Andy Oldham, "The Texas Plan for Amending the Constitution and Restoring the Rule of Law"
With commentary by Ashley Keller
Andy Oldham is Deputy General Counsel to Texas Governor Greg Abbott. He previously served as Attorney General Abbott’s Deputy Solicitor General where he argued dozens of cases in state and federal courts, including two cases before the U.S. Supreme Court. Before moving to Texas, Mr. Oldham clerked for Justice Samuel A. Alito, Jr. at the U.S. Supreme Court and Judge David B. Sentelle at the U.S. Court of Appeals for the D.C. Circuit. Mr. Oldham also worked on a wide range of appellate and constitutional issues during his two-year tenure in the Office of Legal Counsel at the U.S. Department of Justice and while in private practice in Washington, D.C. He is a graduate of Harvard Law School (magna cum laude), the University of Virginia (B.A., highest honors), and Cambridge University (M.Phil., first class).
Ashley C. Keller co-founded Gerchen Keller Capital and serves as a Managing Director. He is a former partner at Bartlit Beck Herman Palenchar & Scott LLP, where he handled various trial and appellate matters involving multi-billion-dollar securities and patent cases, contractual disputes and mass-tort class actions. Before practicing, Mr. Keller was a law clerk for Judge Richard Posner at the U.S. Court of Appeals for the Seventh Circuit and Justice Anthony M. Kennedy at the Supreme Court of the United States. Most recently, Mr. Keller was an analyst at Alyeska Investment Group, a Chicago-based market neutral hedge fund, where he focused on investments in companies facing litigation and other complicated regulatory matters. Mr. Keller graduated magna cum laude from Harvard College and received an MBA from the University of Chicago Booth School of Business and a JD from the University of Chicago Law School in 2007, where he graduated first in his class.
Presented by the Federalist Society on May 9, 2016.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: Thanks for coming through. We have Andy Oldham and Ashley Keller here. We welcome Andy back. He was here last here, and he is here to speak about the Texas Plan for Amending the Constitution and Restoring the Rule of Law as a solicitor general. Sorry. Former deputy assistant solicitor general under that is now deputy attorney general. I'm sorry, I'm confusing the title to as General Counsel. That's where it sits. Deputy general counsel to now Governor Greg Abbott. He spent some time in the office of Legal Counsel, a private practice in DC, also clerked for Justice Alito. And we are very, very happy for him to bring both that experience and also his DOJ experience to bear on this topic. We also have Ashley Keller from the Law School, graduated in 2007. He is the founder and managing partner for Gerchen Keller Capital finance firm. He clerked for Judge Posner on the Seventh Circuit and then on the Supreme Court for Justice Kennedy.
Andy Oldham: Thank you guys so much for having me. It's a pleasure to be here. It's a place that actually one of my dear friends on earth and a great, great legal mind to distract him from his other gainful employment where he is actually making money to talk about some highfalutin issues today. Today I want to talk about... I have a powerpoint slide, but I promise you it's not boring. There's not a lot of words on it. I like these pictures just to see you have something else to look at as we're going through this. We'll talk about today is what is called Article V convention of States. This is a plan for amending the United States Constitution through states rather than through Congress. So real quick, for those who don't know, we're going to talk a little bit about what that means. Like what is exactly an Article V convention. Why I think it's a good idea?
Andy Oldham: What I hope I can spend a significant portion of time on, we'll see how we're doing on time, and Joe just flag me when we, uh, when you want me to shut up, want to stop, but I want to talk a little bit about some of the counter arguments that have been raised about Article V permissions states, um, plan to them in the US constitution generally, and try to deal with those. I'm sure Ashley will have a bunch as well, but I'll try to touch on those. But I'm not going to talk about is sort of the nuts and bolts of how conventions work, how delegates are selected, that kind of the sort of mechanics of that. Obviously I studied a bunch of that and I'm happy to discuss it if folks ask specific questions, but for the risk of having people falling asleep in their lunches, I don't want to get into too much detail on that.
Andy Oldham: So let's start with Article V. If you are, if you're con law classes are anything like mine, you sort of skip over Article V and you get to Article IV that deals with the states or Article VI that has the supremacy clause obviously. And we don't talk much about Article Five. Article Five has two basic provisions to it. They both talked about how we're going to amend the Constitution that comes before it. What I call Route A, it's through the US Congress, and we have 27 amendments to the US Constitution. All 27 of them have gone through Route A right? Through route A, it takes two thirds of both houses of Congress acting bicamerally to propose a constitutional amendment and then it goes to the states for ratification. Three fourths of the states necessary to ratify. So two thirds both houses of Congress, three fourths of the states, 27 times, that is 100 percent of our amendments, have gone this way.
Andy Oldham: The untested route is Route B, which cuts Congress completely out of the picture. It goes all through the states. So two thirds of the states call for a convention of States to propose amendments. Three fourths of the states then ratify the amendments that were proposed by the state convention. So today we're talking about Route B, right? So we haven't done it before, but the argument from my boss, Governor Abbott, is we should try it and that's what we're talking about today. So what would that, what would this look like to get a sense of if you, if you're like me, sometimes pictures are helpful in what is does 34 states look like because that's what it would be the threshold to get to a convention of states just to propose the amendment. 38 to ratify, but 34 states would have to call her the convention of states to propose them.
Andy Oldham: So just to give you a sense, I don't know if you could see these colors, but there are 31 red states that this is an unprecedented, virtually unprecedented, tally of red states in the United States. These are 31 states with Republican governors. As we sit here today, there are 31 of them, so I don't know if it's been that high in the past. If it has, it hasn't been recently. And you can see some of the states that are shaded red are not states that you and I might necessarily think of as red states, including Illinois. Maine for example, is red. Massachusetts is red, Maryland is red in this map because Republican governors in those states. Just to give you a sense of kind of what, what 31 states looks like it includes a lot of states that you might not necessarily think of as being like a lot of other states.
Andy Oldham: And there's 11 blue ones and there's 8 pink ones. So obviously you need four of those pink ones to join with the 31 or if you were having sort of a blue state coalition, you would obviously need a whole bunch of red states. So the bottom line of the map is it's really, really hard to get to 34. So that begs what I think an obvious question which is: why on earth would we want to go through this hassle? Like what is the point of trying to get what we call the road to 34 or the path to 34 states. And I think that the fundamental answer from my boss and when I go around and talk about the Texas plan and talk about convention of states and Article Five, a lot of what we hear about is this sort of brokenness of Washington DC. And I think that there is a fair amount to that, right?
