it is difficult to escape the feeling that America in the year 2024, especially amidst this somewhat unprecedented in terms of its chaos, this presidential cycle. It is difficult to escape the feeling that America is a tinderbox, a tinderbox ready to ignite at any given moment. Heck, we actually have seen various instantiations of what that ignition might look like over the course of the past decade, and especially in the aftermath of the era of Donald J. Trump. I am thinking, of course, about at least the three different types of democratic street thuggery that we have seen since 2017. I'm thinking of the women's march and the so-called Me Too movement, rampaging in the streets of Washington, D.C. in January 2017. I'm thinking about the Antifa Black Lives Matter riots in the summer of love of 2020, and I'm thinking of the Hamas nonsense ever since the Simchatora massacre of October 7, 2023. So we have seen what far left democratic street thuggery looks like, but especially now in the aftermath of these two recent attempt at assassinations. Of former president and perhaps future president Donald J. Trump, the country just feels like the most tinderbox like that it has been in decades, at least going back as far as the tumultuous 1960s with the assassinations of JFK, RFK, MLK, and all that the 1960s entailed. I mean, I think you could arguably go back further than the 1960s. This country is about as divided as it has been in arguably a century and a half. And I use that frame of reference deliberately. I think back to a quote that my friend Ryan Williams, former guest on this show, the president of the Claremont Institute, Ryan Williams was giving an interview to the Atlantic in the fall of 2021, almost three years ago now. And this interview was about how divided America is and how Ryan sees us coming back together and so forth. And he says something very provocative, which was that from his perspective America was actually even more divided now. Then we were at the depths of our 19th century divides in the antebellum era in the 1850s on the lead up to the US Civil War, as shocking and harrowing as that might sound that was Ryan's argument and his argument was essentially as follows, which is that back then in the 1850s. Yes, we disagreed about the most important political question of that time, the question of chattel slavery, whether or not it was tolerable, whether or not it was moral or immoral, whether or not black Americans were entitled to the full panoply of rights as their fellow Americans, but as Ryan argued in that interview. At least we still all worshiped the same God. We still all broadly speaking went to our houses of worship and we still recognize the crater as the giver of all of our rights and the upholder of our liberties ultimately at the end of the day and so forth there. And now in the 2020s in this decade, seemingly, we can't even agree on how many genders there are to say nothing of the fact about actually worshiping the same God. So with all of that being said, I think it's important just to speak for a second about something that we let slip by on our show this week, which is Constitution Day. Constitution Day was on Tuesday. It is every year on September 17, because that is the day back in 1787 when the delegates to the Constitutional Convention signed the US Constitution in Philadelphia, Pennsylvania. It was a sweltering summer back in Philadelphia in 1787 and right at the end of that summer, it was September 17 when they signed the US Constitution, that was to be. And as is so often the case, nearly always the case, perhaps, the Constitution shows us the path forward. The Constitution shows us even if somewhat obliquely or implicitly. It shows us a very clear and straightforward roadmap for how we can re-cohere and reunify as an actual United States and not merely a disparate smattering of various tribes, ever eager to war against each other. Tragically, it seems these days ever eager to commit political acts of violence against each other, disappointingly, of course, those acts are coming from one side, the left versus the other. But nonetheless, we again are as divided as we have been in a very, very long time, at least since the 1960s, and I would probably argue since the antebellum period in the 1850s as well. So, Constitution Day was on Tuesday and it did slip under the radar because we here in the news industry were still focused as we ought to have been, for sure, on the 2nd and 10th assassination of former President Donald Trump in West Palm Beach, Florida this past Sunday. But let's talk about the U.S. Constitution. Some of you might know that in a slightly different capacity, I moonlight as something of a constitutional lawyer or constitutional scholar. You might even say I have published numerous pieces of legal scholarship when it comes to the U.S. Constitution. I'm a lawyer by background. I speak at law schools all across America. Actually, today, I am speaking at the University of Texas School of Law for anyone in the Austin, Texas area. And in my constitutional theory, the way that I approach the U.S. Constitution, as I have argued over the past five years, consistently, including in a lengthy essay for the Harvard Journal of Law and Public Policy in 2021, called Common Good Originalism, where I really developed my own theory of interpretation at great length for the first time. In my own view of the Constitution, I ascribe a strong role, a very heavy role for what we might call the "tell us," to use the old or acetylene Greek word, the "tell us" of the American constitutional order, Sir William Blackstone, the great English common lawyer, writing in the 1700s would have referred to this using the Latinate term, "Rashio-legis," the reason of the law. So what does all of these foreign linguistic nonsense tell us, "Rashio-legis"? Well, when Aristotle used the term "tell us," he was speaking of the substantive overarching orientation of an order or a legal system. In other words, what is the ends to which this order, to which this, in this case, this constitutional order, what are the ends to which this is all ultimately ordained? What are we ultimately trying to achieve here? What are our ends? Let's not lose the force for the trees here. Yes, we have procedures. Yes, we have the way that XYZ things should go, and yes, we are legalistic and we care about all this. But ultimately, this is all done in the service of what? That's the same concept of Sir William Blackstone speaking of "Rashio-legis," the reason of the law. What is the reason? What is the purpose? Why are we doing this? Why, ultimately, in this particular case, speaking of Constitution Day, why ultimately do we actually promulgate a written document that today we properly revere as the United States Constitution? And before I get to what the actual Telos, "Rashio-legis," whatever you want to call it, what the actual purpose of the U.S. Constitution is, I want to just briefly elaborate as to why this is so necessary. It is necessary in short because it is the legitimacy of that Telos or overarching orientation that makes this Constitution worth respecting as law. It is the lack of a legitimate purpose of a legal system in general