Overheard with Evan Smith

– Funding for Overheard with Evan Smith comes from: HillCo Partners, a Texas government affairs consultancy.

Claire and Carl Stuart.

Christine and Philip Dial.

Eller Group, specializing in crisis management, litigation, and public affairs communication.

ellergroup.com.

Diane Land and Steve Adler.

And Karey and Chris Oddo.

- I'm Evan Smith.

She's an NYU law professor and bestselling author who co-hosts the Strict Scrutiny Podcast.

Her latest book is "The U.S.

Constitution: A Comprehensive and Annotated Guide for the Modern Reader."

She's Melissa Murray.

This is Overheard.

(curious music) A platform and a voice is a powerful thing.

You really turn the conversation around about what leadership should be about.

Are we blowing this?

Are we doing the thing we shouldn't be doing by giving in to the attention junkie?

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This is Overheard.

(curious music continues) (audience clapping) Melissa Murray, welcome.

- Thanks so much for having me.

- It's so nice to see you in person.

- Likewise.

- We really have to explain the Constitution to people?

- I think we do.

- Really?

- Have you seen what's going on?

- I have.

(audience chuckles) But also, like I guess the part of me that lives in a world that doesn't actually exist thinks this is something that we all take for granted.

Know it's there if we need it.

It's a backstop.

And we sort of generally understand that we have rights, these are the rights, and then we go on with our business.

- That wasn't the plan.

So, maybe we should start with first principles.

- Let's start with the beginning.

- Okay, start at the beginning.

This is a trauma-informed document.

Like let's start there.

- Yeah.

- When the framers went to Philadelphia in the summer of 1787, they were going through it.

So they had this colonial experience where the British parliament had taxed them relentlessly, putting tariffs on the things they use the most in their daily lives.

This sounds familiar to you.

There are no new ideas.

But they also recognized that there were so many things about a government with excessive power that they should worry about.

I mean, they'd seen the king send in an army of redcoats into their streets to do law enforcement.

So they needed to do something to restrain government power, but then they also had this trauma of fighting the American Revolution, facing off against the greatest global superpower the world had ever seen, and they were doing it with this government that had been cobbled together out of gum and friendship bracelets.

I mean, it was not an effective government.

And so, they're faced with this dilemma.

They need a government that can do the things that governments do, but they don't want it to be so strong that it's able to run roughshod over the people.

So they come to Philadelphia to strike a balance, and they think they're going to do it in this way.

They're going to create a government that is strong, but not so strong that it becomes tyrannical.

And the key here is how to hedge against the government's insatiable impulse toward becoming tyrannical.

So they divide power between the states and the federal government, and then the federal government's power gets divided between the three coordinate branches.

And then they think, okay, structure is one half of it, but others are saying you've got to be explicit about the rights of the people.

So they create the Bill of Rights.

So 10 amendments, many of them speaking specifically about explicit prohibitions on what the government can do to the people.

But here's the thing.

Once you've identified these rights, it prompts another question.

What's the point of structuring government in this way?

What's the point of having rights if the people behave more like subjects and not like citizens?

So they realize in this moment that they are not only creating a new form of government that no one has ever seen, they have to create a new model for the citizen.

They need a group of people who are not blindly obedient to whatever it is, the president, the Congress.

They need people who are going to be skeptical and discerning.

They write this down in the Constitution because they want the people to be able to read it, to grapple with it, to debate it, and to defend it if they have to.

Because the whole point of this document is to create boundaries so that no single part of the government can consolidate power and become tyrannical, and no part of the government can then run roughshod over the rights of the people.

So, it's a two-way street.

We've got to defend these boundaries, but we have to know what the boundaries are, and we have to be discerning and critical enough to be able to recognize when the government is going too far.

- So it's actually, it's a two-way street in a couple of ways.

The way you just described, it's both an enabling document and a restricting document.

- Yes.

- And that is, again, by design.

- By design.

- And it is also a fixed document and a fluid document, right, which I think is the really interesting thing in the moment we're in right now, the degree to which we assume this thing is settled.

But over time, it's been amended.

Over time, changes have been made.

- Yes.

- And it's subject to interpretation.

The idea that it is open to subjective interpretation is a feature and not a bug of this document.

- They recognize that.

So, I'm not someone who venerates the framers, but this is kind of a genius moment.

- Well, they were doing the best they could.

- They were doing, I mean, they have flaws, and we should be very clear-eyed about that.

But this idea of how to hedge against tyranny, that's the critical point, especially for this moment that we're in.