Andy Oldham: There's a lot of, you could see it in current election cycle. There's a fair amount of distrust of Washington, of federal institutions. A lot of the stuff that DC is doing is fundamentally broken, I would argue at its basic core, but really what I think is actually driving what's driving it from our perspective, from the governor's perspective to mine is not so much, you know, we need to abolish the IRS or you know, we need to have some fundamental reform in some other agency or institution. It is much deeper than that. It really goes to the rule of law. So we talk a lot about Magna Carta Team John and running need, um, in really what law, like what you guys study every day and what we are pledging our friend, Ashley excited. He's going onto greener pastures of employment, but for those of us who are lawyers, right thing that we believe in was founded in that meadow, half women in the meadow of Runnymede, halfway between Windsor and were the knights were, were, um, were stationed.
Andy Oldham: In that instance, we're going to agree to certain rules, ex ante, we're gonna play a game and then we're going to agree to abide by the results of that game ex post. We're not going to change the rules of the game later and make a legitimate result, a lawful result illegitimate. And I think that's fundamentally what is at stake that in, it's the erosion of that principle, the erosion of the rule of law that is the real meaning to call for a commission of states and really to have some constitutional meaningful constitutional change, um, in, in the United States today. So I want to breeze through a few examples because I don't want to be labor these points too much. I have particular things that I think are illegitimate in the way that we conduct modern American law. I'm sure folks in this room, and I actually disagree with you on some of them, I'm sure you guys have your own pet favorite ones, but I'm just gonna go through a few of mine just to give you a sense of kind of what I think it's illegitimate about the way modern American law works. And again, what am I focusing on here is not so much where I think the court has gone wrong or where I think congress has gone wrong because you and I might reasonably disagree about what the 14th amendment requires or what sort of capacious test can allow in a particular constitutional provision, and that's not what I think is driving this right?
Andy Oldham: It's not about good faith disagreements about what word law means. It is a fundamental subversion of law, right? It's an illegitimate appropriation of the Constitution or degradation of it to reach results that you and I may or may not agree with. It's not about the results. It's about the process. Right? And get completely deviated from the way the Constitution says certain things should be done. In. My favorite example is lawmaking, right? So you guys all remember the "I'm just a Bill", the school house rock thing? I'm just a Bill on Capitol Hill on the waiting committee. Remember this whole thing?
Andy Oldham: So I'm just a bill and I hope that everyone saw, I don't watch Saturday night live regularly when I do, it's to see this skit, which is executive order. So the Schoolhouse rock version, I'm just a bill and one day I hope I'll be a law, right? The SNL version is I'm an executive order and I kind of just happen, right? It really is true, right? Executive orders come out of nowhere. They are tethered to viritually anything. Modern administrative law has these broad areas of deference that largely allow delegate to administrative agencies, the power to do all sorts of things that Congress has no saying at all. And so rather than being governed by bicameralism and presentment, right? The Constitution is very clear. In Article I and Article II, we have two houses of Congress, the House and Senate. We have the President of United States. The bill goes through both houses and presented to the president with a veto proof ... signature and it becomes a law, and instead what we have today, we have this alphabet soup of administrative agencies that dominate modern American life.
Andy Oldham: So by one estimate, 90 percent of the law that goes out of Washington DC comes from administrative agencies, right? It doesn't come from Congress. It comes from the CFR, the Code of Federal Regulations. Most of you have taken administrative law or know anything about it realize how cumbersome and difficult all of these people make their lives to say nothing of my favorite, the IRS. And that is fundamentally illegitimate. And the reason I argue it is illegitimate is because it's not based in the Constitution says laws should be made. It's not that I disagree with a particular Department of Labor regulation or particular IRS regulation. It is the entire existence of this edifice of administrative law is constitutionally suspect. And so I want to talk about my favorite example of recent vintage. And that is the Clean Power Plan. So this is the Clean Air Act. It's a long, complicated statute.
Andy Oldham: I don't want to bore you with all of it. I'm just going to focus you on nine particular words. It says that the secretary has established standards of performance for any existing source of any air pollutant, right? That is the entirety of the relevance of the statutory text, so the things that went through through the House and the thing that went through the Senate and signed by the president in 1974 has nine substantive words and those are that they. They are pretty capacious and there are nine of them and out of those nine words, we get 1,600 pages in the Code of Federal Regulations that is the clean power plan regulating every conceivable air pollutant could possibly have an effect on on the, on the ozone there, right? Or the greenhouse effect, all the way down minuscule parts per million and all kinds of influence that you wouldn't even know how to pronounce.
Andy Oldham: This is just the table of contents, right? This is just. I was just scrolling through this 10 page, single space table of contents, and just the table of contents of the clean power plan, and this all comes out of nine words. Now, if that was the end of the story, right, that you've got 1600 pages of law that governed the everyday effects. If every American, it's. It's everything. It's the lights in this room. It's the cars you drive, right? It's everything. If it was just that, it would be an extraordinary exercise of federal power on the basis of diamond words inactive by Congress, but it's actually the story's even more perverse than that because unlike most administrative regulations, this particular one was actually challenged in Congress. There's a particular particular statute in Congress that allows a joint resolution from both houses to effectively nullify a major federal regulation like the clean power plan, and in this case, Congress took the unprecedented step of actually doing that, both the House and Senate passed resolutions condemning the clean power plan and presented those resolutions as they were required to, to the President as a joint resolution for the president's signature.
Andy Oldham: And the President vetoed them right? So it is an amazing administrative regulation in the sense that, but for the president's signature, right, this single man in veto the law would not have gone into effect, the regulation would not have gone into effect. It's even more extraordinary than that, Justice Scalia, one of his last official act at the Supreme Court, United States before he died, provided the fifth vote to save the Clean Power Plan. So were it not for Justice Scalia dying two weeks earlier, today we would be governed by the 1600 words. They were never enacted by Congress. They never went through bicameralism and presentment. When they did go through bicameralism and presentment, they were rejected, right? And so it is the ultimate example, I think, of rule by bureaucrat, unelected bureaucrats at the EPA and the lame duck president were able to enact rules that, but for a couple of odd quirks, would literally be the law of the United States.
Andy Oldham: And again, it's not about whether you think the clean power plan is a good idea or a bad idea. It's what I want to challenge and what this whole idea of why we need meaningful constitutional reform is that it's fundamentally illegitimate exercise of ways to come up to govern modern American life. So I've raced through. My other favorite examples for the legislative branch or the or the commerce clause. The, as you may know, commerce as it was conceived of in the 18th century, was in contradistinction to manufacturing and agriculture, right? The idea that the framers had when they framed the commerce wasn't anything of Randy Barnett coming to talk to you later this week, is that right? And so he could wax poetic about this for a month and give you all the information that you might need onto it. Their idea was that there's basically ways that you make stuff right.
