From the Founders' Genius to Today's Debates: How the Constitution Was Built to Last

A lot of people think Trump is this threat to the republic. And look, I'm not going to defend everything he does. But if there is a greater threat to the republic, it is district judges of whom there are 600 plus across the country. A single one pretending, presuming, purporting to have the power to basically play commander in chief, to play chief executive, chief administrator, even if there aren't real cases or real injuries. And that is the big problem. It is the judges today. Today we're joined by Ilan Warman, constitutional law scholar, author and professor at the University of Minnesota Law School. Raised in Palo Alto and educated at Stanford, Ilan has become one of the leading voices on the original meaning of the U.S. Constitution and the limits of government power. In this conversation, we explore what makes the Constitution so enduring, the genius behind the separation of powers, and how the founders envision checks on authority long before the rise of today's vast federal bureaucracy. This is Bay Area Innovators and I'm your host, Stephen Spatz. Professor Warman, welcome to Bay Area Innovators. Thank you so much for having me on the podcast. I'm looking forward to a wide ranging discussion. Fantastic to have you here. I think you're in San Diego right now. I know usually you're in Minnesota. You're a law professor there. And I know you grew up in Palo Alto and went to Stanford Law School. That definitely makes you local. It makes you a local person for us. So we welcome you to our show. Thank you. I know you have a book coming out, The Constitution of 1789. I want to start with you telling us a bit, what makes the United States Constitution unique or special? That's a great question. And there are many ways one could answer this. Let me start by saying two things in honor of the American Revolution, where the American Constitution really came from. So it's still confusing to a lot of people why the American Revolution was fought. And before I give my constitutional explanation, a word of caution, you talk to an economist and they'll say, economics caused the revolution. You'll talk to a political scientist, they'll say, politics caused the revolution. So of course, I'm inclined to think that constitutional law caused the revolution. But there's some serious truth to that. So before the American advent of written constitutions, what kind of constitutions were there? There really weren't any written constitutions until the American constitutions emerged and came into existence after the revolution. So what we had before in England in the 1600s, you had this unwritten customary constitution of immemorial practice. So where did these principles of no taxation without representation come from? Let me get that straight. So before our constitution, like England, France, all these other countries did not have a written constitution. That's right. There have been codes given by lawgivers. There had always been legislators and legislatures that enacted laws, but there was no antecedent superintending written constitution that bound the power even of the lawgivers. And so what grounds were there for the English persons in the Civil War in the 1640s? What grounds did they have for executing Charles I, for doing the things that he did? They said that King Charles was violating the principles of the English constitution. Well, where did those principles come from? Well, they just came from custom, from immemorial practice and customs of the people. So when King Charles tried to engage in what was prerogative taxation, I'll give you an example. So it was well known since Magna Carta and since before that the king was not supposed to tax his subjects without the consent of parliament. So what did King Charles do? He didn't want to call parliament into session. So he said, well, let me force my subjects to give me a loan. You can see this is kind of crazy. The case of the forced loans and people refused to pay it and he imprisoned them. And so he was violating all of these customary principles and he lost his head for it. Okay, well, fast forward to the parliament's victory over the monarchy, not only in the English Civil War, but in the Glorious Revolution of 1688. After this emerges the British Constitution of the 1700s, which is also unwritten, but it's a different kind of unwritten constitution. It's a constitution in which whatever the legislature says is supreme and final. This is the idea of parliamentary supremacy and sovereignty. Well, what happens when the unwritten constitution of parliamentary sovereignty clashes with the unwritten constitution of England in the 1600s? In other words, what happens when parliament in the 1700s starts taxing without representation the American colonists who still adhere to the customary principles of the English Constitution? You get this irreconcilable conflict of these two unwritten constitutions, which directly leads to the American Revolution and to the writing down of constitutions. How do you solve this problem? You say, okay, if parliament thinks it's the arbiter of our constitutional rights and principles, and we believe that there are actually these fundamental principles rooted in not just natural right, but customary immemorial practices, well, how can we solve this problem? Let's write down those principles, the most important ones, in a written constitution. Let's adopt it by a source of authority, a source of sovereignty, antecedent to and superior to the legislature, namely the people, the people themselves. Therefore, this new written constitution would be binding and enforceable against the legislature, including in judicial cases, including through judicial review, by the way. This is what makes America's constitution so unique. It was part of this decade of writing down constitutions when that hadn't happened before. Now, America also has two layers, right? Federalism, there are the state governments, and there's a constitution for the union, and I'm happy talking about the innovation in that respect. But really what makes America's constitution remarkable is its writtenness, which we take for granted now, we take for granted now, but ultimately was a fruit of the American Revolution. Not to follow up on that one, when we talk about the constitution, we know that it's an amazing document. It's enduring for 250, 40 years. And in so many ways, maybe it's not perfect, but it really is an amazing document, the way it foresees things and the way it structures things. What would you say was the genius behind creating this? We went over the reasons why I was here, but what was the actual genius that made this happen? The genius was a collection of geniuses, I would say. And you combine that genius, people who had studied and prepared their whole lives for public service, who had studied law, who had studied political philosophy, and you put them in this really unique time in human history. If you look at Federalist No. 1, the Federalist Papers being this collection of essays written by Alexander Hamilton