This is a document that is about preserving democratic government against the inevitable impulse that the government will have toward going too far.

And so, they are thinking about how this is going to have to expand and contract over time.

They haven't though of every inevitability, and they know that.

There's a Ninth Amendment which says, "Listen, we wrote some rights down.

That doesn't mean we've exhausted everything.

There may be other rights that we didn't think of that are implied from the rights we have here."

- Right.

Yeah.

You're a professor.

Grade the Constitution on the job that it has done as a bulwark, as a, you know, it's both a sword and a shield in some ways.

I mean, speaking of two-way streets, right?

But like what would you give the Constitution as a grade right now?

- So I'm not going to grade the Constitution as a law professor.

- Seriously.

- I am the daughter of immigrants.

I had a Jamaican mother.

I am myself a Jamaican mother.

Jamaican mothers are famous for when you come home from school and you got a 95, your Jamaican mother does not celebrate your 95.

She asks, "Where are the other five points?"

- Where are the other five points?

Right.

Exactly.

- So I think there's more we can do.

Right.

Keep going.

- Maybe the grade is incomplete.

- Yes.

And keep going.

The amendment process is by design quite cumbersome, very difficult, maybe even more difficult to do right now given the degree of electoral distortion in the landscape because of gerrymandering and whatnot.

- Polarization and tribalization and all the things.

- All of those things.

So, you know, the principal way the Constitution has really changed over time is the way the courts interpret it.

And sometimes this is explicitly overruling things, as when, in 1954, Brown versus Board of Education overruled Plessy versus Ferguson.

Or it can be more subtle, these sort of oscillations that the court takes in how they think about a single provision.

So, you know, over time, we have seen the court from John Marshall all the way up through Charles Evans Hughes go back and forth on what it means for Congress to regulate commerce between the several states, right?

I mean, that hasn't been fixed.

It's gone back and forth.

And so, that's something.

I mean, right now we have a group of people on the Supreme Court who argue that we've got to think about this as sort of an ossified document.

Ossified for their purposes, I will say, because they're not always committed to this principle of originalism in all of its iterations and certainly not for all issues.

- Despite having been told for years that we don't want an activist court, we sort of have a weirdly activist court.

- We have a weirdly activist court.

So, again, they recognize that the court itself through judicial interpretation is hugely important in having the Constitution evolve.

I mean, look at the Second Amendment.

I just got done teaching the Second Amendment to my students, many of whom were born just before 2008.

2008 is when the United States Supreme Court decides District of Columbia versus Heller, which ushers in an absolute sea change in the way we understand the Second Amendment.

My students have never known a different Second Amendment.

They've only understood the sort of maximalist version of the Second Amendment as authorizing an individual right to keep and bear arms.

Prior to 2008, there was a much more cabined Second Amendment, one that admitted the possibility that the government had quite broad authority to regulate firearms in particular ways.

They've never seen that, and that's because of the court.

That's not because we have always understood the Second Amendment in that way.

- I want to come back to the court because I do think talking about the court is an interesting way to better understand where we are.

But I want to stay with the Constitution and ask you about a couple of things in it.

I'm a local control obsessive.

I'm really interested in this idea that local control used to be a conservative core principle, at least in politics, the old Jeffersonian idea that the best government is that that is closest to those being governed.

But now we have this incredible tension between states and cities in a place like Texas, where we are today, but in other places as well, where local control has become control of the locals.

We used to hear about how cookie-cutter regulations were bad.

Now we only like standardized stuff.

And the pushback against my objections to this is, well, you know, the states created the federal government, so the states get to push back against the federal government, but the states also created the cities and the counties.

The states are in this interesting position of being able to, on the one hand, object to federal overreach, but on the other hand, overreach all they want themselves against cities and counties.

This was kind of intentional.

Like this was the way it was written in that document, right?

- So, the Constitution, the original Constitution is, as you say, seven articles.

Article I is about the Congress.

Article II is the executive.

Article III is judiciary.

Article IV is basically about federalism, this relationship between the several states to each other, to their subordinates, so the cities, the localities that are their subunits, and also this whole idea of how the states will relate to the federal government itself.

And so that's baked in.

And the idea, as you say, is they believe that it's the federal government we've got to really worry about.

They're really skeptical of national power because they've seen the parliament, they've seen the king.

They think that local government, state government, because it's closer to the people, are more likely to be protective of the people's rights.

And that's kind of the conceit for the original Constitution.

This changes, I think, in the Civil War, and this is sort of like the oscillating moments of constitutional theory and design.