Andy Oldham: You can either manufacture it or you can farm it, and then commerce was the way you moved it, it was trading, right? It was like you would put it on a boat or you put it on a train. The then beginning, you put it, you would put it on a horse, you would move it, and that was the act of commerce, but today commerce is, you know, Federal Congress Claus allows Congress to regulate every single nook and cranny of modern American life. And my favorite example of this is from is from my home state of Texas and this is a multimillion dollar transportation project in San Antonio. It's an interchange between two major highways that was planned out, phased, approved by the EPA, funded with millions of dollars from taxpayers throughout our state, and the view because it also keeps the last federal DOT up until this guy found a blind bracken batcave meshweave which looks like this.
Andy Oldham: It's a spider that is born, grows old, and dies and never leaves this one cave in Bear County, Texas. Right? So it is a spider that has no commercial purpose. You can't buy it, you can't sell it. There are no tourists who can come and see it. It is not in any sense of article of commerce and it also has absolutely no nexus to the interstate system because it literally never moves out of that hole, but it's an endangered species and because it's an endangered species, we had to repurpose the entire project so that we didn't disturb that hole, which tripled the price of the project to $44,000,000. And so now we have this huge, massive fly over to prevent the disturbing of a broken, I'm sorry, a Bracken Bat Cave Mesh Weaver, which is, um, so I think that the founders would turn over in their graves. And it has nothing to do
Andy Oldham: I have no bone to pick with them with this particular blind bat cave spider thing. It may be a perfectly likeable animal and I've done no, no beef with the Endangered Species Act. It's just you have to wonder what is the constitutional basis for that sort of legislative action. Real quick, I'm going to breeze through the Supreme Court one because I don't think they're that important. These were my favorites. Again, when we're talking about Supreme Court rulings, I'm trying to pick sort of like we think about all three branches, right? We've done the executive branch, the legislative branch, on the judicial branch because we have some constitutional reforms that we're proposing for the judicial branch. Again, what we're focused on is not because we necessarily think are wrong, but things that we think are deeply unprincipled or illegitimate, and I think a great example of this is the first amendment.
Andy Oldham: You know, think about the Court's modern first amendment jurisprudence. There are some incredibly eyebrow raising cases, right? So this is Xavier Alvarez. You may know him. He ran for a water district board out in California and in his proposal speech and sort of introducing himself to his fellow water board members, he talked about how he was a Detroit redwings player. He was married to a Mexican beauty queen, he had saved a hostage during the Iran hostage crisis and he had won the Congressional Medal of Honor. Now all of these are lies, but the last one was a felony, right? The Stolen Valor Act prohibits people lying about winning the Congressional Medal of Honor and in an amazing opinion, the Supreme Court of the United States says that somehow the First Amendment protects the lie. And I leave it to you and folks who are smarter than me to read that and explain to me how the first amendment protects other lies, why this doesn't vitiate things like securities fraud statutes and in all manner of other things, but that's what the court said in Alvarez.
Andy Oldham: They've also said that it protects videos of crushing little kittens for sexual gratification and pole dancing and horrible, hateful speech at Marines funerals in Virginia, and violent video games. But if you stop somebody on the street and you say like, what is the most controversial First Amendment decision that the Supreme Court has decided in the last two generations? They will say it is this organization's ability to say that lady's name 60 days before the Democratic primary. Right? And again, it's not about whether Citizens United was rightly or wrongly decided. The thing I want to challenge is the idea that same First Amendment that somehow protects crushing kittens, that's not controversial. That's 8-1 , right? That's an 8-1 decision the United States v. Stevens, but somehow this bitterly divided 5-4 decision is the one that is so challenging and in fact the one of the reasons I love talking about Citizens United is that when we're talking about convention sustained some meaningful constitutional change. There are four states that have pending applications to amend the Constitution to overturn Citizens United. Right? I know I have no have no state that is called for the overturning of the animal crush case, the United States v. Stevens.
Andy Oldham: I went to the University of Virginia undergrad, I love talking about Jefferson. so through. This is the eighth amendment. We won't talk about that. The fifth amendment. I love talking about Hilo, but we'll skip through that too because I don't think the whys are as important. I want to talk a little bit about the why nots, right? So assume. Let's just assume for the sake of discussion that you are thinking that we have serious problems in the United States with respect to the legitimacy of the way our laws are made, right? Whether it's the way the administrative state behaves, whether it's the way Congress regulates into the commerce clause or something else, or that you have swaths of Supreme Court jurisprudence that you think are just based on a fundamentally misplaced or fundamentally illegitimate in the way that they decide them. There are. When I go around and talk about this issue and talk about the Texas plan and article five issues, there are a series of very common criticisms that come up, um, and I want to talk about a few of them, um, because I think it's somehow it illustrates a little bit about, it's a little bit of meat on the bone about why is this a good idea of what the chief concern that I hear, what I am talking to people about, what we should have the convention of states to propose amendments.
Andy Oldham: The chief one is, oh, is this going to be the worst runaway, the worst runaway since the 1984 Tom Selleck that the criticism is something to the effect of, Oh my God, we're going to get these people in a room and they are going to be awful. They're going to come up, we're going to tell them that we're going to have a convention to like fix the administrative state, and what they're going to do is they're gonna like repeal the second amendment, we'll no longer have a right to bear arms. Every state's been more like Illinois or, or whatever. Whatever your favorite provision of the constitution is this going to be gone. Right? But that, that is one of the. But I think if you unpack this runaway convention idea, there's really two kind of flavors to it or to sort of subarguments. The first one is that in 1789, when the founders met in Philadelphia, they had James Madison, right?
Andy Oldham: We don't have James Madison anymore. There are no modern day James Madison's that we have. Right? And so if we put a bunch of idiots together and they're going to propose idiotic amendments and they're going to sort of take our constitution, the trash cans can be awful. Two things to this one, don't forget what we said at the beginning, which is that constitution, the constitution itself in Article Five has embedded in enormous the supermajority of requirements, right? It takes 34 states to get there, but whatever the modern day non James Madison's are going to do, and if you mentioned, well, 38 states have to ratify it before it becomes part of the Constitution. The second thing to remember is that Congress is in many ways a standing convention of states. And what do I mean by that is we had 27 amendments to the Constitution today. All 27 were proposed by Congress.
Andy Oldham: At any time, Congress can propose a constitutional amendment right, but the same way they can do legislation that goes through bicameralism, it would take two thirds of of each house to do it. So it's a little bit harder than normal legislation. But Congress at anytime could propose to eliminate the second amendment or couldn't propose to overturn Citizens United or could propose to eliminate the wall between church and state or to somehow fundamentally amend the first amendment. And Congress has literally never done that right. That like if you think about the most improvident constitutional amendments that Congress has proposed, they pale in comparison to a lot of the stuff that people worry about when they talk about a runaway convention of states. And so fundamentally the runaway convention idea would argue, rests on the supposition that the non-James Madison's that we would send did these convention of States is delegates are somehow less responsible than the members of Congress.