and James Madison and a few by John Jay in defense of the constitution that they had created in the Constitutional Convention in 1787. If you look at the first one, Alexander Hamilton says, it has been reserved to the American people of this decade, of this year, to determine for all mankind whether we are forever destined to be governed by accident and force, or by reflection and choice. So what you have is you have the American Revolution, you have the creation of these written constitutions, you have this creation of a confederated government, the Articles of Confederation, how can these states league together for common defense and national security, for questions of war and peace, for foreign commerce, right? But that also led to flaws, right? Like you had to requisition and request troops and finances for the Revolutionary War from the states. Georgia never paid a cent, which is kind of amusing. So you can see a bit of the problem. This old science of politics from Montesquieu, where you had these confederated governments, these small republics that confederated together, was also imperfect for the times in which they lived. So they were put in a really unique time through this confluence of extraordinary events. But it's one thing to be at the right place at the right time. You also have to be prepared for the occasion. If you find yourself at the right place at the right time. And George Washington, James Madison, Alexander Hamilton, James Wilson, Gouverneur Morris, and others really had prepared themselves for the occasion. You look at education today, I don't want to be too negative about the modern civic education system. Can you imagine people going to Princeton for college and law school by the time they're 21 and being at the Constitutional Convention at 30 years old or 25 years old? It's hard to imagine today. But that was their genius, their insights, that they could innovate beyond the circumstances of their time. But also it was the unique confluence of their circumstances and events that just created this truly remarkable moment in American history. Now, let's go over what I think is one of the very unique aspects of our democracy, of our United States Constitution, and that is the separation of powers. Would you agree with that? Would you agree that the separation of powers is what makes the United States unique or better, really, in that sense? I think so. I think the separation of powers, although you can have some separation of powers in a parliamentary democracy, you have less of it, right? Ultimately, in a parliamentary democracy, at least properly understood, it's kind of like the British Constitution of the 1700s, right? Where parliament is supreme, parliament decides who, of course, the prime minister will be. The prime minister is ultimately part of parliament. The courts, the judiciary don't really have independent power aside from what parliament itself gives them, right? So the separation of powers is unique to a system of written constitutionalism like America's system. And part of the genius of the separation of powers, I would say, is twofold, Steve, because a lot of people say the obvious one, which is, well, you separate power to better preserve liberty, right? And to prevent tyranny. And that's true. James Madison said that. Montesquieu said that. Bolingbroke said that. I mean, you have a lot of people who said in the 1700s, if not before, that you need to separate legislative and executive power because the same people who make the laws can't be trusted to execute them. You should separate the judicial power from both of them as well because judges should exercise judgment in actual cases according to law independent of the political branches, independent of the legislature, independent of the executive. They said time and again that a combination of legislative, executive and judicial power is the very definition of tyranny. They would often say something like that. But I think the genius of the American constitution goes a little bit beyond that. It's true that you separate power to better sustain and preserve liberty, but they also, the framers structured each institution of government in a way such that it would exercise its function well. So the legislature, Congress, if you want to create new laws for the people, alter people's rights and obligations, you need deliberation among various constituencies from across the nation. You want legislative change to occur slowly and deliberately. So you have two chambers, bicameralism. You also have the president involved through presentment, through his signature. But when it comes to executing the laws, when it comes to application of the public force in the military, for example, you don't want Congress. You don't want a war governed by congressional committee. So they resolved that they would have a unitary executive because a unitary executive can execute the laws and apply the public force with secrecy, energy and dispatch. And then the courts, the last thing, and I'll stop on this point, judges, you want them to exercise, again, this independent judgment, this judgment independent of politics. So how do you do that? You give them lifetime tenure. Very controversial today. You give them lifetime tenure and salary protection so that each institution, Congress, the presidency, the courts would exercise their respective functions, lawmaking, execution, judicial power well. And I think it is a combination of that and the prevention of the abuse of power that really is the genius of certainly the American separation of powers. Now, I'm glad you bring that up because clearly the Roman Empire had a separation of powers, right? With the Senate, the Caesar. And I don't know if there were other elements involved there, but we went beyond that in a way that really functions well within modern days. Now, with that, I want to ask you, and you talked about it in your book, about the so-called fourth power, and that's the bureaucracy and then all the unelected officials. Can you talk about, did the Constitution have any stipulation on how that would come into place? Yes, so it did. It clearly contemplated an administrative apparatus, but not the kind of administrative apparatus we see today. So it seems obviously true that the president alone could not possibly execute all the laws of the union. So the president must have officers. And in fact, we have an opinions clause in the Constitution. Kind of interesting why it's there. I have a whole article explaining it. It seems like a trivial power, but it actually in a way explains a lot, where the president has the power to demand opinions from the principal officers of each of the executive departments relating to their respective duties. So the Constitution contemplates executive departments. The president has the power to appoint those officers. Congress has the power to establish offices. And very early on, Steve, they created a Department of War. They created a Department of Foreign Affairs, later the State Department. They created a Treasury Department. This is what today, again, it's quite different