean inevitably I think I think they typoed it to many reasons inevitably

0:17:36 Matt: Inevitable. Well, too many readers. To some of you idiots, you thought this was inevitable. To them.

0:17:41 Lydia: Yeah. Well, but

0:17:40 Thomas: Conveyed the ugly message well

0:17:42 Lydia: Again, they're saying that it's John Eastman's fault, though. It's not theirs. Right. Inevitably. But it's

0:17:47 Thomas: But they they published it. So if, if it was inevitable, like he didn't hack their site, did he?

0:17:50 Matt: To some readers.

0:17:52 Thomas: And like put it on there.

0:17:52 Lydia: Right, right. Not as far as I know. No. know.

0:17:55 Thomas: So maybe don't do that Newsweek or they just meant a different word, one or the other.

0:18:00 Lydia: The op-ed was never intended to spark or to take part in the racist lie of birtherism, the conspiracy theory aimed at delegitimizing Barack Obama, but we should have recognized the potential, even probability, that that could happen. Readers hold us accountable for all that we publish, as they should. We hold ourselves accountable, too. This feels like Barry Weiss wrote that. We entirely failed to anticipate the ways in which the essay would be interpreted, distorted, and weaponized.

0:18:26 Thomas: It's just the main way.

0:18:28 Lydia: As we said in our earlier note, linking to an earlier note.

0:18:31 Thomas: Earlier they had a different one.

0:18:33 Lydia: Yeah, they had a whole other editor's note.

0:18:34 Thomas: They did several tries at their apology.

0:18:37 Lydia: This essay was an attempt to examine a legal argument about the difference between, quote, natural born and, quote, naturalized, the latter being ineligible to hold the office of president. In the days since the op ed was published, this was two days after. So very, very quickly, we saw that it was being shared in forums and and social networks notorious for disinformation, conspiracy theories, and racist hatred. All of us at Newsweek are horrified that this op op-ed gave rise to a wave of vile birtherism directed at Senator Harris. Many readers have demanded that we retract the essay, but we believe in being transparent and are therefore allowing it to remain online with this note attached.

0:19:02 Matt: All of us.

0:19:04 Thomas: Fair

0:19:16 Matt: So you know what you're about to read is going to be very cool. It's an apology like that.

0:19:16 Thomas: Enough. Yeah and they offer like, here's the opposing argument him in here

0:19:23 Lydia: That guy's also sucked on a lot of things, So Eugene Volokh, everybody, if you're just listening.

0:19:25 Matt: But he's right on that one. Yeah, yeah, yeah.

0:19:25 Thomas: That guy sucks yeah when even that guy is like we got a point yeah

0:19:30 Matt: So readers, judge for yourself after hearing this one because it's worth reading. It's short. How much this is being misjudged when people share it for hate purposes?

0:19:34 Thomas: If this was an accident yeah hmm

0:19:41 Lydia: The fact that Senator Kamala Harris has just been named the vice presidential running mate for presumptive Democratic presidential nominee Joe Biden has some questioning her eligibility for the position. The 12th Amendment provides that, quote, no person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States. And Article 2 of the Constitution specifies that, quote, no person except a natural -born citizen shall be eligible to the office of president. Her father was and is a Jamaican national. Her mother was from India, and neither was a naturalized U .S. citizen at the time of Harris's birth in 1964. That, according to these commentators, makes her not a, quote. Natural -borne citizen and therefore ineligible

0:19:50 Matt: Some. Some are questioning, starting with me, Jon Eastman.

0:19:55 Thomas: -hmm wait why but

0:20:27 Lydia: For the office of president and hence ineligible for the Office of the Vice President.

0:20:31 Matt: One reason why, because you don't believe in birthright citizenship that's the only way that you can make this argument yeah so this is he's he's really trying to get this out there and then newsweek let him do it this stupid now it's not just a minority position nobody is taking this position in public in 2020 commentators

0:20:35 Thomas: Okay not a natural born yeah no but he said commentators are doing it matt so you gotta yeah if other people are talking about he has to to talk about it yeah

0:20:49 Matt: Right some some are saying yes

0:20:52 Lydia: It's him just in a different avenue. It is not on Newsweek. It is just him commentating on it somewhere else. Quote, nonsense, runs the counter commentary. Indeed, PolitiFact rated the claim of ineligibility as pants-on-fire false. Snopes rated it simply false. And from the other side of the political spectrum.

0:21:09 Thomas: Here's where I brag about how everything I'm saying is fucking wrong yeah

0:21:13 Matt: And everyone agrees with that it's wrong a conservative daily news yep

0:21:15 Lydia: And from the and from the other side of the political spectrum, Conservative Daily News likewise rated it false. All three and numerous others simply assert that Harris is eligible because she was born in Oakland and is therefore a natural born citizen from location of birth. I think that's how definitions work.

0:21:29 Matt: Oakland has always been in california right okay

0:21:36 Thomas: This could just be the end of it where they're like and then and then the 14th amendment says so end of essay yeah

0:21:42 Lydia: Yeah. The 14th Amendment says so. They all claim, and the Supreme Court so held in the 1898 case of U.S. v. Wong Kim Ark. But those claims are erroneous, at least as the Citizenship Clause of the 14th Amendment was originally understood, an error to which even my good friend, renowned UCLA School of Law professor Eugene Volokh has fallen prey.

0:21:42 Matt: They need

0:22:03 Lydia: Linking.

0:22:03 Thomas: I felt fell prey

0:22:04 Matt: A Eugene Volokh response there to say we're not friends. Just like a special note.

0:22:09 Lydia: The language of Article 2 is that one must be a natural born citizen. The original Constitution did not define citizenship, but the 14th Amendment does. And it provides that, quote, all persons born in the United States, italicized, and subject to the jurisdiction thereof, are citizens. Those who claim that birth alone is sufficient overlook the second phrase.

0:22:30 Matt: So we can skip this paragraph. This is just the standard arguments. And we went over this on Friday. It's not really worth talking too much about it, but basically they try to draw from a bunch of treatises and to say that for whatever reason, subject to the jurisdiction of their of, it's this thing they call complete jurisdiction. It doesn't make a lot of sense and it would have all kinds of issues that we'll talk about, but let's keep going to, we can actually skipped this one too for 1K Mark. We talked about this on Friday, but this is the major case on this point. So here we go.

0:22:47 Lydia: Granted, our government's view of the Constitution citizenship mandate has morphed over the decades to what is now an absolute, quote, birth on the soil no matter the circumstances view. But that morphing does not appear to have begun until the late 1960s after Kamala Harris's birth in 1964.

0:23:12 Matt: Citation needed for that one. I don't know what you're talking about, the morphing. Since at least 1898, but way before that too. Yeah,

0:23:17 Lydia: Also, doesn't that feel weird? Like if our understanding has morphed like that we accept for all the people who were born before that date, like you don't get to engage in this new, yeah, this new understanding. Why does that matter right the

0:23:29 Thomas: I don't even why why would that even matter?

0:23:32 Matt: And also, nobody actually takes the position no matter the circumstances, even those of us here because there are exceptions that we've discussed at length.

0:23:40 Lydia: Children born on u .s soil to guest workers from mexico during the roaring 1920s were not viewed as citizens for example when in the wake of the great depression their families were

0:23:50 Thomas: Why would you say the roaring 1920s? I know it's a small thing, but what does that have to do? Just say the 1920s. Like I don't, Oh, the flappers. Yeah. That's relevant.

0:23:53 Lydia: Well because he's trying to evoke imagery exactly like the long you know pearl necklaces.

0:24:04 Thomas: That was one of those roaring decades. And that was just unacceptable.