Andy Oldham: We send to Washington every year. And I just think that that's not a particularly realistic one. The second flavor that's kinda confusing this runaway convention idea. I think is actually more pernicious and that is the James Madison himself in 1787, he and his other founders of our original Constitution, they were also runaways. And this argument is something they can put a little bit of meat on it. It goes like this, when we sent everybody down to Philadelphia to have the convention in 1787, we told them we wanted them just to sort of tinker with the Articles of Confederation and what they did is they gave us a wholesale rewrite. It was really scary and it happened to work out fine, but man, like those guys were irresponsible and we're going to get another group of irresponsible, perhaps even more irresponsible people today, and this one I take exception with because I think it's fundamentally based on a myth.
Andy Oldham: Prior to the convention in Philadelphia in 1787, we had a convention in Annapolis in 1786 and in this convention, if they founders were inclined to a runaway, this would have been the place to do it, right? For a couple of reasons. One, there are only five states represented. One of them happened to be Virginia. Madison happened to be one of the people there, right? So if Madison was otherwise inclined to this idea about let's, let's play, accomplish with pretty radical constitutional stuff, this would have been the time to do it because he didn't have everybody to deal with. Right. There wasn't everyone there. They were already in Annapolis. Plus the call for the convention in Annapolis was limited to trade and commerce issues. And as you, as those of you are constitutional history scholars will know, that was the fundamental thing. That was an issue in the in the 18th century, right?
Andy Oldham: The big thing that was driving this sort of falling apart and the articles of confederation regime was the Economic Balkanization of the states. Right? So they had to charge to do the thing that was the central issue that had five states, including New York was another one. So Hamilton was there with Madison, two guys who were eager to accomplish some constitutional reform. They had the moment. They could have done it at Mann's tavern in Annapolis and they didn't do it. Why didn't they do it? Well, they didn't do it for two reasons. One, they didn't think it was legitimate because they didn't have all the states by them. Two, the call for the convention is limited to trade and commerce issues and they wanted a broader call. They want to what was called a plenipotentiary convention that would have allowed them to do everything, not just trading commerce and so they wrote a letter or report to the continental Congress in Philadelphia and they said we would like to have another convention next summer in Philadelphia and we want it to be plenipotentiary.
Andy Oldham: And so when Congress called for it, this is February 20-21 1787. Everything is is irrelevant except for the last two sentences where they say congress hereby resolves they call for it, etc. Etc. Etc. Such alterations and provisions therein shall agree to a Congress from other states, rate of the federal constitution adequate to the exigency of the government and the preservation of the Union. Right. So broad, broad. We'll get into why later, but a broadened call, right? So when you hear people talk about how it was a runaway in Philadelphia in 1787, that is a historical myth I think cannot, cannot be debunked enough. The second, and this is my favorite, one of my favorites, is, well, it's going to be ineffective, right? It's going to be about as useful as this lady's camera.
Andy Oldham: And I think that this one is funny for. I mean, it's, it's funny for a lot of reasons, but one reason is it's quite ironic, right? Because the same people who were complaining about how it's going to be a runaway convention and they're going to eliminate the second amendment and they're going to eliminate the first amendment. It's gonna be this radical thing are also saying they're not going to do diddly squat, right? They're telling you they're all going to get to, you know, the super majority requirements are too high, American life is to balkanized, um, Twitter and Instagram and the modern 24 hour news cycle are going to sort of prevent anyone from coming in a consensus or striking any deals. So it's quite an ironic criticism. One, but two, this whole thing about how the Article V convention or convention states are constitutional reform is ineffective or practical or as useful as this lady's camera I think doesn't take originalism seriously, and I cannot say this any better than Jefferson's story.
Andy Oldham: This is from his commentaries. "It's that no human government ever can be perfect and it's impossible to foresee or guard against all exigencies will, which may have different ages required different modifications of power to suit the various necessities of the people. A government which in his own organization provides no means of change, but it seems to be fixed and unalterable must after awhile become wholly unsuited to the circumstances of the nation and it will either degenerate into despotism or by the pressure of it's inequalities bring on a revolution." Right? That is, of course, the whole reason why we have Article V in the first place is that they knew when they framed the document in 1787, that it wasn't going to be fit for all of the exigencies of the union. Right? If you talked to a lot of constitutional law scholars and he said, well, what would James Madison think about the Constitution that we have today?
Andy Oldham: Most people will tell you, he would marvel at the idea that thing lasted more than 40 years. The idea that lasted almost 240 years is sort of incredible, right? It's incredible, but the idea that it doesn't need to be changed, it is is just denies the reality. Both denies the reality today, but it also denies the understanding of under which the document was adopted in 1789. The second thing is that it's not just that the Constitution needs to change; it's also that the states are the ones that need to change it. Madison of all people was the one who amended Article V to require what we call Route B at the beginning. Right? The original proposed Article V was just to allow the federal congress to propose the amendments, which of course we've done 27 times. There was no Route B, and Congress intentionally added Route B, the state's specific route, because they knew that when it came to taking away power that the federal government has either usurped or abused or both that the federal government was going to be very ill suited to do that.
Andy Oldham: That only the states would have the proper incentives to do it. Right? So the..., if you want to take originalism seriously, you have to both recognize that the framers wanted us to amend the document and they wanted the states to have the power to do it. Three, it's not as if if we sit idly by and we don't touch the document, that it's not going to be amended to fit modern exigencies, right? Like someone is going to face it. Someone's going to fill that vacuum. And what we decided collectively, and I think subsequently you in America, is that the institution that we're going to allow to amend the Constitution when it needs to be amended was the Supreme Court. Right? So when we decided that we have found in particular, social or economic problem that needs to be addressed, what do we do? We file a lawsuit, we make, we literally make a federal case out of it and we allow the five justices that have concentrated majority of there to decide what are going to be the rules that govern American life.
Andy Oldham: And if you think about the really meaningful and seismic changes that have dominated constitutional discussions into modern in, in really in the 20th and 21st centuries, they've all been done by the court. And that I would say is a serious problem, right? Because it was never intended to be that way. As you all recall, the judicial branch was supposed to be the least dangerous one, right? Because it has neither force nor judgment based. The fortunate world would only judgment and instead we've decided to just. The court is in many ways the most dangerous one because every contentious issue, whether it's abortion or same sex marriage or or whatever, pick a, pick an issue that divides Americans in public discourse today. We're going to just kick it to the courts and let unelected judges decide and that's a problem. Um, and then the last thing I would point out is that even when state based convention ideas fail, they also succeed, right?