today. But this is a kind of fourth branch. But really, it's not the fourth branch. It's just the second branch. It's part of the executive. So historically, now this is a bit controversial, but I argue in the book, and I argued in a separate paper. The way this was supposed to work is the president has a power to remove his principal officers, but not necessarily a constitutional right to control them. So Congress can establish a Treasury Department and could make it the responsibility of the Secretary of the Treasury to remove the deposits of the United States if they're not safely held in, say, the Bank of the United States, which is really what happened. And Andrew Jackson may want to remove the deposits, which he did because he hated the Bank of the United States. He didn't trust the financial interests, the Northeast mercantile and financial interests. The southern agrarians distrusted the bank very much. But under the laws of Congress, only the Secretary of Treasury could remove the deposits. And so we actually have his notes of his cabinet meeting, okay, the speech that he gave. He was careful not to command his officers, which is kind of interesting. Andrew Jackson imprisoned him. This is a whole separate story, which I tell a little bit about. He imprisoned a federal judge and a federal prosecutor and a state judge during the War of 1812. So when he says, I'm not commanding you, it's like, take it with a grain of salt. But he says, listen, here's my opinion on a really important policy necessary to my administration. I hope it produces a unity of opinion and spirit in the administration of my government. But two Secretaries of Treasury refused to do it. Because they did not think under the laws that they could give a good reason to Congress for the deposits really not being safe in the Bank of the United States. So Andrew Jackson had to fire two Secretaries of State. It's like, do you remember the Saturday Night Massacre when Richard Nixon, I mean, they resigned first. But effectively, two attorneys general had to resign because they refused to fire Archibald Cox, the special counsel investigating Watergate. This was like the precursor to the Saturday Night Massacre. It happened in 1833 or 1832 or something. Now, look, Andrew Jackson has a right to remove the Treasury Secretaries, okay? But it doesn't follow that he has a constitutional right to direct them in the exercise of their duties. His only tool is the power to remove them, which is a powerful tool of supervision. But it comes at a political cost, right? We don't want the president individually, personally to be able to direct and execute every exercise of executive power. We have so many laws on the books, which is a separate problem, maybe. Huge delegations of power. So this was the original system. One last point, and then I'll stop. I'm trying not to filibuster, although a lot of professors do have a habit of that, Steve, is the modern fourth branch. Why people call it the fourth branch is because of the creation of these so-called independent administrative agencies, these independent commissions. What makes them independent is that Congress purports to limit the president's ability to fire the heads of these agencies. Andrew Jackson couldn't go in and personally remove the deposits, okay? He could request, he could suggest to his secretaries that this is what he wanted done, and he had to suffer the political cost of removing them, just like Nixon suffered the political cost of removing the Attorney General, right? But that's very different than, again, directing them. Well, the independent agencies, Congress purports to limit the reasons why the president might fire them. And hence, what makes independent agencies independent? Well, they're independent of the president. Well, the whole point is you're not supposed to be independent of the president. So that's what makes it the so-called fourth branch today and what makes it inconsistent with the original scheme created by the Constitution. Well, I want to ask you about corruption. So in so many levels of government and a lot more in other countries than the United States, there's corruption. And the simple reason is that usually government officials do not make a lot of money. There's a lot of other people who make a lot more money than government officials. So it's easy to entice them with money to change laws in their favor. That's pretty basic. And unfortunately, it's kind of what happens. How is the Constitution address corruption in any way from the original Constitution, of course? Yeah, that's a fantastic question again. So they were concerned mostly with corruption in the sense of royal corruption of Parliament, royal corruption of the legislature. This goes back to your separation of powers question. How do you keep the legislature independent of the executive? And how do you keep the executive independent of the legislature? So one thing that King George III was fond of doing was creating offices with sinecures and giving them to members of Parliament. Here's a wonderful office where you don't have to do a lot. You get lots of money. Vote for me and all the things that I want in the legislature. Well, our Constitution has what's called an incompatibility clause. If you're a member of the legislature, you are ineligible from serving in any civil office of the United States. Judicial, executive, you cannot do that simultaneously. Interestingly, there is no incompatibility between judicial and executive branches. There's no incompatibility clauses. So early on, judges often served dual roles. Chief Justice John Marshall was simultaneously chief justice and still secretary of state. Actually, when he signed William Marbury's commission in Marbury v. Madison, he was secretary of state and already chief justice when he signed that commission. And then he sat in his own case hearing whether the withholding of the commission by Thomas Jefferson was... Anyway, I'm getting distracted. There's no incompatibility clause between judges and the executive. John Jay was a Supreme Court justice. I think he might have been chief justice when he negotiated the Jay Treaty in the 1790s, which is kind of fascinating. But the point is, you don't want the legislature to be corrupted by the president. So we have the incompatibility clause. Another clause we have is the emoluments clause, which has been violated a few times in American history. There are actually three different emoluments clauses, but the one I'm thinking about is the legislature. If you are part of the legislature and you create an office or increase the emoluments of the office, you cannot be appointed to that office for the duration of your term. Now, this came to a head in, I think it was the 1930s, when Hugo Black, a senator from Alabama, was appointed to the Supreme Court. What's the problem? When he was a senator, he had voted and Congress had enacted, I think you could call this emoluments, but the retirement age, they imposed a retirement age, so you were allowed, they didn't impose it, but they allowed Supreme Court justices to retire at a certain age