0:24:07 Matt: They're running a good time. And the point he's making here too too, about the Great... And the Great Repatriation is a terrible name for this, but it's one of the great overlooked immigration tragedies of American history when we packed a whole bunch of people back to Mexico, estimated maybe up to a million people, many of them citizens. This is not a good example. And the example he's giving is also... Because first of all, there's a lot of due process issues that deported a bunch of citizens. But also, we're doing this today all the time to families that are being deported with US citizen kids, which he thinks is fine, obviously, but but keep

0:24:35 Lydia: Were the children born on U.S. soil to guest workers in the Bracero program of the 1950s and early 1960s deemed citizens when that program ended and their families emigrated back to their home countries." So before we so cavalierly accept Senator Harris's eligibility for the office of vice president, we should ask her a few questions about the status of her parents at the time of her birth. Were Harris's parents lawful permanent residents at the TIME of her her birth, italics. If so, then under the actual holding of Wong Kim Ark, should be deemed a citizen at birth that is a natural -born citizen and hence eligible. They instead, as seems to be the case, merely temporary visitors, perhaps on student visas issued pursuant to Section 10115F of Title I of the 1952 Immigration Act? If the latter were were indeed the case, then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers, Jamaica.

0:25:33 Thomas: Matt, I'm looking at my pocket constitution, I don't... was complete jurisdiction in there, they just made that up yeah because I think I remember Remember, I'm not a constitutionist, but I think I remember it said subject to the jurisdiction thereof, right?

0:25:39 Matt: Complete jurisdiction is something that they have made up to incorporate political jurisdiction, which they also kind of made up.

0:25:49 Lydia: In his own, in his own piece, right? He,

0:25:52 Matt: Right.

0:25:52 Thomas: Subject to the jurisdictional thereof. So you can't just say complete jurisdiction, but it's not complete, special, super special white jurisdiction.

0:25:53 Matt: Not complete jurisdiction. Right? That's right. Exactly. I also want to point out, I'm almost completely sure just to go to the other point before we move on, but that the Bracero program, I'm sure those kids were citizens. I don't know. I'm willing to be wrong on that. Point out the student visa issue.

0:26:12 Thomas: Sorry.

0:26:13 Matt: So I think the entire purpose of this piece really is just to let you know as many times as possible that Harris's parents were both non -citizens, because I don't think most people knew that, that one was from India and one's from Jamaica. I'd actually forgotten about her mother. They were both students, as he's pointing out. But I will actually make a very pedantic immigration lawyer point, which is that student visas are what we call dual -intent visas. They are both immigrant and non -immigrant visas, because so many students are expected to stay and maybe get a job, maybe get married, and maybe find an opportunity to remain here legally, that we want to make that easy for students to do that. So you can't categorically say that this this is a non -immigrant visa. And therefore, we can't say that you had, even under his stupid test, which I'm not acknowledging is anywhere near true.

0:26:49 Lydia: It's not the same thing as a tourist visa, like you're going to go to Disney World, Right. Like, right.

0:26:53 Matt: But where that's the purpose and you've interviewed the consulate. But you're coming to do like a four -year degree program, but it's also a dual intent visa where you have the possibility of getting an immigrant visa later while you're here. So I

0:27:00 Lydia: And that makes sense. That makes our country better. So, yeah.

0:27:03 Matt: Think so. If somebody lives in Boston, we

0:27:04 Thomas: So like if if people come here to go to Disneyland, they have a baby. So do we give citizenship in that example or no? We do.

0:27:10 Matt: Do. And that, as I said on Friday, that is one thing that if they had to push one of these points, No, no, no. These were students.

0:27:13 Thomas: So they're not even fucking close then. Wait

0:27:17 Matt: I think they were both students. So yeah. And again, this is his attempt to tie his extremely fringe legal theory to a big story of the day, right? If Kamala Harris is running for president.

0:27:30 Lydia: Let's see. Jamaica in the case of her father in India, in the case of a mother and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood. Of the original meaning of the 14th Amendment Citizenship Clause might also call into question Harris's eligibility for her current position as a United States senator.

0:27:47 Thomas: Why not sure oh there

0:27:49 Lydia: Article 1, Section 3 of the Constitution specifies that to be eligible for the office of senator, one must have been, quote, nine years a citizen of the United States. If Harris was not a citizen at birth, we would need to know when, if ever, she became a citizen. Her father's biographical page at Stanford University identifies his citizenship status as follows, quote, Jamaica by birth, U.S. by naturalization. But there is some dispute over whether he was in fact ever naturalized. And it is also unclear whether Harris's mother ever became a naturalized citizen. Did they? He just decided that.

0:28:21 Matt: I've got...

0:28:16 Thomas: Is what are the odds so that that yeah I was gonna say that has nothing to do with his argument that's just him being like but what if they weren't

0:28:28 Lydia: Yeah. Prove it.

0:28:29 Matt: This is not your business, man. It just has nothing to do with anything. Thing.

0:28:32 Lydia: Neither was ever naturalized, or at least not naturalized before Harris's 16th birthday, which would have allowed her to obtain citizenship derived from their naturalization under the immigration law at the time, then she would have had to become naturalized herself in order to be a citizen. That does not appear to have ever happened, yet without it, she could not have been, quote, nine years a citizen of the United States before her election to the U.S. Senate. I have no doubt that the significant challenge to Harris's constitutional eligibility to the second highest office in the land will be dismissed out of hand as so much antiquated constitutional tripe.

0:28:42 Matt: It's 18 now. No,

0:28:50 Thomas: Because she's a citizen no it's not even antiquated it's just nothing thing

0:29:08 Matt: It's not even constitutional tripe.

0:29:09 Lydia: It's just, it's wrong.

0:29:10 Matt: It is just nonsense history.

0:29:10 Thomas: We're all for constitutional tripe here we're big constitutional trike fans

0:29:11 Lydia: It is made up in your mind, John Eastman.

0:29:15 Matt: I'm a hog for it personally, but antiquated, constitutional. He's giving himself way too much credit here by even calling it that.

0:29:22 Thomas: That's that's one of those bullshit like trying to like be like modest but you're actually oh no everybody's gonna just be like oh you're so smart with your knowing the real thing that was long ago that was the founders how they originally intended but everyone's gonna be like oh stop going off about how smart you are about that

0:29:25 Matt: The irony

0:29:30 Lydia: Like yeah also kind of like poisoning the well a little bit for any criticism you know he's already laid down what that actually is in his mind and for anyone who agrees with him but the concerns about divided allegiance that led our nation's founders to include the quote natural born citizen requirement for the office of president and commander -in -chief remain important indeed with persistent threats from russia china and others to our sovereignty and electoral process. Those concerns are perhaps even more important today.

0:30:06 Thomas: Imagine if we had a president who you know was maybe russian influenced man

0:30:06 Matt: Of this. Well, think about who's writing this. This is like August 9th, 2020. He is getting ready. He actually at this point already, I think, starting to do it. He's interfering with our electoral process like very few people ever have in American history as he's writing this, and he will be in the next couple of months after he writes it, to the point that he gets... Who

0:30:24 Lydia: Remember his nose hairs, you guys? Remember his nose hair?

0:30:28 Matt: Could forget? Who could forgive? But again, this is a man who was criminally prosecuted and is facing disbarment now for interfering with our elections.

0:30:29 Thomas: Yeah

0:30:36 Lydia: It would be an inauspicious start for any campaign for the highest offices in the land to ignore the Constitution's eligibility requirements. How else could we possibly expect the candidates, if elected, to honor their oaths to, quote, faithfully execute the office of president of the United States and to the best of their ability, preserve, protect and defend the Constitution of the Unites States.

0:30:56 Thomas: We need people like him to defend the constitution people who don't give a shit about it unless it serves what they want

0:30:59 Lydia: Yeah, that's that's going well with Trump. Mm hmm.

0:31:03 Matt: It really is too bad about how horribly misinterpreted he was. This is such good faith that he's riding in. Using phrases like divided loyalty, it's just so obvious. It's so many dog whistles all the way through this.

0:31:10 Thomas: Yeah unbelievable what a dumb

0:31:14 Matt: They're not even dog whistles. Yeah. And

0:31:16 Thomas: Newsweek oh well people were using this to argue we haven't have you heard of this they were arguing like racist stuff using this racism

0:31:23 Lydia: Man, that's crazy.