Andy Oldham: So even if you took the view that this whole thing is kind of silly and it's not really going to accomplish anything and you know, that there's no chance of us getting to consensus, even then there's a huge amount of value to be gained. Don't foRget that the bill of rights originated as a state based call for convention, right? That was the first, the first move to use Article V was the bill of rights and was led by states. The direct election of senators in the 17th amendment. Perhaps not my favorite example of an amendment, but it was led by one vote shot is one state shy, um, of, of those necessary for a convention of states. And then Congress just stepped in and filled the gap because they didn't want to have the convention. Right? So it can prompt change even when it doesn't actually accomplish it on its own.
Andy Oldham: Let me tell you one more and then I'll stop. So that we can do, we can talk to Keller. ... But we can leave time for questions. Another criticism I hear is cheese, cheese, cheese louise. Things aren't that bad, right? Like, you know, Andy, you're up here, you're talking about how the whole world is crumbling, but like there's still half a foundation to the house, right? You want to focus on the half that's all I have torn down and was blown away by hurricane Sandy. But in fact we still have standing. So why do we really need this horrible inter commune remedy? And there there are a couple. This has a couple of different permutations as they always do these kinds of concerns, but one group of them is to say, well look, yeah, half the house was torn, half the house was standing and that's the house.
Andy Oldham: It's torn down. We had perfectly good reasons to do that, right? like, it seemed to you that we have deviated a little bit from the constitutional plan, but like, come on, you know, it was written by a bunch of guys who died 200 years ago. Like, of course we've deviated a little bit, but it's actually fine. And the leading proponent of that theory is one of the leading proponents I should say, is James Landis. Now. This guy is the architect of the american administrative state. He wrote the canonical book on it called the Administrative Process, which if you have not read this book, I'm not sure it's still in print to be completely candid, but large sections of it are reprinted in administrative law logs, right. He is, uh, he is the godfather of the administrative state. He was the head of the, he was the chairman of the SEC.
Andy Oldham: He was a member of the Federal Trade Commission. He was the dean of my alma mater at the Harvard Law School. Um, and he, he's, he was writing and sort of the early part of the 20th century and he was talking about how the majority of the problems confronting the early 20th century America, were very different than the problems that confronted the founders in the 18th century. And yeah, you know, we deviate a little bit from the constitution and yeah, I get it. The administrative state has mentioned nowhere in the Constitution and I get it, the FDC and the SEC exercise some powers that are probably reserved to Congress, but Landis's principle argument was like, who cares? Like it's actually like functionally it's a good thing. We need government by experts. You hear this a lot, especially in the environmental world. Many government by experts and you know, certainly want the smart people at the epa who do this for a living to be figuring out how much benzene in the water.
Andy Oldham: We don't want idiots in Congress who are distracted and in the pockets of corporate America this, so the argument goes from voting on these things. And my favorite, this is a passage from the administrative process, he says that administrative law arises from quote "the inadequacy of the three branches of the federal government," and he argues that the ConstItution is an inconvenience to those, the experts, who we need to use to make expert decisions. Even when administrative agencies "do violence to the tripartite theory of government that established the Constitution." So that is an incredibly candid admission, right, that the administrative state as we know it, the alphabet soup of agencies that we discussed earlier, are not only mentioned nowhere in the Constitution, they exist in fundamental oPposition to the way the founders wanted law to be made. Right? But the theory is his theory anyway is that it's actually a good thing, right?
Andy Oldham: It's actually a good thing. We should be okay with it. I can't move on beyond james landis without pointing out a hilarious irony of his life, which is this man who stood up and largely erected what we now celebrate as the modern American state died in the 1960s after getting out of jail for tax evasion. So he actually didn't pay his taxes in violation of IRS rules for five straight years and literally went to prison over it. Maybe he thought the 16th Amendment was was unconstitutional? I don't know. But my principal response, my principal response to Landis is this is how we got into this problem in the first place, right? Like the modernity is messy and therefore we should deviate from the Constitution is how we end up in a place where we, you know, we have laws like the clean power plant where we can take nine words and because we want to be governed by experts, we can turn those into 1600 words of bureaucratic, bureaucratic speak.
Andy Oldham: That govern literally everything about how we use and consume power in the United States. The second variation of this sort of things, right? That bad argument is, well, geez, I really don't want those, those, the plebeIans to get their grubby hands on my Constitution. Right? And so it's very sort of elitist view about what the Constitution is, where it comes from and, and, and, and how we should keep it safe? Right? And my response to this one is what Benjamin Franklin said as he was leaving the convention hall in, so you may have heard this, that he's on his... It's apocryphal but he says, but the, the, so the saying goes, he's on his way out and he's confronted by a, by a citizen who says, "Well, Mr. Franklin, what did you give us a monarchy or republic?" He says, "A republic if you can keep it." And regardless of whether it's apocryphal or not, the fund, you don't have to read more than one of the federalist papers to understand that if the Constitution was based on anything it is based on a republican form of government and if the republican form of government is based on anything and it's based on the consent of the governed. The consent to the governed has to, has to be the thing that underpins the legitimacy of the document and the institutions that gives birth to.
Andy Oldham: And so the idea that we want to somehow prevent the governed from having input into it. And instead of just a little bit, the status quo strikes me as ill guided. So I am happy to go on, we can talk about Justice if you want, he's one of my favorites on this too, or I'll turn it over to Keller.
Ashley Keller: So I'll say a few things. Some consolatory remarks here. It's always perilous to disagree with Andy and I don't disagree with him on most things, even in the remarks he just made. But I disagree with his solution. I think we're all doomed and there's nothing Texas can do about it. So to look more seriously, the solution that I think that Texas is proposing to the problems and I totally agree about the problems with respect to the rule of law. Those solutions wouldn't be necessary if we lived in a country where they were viable, but precisely because we have the desperate problems that we do, the solutions aren't going to work. You know, Andy sort of alluded to this in the why nots. Well, you know, it's so hard to amend the Constitution, so why should we bother trying? And he sort of dismissed that is not taking originalsm seriously.
Ashley Keller: And seriously, I take originalism very seriously, but the fact of the matter is I don't think there's going to be the groundswell of support in three fourths of the state legislatures necessary to enact any of the proposals that Texas has put on the table. And by the way, even if you go through plan b, you still have to deal with Congress. If you read Article V, they're the ones that get to propose the conventions of the states and they're going to have a hand in shaping the rules he crossed out in his little outline. We're not going to deal with the particulars of how this actually gets done while Congress's actually involved so when you do want them to start talking about the particulars, you can go back to the text. So this is the Federalist Society, right? And we all know it's emphatically the province and duty of the judiciary to say what the law is not what it ought to be.