You know, the Civil War makes clear that it's not just the federal government that can run roughshod over the rights of the people.

States are just as capable of doing it too.

Cities are just as capable of doing it.

And so, the Reconstruction Amendments, the 13th, the 14th, principally, and the 15th Amendments are enacted, and they completely renegotiate the relationship between the federal government and the states, the states and the other states, and also the states, the federal government, and the people.

The relationship between federalism and how the states relate to the federal government and how they relate to their subdivisions, I think has become... there are different epochs where it flares up and becomes really interesting.

So, you know, the civil rights movement is one place where you have the federal government sort of saying very broadly what we are going to do in the states perhaps being more recalcitrant, even resisting in massive ways.

I think we also saw it in the beginning of the first Trump administration where it was blue states that were talking about states' rights and federalism, as they sort of railed against immigration enforcement.

- Where you stand is where you sit.

When you have a blue president, you have red states objecting, and then the inverse.

And of course, during the pandemic, we saw a ton of pushback.

- Yes.

Yes.

I mean, this whole idea about like, you know, we understand what our people need, I think there's good and bad in all of it.

I mean, it's oscillates for a reason.

And I think you are exactly right.

I think it was Justice Brandeis who argued that the states were laboratories of democracy.

You know, rather than a single fixed public policy solution that the federal government delivers from on high, we actually have a system where 50 states can try and figure it out, and we can pick from what's most effective, or we could recognize that maybe what's effective for Texas is not what's most effective for California.

- I guess where it becomes an issue in a place like our state is, you know, if you move to Abilene, you move to Abilene because the values and the culture of that city work for you.

If you move to Austin, the values and the culture of that city work for you.

And now we're being told by a king at the state capitol, not at the federal capital, "No, y'all got to do this the same way."

- I think your king at the state capitol may also be answering to the king of the federal capital.

(audience chuckles) - Let me spend some time thinking about that, actually.

All right.

Let me move to another thing about this that is fascinating to me, and that is this idea of settled law.

I think a lot of us thought that abortion was settled law.

I think a lot of us thought that birthright citizenship was settled law, and it continues to be for the time being.

But is it true that we should now be worried that the door has been thrown open to revisiting things that we've all assumed were settled law, took for granted, we have a right to be concerned?

- Oh, I think you should be concerned.

Again, when Roe versus Wade is announced in 1973, it doesn't even make the front pages of The New York Times.

- Kind of amazing, isn't it?

- I mean, Lyndon Johnson had died earlier in the day, so that was sort of what occupied- - Pushed off the front page.

- Pushed off the front page.

It wasn't really controversial.

I mean, we forget, but in the period leading up to Roe versus Wade, Republicans were the ones who were interested in reproductive rights.

And it was Democrats, many of whom were Catholics, who were against it.

- Yeah.

I'm old enough to remember when George H. W. Bush was like a supporter of Planned Parenthood.

- Oh my God.

They called him Rubbers Bush in the House of Representatives because he was so supportive of Title X.

- Right.

- So, yes, like that's what they called him.

- Up is down now.

I totally agree.

- His father, Prescott Bush, was an honorary chairman of Planned Parenthood in Connecticut.

I mean, so it is a different kind of world.

And again, the interest in reproductive freedom that Republicans embrace, not as reproductive freedom, but as small government, I mean, almost the kind of libertarian ethos that has been lost.

And, you know, abortion really came to be a wedge issue that was intended to do what the civil rights movement had only done incompletely in the 1950s and 1960s, basically to affect a kind of political realignment throughout the country.

So, you know, segregation did it by realigning the South with the Republican Party.

Abortion was intended to do it for the whole upper Midwest and the Rust Belt.

And I think it did in many ways.

I think it was always on more precarious constitutional footing because there is no explicit right to terminate a pregnancy in the United States Constitution.

I think there's a very good argument to be made that the liberty guarantee in the 14th Amendment is capacious enough to include bodily autonomy, reproductive freedom, especially if you consider the fact that when the framers of the 14th Amendment were drafting it, they understood liberty in juxtaposition to its antithesis, which was enslavement.

And so, if slaves could not get married, could not govern their children, because their children could be sold away from them, and if slave women were constantly exposed to the possibility of sexual predation and opportunism and forced to bear children against their will, then obviously the antithesis of that was encompassed in liberty.

And they talk about this in the Congressional Globe as they're debating the 14th Amendment.

So I don't think it's the case, as some conservatives say, that there's no grounding in the Constitution for this, but I will grant it is not explicit.