0:31:26 Matt: This has to be the first time that I actually, when I read this five years ago, it's the first time that I had heard this argument at all. And you know, I knew who johnny smith was, but I didn't think of him as anybody important or serious that I should listen to. I didn't realize we'd be talking about him so much in the future. But yeah, no, it is appalling the newsweek ran this. They rightfully apologized for it at length. But this is the kind of stuff that, and just the the reaction it got is actually, that's very encouraging to me that that many people rose up and said, this is nonsense.

0:31:50 Thomas: You wouldn't get that now yeah

0:31:53 Matt: Yeah, probably not.

0:31:55 Thomas: You won't get there now and it's this is also how we got here you don't need to publish this stuff you don t just because there is an opinion that someone can find somewhere, you don't need to legitimize it. You don't need to elevate it to the point where it's just a legal opinion about a thing. You Yeah. Don't need to argue every side of everything, you know, especially deeply racist stuff, you know.

0:32:09 Lydia: . You listening, New York Times?

0:32:14 Matt: That's right. Yeah. Yeah this is, I wanted to really make this point to go back this far because I am convinced, and we talked about this on Friday a bit, but I don't think the Supreme Court would have taken this if it had not been for the years of foundation that John Eastman and a few other people, it didn't take very many other people, including people, as we're going to see after the break here, who previously had the correct position on this, who decided for money and fame to change their minds. So we should take a break and come back and talk about Ellen Wormon.

0:32:42 Thomas: Right, will do so. And of course we've got to thank our middle chunk of patrons of Hall of Famers. Thank you too. Punches stuffed monkey friend. A Negative Phenomenon. Mob nobbling hobgoblin.

0:32:54 Matt: Nice. Got a knobbler.

0:32:56 Lydia: Very good. A nobbler.

0:32:57 Thomas: A lot of movies referenced there. You gotta fight for your right to ex parte. Jaysank. David Souther. Vehicular Man's Laughter, reluctantly changing his blinker fluid. Care who you are, where you're from, or what you did as long as you throw sandwiches which is it fascists.

0:32:59 Lydia: A fellow nobblar. I don't care who you are. That's a Backstreet Boys song.

0:33:15 Thomas: Yeah. Yeah, well that now that makes sense. That's when I actually know not enough to recognize the lyrics, but now that you say it, the chunk knobbler, we got another one. We got knobblers.

0:33:20 Lydia: That is okay. Yep. People are into

0:33:27 Thomas: Today's, today's episode is brought to you by the letter unreadable cavalry or cavalli. I never remember which. Thomas Freeman, Cajunkilla, Fraud Fishy Hates Everything, Chris Simpson, Gavelhead, Chucking Away, Anonymous Aquila, Mark Schultz, and E.T. The E.T.? I don't know. It might just be somebody named E.T. separately. Thank you so much, patrons. We'll take a break, and then we'll get to the next section here.

0:33:27 Lydia: Nobbling. All right. Apparently.

0:33:54 Matt: Okay. So this is Ellen Worman, who was one of the primary proponents of the case that the government brought to the Supreme Court. And not, I mean, as of 2020, he wasn't back in the sweater.

0:34:02 Thomas: Sorry, the guy in the John Oliver cosplay?

0:34:05 Matt: Yeah. And I'm sorry in advance for subjecting you all to this. This very high production podcast is called Rationally Based. Based is all in caps. Rationably Based. It is a MAGA law podcast, as far as I can tell. And his co-host, Katherine Johnson, is some sort of director who's of the, what's the name of the Center, The American Experiment, I think, like you said.

0:34:25 Lydia: The center of the American experiment. It is a Minnesota conservative conservative think tank, and it's funded by the Bradley and Olin Foundation. So we're talking right wing for a long time. Yeah.

0:34:28 Thomas: That's what the mug is from. Cool.

0:34:36 Matt: Yes, that's Her primary qualification to be the co -host of this podcast with a law professor is that she was the head of the Minnesota Young Republicans. So, yes.

0:34:44 Lydia: Also, blonde hair. I think that's important for podcasting.

0:34:47 Thomas: Let's not go after how qualified people are to host podcasts, okay? We don't just... I mean, let's not, you know...

0:34:50 Lydia: Listen, listen. She has she has Republican blonde hair that

0:34:57 Thomas: Who

0:34:58 Matt: Well, as we'll see, some people just have natural talent.

0:34:58 Lydia: Works. So.

0:35:00 Thomas: Among us... is not qualified to do anything, you know, just don't, wow,

0:35:04 Matt: So yeah, Ilan Wormone is 39 years old. He's a law professor. And in 2020, he wrote a book about the 14th Amendment in which he did not mention that he had any issue with the concept of birthright citizenship. He wrote an entire book in which he just assumed what we have all assumed all of this time, that subject to the jurisdiction thereof means what it says it means.

0:35:17 Thomas: Who writes a fucking book about that, like, let alone someone, yeah, yeah.

0:35:23 Matt: Well, the rest of the 14th Amendment. It's a pretty interesting amendment. There's a lot to talk about. But in terms of that part, he did not. So he had no issue withthe idea that everybody born in the United States was a birthright citizenship until recently when he realized he could make some money and get his name out there. And I want to make sure that his name is out there because he should never work again as a a law professor.

0:35:44 Matt: I don't say that about very many people.

0:35:44 Thomas: He should only be doing kids parties as John Oliver, like a Ninja Turtle, but like John Oliver, you Know, like, yeah

0:35:49 Matt: I'll give him that. I'm giving that. But this is not a serious person. And he's going to reference one of his many frenemies. But go ahead, yeah. What do you got?

0:35:51 Lydia: I was just going to say, Mother Jones actually ran a whole piece about him because he wrote an amicus brief in support of the government's position on the birthright citizenship case. And and they got some great quotes from from some other like legal folks online, including Anthony Michael Christ, who said, Wormans should never be trusted with historical work again. In any respectable academic field, we'd be talking about article retractions. It is simply that bad. He later said, I have never seen so much methodology, methodologically bankrupt. Yeah, thank you. Motivated faux scholarship. The level of hackery is astounding. If people wanted to be fiction writers, they should have pursued another career.

0:36:03 Matt: Did. Yes.

0:36:27 Thomas: Methodologically. Wow wow geez yeah

0:36:37 Matt: That is a lot coming from a law professor. They're not usually like that.

0:36:40 Thomas: They don't say that yeah

0:36:42 Matt: And I'm good with a wide latitude of legal opinions. But when you're doing this in such bad faith, and when we all know that your previous opinion opinion was the correct one that is actually based in history and law. And you're just deciding to do this now to

0:36:53 Thomas: And the reason you're doing it is just racism and xenophobia

0:36:56 Matt: Get Trump's attention. And I'm sure he wants to be a judge. I mean, I have no question. This is probably all just an audition.

0:36:59 Lydia: I mean, there's even an originalist law professor, originalist law professor who says about war men, he misstates what the rule imported from England is. He mistakes what the legal history of that rule is. He misstakes the logic and implications of of the rule, he misstates the justification for the rule. So he's just wrong.

0:37:10 Matt: He sure does.

0:37:20 Thomas: They just they just willed this into existence right I mean they just uh astroturfed it basically yeah

0:37:26 Matt: And so that we could get to this point that there's enough of a debate that the Supreme Court has to settle this debate we made up. So I purposely picked a section of his podcast that does not require any legal training or understanding to just see how stupid he is and how wrong these people are. And also so you can get a real taste of Katherine Johnson. Again, I think I mentioned her early qualification as being the head of the Minnesota Young Republicans. All right. So we're going to have a little question here as to how racist somebody needs to be.

0:37:50 Thomas: Why are they in a sauna?

0:37:51 Matt: Yeah. Nice looking room, but it does look warm. He's wearing a sweater and a sauna. So how racist does somebody need to be before you no longer get to cite them is the main question of discussion here. So So you're going to enjoy this one. Oh, yeah. Yeah.

0:38:02 Thomas: Like, actually? Oh, okay.

0:38:05 Clip: You look at just this, it seems like it's settled. Science is settled.

