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Speaker 1: Pushkin.

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Speaker 2: Not long ago, I had a dinner party at my house.

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Speaker 2: My friend Michael Ryan came. He's a lawyer, and I

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Speaker 2: was talking to him about my love of law review articles,

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Speaker 2: which is genuine.

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Speaker 1: By the way.

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Speaker 2: Here's a profession trained to find meaning in the particular,

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Speaker 2: in the arcane, to make the implausible plausible, to defend

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Speaker 2: the indefensible. I mean, how are those not the perfect

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Speaker 2: ingredients for a good read. Plus, law review articles have

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Speaker 2: epic footnotes, scores are settled, subtle loyally, jokes are made,

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Speaker 2: and the really outrageous arguments are slipped in just for

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Speaker 2: the benefit of the reader who wants to wait. In

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Speaker 2: Denote one thirty six on page eighty seven. I go

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Speaker 2: on like this until Michael Ryan kind of rolls his eyes,

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Speaker 2: because that's what lawyers do. I never know whether it's

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Speaker 2: modesty or self hatred, but as you can imagine, I persist,

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Speaker 2: and finally Michael says, well, you're right, there are moments

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Speaker 2: of genius in law review articles. Let me send you

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Speaker 2: two of my favorites. The next morning, in my inbox

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Speaker 2: is an email from Michael Ryan with two attachments. I

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Speaker 2: read the first, and I think that's pretty cool. And

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Speaker 2: then I read the second and my jaw drops, and

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Speaker 2: I say out loud.

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Speaker 1: What.

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Speaker 2: My name is? Malcolm Gladwell. Welcome to season three of

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Speaker 2: Revisionist History, my podcast about things overlooked and misunderstood. The

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Speaker 2: definition of a shaggy dog story is an extremely long

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Speaker 2: winded anecdote characterized by extensive narration of irrelevant incidence and

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Speaker 2: terminated by a pointless punchline. Halfway into this episode, you're

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Speaker 2: going to think that this is a shaggy dog story.

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Speaker 2: It's not. This dog is not shaggy. You wrote this

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Speaker 2: paper how many years ago? Fifteen years ago?

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Speaker 3: Yeah?

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Speaker 1: What is it?

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Speaker 3: Published? Two thousand and four, two.

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Speaker 1: Thousand and four.

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Speaker 2: Yeah, this is Professor Michael Stokes Paulson, co author of

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Speaker 2: the Law Review article in question. Within days of reading

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Speaker 2: his essay, I was in his office at Princeton University.

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Speaker 2: Took the train down because it seemed urgent. In an

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Speaker 2: email where he gave me directions, Paulson wrote, I'm always

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Speaker 2: grateful to have anyone read my obscure, idiosyncratic Law Review

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Speaker 2: articles exclamation point idiosyncratic.

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Speaker 1: Sure.

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Speaker 2: At least half of his piece dwelt on the meaning

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Speaker 2: and interpretation of semi colons, but obscure. This is something

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Speaker 2: with the potential to turn American politics upside down. Way

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Speaker 2: could this article be obscure? So what was the reaction

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Speaker 2: to it at the time?

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Speaker 3: Thundering silence as far as I know. I mean, I

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Speaker 3: haven't been trolling the internet for it, but I've never

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Speaker 3: seen anything to suggest that anybody is remotely interested in this.

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Speaker 3: Maybe you can convince them.

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Speaker 2: Wait, am I the first journalist to call you an

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Speaker 2: interview you about this?

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Speaker 3: Yes, I'm trying to remember if anybody did back in

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Speaker 3: two thousand and four, two thousand and five. No, people

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Speaker 3: are inclined to view it as a wacky idea. Right,

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Speaker 3: You're taking a legal concept of something that's one hundred

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Speaker 3: and seventy years old, and you're saying it's still operative.

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Speaker 3: If you think about it, logically, it is still operative.

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Speaker 3: But people's intuitions are that that can't be right and

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Speaker 3: so or that it can't be taken seriously. So, Malcolm,

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Speaker 3: you've got to get people who take it seriously.