that deems it worth not merely not respecting, but in many instances actually outright denouncing, actually rejecting as a purported system of so-called law. Let's think about the Nuremberg trials. The Nuremberg trials in the aftermath of the unspeakable war crimes committed by the Third Reich, the Nazi Germans. Think about what all of the Nazi war criminals said in their defense at Nuremberg. Basically down the line to a T, they all said some variation of the exact same thing, which was as follows, "I was just following orders. I was just following orders. Someone told me to do it. Don't take it out on me. Take it out on the other guy." Now, if you are what the legal theorists refer to as a legal positivist, you would have no issue with this whatsoever. Legal positivism being the theory that what I have just spoken of, Telos, rachial ledges, purpose, perposivism, none of this matters. If there is a legitimate authority, a legitimate legislature, a court, an administration of bureaucracy, if there is a legitimate legal authority that is giving down law, then it is worth respecting because, and this is where the reasoning becomes somewhat circular, it is worth respecting because it was given by, in fact, a legitimate authority. Well, what if the authority is actually not legitimate? What if the entire government, what if the entire regime, what if the entire purported constitutional or otherwise legal order, is predicated on unjust or outright evil ends? As, of course, was the case for Nazi Germany and the Soviet Union. In other words, the I was just following orders, defense, and Nuremberg ought to have been rejected because the entire Nazi regime was rejected. That was the entire purpose, after all, of the firebombing of Dresden and the entirety of the Western Front following the invasion at Normandy in June of 1944, we would not have fought that war, in other words, if the Nazis were not fundamentally to their core, evil, and had to be eradicated. So, therefore, why would we take there? I'm just following orders, defense, seriously. By contrast, though, and the reason that this republic in America is fractious and divided as we are, the reason that we are still here today, with the exact same constitution, albeit one that has been amended 27 times, but nonetheless, the same constitution that those great men signed on September 17th, 1787. The reason that we are here today is because our constitution is founded and predicated upon substantively just ends. Yes, the ends of government, the articulated, announced, and desired ends of governance in the American constitutional order are just. How do I know that? I know that because the framers of the constitution themselves, the very folks who signed that document, on September 17th, 1787, they told us what the ends of governance are. Not only are they just, not only are they righteous, but they show the path towards unity and recovering some sense of the interdependent bonds of civic loyalty without which no citizenry can ultimately cohere. I speak, of course, of the preamble of the United States Constitution. The preamble, right before Article 1, Section 1, Clause 1, Article 1, dealing with the legislature, the U.S. Congress, the preamble, which is drafted by the Committee on Style in 1787, which was comprised of some excellent men, including Alexander Hamilton, James Madison, Gouverneur Morris, some real intellectual heavyweights were on the Committee on Style that drafted the preamble to the Constitution. The preamble is their way of saying why they're doing this. It is the answer to go back to not missing the forest for the trees. It is the answer not merely to the mechanisms and the means, but the answer to the ends. The preamble reads, quote, "We the people of the United States in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Now, when it comes specifically to constitutional interpretation itself, the act of trying to interpret and construct and adapt this Constitution for modern circumstances, I argue on behalf of what we might call a preambular view of interpretation, that is interpretation that is heavy on the preamble. And specifically, the more common good nationalist clearly enunciated aims of the preamble. This is not a libertarian document, is it, the preamble? This is a common good oriented set of words here. More perfect union, domestic tranquility, common defense, general welfare. If you want more of my thoughts on constitutional interpretation, go ahead and read that 2021 Harvard Journal of Law and Public Policy article that I mentioned earlier in the show. The purpose is for this show, though, is that the common good, common wheel, communitarian, nationalist, whatever you want to call it, health of the whole, oriented, preambular ends, enunciated there in the US Constitution preamble, are not merely important as a interpretive constitutional, as a constitutional interpretive matter. Now, they obviously are important for that. Again, that's my whole common good originalism argument as I have formulated it for the past five years or so. The point is, the point is, it is also deeply relevant for our political situation today. Looking around this great country, when you see someone who does not politically agree with you, perhaps consider that this ultimately still is your common citizen. Perhaps consider that ultimately we all, even if our means seem absolutely destructive, even if our means strike us as diabolical, evil. At the end of the day, if we're going to make it through this together, we're going to have to form a "more perfect union" as the preamble announced. Now, crucially speaking, a more perfect union, perhaps paradoxically, can actually include a stronger role for federalism and for charged moral issues and so forth to be decided at a state, not at a federal level. That would take a total mass of change, a revolution indeed, in how we approach many legal, constitutional, moral and so forth issues, but that does not mean that it cannot be done. So, I am not necessarily at all dismissing the power of federalism. I am a staunch believer in federalism. On the contrary, what I am saying is that as difficult as it might seem, my hope amidst all of the fractiousness and these attempted assassinations and the horrific rhetoric coming from MSNBC and CNN and so forth, my hope is that in our own small limited capacities, we might take inspiration from the more perfect union, domestic tranquility, common defense, general welfare, secure the blessings of liberty to ourselves and our posterity, take some inspiration from this lofty language and try as difficult as it might be, and trust me, I know that it is difficult, trust me, I know that better than anyone, as difficult as it might be, try to take that and to not look at those who might not share your perspective as an evil that has to be thwarted, quelled, or dare I say, eliminated rather than ultimately our fellow Americans. Happy belated Constitution Day, everyone. If you have not done so already, this would be a very good opportunity to go ahead and read the preamble, indeed, read as much of the U.S. Constitution as you have the time to do so. This is a perfect week to go ahead and do that civic exercise.