with full salary. Was this an increase in the emoluments of the office? Well-said people said so, and so Senator Hugo Black should not have been appointed to the Supreme Court until the expiration of his term as a U.S. senator. Someone brought this challenge and the Supreme Court promptly dismissed it for lack of standing, which is kind of interesting. But this is, again, a way in which the original Constitution contemplates and checks for corruption. Now, what about presidential corruption? This is perhaps one of the most disappointing parts of the Constitution because it presumes, a lot of things honestly presume that Congress is going to function well and that the president will act in the interests of constitutional government and the other branches and so forth, but impeachment was supposed to be the key mechanism here because, again, impeachment covers high crimes and misdemeanors and specifically calls out bribery. So that's how you are supposed to call out corruption. Most judges, by the way, that have been impeached have been impeached for bribery, okay, not for their decisions, but impeachment has just become a little too difficult. And I've actually, this is the one of a few areas I've actually proposed amending the Constitution. I think it's a little too easy to initiate an impeachment majority vote. So impeachments have this partisan look to them, but it is too difficult to convict two-thirds of the Senate when there's a genuine cause. So I've proposed increasing the impeachment initiation threshold to three-fifths and decreasing the conviction threshold to three-fifths. I think it would have a salutary effect on our politics. But anyway, those are some answers to corruption. Of course, the founders of the Constitution could not have foreseen that there's going to be a stock market and then there's going to be inside their information and that the Congress or other executives could benefit from that. Or did they in any way? They certainly, I mean, they did have bonds and there were financial markets, right? I even think that there were some stockholders in a few companies, right? Like there were stockholders in the East India Company in the 1600s, like I think, but there was no stock markets of the kind that we have today. It would have been very difficult to engage in this kind of insider trading that members of Congress do. I've joked before that I'll be kind of sad when Nancy Pelosi leaves Congress because I just do whatever trades she does, makes a killer return. It's like 40% or something like that. They did interestingly talk about how the legislature, when they pass laws, they then adjourn and they become subject to the laws that they promulgated, right? The problem here is they didn't actually provide in the Constitution that Congress's laws should actually apply generally to members of Congress while they are members of Congress, right? Members of Congress exempt themselves from the civil rights laws. They can discriminate in all the hiring that they want. So they're not even applying their own laws, right, to themselves in this respect. So it's not just insider trading. And I do wonder if it would have been better to provide something about how the legislature can only exercise its legislative power in a way that applies also to itself while they are still in their capacity as members, right? Or at least when Nancy Pelosi engages in trading, she does it as a personal person, not as a member of Congress. This is kind of interesting. So they did think about that, but didn't really provide. They just assumed that it would obviously be true that the laws that would be enacted would then apply to these people themselves in their private capacities as soon as they're done legislating. But they didn't anticipate the Nancy Pelosi stuff, right? And everybody does it from what I understand. Okay, not just Nancy Pelosi, but it's a great question. Let's talk about a different topic and that is the intelligence agencies. Many believe that the intelligence agencies in the US hold a tremendous amount of power in many ways. Has the constitution in any way foreseen that or put any kind of, not barriers, but any kind of checks and balances on that? I don't think the constitution specifically and expressly contemplates intelligence agencies. I mean, there were spies during the Revolutionary War. There was spy craft. And so, and they were very carefully placed under civilian control, right? Under George Washington's control. I do think when people think of the deep state, I mean, the deep state goes much deeper than just intelligence agencies, right? I mean, the deep state goes to the bureaucracy and the bureaucracy thwarting the president and the president's political appointees. Basically the idea that elections should have consequences, but it's gonna be very difficult to actually effectuate those consequences because there is this deep state that is thwarting implementation of the policies. They're supposed to just be implementers of political decisions, but you have a lot of power there. But this is especially concerning in the intelligence agencies. Now, this is a careful balance, okay? A lot of people say, oh, how dare President Biden or President Trump or President Bush fire US attorneys for political reasons? How dare they direct investigations for political reasons? How dare they use intelligence agencies for political reasons? And that's true. You don't want the apparatus, the law enforcement or intelligence apparatus of the national government to be deployed for political purposes against political enemies. On the other hand, you don't want the law enforcement apparatus and the intelligence apparatus to be free of political control and oversight because they will also inevitably have their own interests. You think that an attorney general or a United States attorney who is not being directed and commanded by the president is just gonna be apolitical and totally neutral? It's not gonna have any political bone in his body? I mean, look at all these so-called special and independent counsels that have been appointed over time, right? Is that the model of we want independence in prosecution? Okay, well, then why did the independent counsel investigating the Iran-Contra affair, okay? Do you remember this from the 1980s? Why did they indict Cap Weinberger the weekend before the 1992 presidential election and implicate the candidate George H.W. Bush in that indictment, which by the way, the indictment later got thrown out, okay? Are they truly independent? So look, it's a balance with the intelligence agencies and with the law enforcement apparatus. They must be under political control. Must, must, must. There's no such thing as we want them to be independent of the president. But we also don't want the president to abuse them for political purposes. You can believe both things simultaneously, right? And it is just amazing to me that people seem to be incapable of holding both thoughts at once, even though they seem both true, obviously. So those are my musings, I guess, about law enforcement and intelligence and the deep