0:38:09 Thomas: Is it in the right

0:38:09 Clip: So what is the best argument on the other side, that they were all racists? Well, that's one of the arguments, apparently, which I found very funny, which, you know, I laughed when you said that earlier, because someone, you posted these examples on X, and you said the government's birthright brief has been filed, and this seems like the most impressive part and basically someone accused you of being a racist because you cited a racist person somewhere in here yes my frenemy uh though we might have migrated into enemy territory I'm not sure just yet um so my I'll call my frenemey anthony michael christ who

0:38:10 Thomas: Spot? Oh, yeah. That doesn't sound anything like John Oliver.

0:38:41 Lydia: There you go.

0:38:41 Clip: If you follow me on x you know that I'm constantly in public fights with uh this professor who teaches at georgia state and he says why should we care about alexander porter morse he was a confederate veteran who who supported Samuel Tillman and the end of Reconstruction, but also argued against equality in Plessy v. Ferguson, right? So he, Alexander Porter Morse, who again says temporary visitors

0:38:45 Matt: Losing them constantly, every time. So hold up just for a second here.

0:39:04 Thomas: I don't know. Yeah. What's happening?

0:39:05 Lydia: Tell us about him.

0:39:06 Thomas: We don't have the context.

0:39:07 Matt: So, and again, it's always very cringe when people bring their online feuds to their podcast. I would not do that personally.

0:39:11 Thomas: I was just telling that to this asshole on Twitter and he was like, he didn't even believe me when I said that. Fuck face.

0:39:20 Matt: And Chris has just wiped the floor again and again. Evan Burnick, too. They kind of tag team him all the time. It's very funny to watch. He never wins these things. He just can't because he just can. Um, but so the main argument against their sources is not necessarily that they're racist, but it's a great place to start. Um, the main agreement against, yeah,

0:39:38 Thomas: That's, it's always always the same shit we see it on where there's woke all the time someone will be like hey here's a million reasons why you're wrong oh plus the guy you cited was a fucking clan member and they'll be like oh I'm sorry I'm just wrong because I cited someone who might have one time worn something white is that is that why I'm wrong and then they just straw man your arguments to get rid of everything but that one thing. And they've done this for 30 years, nonstop, all day, to where everybody believes that's what the left does.

0:40:07 Lydia: Successfully a lot of times. Yeah yep.

0:40:11 Matt: Yeah. I mean, and think about what he just said about Alexander Porter Morris, who was an enemy soldier in the Confederate army. He was a ranking officer in the confederate army. He spent the rest of his life. He actually learned international law and advanced the field of international law specifically so that they could sue the union over the war to try to get their damages.

0:40:30 Matt: That was his theory of international law. He was extremely, one of the main reasons that he opposed birthright citizenship is because he was convinced that at some point, someday in the future, we might have a Chinese American president. And he could not stand the idea that that might happen. He didn't even consider the possibility of a black president. That was just out of his mind. Couldn't even imagine it.

0:40:43 Thomas: So yeah, yeah, I bet. So what I heard was, even in his own retelling of his fucking Twitter feud, I heard her say, oh, Oh, because they called they called you a racist. And then I heard him read. Why should we even care what this Confederate soldier thinks? Because he was a fucking racist. That's not I don't. Maybe he will later call this guy a racist, but what I heard was him saying we shouldn't listen to what this obviously bad faith racist in the 1800s said. Right.

0:41:09 Matt: It's worse. Yep. And there's other reasons not to listen to him. That's just the starting point, right?

0:41:22 Thomas: Yeah.

0:41:21 Lydia: Of course of

0:41:22 Thomas: But, but, but again, the point was, if he's saying your source was bad, that's not him calling you a racist necessarily. He might also do that, but.

0:41:23 Lydia: Course right right well

0:41:31 Matt: But I'll just point out one more before we get on. Morris did argue Plessy v. Ferguson for Louisiana, the separate but equal case, right? And that you'd have to be pretty committed to the cause to go and argue that black people should have separate accommodations on trains. That was the question of Plessie. He was living it. He meant the stuff he was doing. And I think it's pretty fair to say maybe one of your main sources shouldn't be Ferguson's lawyer, Louisiana's lawyer in that case, right? The loser.

0:41:53 Thomas: Bad guy. Yeah.

0:41:56 Matt: So he's a racist loser, not just a racist, right.

0:41:55 Lydia: Especially like when you're talking about something that has to do with like what makes you an american citizen what makes you like worthy of all of these um rights and protections and freedoms that we're lucky to have in america and you're gonna have a person who believes in probably white supremacy dictate that that makes absolutely no sense.

0:42:16 Lydia: It's not like a it's not a random little matter of law that he's talking about that has nothing to do with nationality or ethnicity or heritage or or anything like that

0:42:15 Thomas: Well, we'll also, well,

0:42:26 Matt: He's going to address that very badly, but he'll address it.

0:42:28 Lydia: Elon

0:42:28 Thomas: I just want to know, cause we don't have all the context was this. So what's this asshole's name? John Oliver look, cosplayer. I heard two different things. Elon or Ellen? Elon.

0:42:35 Lydia: Worman elon elon I think I I l I I I la n worman yeah

0:42:44 Thomas: Okay. Elon Worman. That guy, was he... So one thing I've heard them do, Matt, like how was he using this guy? Because what I've the other side, the bullshitters do is say, look, they understood it at the time to mean this. Is he using it for that? Is he saying, look they understood to mean mean this and he's using like the world's worst fucking racist to say what people understood it to mean at the time oh

0:43:10 Matt: So Morris wrote a treatise. Now, notably that treatise was in 1884, which you might, I'm not great at numbers, but that is before 1898 when Wong Kim Ark came out and determined this question for sure, right? So that's one trick that Sauer tries to pull, and he was called on it a bit in the old argument, but he cites a whole bunch of people that just didn't agree with the idea before Wong Kim Art came out, and then a few after as well that just Didn't Like the Decision. But I don't know why we should give this any weight at all when it's just a treatise on the law of like, here's some stuff some people are saying.

0:43:36 Thomas: You might as well cite trump right now be like yeah look it's trump doesn't like it look

0:43:42 Matt: Yeah. He says the tariffs are legal, so we should do tariffs. He was clear with it. The Supreme Court got it wrong. Yeah. Yeah. Let's keep going.

0:43:47 Thomas: All right should we play some more here oops

0:43:49 Matt: You won't believe where this is going. You just have to hear the rest of this.

0:43:52 Clip: Porter Morse who again, says temporary visitors were excluded from birthright citizenship also thought separate but equal was constitutional and argued for it and so he's a racist and therefore I'm not allowed to cite him that's kind of an interesting thought it does not move me but it is like you know if someone has a belief that is so kind of wrong and and out of the out of what we believe to be the norm today does it invalidate everything else they ever said I don't think so but I guess you could argue that yeah so So this is a really profound question, actually. And I think the question, it might depend on the closeness of the connection between the particular views that

0:44:03 Thomas: Well what

0:44:03 Matt: Literally historically racist. Yes.

0:44:22 Thomas: Was that noise yeah I can't wait for this

0:44:34 Clip: We find abhorrent and the particular argument that they're making. So the fact that George Washington happened to have slaves, that should not color all of his other incredible accomplishments as commander in chief in the American Revolution, as the first president.

0:44:43 Matt: It could. It probably should.

0:44:47 Clip: We shouldn't just throw everything Washington did out the window because he happened to own slaves. Slaves.

0:44:43 Thomas: Well depends yeah what would it mean

0:44:51 Clip: Chief Justice Taney decided the infamous Dred Scott decision. Does that mean we should ignore his rulings on patent law and IP law? No, because there isn't this closeness of a connection. Here, though, to be fair to my frenemy, Anthony Michael Christ, it's true that if you are a racist, then you have an incentive to have a narrow view of the 14th Amendment, right?

0:44:51 Thomas: To do that he's

0:45:04 Lydia: There you go yeah

0:45:11 Matt: He's thinking this right out,

0:45:12 Clip: And so they're motivated and incentivized to have the

0:45:13 Matt: Up to the edge.

0:45:11 Thomas: So close okay yeah so matt is what he's about to do go and so therefore cut the cameras cut cut the cameras. I need to start over.

0:45:21 Matt: Rebooting,

0:45:19 Lydia: He like doesn't know how to end it yeah

0:45:22 Matt: Rebooting.