Ashley Keller: A major part of the problem here is that the judiciary is not staying true to that fundamental maxim. And notice that Texas's proposed solutions, all of the amendments to the Constitution or almost all of them are not actually amending the Constitution, they're just restoring the Constitution to what it already says. That's the sort of Texas proposal. There's this long windup of history, what the framers originally meant when they put in constitutional provisions like the commerce clause and then the proposed amendment is so we should go back to and undo all of the bad Supreme Court cases that have intervened since the New Deal to take us away from the original constitutional design. Uh, you know, I just had my 10 year law school reunion and part of it is they bring alumns back here and you get to sit in class. And so I sat in on a class with David Strauss who I love.
Ashley Keller: He is a great philosopher and teacher at this law school. I had him for elements and for con law. He's terrific. And the title of the class was, Does the Constitution Mean What It Says? That should be a one second class. Yes. We all leave. Of course, that wasn't the answer. The answer is no, and we spoke for an hour about why the answer is no and why that's a good thing. This is the pedagogical method that students throughout the country are getting. Again, this is the University of Chicago. Imagine what it's like in a place like Harvard. The entire profession has bought in to judicial supremacy and the notion that the Constitution is a malleable document and all the interstices and whatever words that academics use to justify their flouting constitutional principle. Texas is saying, no, we should go back to what the document already says. Well, if you have a Supreme Court that has already perfectly comfortable ignoring constitutional facts,and law professors who are perfectly comfortable teaching a class about why the Constitution doesn't mean what the words in the document say, I'm not sure why that's going to be anything but a parchment barrier.
Ashley Keller: So, you know, Article III is a problem. And it's a problem that I don't think gets solved by Texas solutions. Um, but you know, the Federalist Society actually has other animating principles. The emphatically the province and duty of the judiciary stuff is actually the thing that comes third. If you look at animating principles of the Federalist Society, it's that the government exists to preserve freedom and that the separation of powers is an important part of the constitutional design. And then it gets to what the judiciary is supposed to do. We've already covered that. The judiciary is not doing what it's supposed to do. Let's talk about the separation of powers. I think that that's been a fundamental state of disrepair in this country. A part of it is because of judicial supremacy and the sort of notion that the other two branches of government to take their own oaths of office very seriously and they just defer to what five elected judges on the Supreme Court say.
Ashley Keller: But, but it's more than that. Uh, you know, the idea behind separation of powers, if you go back to the Federalist, it was either Hamilton or Madison and probably Madison who said, you know, "let ambition checked ambition." We should have these different departments where everybody is power hungry and because they're going to jealously guard their own power and their own prerogative, they're not gonna allow the other branches of government to get away with things and encroach upon the prerogative of a different branch of government. Well, that's no longer true, right? The Congress rejects Immigration reform. The President says Congress has necessary for it, but then he gets sick of Congress not doing what he wants. He gets in front of Congress at the State of the Union address and says, I'm actually through executive order, the not a bill that would just spontaneously comes into being smoking a cigarette on Saturday Night Live.
Ashley Keller: I'm just going to spontaneously decide that you guys aren't necessary for me to impose my will and have the immigration policy I want. Whether you like that policy or don't like that policy, half the chamber stood up and started applauding the President saying yes, circumvent our authority. Ignore Article I and just do things through Article II. Ambition is no longer checking ambition. Partisan politics have taken priority, prime of place. I think in the hearts and minds of the people who govern this country such that so long as you support the ultimate outcome, the process doesn't matter. So separation of powers, it worked pretty well for 150 years, but it's not working well today. I think Republicans are guilty of it. Democrats are guilty of it. When the Supreme Court decides something, the Republicans like, they cheer. The democrats say it's, you know, legislating from the bench and vice versa when it goes the other way around, but there is no longer this jealous guardianship of the prerogatives of each of the branches of government.
Ashley Keller: And so that's also a problem that I don't think the Texas plan a is going to solve. We have dysfunctional leaders who don't take their responsibility seriously. You know, Washington thought that the new Constitution after he left Philadelphia would last 20 years before it needed to be completely revamped. So it had a good run. But I think fundamentally speaking, it's, it's in a state of disrepair. That core maximum separation of powers is not working anymore. The fInal point, and this is really the most important one that I think dooms the Texas plan, uh, you know, going back to again, the animating principle, the Federalist Society, which is the government exists to protect freedom. That's shorthand for sort of a natural law, Lockean conception of government which that we are all born with certain unalienable rights, life, liberty and property. And the purpose of government is to protect, not to confer those rights.
Ashley Keller: I know this is being recorded, so I'm going to be a little bit careful in how I phrase this, but suffice it to say that I don't think a love of life, liberty and property is coursing through the veins of our citizenry anymore. And so all of the constitutional provisions that are designed to limit government and have a conception of government as sort of the protector of our liberties and that we are sovereign. Uh, you know, if a vast majority of people no longer believe that to be true, I think it's going to be really hard to get three fourths of the state legislatures to do anything like what the Texas plan proposes, which is to restore that sort of conception of government. You can't have... the Constitution is a parchment barrier. If everybody who's over 18 can vote and the vast majority of those people don't believe in the foundational principles that animated the country and you know, proposing amendments to the Constitution to get us back to that vision I think requires changing a lot of hearts and minds.
Ashley Keller: Uh, and I'm just not optimistic that even someone with Andy's oratorical skills is up to the task. So in light of that, I think, you know, great ideas in here. I would love to live in a country where Texas' plan could pass. I would love to live in a country where it wasn't necessary because the Supreme Court interpreted the document the way it's supposed to be interpreted, but we don't live in that country. So we kinda got to deal with the hand we've been dealt. We're conservatives, we're realists, we don't bury our heads in the sand, ignore reality, and the reality is this is not going to happen. So yeah.
Andy Oldham: Let me just say one thing. Thank you, Keller. One thing I would say is, and I'm not, I don't think anyone in Texas, I know certainly the governor, is not, I'm under the impression that this is easy and I agree with you, it is really hard and I agree with you that there are. We live in a country where the Lockean conceptions of government are in short supply and are openly denigrated in more often than they're respected. And part of what this plan is about is offering a platform to talk about these issues again in a way that I hope changes those hearts and minds, but also raises awareness of just how far we strayed. Right. And I think, you know, where were you standing on the idea about constitutional reform and whether we needed or we don't need it, if at least it causes you to reevaluate and just to take stock even for only, you know, the hour that we spend together for just how far we deviated from the document that you carry around your briefcase or pocket or whatever as a law student. Um, I think that that is a very, very valuable exercise. And hopefully it's scary. It should be scary because without that, without the Constitution, whether it's a parchment barrier, not that thing that was adopted in Philadelphia really is the thing that separates our country in constitutional republics like it, um, from other countries that don't have the rule of law. And so once, once we lose that, we really are no different. Um, and that's, that's a terrifying thought. I can take questions. How much time do we have?