state. Yeah. Let's talk about the interpretation of the Constitution, the words themselves, you know? And you're a scholar yourself and you have maybe your way of interpreting some words and there's others who have their ways. How do people agree on that? Or who gets to agree on what exactly those words mean when there's a different world we live in in so many ways? Well, I hope I'm allowed to plug my first book. I know you mentioned my current book, The Constitution of 1789, a new introduction. My first book was called A Debt Against the Living, an Introduction to Originalism, where I kind of talk about how we interpret the Constitution. And of course, my current book, which again is just, what do the originalists say? You know, people who believe in the original meaning of the Constitution. What is the answer to the original meaning of legislative power and applied powers and executive power and foreign affairs and war and commerce and taxing and spending, right? That is what I do. So why do I believe that originalism, this idea that we should abide by and interpret the Constitution with this original meaning, why do I think that's correct? And I guess I'll say two relatively straightforward points. The first is this. I don't think people genuinely dispute that communications intended as public instructions, especially written communications intended as public instructions, especially legal texts intended to instruct the people and their officials about their legal obligations, that these texts have what is called an original public meaning or an original meaning. Okay? This is not a secret meaning. It's not an esoteric meaning. These instructions, the Constitution, Steve, it's not a Platonic dialogue or a Socratic dialogue. It's not a secret code of military instructions. There's no map on the back, okay? It's to go get the Declaration of Independence from the National Archives. Maybe I'm misremembering, but there's like a movie about that, right? National treasure or whatever. It is a document intended to instruct, which means it has a meaning. It has a public meaning. The meaning is its original meaning. That's the way language works. So I'll give you an example. There's a clause in the Constitution that the national government shall protect the states against domestic violence. Does that mean against spousal abuse? No, of course not, right? It means against insurrection. That's just how language works. And let me just pause there. It would be insane. I have to be careful what I say here because some people have argued this. Okay, so I have to be careful what I said. Reminds me of the time that I was in federal court arguing a case that I told the judge, Your Honor, no reasonable person would think X. And he said, hold on, counsel. The other side thinks X. I said, I stand by what I say, Your Honor. And I lost that case at trial but eventually an appeal. But think about it this way. If domestic violence in Article IV of the Constitution meant spousal abuse, go back to our very first discussion about reflection and choice versus accident and force. To let linguistic drift over time, the accidental change in language, determine the content of our constitutional rules would be truly to be governed by accident and force rather than reflection and choice. Which brings me, I guess, to the second point, which is the debate, okay, over originalism or original meaning isn't actually a debate over original meaning. I don't think people dispute that texts have original meaning, that domestic violence had an original meaning. Even in the non-originalist, living, breathing constitutionalist system, some text is going to get its original meaning, namely the text of the judicial opinions that the justices promulgate on the internet, right, every Monday and Thursday. How do we know what they require of us? We interpret them with their original meanings. How do we understand what a decision from 40 years ago meant? We interpret it with its original meaning. It's not just the Constitution. A statute written in 1791, we assume not that the words mean what they mean in 2026, but that they have the meaning they had in 1791. Okay, so the debate isn't over the existence of original meaning. Rather, the debate is over where our constitutional rules come from. Do our constitutional rules come from the text under the glass at the National Archives, adopted by we the people, and amended by we the people? Or does it come from the judicial opinions of judges educated at Harvard and Yale, however disconnected they may be from the actual content of the text that we the people enacted? It is a normative debate over where our constitutional rules come from. So strictly speaking, I don't think it's an interpretive debate. It's a constitutional making debate. It's a question of normative constitutionalism. What is our Constitution and where does it come from? It is not generally a debate about interpretation, which I understand to be, how do we understand the words that were conveyed or communicated? Right, I'm very glad you clarified that. And in so many ways, I feel it's just going back to common sense to understand what made sense at that time for the purpose that it was written for versus other futuristic issues. Elon, what are you most passionate about in your work and in your academic world that you are engaged in? So the reason I wrote this book is because I think we ought to admire and venerate and respect the Constitution of 1789. Why? Because ultimately, its continuing force, its continuing service as the Constitution for America depends on the American people ultimately continuing to believe in it and adhere to it and respect to it. In 10 years, enough of the American people or their legal officials thought that the Constitution was so terrible that it's worth abandoning. Ultimately, what determines what our fundamental law is, is determined by what's called the rule of recognition from H.L.A. Hart. At the end of the day, it's what we the people and especially our legal officials recognize as law and what we the people are willing to accept as law. And so it is absolutely crucial to the continued success of the Constitution over the next century, two centuries, for the people to understand what it really originally was meant to do. And what I've tried to do in this book, again, the nature of written constitutions, the compound republic, this was a brilliant innovation, legislative power, how they handled royal prerogative and executive power and foreign affairs and war and so on. I really think once that's understood, it becomes a remarkable document, a remarkably admirable document, not a perfect document. I proposed an amendment here today, right, on impeachment. I have proposed amendments on the administrative state and the legislative veto and things like that. So it's not perfect by any stretch of the imagination. But I look at these constitutional systems in other governments, and that's not the path for America. There's a lot of danger in these constitutional systems in other governments. I have on my own podcast, if I can plug it, rationally based, I