0:45:23 Thomas: He's like, shit, I forgot which side I was on.

0:45:25 Matt: The conclusion here is amazing. It's truly amazing.

0:45:28 Clip: View

0:45:28 Thomas: Here, let's see. Who

0:45:29 Clip: Ofthe 14th amendment, right. And so they're are motivated and incentivized to have a particular point of view. But I would say a few things to this. The first is, does Anthony Michael Christ not have political predispositions and biases and motivations that make him believe in certain things? I also have certain biases and predisposition, political or otherwise, that makes me predisposed and inclined to want certain things to be true. But that's true of anybody and of any discipline. And so I think the best you can do is is openly state, here are my biases, and I'm trying to overcome them, and I will let my reader or I will let my listener be the judge of whether I've actually successfully overcome that bias. And so here, yeah, maybe he was a racist, but there are 13 bullet points.

0:45:43 Matt: Awesome. Great point. I'm a little racist, so it gets worse.

0:45:44 Thomas: Among us? Okay, so then, you know, obviously that's not the argument then. That's, what? It's a totally different question. Yeah, what, sorry, maybe,

0:46:16 Clip: So maybe two or three of them,

0:46:16 Thomas: Hold on, hold On. Maybe, maybe the guy that racist you can't they can't even do the yes he was a racist they have to be like well maybe the guy who was literally the mascot for racism at this time and was like yes I am a racist I would like there to be racism maybe he's a racist yeah

0:46:20 Matt: It's historical fact. There's no question. Yeah, yeah. It's hard to convey. I just want to make sure listeners understand this is a period in history in the late 19th century, the last half of the 19th year, especially when there was so much anti -Chinese sentiment that it was an entire political party. It was a movement. And there were scholars that are out there trying to make sure the Chinese people could never vote, could never become citizens, right? This is an act of motivation. And he's saying right now, yeah, I'll give him that. Maybe it could be part of his motivation because he's racist. Maybe we should look at it.

0:46:53 Thomas: Matt maybe so maybe maybe he was racist

0:46:56 Matt: But just wait, there's more.

0:46:57 Thomas: Maybe he just was like the company of those people in the club and he just did it for connection you you know? We don't know. All right. So, okay.

0:47:06 Clip: He was racist, but there were 13 bullet point. So maybe 2 or 3 of them were racist, right? Does that mean that the other 10 are also invalid? What year are these from? Probably a lot of them were racist. I mean, that's the other thing. If you look back at everyone in history, there are lots of problematic things you can find. And if you go forward 100 years from now, maybe they'll look back at this podcast and think we were insane and problematic.

0:47:13 Matt: That's right. It's the other way. They're all racist.

0:47:18 Thomas: Even she is like, uh -huh, yes. No, we're doing it right now.

0:47:30 Clip: I mean, we don't know. So I

0:47:32 Thomas: Shit, are we in the future, Matt? Did we teleport to 100 years of the future? Oh, no, it's just right now, okay?

0:47:38 Clip: Think that's a little bit silly. But at the same time, maybe you can take that one out of 13 and say, well, maybe I discounted slightly. Maybe that's fair. I was asked last night by a Washington Post reporter for a comment on, because they're doing a story on this brief written, amicus brief written. I honestly did think they were all fired. I'm interested to hear that there's some that are still employed. Yeah, there is at least one. And he's writing a story about the upcoming oral argument. And he wanted my comment on this grief that basically said Alexander Porter Morse, and he said it to others, these were racist, anti -Chinese racists. The solicitor general is adopting a racist argument, and the court should reject this racist argument. And he asked me for my comment. And I said, basically, well, were the other 10 racist? Was Bingham racist?

0:47:40 Thomas: You think what's a little bit silly? Yep.

0:48:20 Matt: Treatises.

0:48:21 Clip: Was Lyman Trumbull racist? Was James Wilson racist? These are some of the leading drafters of the 14th Amendment and the Civil Rights Act who suggested that domicile was a requirement, perhaps, for birthright citizenship. Were they all racist? This idea that two or three people who happen to be racist also adopt a particular argument that lots of other people also adopt, that somehow that colors you know the argument that somehow they're all there for using a racist argument because three people also use the argument and happen to be racist is an insane logical leap and logical fallacy

0:48:22 Matt: The sources that they keep coming from. Here it comes.

0:48:47 Thomas: The no, sure

0:48:53 Clip: So I reject it and what other point about this by the way the separate but equal Plessy v. Ferguson this this argument that my friend and colleague and friend of me say Anthony Michael Christ makes like well Alexander Porter Morse argued in favor of Ferguson and Plessy v. Ferguson he argued in favor of separate but but equal. So we should ignore everything he said. You know who else argued in favor of separate but equal? Who? The entire majority of the Wong Kim Ark decision. No way. Seriously? Well, okay. All but one. But

0:48:54 Thomas: Isn't.

0:48:55 Matt: Here it becomes. Here it goes.

0:49:25 Clip: All but one in the majority in Wong Kim Ark were the same justices in the minority in Plessy v. Ferguson. So if I can't cite

0:49:25 Matt: He thinks he's making a point.

0:49:32 Thomas: What you're saying is their opinion is so obviously correct that even racists were like, yeah, this is what, that's actually makes it more credible that even these justices who were like well, I would love to do a racism right now, but like the amendment says what it says.

0:49:48 Matt: Just not seeing it. He's

0:49:50 Thomas: Like I can't, I can only be so racist. Like, I'm trying as hard as I can. That's not unlike like our current Supreme court was like, well, yeah, that's a dumb point.

0:49:50 Matt: A citizen. Exactly. You ever considered being a law professor in Minnesota? Because you got what it takes. There's going to be a job open pretty soon here, I think.

0:50:01 Lydia: What?

0:50:02 Matt: You should finish it out, though, just because the finale is just...

0:50:04 Clip: Alexander Porter Morse because he was a racist and supported separate but equal, then you, my friend, cannot cite Wong Kim Ark because they were all inveterate racists because they supported separate. So in other words, two can play this game. All right. I could play this gig for hours. I mean, come on.

0:50:17 Thomas: You're not, you're not playing. Boy,

0:50:19 Matt: They can't! They can't play that game.

0:50:22 Thomas: He is so satisfied, self -satisfied right now.

0:50:23 Matt: He's very bad at this.

0:50:24 Lydia: He really is.

0:50:25 Matt: The idea that you have to invalidate Wong Kim Ark, which did something that was definitively not racist because they previously did a racism thing. Yeah, okay.

0:50:25 Thomas: Two can play this game. Well, hold on.

0:50:34 Matt: It's just so stupid.

0:50:34 Thomas: This, that is so, oh my God,

0:50:36 Matt: I know.

0:50:36 Thomas: This is so good. This is so funny, Matt.

0:50:38 Matt: I knew you'd enjoy this one.

0:50:39 Thomas: Yeah because the thing we are trying to argue about is what Wong Kim Ark means, right? Like, so you can't be like, yeah, well, my guy who said something that was against that, that doesn't matter and isn't relevant at all, he was racist, so I can't cite that. Well, so was Wong Kim Ark, the thing we're arguing about. So you can cite the thing you're arguing about as a reason for the thing that we're talking about. Yeah.

0:51:07 Matt: They were wrong to give more rights to Chinese people because they were racist. They were so racist that they granted birthright citizenship.

0:51:14 Thomas: As if like, no, we only we only listen to in quotes the supreme court decisions of the the justices that were perfect like no one that's the force of law like you can't deny the force like even all the law we disagree with like we still have to follow it you know and we're arguing about what the law is what juan kim arc did what the 14th amendment did and they're trying to make an argument that like and and and correct me if I'm wrong I haven't read this specific one but listening to the oral arguments and stuff. They're trying to make the argument that like, well, these following folks at the time understood it to mean such and such. And if you're going to reference a bunch of racists, it's not that they happen to be racist. It's not like you went back and you're looking at like, Well, who was you know, what did the Civil Rights Act mean at the Time it was passed? Well, I found some people think it meant nothing and black people shouldn't have any rights. And they happen to be racist people that that's just you can't discount it because of that like no they didn't happen to me that's a it's

0:52:18 Thomas: A self -selecting bunch as is

0:52:19 Matt: He gave us the test. He gave us a test in that conversation. He said if it's closely connected to the subject, then maybe it matters that he's racist. In fact, I think it is very closely connected to this subject. It is the subject.