Question One: So you mentioned a little bit, but I'm just curious, the post formum court, so much of it is based on opposing... You talked about this a little bit. So how much of the types of proposal is the moral importance kind of putting our money where our mouth is? Matthew saying that we're going to take the lead while we have the thirty one state legislatures, and actually go through the Article V process. Is that what's motivating is our money where our mouth is?
Andy Oldham: Well, I don't actually raise this point too and I think it is a fair point. I mean in the sense that a lot of the problems that we have today derive from bad supreme court decisions that are just not even remotely tethered to the text of the document. And then you wonder why it is that you can't source and when you take calm while you can't square them and make them all make sense. Um, so many of them are complete nonsense. So in that sense, I agree. The one thing I would take, I do take exception to though, is that the 31 state governors thing, I don't think this is necessarily a partisan issue. I mean some of these have partisan valence that there's no doubt about that, but I don't think the issue about constitutional reform is a red-blue. There have been states all 50 states have in the United States have active and live calls for a convention of states on some issue at this.
Andy Oldham: As we sit here today. Now, some of them are like Citizens United kinds of issues. Some of them are balanced kinds of issues. Term limits is another popular one. I don't know where that fits on a, on a, on a valence. Um, so it's not so much about the seizing while the iron is hot in the sense of like how the numbers match up as much as it is now is the time that we do something about it. Right? I mean, this is another issue I take with Ashley about this general sense of pessimism. I mean, I, I tend to agree these are dark and scary times. But one thing I, I like to, I like to talk about, and I like to remind folks, especially when I'm on a law school campus, is that if you don't stand up and fight a fight, even if it's a losing fighting, even if it's a fight that looks like the odds are long and they stand a chance of winning.
Andy Oldham: If you're not willing to stand up and fight it, you should really, really wonder before you sit down, whether there's someone standing behind you to fight it, right? And nine times out of 10, 10 times out of 10, if I'm being honest with you, there's never someone standing behind you, right? Like if you decide that you don't want to have a fight over a particular principle, if you've decided that you're not going to engage in a, in a public way on an issue that you care about, it's not like there's gonna be someone that stands up behind you to, to, to pick up the fallen banner and fight the fight for you. It's, we have a perilous. You know, most people are distracted. And I used that in an ironic sense, but they're doing productive things with their lives that whether it's with their families or whether it's in the economy, whether they're making things to make our lives more convenient or whatever, they're not fighting about these issues.
Andy Oldham: And so there's not a lot of people that are willing to stand up and fight. And I think that that's really what is motivating this is that, you know, some of us, especially those of you who are from Texas or have been to Texas, realize this is a very sort of part of the Texas spirit is the idea that there isn't a, not only as a no shame in it, but there's quite an ability and dying at the Alamo. And if it, you know, there really is something to fighting a fight even when the odds are long and it is as quaint as it sounds. That really is what I think is motivating it.
Question Two: Speaking to Ashley's previous point about how partnerships are crucial answer to separation of powers balancing. Do you fear that was just for the practical way of getting this through and actually get these states together, going to convention that states are going to sort of assimilating demands, but you don't ask for more specifics that will United States data brand there. I understand that we have these sort of limits so we don't get them together. We're not worried that we're gonna disband the entire Constitution, but just to practically practically get states to the table. Don't you fear that there's just an inability to convince states that like there are a few uniting principles to bring those states together regardless of the separation of powers?
Andy Oldham: Yeah. Well, it's a fair point. I mean it's in the sense that you need something that is narrow enough that you can, that folks can sort of get their minds around that and feel like it's not going to be sort of sweeping, but it's nonetheless broad enough that it can have a significant amount of support. And so at some point it does become a numbers game and it's hard to think about a lot of issues that will come close. So one example, there are 27 or so states, depends a little bit on how you count roughly 27 of the 34 that have called for convention states to propose amendments on the balance budget idea. And you know, there are dIfferent states disagree over some of the kind of contours of it, you know, what the, you know, the escape valve for emergency situations looks like or whether it should have a spending cap or should have a taxing cap or there's all kinds of different permutations to it, but that's an example of a kind of issue where you can imagine that the concept sounds good.
Andy Oldham: Like, you know, you have to balance your checkbook shouldn't Congress? And you can imagine states beliefs being, you know, in theory, being able to get there. Um, and then it's just sort of hard trench warfare to get to the, get over the line of trench warfare in a negotiation sense to get over the line of, to get there. So yes, it's absolutely, absolutely true that you needed to both be narrow and broad and that, that is quite tricky. Um, but I think a lot of, some of what's motivating this is I think some of this stuff that we don't talk about which again get is just part of my response to the last question, which is to say I think raising awareness and making people stop and pause, for example, about the administrative state. It doesn't strike me as, as a particular partisan issue and it strikes me as the kind of thing that, you know, people of all sides should be able to agree on a process about how we're going to do administrative law in this country.
Andy Oldham: Assuming we're going To get accountants get its existence going forward because partisan issues flip, right? Like I was, I was doing one of these talks at another school that were main unnamed and someone asked a question about the kinds of regulations that President Trump might promulgate. Right? And, and you know, that that might scare people who are, who are inclined to like the Clean Power Plan. Right? So like if you, if you hear my example about the clean power plan and you go out of the sound that bad climate change is real and it's scary and we need to do everything including the 1600 pages of regulation on stationary sources. Maybe maybe like that. You don't like the Trump thing and whatever you can imagine Trump doing. Um, perhaps we can come to a compromise where we agree that like, how about we just let our elected representatives come up with the rules that are going to govern America rather than having Trump's EPA in a continued war with Obama's EPA. So that's part of, part of it isn't because there's a lot of unexamined assumptions and the way we think about this.
Question Three: So going back to the Philadelphia examples, when people sent representatives to Philadelphia, it was to kind of tweak what they had already. But when they got there and they decided, you know what, what we have already is just not good enough for the reality on the ground. Let's completely redo it. And you've got a much more centralized government. And even if you don't think that that is a runaway, you might think of it as them being realists at a convention and saying, hey, this is what we need to meet the challenges of the times. What happens if you don't get a runaway this time, but you get a bunch of realists who say, you know what? We can't come up with something better than the administrative state and all the amendments that this report has passed since the 1930s. Let's just go ahead and put those in the Constitution.