have a guest tomorrow talking about the rise of judicial supremacy in Israel, where they basically have a Supreme Court that exercises judicial review, but there's no written constitution. That's insane. That's crazy. And so I really truly believe that the path forward for the next century, two centuries, is the American experiment and this American constitution. And I want to do whatever I can in my lifetime to advance that cause, to advance this cause of the American experiment, so to speak, and the role, the instrumental role the constitution has had in the success of that experiment. That's why I wrote that book. We'll talk more about the modern cases, the recent, the specific issues in our next episode, which we'll do with you. But I want to touch on one today that I think you're pretty passionate about, and that's the National Guard cases. How does the constitution see or in any way talks about the deployment of National Guard? This is a really important case because I think it illustrates the separation of powers with which we started. The separation of powers maintains that judges and courts have a role, including in reviewing executive action and legislative action for consistency with the law, for consistency with the constitution, but only through an exercise of judicial power. The judges are not supposed to be this council of revision, these roving commissions just looking at what the executive does and automatically decides whether it's lawful or constitutional or not. This is how they do it in Israel, by the way, speaking of that topic. There are no injury requirements. There's no cause of action requirement. There's no standing requirement. The second the Israeli legislature does something or the executive does something, someone files a petition and the high court of justice gets to decide. The American founders rejected that explicitly. There were proposals for what was called the council of revision, where the judges would sit in judgment of legislation to determine if it was constitutional. And they said, no, that is not the role for judges. Judges exercise judicial power, which means they resolve actual real cases. Actual real cases involving a live injury. Somebody has to be injured before they could invoke the courts and get the court. And in remedying that injury, the courts might review legislation or executive branch actions for legality or constitutionality. But that's very different than having this roving commission. So let me give you an example. When the National Guard or the militia was deployed during the war of 1812. So a long time ago. How was this challenged? Somebody thought the call was unconstitutional because they thought the invasion wasn't imminent enough. And the constitution says there must be some threat of invasion or other reasons you can call forth the militia. So this individual, Jacob Mott refused the call. And he was fined by a court martial in abstentia. He refused to pay the fine. So the local sheriff, one Martin, seized Mott's horse in order to pay the debt. And so then Jacob Mott sued the sheriff, Martin, for conversion of property and trespass. That is a judicial injury. That is a cognizable injury. That is a cause of action. Trespass, conversion of property. That's the common law. Here's really the crux of it, though. If the courts said, you know what? You're right. Madison's call of the militia was unlawful. What happens? Jacob Mott gets his horse back. The fine is absolved. He is made whole. His injury is remedied. But the courts don't play commander in chief. The courts don't say, therefore, James Madison, you must withdraw the call of the militia. I mean, the war had ended long before this case ever reached the Supreme Court. In other words, courts can exercise their role. They can exercise judicial power and they could make private individuals whole. They could remedy their injuries without playing commander in chief. Fast forward to today. What happened in the National Guard case? Trump deploys the National Guard. The second he does so, Gavin Newsom sues. The governor of California sues. Okay, well, excuse me. What is Gavin Newsom's injury? What's his cause of action? Does he have a tort claim? Trespass, conversion of property, false imprisonment. Does he have some injury? No. They rely on things like the Administrative Procedure Act, which I do not believe creates a cause of action, but that's a whole separate discussion. They rely on things like ultra-virus, ex parte young, which are these doctrines which we don't have to get into, but which have been totally misinterpreted and abused, which really stand for the proposition that you can bring an anticipatory lawsuit if the government is going to come and enforce something against you. Well, no one was going after Gavin Newsom. He didn't have an anticipatory lawsuit, an anticipatory defense. He had no basis whatsoever to bring a lawsuit. And yet it went all the way to the Supreme Court and they decided on the merits because nobody asked the question, wait, what is your cause of action? What is your injury? I want to be very clear to your listeners. This doesn't mean that the executive gets to do whatever he wants. It doesn't mean that there's no remedy for unconstitutional actions. It just means that there must be an injury. So if a National Guardsman refused the call, refused the order, like Jacob Mott refused the order, right, in the War of 1812, that would be an injury. What if a National Guardsman under orders in California falsely imprisoned somebody or assaulted someone or committed some battery or trespassed on somebody's property? Well, then a private person could bring a suit historically against the National Guardsman. The National Guardsman would defend saying I have orders. And then the plaintiff would say your orders are unlawful because the National Guard deployment is unlawful. That is a judicial case. And again, the courts could make that person whole by paying the money, ordering, you know, a remedy of some kind. But they're not playing commander-in-chief. It doesn't follow, you know, that the single judge gets to command and direct the president as to what he can and can't do with the National Guard. It just means that if there's an injury, the courts will step in. This is so crucial for the separation of powers and for properly understanding the judicial role. And it has been terribly, terribly misunderstood. So to connect you to the previous question, I am passionate about this today, especially. A lot of people think Trump is this threat to the Republic. And look, I'm not going to defend everything he does. But if there is a greater threat to the Republic, it is district judges of whom there are 600 plus across the country, a single one pretending, presuming, purporting to have the power to basically play commander-in-chief, to play chief executive, chief administrator, even if there aren't real cases or real injuries. And that is the big problem. It is the judges today, who I think have totally overstepped. And that is something I'm particularly passionate about. And is that something that has been