Birthright citizenship is an entirely different thing.

Section 1 of the 14th Amendment says, you know, "You're born here, you are a citizen of this country."

And it's actually meant to restore a common law default that had existed in England and had been imported to the colonies that was disrupted in 1857 when the United States Supreme Court decided Dred Scott versus Sanford and said that African Americans, even those born in the United States, could never be citizens because they were descended from the enslaved.

They knew that immigration existed.

They knew about the Irish coming in in the 1840s.

They knew about Chinese immigrants along the West Coast of the United States.

And they recognized that there would be people born in this country to parents who were formally ineligible for citizenship, but they would still be citizens.

Their kids would still be citizens because they were born here.

- The only reason we're talking about this, of course, is because the president, current president, decided he doesn't like this and he wants to see this go away, and the courts have so far rebuked him, but that- - Not very full-throatedly.

- Well, but they have rebuked him at least for the time being, at least for the time being.

I mean, again, nothing is settled anymore.

But I bring this up only because his whole deal has been, "I don't need to pay attention to the Constitution."

Right.

And the best evidence of that is something that I care about and you care about a lot.

And that is, how is the First Amendment doing these days?

Right.

He made the decision in the last couple of days as we sit here to ban certain news organizations whose coverage he did not like from the White House.

This is on the heels of him constantly attacking reporters, particularly women reporters.

- Black women.

- And particularly women of color, calling them names and doing all kinds of things.

A court has subsequently said, "You can't do that."

And those news organizations that were banned are, as of the time we're sitting here, back in the White House for the moment.

This is not done.

So what do we do about a president who doesn't think that the Constitution applies to him?

- We vote him out.

(audience chuckles) - That's it?

- No.

No.

(audience clapping) I think it's a really dangerous moment when the upper echelons of our government don't believe that they have to adhere to the same document that every other government has adhered to.

So you will find no quarrel with me on that point.

But the fact that the president is kicking the press corps out, clearly in violation of the First Amendment, it is very obvious viewpoint discrimination, it should alarm us, but it should also inspire us because it means he knows we are working.

We are mobilizing.

That's the whole reason why he doesn't want the press corps.

I mean, the First Amendment is in place for many different reasons, but chief among them is to be able to foster dissent.

And this goes back to what I was saying about needing a new model for the governed.

They needed citizens who were engaged, who were skeptical, and who were prepared to dissent from what the government did.

They do that with the religion clauses.

I mean, it's not just about, you know, allow like all the different religions to flourish, that's part of it.

But it's also the idea that religion cultivates different values and allegiances.

And if you are imbued with those values and allegiances because of your faith, you may be less receptive to whatever orthodoxies the government comes peddling.

You may say like, "I actually don't know if I believe that."

And you might be willing to resist.

Freedom of the press, being able to have a free press to call the government to account, that is critical to a democracy.

Being able to assemble and organize, critical to a democracy.

The fact that he's trying to stifle every institution that serves as accountability on the government- - Not just the press.

Congress, the courts.

I mean, we can go down the list.

- Law firms.

All of that.

I mean, like, this is all about stifling dissent, limiting accountability.

And if you're willing to do that, it's because you know you're losing.

It's because you know that "Give us another chance" is really a refrain from a 90s R&B song.

It's not a campaign message.

(audience chuckles) If you're saying that, you've lost the plot and you know it.

And the only recourse you then have is to get the press out.

- Is an election.

- And to get the press out so the people don't register that, "Yeah, I'm not the only one who thinks this.

Other people are saying it too."

- Yeah.

Yeah.

No, I hear you.

It's... what a moment.

And what a moment to be thinking about this document.

Pivot with me in the last five minutes to the Supreme Court.

(audience laughs) Isn't that your reaction to the Supreme Court, kind of a wordless, like what's the deal?

- This court has been so diligent and assiduous in not only midwifing this administration's worst excesses, but also in hobbling Congress and in irrigating power to itself.

And that's the part people don't recognize.

- Say more about that.

- So, this court has irrigated so much authority to itself.

Like the work that they do on the shadow docket.

The shadow docket has existed for forever.

It's never been used in the way that this court is using it.

It used to be for death penalty cases or election matters that you had to decide really quickly because life or death hung in the balance.

Now this court is actually using it to deal with substantive questions.

And they tell you that it's just an interim decision.

Like the litigation is going to go on, it'll make its way back to the court, and we'll issue a final decision.

But they allowed the government to continue doing what it's doing.

So it kind of doesn't matter to me if you come back in a year and a half and say, "You know what?