Question Three: This commerce clause needs to be expanded. Let's write the whole administrative state in there and this 10th amendment, well, that's not doing anything for us. That doesn't do any work. Let's get that out of there so you don't get much of a change on the ground, but you'll lose some of those anchoring principles that organizations like the Federalist Society can point to and say, look, this is what it's supposed to be. Do you lose? Then it would then be legitimate, right? But then you lose some of that. A foundation for the argument from the sound of the aisle that says, hey, we need to go. There are some fundamental things about being an american or about protecting liberty that need to be protected?
Andy Oldham: My answer... I tend to agree with Ashley on that one. think the exercise is a validating one, and one of the reasons why the administrative state is enraging is not that you disagree with what the EPA does, although I do disagree with a lot of what it does, it's not, that's not the thing that makes it enraging. It's the illegitimacy of it. At least a process that ratifies these existence would, it would in many ways redefine what it is to be an American. And, and you know, if, if the idea was to ratify it, I would vote against it. But if the, if the, the three fourths of the states come together. I mean, we're talking about 38 states that all come together and agree that this is a good idea. Um, and they, they, that legitimizes the thing.
Andy Oldham: Right? And again, I, you know, this is part of what I think it means to be, to abide by the rule of law. We agree as to what the ground rules are going to be. We fight it out. We are, we make our arguments. I'm making my to you now. Right? And if I lose, I agree to abide by having lost, right? And if I lose this fight and we did, it turns out that there were 38 states in the country that they want to go on record for saying that this is the way we want to structure modern American government. I can register my dissent. But I agreed to go along with that with that result. And I think one of the, you know, Ashley's right, that we seem to have put this sort of idea of partisanship over the separation of powers. And that is a large part of what drives this where it's like you either agree with the policy or disagree with the policy, but no one has any, any countenance anymore for the process that gives you the policy. We've lost something precious when we've gotten to that point and I think that's the same answer to this question, which is you will abide by the result even if it's one you don't like.
Question Four: Why don't you think that this may be spending a lot of effort to try and bring it out into of the convention of state, whether we can see this further, um, what we might call conservative Federalist Society principles or whether it be through this method of public education that's neutral as kind of returning to the Lockean vision of state. And it seems to be like the argument either way is that, um, it we're trying to reach, return it to a Lockean vision. We're trying to, we're assuming general education. If we're willing to accept or ratify the administrative state run, anything else, um, that is not part of the original Constitution. So we're still willing to defer a lot of this had been going to the slide. We don't have a James Madison who were willing to defer to whoever it is that ends up leading this convention. And personally given the state of both political parties, it seems like it's a very discouraging time that much tape that people are giving much thought to what's happening here. Complex levels of voter ignorance seem very high. So why should we need, is that trying to strategize about a long term plan for public education if that's really the bottom line. Why should we even care about the convention of states?
Andy Oldham: Well, I think the predicate for both of them, not the predicate, but the, the, the, the predecessor to either solution is conversations like this. Right? And so I, I don't think that the efforts wasted no matter what comes of it because part of what we're doing is to know. I'm constantly surprised it's not so much with student chapters because you guys were obviously thinking about these issues every day. But I also go around and talk to lawyer chapters around the country to federalist society, lawyers chapters based in cities. I highly encourage you to join them if you stay in Chicago, join the Chicago one. It's fantastic. Um, but when you go around and talk to people who are out functioning in the legal world, how few people talk about this stuff and think about it, right? I mean even lawyers in Texas, the clean power plan is a really big deal because we have a huge energy sector in Houston is perhaps ground zero for that and the Houston lawyers chapter is a huge chapter and you go down and you talk to the folks and they just like everyone thinks about why they don't like to Clean Power Plan.
Speaker 3: No one ever pauses to wonder about whether the entire edifice of both the Clean Power Plan and the agency that promulgated it is just utterly and fundamentally illegitimate. And so I think that like, I think that is the premise, like regardless of it's not a wasted effort regardless of which way it goes.
Ashley Keller: We're doomed. If we are going to talk about a project that is even less likely to succeed than the Texas Plan, wrestling, back control of our education system. That project has zero chance of getting off the ground. Properly educating people about our constitutional pedigree and our founding fathers. Good luck with that.
Andy Oldham: Can we do a couple more?
Question Five: Ashley, we are doomed. I assume it's the dissolution of the Constitution... Do you see any hope? Do you have any idea of what we could do?
Ashley Keller: If Governor Abbott pledged his life fortune and sacred fortune and tried to reestablish the republican tax. Then maybe. Got nothing to tell you.
Question Six: I agree with the anti federalists's response. Do you think that there's anything to the fact that if we, if we undo one thing the Court has done wrong, have we legitimized everything else they have done wrong?
Andy Oldham: I don't know. I mean, so for those who didn't get too much into the nuts and bolts of the are particularly have proposed nine particular amendments. It's a question with that earlier, I think it was from Joe about sort of how specific we can be while also trying to get broad support and we offered a bunch of them targeting each branch. Um, and one of them is to make Supreme Court decisions reviewable, right? You know, as, as you guys all know, Justice Jackson famously said in Brown v. Allen that we're final because we're infallible but that we are not final because we're fallible. Um, and so part of the problem that we have in this country is that we've decided that the Supreme Court is both final and therefore infallible. Um, and that's a terrifying thing because they screw things up and so one of our proposals is to make them not final.
Andy Oldham: Um, and so, um, I, I, I'm not sure that by only overturning one thing you ratify the others. I think the most important thing is not about a particular decision; it's creating a process that allows a broad level, great wide range of Supreme Court decisions to be overhauled or, or undone or you can figure out what verb to use there. But the idea is just to take this away from the concept of judicial supremacy and louis back to a place where nobody, including the five justices who make up a certain majority are above the law.
Question Six: Do you think that that actually then we should be like trying to get Article III amended?
Andy Oldham: Oh, I mean that's not a, that's not crazy to imagine like their hearts in order to hold. The thing is again, it's, I don't think it's Article III that's the problem. It is that it's the deeds of Article III that are really, they really are the problem. And so if you can create a mechanism that is bigger than any one deviation, it wouldn't restore accountability. And I think I would hope, at least in principle, make folks accountable to the law.
Ashley Keller: The Supreme Court's already not above the law. They serve on good behavior. They can be impeached. And you know what's bad behavior, violating your oath of office. And you know what's easier than doing that, amending the Constitution impeaching a renegade Supreme Court justice. Would this Congress ever do it? No because they don't take separation of powers seriously, because they don't care when the supreme court advocate that's constitutional role and just don't care. So we're going to get an amendment to the constitution. Requires seven justices to overturn the state.
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.