foreseen by the Constitution? They're still playing their roles, but they're abusing it. Is that what you're saying? Correct. So in my book, I have a whole set of chapters on judicial review. Where did that come from? And I show that that's a totally legitimate part of the Constitution when judges exercise judicial power. But then courts get things wrong all the time. This notoriously happened in the Dred Scott decision, where the Supreme Court held that free persons of African descent could never be citizens of the United States. Well, what do you do when the courts get something wrong? Abraham Lincoln basically said, I want to see the decision reversed. Yes. And Stephen Douglas in his debates with Lincoln said, Lincoln wants to see the decision reversed? To which tribunal will he appeal? Will he appeal to Lynch's law? To the law of the mob? And Lincoln responded. This is all in the book, by the way. I hope your listeners can now get excited. This is high drama. Stephen Douglas sounds like a liberal. Like all the Supreme Court was established to decide all questions. And Lincoln says, no, the Supreme Court has resolved the question of Dred Scott and his master. It has a definitively decided upon their rights. Nobody is purporting to go spring Dred Scott free from the clutches of his master. It doesn't follow that we need to observe what the Supreme Court said in that case. As a political rule and that in other cases, not before the court that we have to follow it. So Lincoln was confronted with the question of could he give posting licenses and passports to African-Americans? Because the law said only citizens of the United States could have these privileges and benefits. And he said, I'm giving them I'm giving them the licenses because I think the court was wrong. The Supreme Court was wrong. So was he able to reverse was able to reverse the decision? Well, only because we fought a civil war, which he won. And as part of the reconstruction after that, we adopted an amendment, the 14th Amendment that grants birthright citizenship to the free people. And that's how Dred Scott was reversed, which brings us to a modern issue, as you know, that I've been quite engaged with, which is, OK, does it follow that birthright citizenship also applies to the children born of unlawfully present aliens or temporary visitors? And I've been a defender of the Trump administration on this saying, no, historically, textually, it does not follow. But that's how they overturn the Dred Scott decision. But that hopefully gives you an encapsulation of the proper judicial role and the proper posture toward the judiciary. Yes. But let's talk a little bit more about that, because I really want to understand the audience to understand if the court and let's say the Supreme Court in this case makes, let's assume they make a wrong decision. How can that be reversed? And by whom, obviously? That is an excellent question. Today, it's problematic because we have a totally different office, right? Right. You would have to amend the Constitution. Now, under Lincoln's view, under Lincoln's view, you could continue to enforce a different view of the Constitution. OK, and then hope that the Supreme Court changes its mind. But the Supreme Court isn't going to change its mind tomorrow if it gets a decision wrong today. Look, another possibility, and this is a little too advanced, I think, for this conversation, perhaps, is Section 5 of the 14th Amendment gives Congress the power to enforce the amendment by appropriate legislation. Some people think this gives Congress special interpretive power. So if Congress abolished birthright citizenship, it could do it. I'm actually skeptical that that's right. I think you'd probably need a constitutional amendment. But look, at the end of the day, law comes from we the people, what we the people accept as legitimate. It goes back to the rule of recognition. And so the decision can continue to be challenged over time, even if it would be tricky to do the Lincoln maneuver, right? Or he ignores them in subsequent cases. Well, Elon, I have a couple more questions. Stay with us, because this is really interesting. I want to talk about the role of the media. Now, in so many ways, again, media, not just in this country, but around the world, is able to control narratives, able to, in so many ways, brainwash people to a specific direction that they are choosing. I hope we're not doing that. We're trying hard to maintain the way media should be. But are there any tools that the Constitution had created to address this from the media? Well, I will say one thing, or a few things. The first thing I'll say, number one, not my expertise, because, or I mean, I actually know quite a lot about it. But my book is called The Constitution of 1789, because it's about structure. The freedom of speech, the First Amendment, the freedom of the press, is part of the Constitution of 1791, which is when the Bill of Rights was adopted and ratified. So the Bill of Rights was not initially part of the Constitution of 1789. Now, having said that, what kind of press did the founders envision? They did not envision an institutional press like The New York Times. Yes, there were Democratic Party newspapers in every big city, and there were Republican Party newspapers in every city. So they were institutionalized in that sense. There was some sort of apparatus behind them, but it wasn't like the paper of record. This really emerged much later, sort of in the 19th century. So the first thing is the institutional press does not have a monopoly on press rights, okay? Why is this important, Steve? Because it means Citizens United was obviously rightly decided. Citizens United is this much derided case that basically struck down campaign finance limits, okay, on independent expenditures. Why was this case remarkable? This is the case, by the way, where Barack Obama, in a State of the Union address, attacked the Supreme Court for its decision a few weeks after it had issued, and Justice Alito was sitting there, you know, along with the justices, and said, that's not what happened, or he shook his head. It never came back to a State of the Union address after that, okay? Citizens United was obviously rightly decided. Why? Because it involved an organization called Citizens United that wanted to publish a documentary about Hillary Clinton before an election in which she was a candidate for President of the United States. Of course, Citizens United has the press right, the speech right, to publish a documentary about a candidate and to spend as much money as it wants disseminating that video. What would be the difference if they had written a book about Hillary Clinton and spent money disseminating the book? This is when you knew that the government was going to lose an oral argument, when I think it was Justice Alito asked, would this mean you could ban a book on Hillary Clinton? And the Solicitor General said, yes, I think that's the implication. That's when you know that they kind of lost the argument. Well, the point here is, just because Citizens United is a corporation, well, the