0:52:24 Thomas: It's 100 % connected to this it yes it is the subject racism yay or nay that's the subject of this basically

0:52:29 Lydia: Man. Man.

0:52:34 Matt: Do we want Chinese people in the country or not? Right. I mean, that's really just yeah.

0:52:36 Thomas: My god what a dumb argument

0:52:39 Matt: You ready for more? The next ones are shorter.

0:52:40 Thomas: Wow okay look at this guy's face just look at his face I can't, I can believe it.

0:52:44 Matt: He's really done it. Yeah.

0:52:45 Thomas: He's cracked it. You don't.

0:52:46 Matt: Nailed it. Nailed It.

0:52:47 Lydia: He's in a named a named chair.

0:52:48 Matt: That man has tenure.

0:52:50 Thomas: He has tenure and he named his chair.

0:52:51 Matt: Yeah. They're stuck with him, but

0:52:53 Thomas: What does that have to do with it?

0:52:51 Lydia: The. Yeah it's what it's the Julius E. Davis professor of law like he has an unnamed position.

0:52:57 Thomas: It's a weird name for a chair.

0:52:59 Lydia: I just always think that's crazy. Easy yeah

0:53:00 Thomas: Sorry. Mine have way better names.

0:53:05 Matt: They don't have middle names. So, all

0:53:06 Thomas: They should, we should get middle names for the chair. Like when you give your cat a middle name? Uh, okay.

0:53:09 Matt: We got two quick ones. So

0:53:12 Thomas: So what, what's the next one here?

0:53:09 Lydia: There you go yes

0:53:14 Matt: Is his solution to everybody who's upset about the idea of just chaotically yanking birthright citizenship away and retroactively taking citizenship from people. He's got an amazing solution. You're not even ready for this.

0:53:25 Clip: It's true. So basically, Congress should get rid of the silent filibuster and pose a talking filibustering. Yes, and right after the Save America Act, right? Yes. Number Number two, the number. The second thing it should do is draft a statute called the Birthright Citizenship Expansion Act, where it says all of these people born here to parents who are here illegally or temporarily are not citizens constitutionally. But we hereby, as a matter of legislative grace in the national interest, and because we believe in the justice of the cause or whatever, we declare to be naturalized citizens, anybody born in the United States prior to 2020, some date or whatever. Or if you'd served in the military, Congress could do it. So it should pass this Birthright Citizenship Expansion Act. It would solve all of these problems. But more to the point, it has nothing to do, as you said, with the constitutional question.

0:53:51 Thomas: Fuck you 2020 it would solve all the problems that you made up that

0:54:12 Clip: So I was actually quite surprised that there was so much emphasis in the hearing about the the consequences which

0:54:13 Thomas: Aren't problems yeah why

0:54:12 Matt: You want to happen. Yes. There's kind of a funny thing here next.

0:54:18 Clip: Could be solved by congress if it really came came to that so I found that quite surprising and interesting well and the other thing they did with the the marine which I thought was really interesting he's obviously very sympathetic case where you you you feel for this guy who is clearly a great american he went and served in the marines but this is like the classic thing that democrats do which is that they take the most sympathetic person to their argument and they expand it to make it seem like this is everyone in this category,

0:54:40 Thomas: Why would you do

0:54:39 Lydia: You guys do that too so

0:54:42 Thomas: That that why

0:54:44 Clip: So, like, I always think about abortion.

0:54:44 Thomas: Would you take the best

0:54:45 Clip: They do this with where they're like, well, abortion has to be legal because what about the woman who was raped by her dad or whatever?

0:54:45 Thomas: Example of your argument yeah uh

0:54:46 Lydia: Dumb oh

0:54:53 Clip: They take the most extreme circumstance. It never happens, very rarely, and when it does, it's tragic and awful and horrible. But they make it seems like that's everything. The vast majority of abortions, of course, are just elective. It's the same thing here. The vast minority of people who are granted birthright citizenship are not in the Marines. Means however this man is clearly you know a stand -up guy thank you for his service I think it's not a good argument though because it doesn't apply to most people yeah it talks on the heart strings and let me just say maybe there's a reason Chuck Cooper was asked the question instead of me because they knew if like I had been asked like so is he not a citizen under your view I would have said something well let me tell you about Congress's naturalization power and congressional prerogatives and Congress should get off its butt and do something so they didn't dare ask me a question yeah they're all like the senators are like no no no but but you make a good point about

0:54:56 Thomas: Never oh it never happens oh okay uh -uh no who

0:54:56 Lydia: It happens a lot actually yeah yeah no

0:55:10 Matt: Great point, Catherine. Fantastic.

0:55:23 Thomas: What what jesus

0:55:37 Clip: The tugs tug on the heartstrings I did get a lot of that and I am not a tug on the heart strings type guy you don't say thanks

0:55:43 Matt: There you go. There you go, that's enough. I should mention before, he's recounting this congressional testimony he was recently called in for where they asked him basically no questions because nobody wanted to hear from him. So he's trying to make the most of it. Ted Cruz asked him a bunch of yes or no no questions. And that was about it.

0:55:44 Clip: Catherine I don't know obviously

0:55:47 Thomas: Christ wow

0:55:49 Lydia: I figured cured wow yeah

0:55:57 Matt: But yeah, not a tug on the heartstrings kind of guy. And he really hates it when we bring up examples of things that happen all of the time that are very bad. So please stop doing that.

0:56:06 Thomas: And there are a lot of well I don't know what he was talking about but I assume it's military you know veterans getting like deported yeah that's that's there's a lot of those like that's not just like one yeah especially once they've run out of everybody to deport they're going everywhere it's gonna all of them left are like the most sympathetic cases you know not that that even matters but like it's true yeah

0:56:10 Lydia: Man

0:56:12 Matt: Deported and being denied citizenship. And yeah. Oh yeah. Oh yeah, all the time. Yeah, right.

0:56:19 Lydia: Yep yep oh

0:56:26 Matt: Yeah but the idea and Sauer said something like this in the oral argument. I was kind of joking about it on Friday about how he said we can make room or this will make room for Congress, right? In the same way that burning your house down makes room to build a new house, right. That's what he's saying is, don't worry about it. Once the Supreme Court strikes this down, Congress will fix it. They'll totally fix it, that'll happen.

0:56:46 Lydia: Yeah of course yeah sure

0:56:48 Matt: Congress known for fixing things, famously. All right, one more.

0:56:50 Thomas: So pathetic and they get away with that with everything else I'm not surprised they try it here because everything is let congress do it but congress we know it's broken and we know doesn't do anything so yeah so

0:57:00 Matt: And they'll stop it if they try to do it in Congress anyway, like they don't want that to pass, they'll do what they can do. But let's take a look at one more that I just want to show you some postgame code because because I thought this was funny. Yeah, this next one, yeah.

0:57:08 Thomas: After the decision uh oh

0:57:10 Matt: And then we'll take a break. Yeah, after the arguments. Yeah.

0:57:12 Thomas: After the argument oh yeah sorry yeah

0:57:13 Matt: Very good.

0:57:10 Lydia: After the arguments yeah well we haven't

0:57:14 Matt: Very bad.

