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Sarah and David open by marking the 25th anniversary of September 11th: They walk through Justice Brett Kavanaugh’s remarks about that day in the White House, a critic’s response, and the corresponding passage from Osama bin Laden’s own writings that – by David’s telling – shows the terrorists said they were fighting the U.S. Constitution itself. Sarah then picks the fight she promised listeners last episode, pushing back on David’s New York Times piece on the Missouri redistricting standoff and asking why Missouri’s secretary of state gets cast as uniquely lawless when Virginia Democrats ran a similar play with their own maps.
From there, Sarah and David discuss two articles – Andy Smarick of the Manhattan Institute’s three questions for judges wielding “history and tradition,” stress-tested against abortion and AR-15s, and University of Virginia professor Caleb Nelson’s originalist takedown of unitary executive theory, which leaves David wondering whether INS v. Chadha was wrongly decided. They close with a U.S. Court of Appeals for the 2nd Circuit case that tests how far a public-school teacher’s free-speech rights stretch to cover a four-by-six-foot pride flag on the classroom wall.
Agenda
- [1:30] Paying tribute to the victims and those who sacrificed their lives on 9/11
- [10:57] The redistricting fight that favors Democrats in Missouri
- [31:53] Andy Smarick: “How Judicial ‘History and Tradition’ Went Wrong”
- [46:25] Caleb Nelson’s article on the unitary executive
- [54:25] Is a teacher’s pride flag a personal effect?
Episode Takeaways
- Kavanaugh, bin Laden, and the “real reasons” game: Reflecting on September 11th in the White House, Kavanaugh said the terrorists “hate our Constitution … hate our values … hate our freedom of religion … [and] hate our freedom of speech.” Commentator Mehdi Hasan called that “child-like ignorance,” prompting David to read from bin Laden’s own writings – which fault America for having “invent[ed] your own laws” rather than governing by Sharia – as evidence of a pattern he says predates World War II: Enemies state their reasons in detail, and pundits insist on supplying different ones.
- Round two of Missouri’s map fight: David walked through how Missouri’s HB 1 – redrawing the state’s congressional map from 6-2 to 7-1 Republican – survived a secretary of state’s eleventh-hour rejection of a referendum, a Missouri Supreme Court contempt finding, a federal temporary restraining order, and a U.S. Supreme Court stay, before the state’s old map won out for the general election. Sarah didn’t dispute the facts but rejected David’s framing that the episode was distinctly “how MAGA attempts to fix elections,” arguing that Virginia Democrats’ own mid-cycle redistricting push – complete with a rushed referendum and a court-packing tirade after losing at the Supreme Court – was not different in kind, aside from its distance from a general election.
- Smarick’s three questions for history and tradition: Andy Smarick argued that courts applying Washington v. Glucksberg’s history-and-tradition test too often mistake the absence of old regulation for a hidden constitutional limit, and proposed three questions to test that assumption. Sarah ran the test on abortion (lawmakers regulated it, so no unenumerated right) and AR-15s (no comparably lethal weapon existed to regulate), while David used it to needle Second Amendment absolutists. Both agreed Smarick’s third question – whether today’s “political, cultural, or economic sensibilities” differ enough to explain new legislation – was too mushy, and proposed swapping in something closer to a compelling-interest requirement.
- Caleb Nelson vs. the unitary executive: UVA law professor Caleb Nelson argued that unitary executive theory, for all its focus on the Constitution’s vesting clause, ignores Congress’s own Article I power under the necessary and proper clause to structure how the executive branch operates – and warned that the theory’s real-world message is that federal employees are “authorized, indeed required,” to disregard statutes that get in the president’s way. Sarah, who lands on “medium uni” as her self-description, called it a rare originalist demolition of a Federalist Society mainstay. David went further, floating that INS v. Chadha – the case striking down the legislative veto – may itself have been wrongly decided, robbing Congress of a tool it built specifically to keep tabs on executive discretion.
- Pride flags, Garcetti, and the classroom wall: A 2nd Circuit panel sided with a school district that ordered a math teacher to take down two four-by-six-foot pride flags covering her classroom walls and barred pride stickers on classroom doors. Sarah and David – who’d argued for the opposite outcome weeks earlier in a case about a school administrator’s books on trans issues – agreed this one came out right, but split on why. Sarah called it obvious government speech: Classroom walls, unlike a private office shelf, exist for curricular messaging, and this display covered most of two of them. David reached the same result under Garcetti v. Ceballos’s on-the-job-speech test.