That ballroom thing."

- It's a permission slip.

The ballroom is going to be built by time they come back to.

- Right.

I mean, it doesn't matter.

Like when they decide that, yeah, he does not have the authority to demolish the east wing and build a ballroom because Congress has to approve that, it will be too late and it won't matter.

They call it the interim docket, the emergency docket, whatever.

The whole idea is that you are keeping the status quo in place while litigation continues in the lower courts.

But the status quo was that we had an east wing and now we don't.

- There's no resuming that status quo.

- Right.

Exactly.

- Yeah.

- Right.

- Yeah.

Will Alito and Thomas make a decision to retire based on the election results so that they can jam in a replacement, especially if the Democrats take the majority of the Senate?

- I wouldn't be surprised.

So Justice Alito, there's a lot of speculation earlier in the year about whether he would retire before the start of this term, largely on the basis of he has a book coming out and the book tour starts on the same week that the Supreme Court has... - Can't do both jobs.

- Or maybe you can.

I don't know.

Like we have a lot of jobs, Evan, like maybe they have a lot of jobs too.

- And yet here we are, right.

Yeah, that's right.

- Here we are.

So, who knows?

I would not be surprised if the Democrats ran the tables in the midterms and took the Senate if we didn't see some immediate retirements and a move on the part of the Republicans.

- I think the majority leader in the Senate, John Thune, said the other day something to the effect of, "Yeah, we can get it done between the beginning of November."

- We've seen them do it before.

- We've seen them do it before.

That's exactly right.

You know Justice Sotomayor back when she was an appellate judge, right?

You clerked for her coming out of law school.

How's she doing?

There was some concern about whether she might be able to... Is she going to stay on the court or possibly she might be the first one of the Democratic appointed justices to... - I don't know what her plans were.

I don't know what her plans are.

I did see her earlier this summer and she looks very robust.

She's like, "Sweetie, hello."

- Oh, good.

So she's okay.

- I think she's in good spirits.

I think it's not a great time to go to work for her.

Like I'm sure her job satisfaction has been higher.

- It's probably tough.

- Certainly.

But, you know, she, I think, believes very firmly that there's a role for members of the minority on the court to play, to speak to the people, to give voice to the people for the things that they see that the court will not acknowledge, that they have to bear witness to that for the public and to make sure that that's part of the record.

And I think she's deeply committed to that.

- You think they need to expand the court?

There's obviously a political conversation going on about more than nine.

What do you think?

- So, I am not a radical, Evan.

I taught at Berkeley for 12 years.

For all of those 12 years, I taught in a blazer.

I don't think any of my colleagues owned a blazer.

- Exactly.

- So I'm not a radical, I'm just saying that.

This term of the Supreme Court completely radicalized me.

And so I am in favor of court reform, and I think everything should be on the table.

And, you know, when you hear these various candidates from all different ideological stripes talking about the things they want to do, Medicare for all, all... Neil Gorsuch, Sam Alito, Clarence Thomas will punt Medicare for All into the sun.

Like your policy prescriptions for a more progressive America will die at the Supreme Court if you're not thinking about court reform.

- Can't fix this unless you fix the court.

- The court is the central problem.

The court is the greatest impediment to democracy and democratic government that we have right now.

- Boy, where's the uplifting part of this conversation?

- It's right here.

- It's right here.

- It's right here.

I mean, like this is so sexy.

- Isn't that it?

(audience laughs) - Read the Constitution for the articles, just like Playboy.

(audience laughs) - It's a pretty good line.

You've used that line before.

All right.

We're out of time.

Melissa Murray, it is great to be with you.

- Thanks for having me.

- Thank you very much.

Give her a big hand.

Professor Melissa Murray.

Thanks very much.

Visit our website at austinpbs.org/overheard to find invitations to interviews, Q&As with our audience and guests, and an archive of past episodes.

- We were not trying to have a king.

We were assiduously working to not have a king.

And you've effectively cloaked this president with absolute immunity for all of his core constitutional duties, any actions undertaken under the auspices of his core constitutional duties.

So the military, pardons, you know, the president could take a bribe for a pardon and he would be immunized under the logic of this.

- [Narrator] Funding for Overheard with Evan Smith comes from: HillCo Partners, a Texas government affairs consultancy.

Claire and Carl Stuart.

Christine and Philip Dial.

Eller Group, specializing in crisis management, litigation, and public affairs communication.

ellergroup.com.

Diane Land and Steve Adler.

And Karey and Chris Oddo.

(bright flute music)