0:57:13 Thomas: After

0:57:14 Lydia: Had a decision yet I know it feels like we've had a decision

0:57:14 Thomas: The you're right the arguments went so badly that yeah if we're it's gonna be super funny if it comes out the other way did you say we're doing this one or taking a break first oh

0:57:17 Matt: We all, in our minds, we have a decision. Yeah -yeah. This will start at the emergency episode after the -this

0:57:26 Lydia: We should do this one

0:57:27 Thomas: Okay here we go yeah

0:57:30 Clip: Susceptible to that I think you saw that in her question um but I completely agree yeah it's an uphill battle because look chief justice Roberts, Barrett, Kavanaugh they all grew up and went to school at a time when it's like oh this is such an obvious question this is such an obvious question the burgeoning original scholarship you know that has been um you know issued on this question and investigated on this question in the last year or so was just they've not it you know they haven't been steeped in it right it hasn't been simmering long enough which also makes me wonder if the solicitor general made a mistake by even seeking supreme court review uh this early in this case but um that's interesting why do you think he did that yeah I don't know so there was this other case um in the ninth circuit that there was a procedural way that they could reverse just like remember the first time that birthright citizenship came up to the supreme court they said um this is about universal injunctions

0:57:42 Thomas: That's because it's always been that so did I last year yeah I agree because they got the the injunctions torn down, right? Yeah.

0:58:23 Clip: And whether judicial courts have the power to issue universal injunction so it wasn't actually on the merits and then there was another case that came into the ninth circuit okay well the state has standing so they could have taken a state standing case and revised what people think about state standing but the solicitor general then asked for cert or review before judgment in a different case on the merit and so the solicit general asked the supreme courts to do it and I I guess the question is why. I mean, in a way, more time would have let, you know, the originalist scholarship and the public debate and the Overton window move a bit, but they

0:58:25 Thomas: That's why he did it.

0:58:41 Matt: Is incredible.

0:58:54 Thomas: Would let us astroturf

0:58:56 Clip: Didn't do it.

0:58:56 Matt: The Overton Window.

0:58:56 Clip: But maybe they know something we don't.

0:58:57 Thomas: Longer.

0:58:58 Clip: I don't know. I don' t know the strategy. Maybe they wanted a ruling before the midterms.

0:58:57 Matt: The overton window. There it is. This is

0:59:02 Clip: Is that cynical?

0:59:02 Matt: Enough. You get the idea.

0:59:03 Thomas: Yeah.

0:59:03 Clip: Yeah, I mean that's what I would think, but I have like a question for

0:59:04 Thomas: There's not usually an Overton window on amendments that go back to fucking 200 years.

0:59:09 Matt: Or historical truth, right? I mean, that's really what we're talking about. And

0:59:13 Thomas: Decisions that go by 103.

0:59:15 Matt: And he's kind of like speculating out loud about how, you know, if they'd really stretched this out, they could have used it to mess with other things that weren't universal injunctions. We could have gotten all kinds of other great rulings. Because Sotomayor said it in the injunptions case. She actually wrote it in her dissent. She said, you guys don't want to get to the merits because you know how bad they are. Nobody's going to want to gets to the merit on this. And here we are. So I just want to play that little bit of cope for you because, yeah. Katherine Johnson at one point in there says that she still thinks there's a possibility that Trump could win this one. So that's the level of intellect we're working with. Yeah, yeah, yeah so yeah. That's Ilan Wurman, just a little taste for you.

0:59:29 Lydia: And they were bad yeah

0:59:48 Thomas: I don't like that guy.

0:59:49 Matt: No, no, not great. Really a disservice to the entire legal bar, legal academy, rather. Sorry. And the bar, I guess.

0:59:57 Thomas: Yikes. Right. We'll take our last break and thank our last third of patrons. And they're the best. Let's face it. You to the Cincinnati Kid, Bob Loblaw's Law Podcast. Philly Basement Bar will be getting a new house rep in the midterms. Elect Thomas Smith President, American Honkytonk Bar Association. That one goes back. Baltakatei, Philip Kizer. I want a crossover between the Somali fraud hearings and the sandwich trial called What Did He Throw and When Did He throw it?

0:59:57 Lydia: We

1:00:25 Thomas: That's pretty good Coryn_Lann a string of unpronounceable characters, Malaika Chandler, RhondaTheDork.com, Milo Meadsong is fighting petty tyrants, Big Easy Blasphemy, hors d'oeuvres in the court before we report, Chris Waltrip, FRED R GROOTHUIS, Sam Donow, Classic libtard, and Mitchell that's our top patron Mitchell thank you so much Hall of Famers we'll take our last break here and we got a little more for you okay right, Matt, why is Megan fucking Kelly on my screen? Jesus Christ. This person is the worst.

1:00:25 Matt: That's good. All right, so yeah, with apologies.

1:00:54 Thomas: We cover her on where there's woke so much. She's a demon.

1:00:57 Lydia: You we see her a lot yeah

1:00:59 Thomas: Like I can't, I'm not, I don't hunt and check me. I don't want it because that last guy also is a demon, but she is just, there's something about her. There's really crazy.

1:01:03 Lydia: I think also like the descent that we've witnessed also where like she

1:01:10 Thomas: Like she started started kind of normal.

1:01:12 Lydia: Yeah and now now she's just like a raving lunatic it's really shocking oh

1:01:17 Matt: Well, yes. I'm not making you watch her opening monologue where she rants about Somalis and Chinese babies and how we're, you know, yeah, this is really gross stuff in it. But the reason, yeah.

1:01:22 Lydia: There you go cool gorsuch

1:01:23 Thomas: Other super chill stuff.

1:01:26 Matt: The reason is not, we're not watching this for Megyn Kelly. We're watching this from Mike Davis. And so Mike Davis is one of the people who got us Kavanaugh on the court. He was a counsel for the Congress at the time for the Republicans. Really worked hard. Yes. And he courted for Gorsuch.

1:01:37 Lydia: Also yeah he he clerked for gorsich

1:01:39 Matt: That's right. And he's now with the Article Three Project and he is going to... I don't even know how to describe this. You can watch this for yourself. But I will point out the guy in the middle is David Ehrenberg, who is very much Megyn Kelly's Alan Combs, for those of you who remember the Hannity and Combs program.

1:01:40 Lydia: And yep yep Yep.

1:01:55 Thomas: I do remember Hannity and Combs.

1:01:56 Matt: He is the designated clueless liberal and he does like her crime show, but he thinks he's a lawyer too. And I mean, he was a prosecutor at some point, but, he did not study up for this We're not going to watch too much of his part, but it's kind of a funny clip.

1:02:09 Lydia: Let me just say, Mike Davis, also Rolling Stone named him one of the 12 worst people in Trump's orbit.

1:02:16 Matt: Fair. Fair.

1:02:16 Lydia: Yeah. Leading up to the 2024 election, Mike Davis said, quote, we're going to put kids in cages. It's going to be glorious. He threatened a reign of terror and he wanted to throw journalists into the, quote. Gulag. But he is. He later said that all of his extreme rhetoric is meant to troll the left.

1:02:17 Thomas: Fuck off. Just, oh,

1:02:35 Matt: It's a joke. It's good fun.

1:02:36 Thomas: That's fine then.

1:02:36 Matt: Good fun.

1:02:37 Thomas: That's fine because none of those things actually happen. So it's fine. It's just trolling guys.

1:02:39 Lydia: He also said he wanted to, quote, build a special gulag for left -wing white women, the laundry ward.

1:02:44 Thomas: We should troll him by throwing him into the sun. It would be the funniest troll.

1:02:49 Lydia: So funny.

1:02:49 Thomas: It'd It'd be like, oh, my God, we got him.

1:02:52 Lydia: Yeah. But, you guys, he's, like, huge in the antitrust space. He doesn't have really any experience in antitrust law, but his clients include Walmart, Hewlett -Packard, Compass. And apparently he earns as much as $300,000 a month to protect those firms from antitrust regulations. Yeah.

1:03:06 Thomas: A month? What?

1:03:11 Lydia: Yeah. He makes tons of money. Tons of money."

1:03:15 Thomas: To do what? Just because of his connection to Trump or something?

1:03:18 Lydia: Yeah. He calls himself, like, the best fixer in all of Washington, D .C.

1:03:20 Matt: So he's a lobbyist.

1:03:21 Thomas: My god. Fuck

1:03:22 Matt: And this Article III project, I think, is just a passion project, although there's plenty of dark money flowing through it. So he is going to – and remember, he's in a weird position here because he got – he clerked for Gorsuch, he got Kavanaugh on the court, and he's going to say, well, yes.

1:03:28 Thomas: These people. Oh, he has to pretend that they're totally wrong about this?