New York Times is a corporation. So that can't be the factor as to whether you have press rights or not. Citizens United obviously rightly decided the press, there's an institutional press today, but the press right protects everybody. The last thing I'll say about this is there's a case from the 1960s called New York Times v. Sullivan that basically gives the media a free pass to defame political figures and even not political figures, like just marginally public figures. There's a new book by a gentleman named Carson Holloway, a professor at the University of Nebraska, where he argues that this decision, New York Times against Sullivan, was wrongly decided. And that if you look at the original meaning of freedom of speech, you go back to all the sources, yes, of course, it presumed robust political speech, but you couldn't defame people. And truth was a defense to defamation. So you can't just casually impugn somebody, right? And say, oh, well, I wasn't reckless, so I guess I'm not liable. No, historically, you would have a duty. Okay, in fact, it was worse to ruin the reputation of someone who sacrificed himself in public service over a lie. So truth was always a defense to defamation. And he shows that this constitutional protection that the modern Supreme Court gives the press basically is not only a historical, but allows the press basically to lie rampantly or to at least be reckless and careless with respect to the truth of the matter. That they assert in their hit pieces on President Trump and Republicans more generally. In the constitution, there was no specific wording or a part of it that would address this, right? Right, so the constitution is not a comprehensive legal instrument, right? So the constitution sort of divides and separates and assigns powers, and then it protects certain rights of the people, but it exists against other law so the common law was still out there. So even if the constitution says the freedom of speech, which it does in the constitution of 1791, it says the freedom of press. So it does say something about it. What is the freedom of press? It's as far as it goes, yeah. Exactly, and the way we know what it means is you have to look to the way the terms were used and understood with the preexisting law and the common law and pretty clearly showed that, again, defamation, you did not have a free pass to defame just because you were part of the institutional press. Now, the last question for this episode is, you talk about implied powers. This is, you know, part of your book. Can you tell us a little bit about what do you mean by implied powers? What are they and how do they fit in here? That's a, again, a series of excellent and very challenging questions. So the question, we have a constitution that's written that assigns powers through its texts. And the question is, how much can you derive from implication? Does the president have sort of implied powers or inherent powers to do whatever is necessary in an emergency? That is one example of powers that could be implied. Now, I reject implied powers for the executive. I mean, they have to be, they have to be truly necessary or incidental to some granted power. But let me give you an example. There's a famous law professor at Yale. You know, I'm a little on the fritz with, we argue about a lot of stuff and we don't see eye to eye on a lot of stuff. Very famous. He has his own book on the constitution. I bet your listeners could probably figure out pretty easily who I'm talking about. He has his own book on the constitution, which is surely the grant of executive power to the president encompassed Lincoln's mandate to save the union. Even if that meant doing things like suspending habeas corpus that otherwise might've been unconstitutional. Okay. And my view is that is totally ahistorical. The way the founders understood emergency powers, they were willing to exercise them on high important occasions, but they did not conflate that with constitutional power and constitutional actions. They admitted, Andrew Jackson admitted that he had acted extra constitutionally, extra legally during the war of 1812 in imprisoning that federal judge that I talked to before. And what did he say? They were extraordinary times that called for extraordinary measures. I submit myself to the court and to the judgment of my country. And the court fortunately only issued a fine. So he was able to pay the fine. You know, if it had imprisoned him, it would have been more tricky. But again, there's no implied power to do whatever is necessary to save the union. There's no implied power to do things in emergencies. Now, having said that, Congress has robust implied powers. Why? Because there is a clause in the constitution that grants them implied powers. There's a grant in the constitution. So article one, section eight, enumerates Congress's powers, right? Over war, over taxing, over commerce, and so on. And then it says, Congress shall have all child power to make all laws which shall be necessary and proper for carrying into execution these foregoing powers and all other powers vested by this constitution in the government of the United States or in any department or officer thereof. What is this clause, the necessary and proper clause? It's a grant of implied powers. It's this idea that we couldn't possibly write in detail all the minute things that Congress should have the power to do. It wouldn't be a constitution, as Chief Justice Marshall said. It's a constitution we're expounding, right? If we had listed all of these minute details, it would have the prolixity of a legal code, right? Which is, again, not befitting a constitution. And so where does Congress get the power to allow, it can establish post offices and post roads. Can it hire mail carriers to carry the mail from one post office to the next? Well, yes, pursuant to the necessary and proper clause. Can it make it a crime? Can it make it a crime to interfere with the mails? Yes, pursuant to the necessary and proper clause, right? So the necessary and proper clause gives Congress most of its legislative power, but they have to derive these powers distinctly and directly from some grant of explicit power, like over the post roads, over war, over defense, over taxing and commerce and so on. So there's a lot of confusion surrounding the concept of implied powers. And my book tries to disabuse people of a lot of these confusions and misconceptions or dispel the misconceptions. And again, that talks to how brilliant the constitution has been written, how the founders have really foreseen so many of these aspects. And the one they haven't seen, they left a door open that can address that. So it's pretty amazing. Ilan, Professor Wurman, thank you so much for your time. We appreciate it. We'd love to have you back next week and continue this conversation. Thank you. Thank you for watching another episode of Bay Area Innovators. If you enjoyed this episode and you know someone who should be on our show, please send us an email at sfbay.epochtimes.com. We would love to hear from you. Thank you and see you next week.