1:03:38 Matt: Let's see how he puts it. He loves this argument, but he does nothing about it.

1:03:39 Clip: On it, Mike. How do you think it went? Well, if the justices do their job and follow the very simple law, this executive order should be upheld.

1:03:53 Matt: What?

1:03:53 Clip: The issue is that there's this whole thing called politics, and I am concerned after listening to today's oral arguments that these justices didn't wear their robes today, they They wore their capes today because it is very

1:04:11 Thomas: Everyone in politics wears a cape. That's why. It makes sense.

1:04:12 Clip: Clear that birthright citizenship was included in the 14th Amendment to fix the Dred Scott decision, the Supreme Court decision that said that the children of the freed slaves are not American citizens. And you have to ask, why the hell did we fight a civil war? And so we had the Dred Scott decision. Just about a year later, we enacted the 13th, 14th, 15th amendments to free the slaves, provide equal protection and due process to the slaves' voting rights to the male slaves. That was extended in the 19th Amendment to the female Black Americans.

1:04:49 Clip: But part of the 14th Amendment provided birthright citizenship to the freed slaves and their kids. And it talked about – there's a key phrase in there that says subject to the jurisdiction. And as they talked about it – The 14th amendment basically says you have to be born in the United States and subject to the jurisdiction thereof. Yeah, you haveと be both. It's not just one. You have to be both. And there is a key meaning to that. Subject to the jurisdiction means you have allegiance to the United States. And this is the dispositive question that these Supreme Court justices need to answer. The Supreme Court previously held that American Indians were not subject to the jurisdiction of the United States, meaning they did not get birthright citizenship under the 14th Amendment to the Constitution. Congress later fixed that and gave birthright citizenships to American Indians through statutes. So ask these justices this dispositive question. If American Indians did not have birthright citizenship under the 14th Amendment, how the hell would illegal aliens? And the answer is simple. They do not.

1:04:48 Matt: Rattling off a bunch of historical mistakes.

1:05:07 Thomas: Basically, you just say it.

1:06:05 Matt: That makes no

1:06:06 Clip: Here's how, but

1:06:07 Thomas: But they're kind of different things,

1:06:07 Matt: Sense.

1:06:09 Lydia: That's totally different.

1:06:09 Thomas: Right bad

1:06:09 Matt: And also the Civil Rights Act of 1866, upon which the 14th Amendment Bill specifically excluded Natives. It was understood to exclude Natives. And again, even in Elk v. Wilkins, which they're going to talk about at some point, 1866, was somebody who tried to leave the Native tribes and they still found he couldn't because he was still a Native and the 14th Amendment didn't include him, the Civil Rights Act didn't. So this is pretty straightforward. He's just redirecting the question. He is moving the goalposts and he's going to do that all the way through. But this is the best they got. This This is one of their chief intellects, legal intellects. We've just seen two of them, Ellen Wormon and Mike Davis, and we've heard from John Eastman.

1:06:48 Thomas: Sign if your chief intellect is kevin from the office I think he's gonna spill a bowl of chili later all

1:06:56 Matt: A reminder, when he is talking about how straightforward and simple this case should be, let's hear from the man that he put on the Supreme Court himself. I'll link there directly to it. Can't hear this enough.

1:07:06 Thomas: Is this the is this nothing this is fun

1:07:09 Matt: Laughter

1:07:12 Clip: They can't go below that floor that the Constitution says. I think Mr. Sauer acknowledged that, and you mentioned this in your opening, that if we agree with you on how to read Wong Kim Ark, then you win. So that could be a, if we did agree with him on Wong Kim Arc, that could just be a short opinion, right? That says the better reading is respondents reading, government doesn't ask us to overrule, affirmed? Yes. That's, that's, then last

1:07:31 Thomas: Classic

1:07:43 Matt: In the court. It. So yeah, there's an interesting thing between the constitutional and statutory issues that I don't want to get into right now. And I don' think it's gonna be that important, but it's an interest question. Most importantly, though, when he's saying that they put on their capes today, which would suggest they're the good guys by doing this. Also, I think that's just a weird thing to say.

1:07:45 Lydia: Man right yeah

1:07:56 Thomas: Well it's so funny because he went he was trying to do the construction of like they're supposed to be just judges but they took off their robes and he's like shit what do politicians wear then they put on their capes uh I don't know mixed metaphors yeah put on their politics suits oh boy

1:08:09 Lydia: Their American flag pin yeah Yeah.

1:08:15 Matt: So I just really wanted to highlight, want to give you this little tour of the some of the people responsible for getting this nonsense up and really expose what it is, which is nonsense. It's really nothing.

1:08:26 Thomas: Which is an astroturfed racist campaign to make something to like fake a a law understanding of something that just didn't exist before right it's just like I don't even I'm TRYING I'M STRUGGLING TO come up with words for it because it's so weird like I don't know if this used to happen ever or if it's a new phenomenon but they're just retconning into existence this whole legal interpretation right

1:08:36 Matt: And I mean, Worman gave away the game in his clip when he's talking about how it had just been steeped a little longer, right? Like a nice tea, just to get

1:08:51 Thomas: They just we just need a little more time to fake some of the papers and stuff yeah

1:08:56 Matt: This out there and to have more people at least read about it so they can remember, oh yeah, didn't John Eastman write something about that? Didn't the great Ilan Worman say something?

1:08:56 Lydia: They're

1:09:02 Thomas: It and it's funny because I think some of them take the approach that like oh no this is definitely how it always was but he really did just come out and say it like yeah they're Here's the problem with the Supreme Court justices. They were raised at a time and place.

1:09:13 Lydia: Old. They are old.

1:09:14 Thomas: They're not up with checks notes the last year of Drier's prudence on this. He literally says like a year. It's like, oh, yeah, you're right. If the justices were babies, then they would.

1:09:24 Lydia: If they followed TikTok a little bit more closely, they would see the legal arguments.

1:09:26 Thomas: If they had gone to school now, then they would have been steeped in that current.

1:09:31 Lydia: And took my My class. Yeah.

1:09:31 Matt: They also might have read my book, The Second Founding, An Introduction to the 14th Amendment, in which I had plenty of opportunity to tell you about this and didn't for some reason in 2020.

1:09:42 Lydia: So interesting.

1:09:43 Matt: I mostly

1:09:44 Thomas: Well, fuck these people. And they, uh, are pretty much guaranteed to lose.

1:09:45 Lydia: We always go long though so we do have an extra piece that we'll include in the show notes for folks if they want to check it out on their own time. It's from The Federalist, something that we've covered before but Matt found a really, really good piece there. We just always run out of time and can't cover everything so I want to make sure everything, yeah, yeah.

1:10:00 Matt: Wanted to do it because of the author's name, Brecken Thies. His name is Brecken, folks, B -R -E -C -K -E.

1:10:07 Thomas: I've heard of Brecken. Isn't there like a Breckenmeier or something? Brecken, who am I thinking of? I'm probably thinking of Breckinmeier.

1:10:11 Lydia: That, yes, that's an actor. That's an actor but his name, I think his name is spelled differently, but yes there is a Breckenmeyer That's an actor.

1:10:15 Thomas: Brecken... Oh, I Brecken his name is... Anyway. Uh,

1:10:13 Matt: Well, no doubt, I'm sure this will not be his last appearance based on his writing skills here. So, I'll pick him up again again sometime.

1:10:25 Thomas: Keep an eye out for Breckenm.

1:10:26 Lydia: Breckenmire from Clueless is what you're thinking of.

1:10:28 Thomas: That's right. Yeah, Yeah. I thought so.

1:10:30 Lydia: Yeah. He's great. Breckenthies is not so great.

1:10:30 Matt: Well, that fits. All

1:10:36 Thomas: All right. Well, thanks so much for listening everybody for watching on YouTube and supporting the show, sharing the show all the stuff. Remember you can support us on patreon.com/law skip the ads and thanks most of all to Matt and Lydia for putting this together. We'll see you on rapid response Friday. All

1:10:50 Lydia: See ya.

1:10:51 Matt: Later.

1:10:55 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.