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Speaker 2: You take it seriously. I don't think this is wacky

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Speaker 2: as at all. I read this and I'm thinking this

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Speaker 2: is dead serious. Paulson is fair haired, glasses composed, an

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Speaker 2: intellectual author of serious books on the US Constitution. When

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Speaker 2: we met, he was a visiting scholar at Princeton University

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Speaker 2: hold up in one of those gorgeous old mansions on

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Speaker 2: the outskirts of campus. But don't get the wrong impression.

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Speaker 2: There's also something subversive about the man, a certain look

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Speaker 2: in his eye. He's someone who likes to make mischief,

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Speaker 2: like on page six hundred and eighteen of the journal

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Speaker 2: containing his law review article, when he briefly addresses the

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Speaker 2: question of why he has just spent tens of thousands

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Speaker 2: of words descending down this particular rabbit hole, and his answer,

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Speaker 2: because it's there, I don't know about you. That makes

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Speaker 2: me nervous. There was a part of me that just

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Speaker 2: wanted to walk out of his office and not say

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Speaker 2: another word to anyone one. Let's sleeping dogs, lie, I'm

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Speaker 2: running a podcast here, not starting a revolution. You're not Jewish,

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Speaker 2: are you? Because let's say we could do a none

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Speaker 2: of us are Jewish. What we can do? What do

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Speaker 2: they call it? A mid rash? Is that what they

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Speaker 2: call a mid Yes? Right, let's let's do a little

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Speaker 2: bit of a midrash on Let's start with it. Start

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Speaker 2: with Article four, Section three, and go th So I

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Speaker 2: guess we're trying to answer the question of of why

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Speaker 2: it is the case that that this article on its face,

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Speaker 2: Section three, on its face does not prohibit subdivision. That's right,

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Speaker 2: that's the issue at hand, right right. So let's I'll

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Speaker 2: have you if you read it and then us break

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Speaker 2: it down grammatically.

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Speaker 3: Let's do the I'll do in dramatic reading. New states

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Speaker 3: may be admitted by the Congress into this Union semi.

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Speaker 2: Coleman Paulson carries a small copy of the US Constitution

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Speaker 2: in his jacket pocket. This is what he's reading from.

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Speaker 3: It's first clause. New states maybe admitted, you know, some

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Speaker 3: powered tomit new states. But no new state may shall

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Speaker 3: be formed or erected within the jurisdiction of any other

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Speaker 3: state semi.

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Speaker 2: Colon the second semi colin pay special attention.

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Speaker 3: Nor any state be formed by the junction of two

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Speaker 3: or more states or parts of states, without the consent

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Speaker 3: of the legislatures of the states concerned, as well as

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Speaker 3: of the Congress.

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Speaker 2: Where you left at some comments I left out.

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Speaker 3: I didn't read all the comments. Yeah, okay, let me

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Speaker 3: let me do it again.

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Speaker 2: Outrageous for you that I've read so much about the

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Speaker 2: grammar to leave out.

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Speaker 3: A common Okay, new states may be admitted by the

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Speaker 3: Congress into this Union semi colon, but no new state

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Speaker 3: shall be formed or erected within the jurisdiction of any

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Speaker 3: other state second semi nor any state be formed by

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Speaker 3: the junction of two or more states comma or parts

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Speaker 3: of states comma, without the consent of the legislatures of

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Speaker 3: the states concerned, as well as of the Congress period.

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Speaker 3: That's the whole precussion.

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Speaker 2: So question one, as I understand it from reading you,

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Speaker 2: is what is the sense of the second semicole?

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Speaker 4: Right?

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Speaker 2: This is about to get very serious, I promise. Right

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Speaker 2: across the Texas border. In Ardmore, Oklahoma, there is a

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Speaker 2: quality in on West Broadway Street, two stories courtyard, Big Pool.

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Speaker 2: It used to be a holiday inn until a few

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Speaker 2: years ago. Just to be clear, the Ardmore holiday slash

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Speaker 2: quality in has nothing to do with Michael Paulson's law

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Speaker 2: review paper, not directly anyway. It's context. You have to

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Speaker 2: know about Ardmore if you want to understand where Paulson's

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Speaker 2: argument begins. The very first line of his article, in fact,

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Speaker 2: which is, and I'm quoting Texas Republicans have been thinking

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Speaker 2: way too small, that's way with five a's. It's the

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Speaker 2: early two thousands. Results from the national census are in,

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Speaker 2: which means state legislatures around the country are redrawing the

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Speaker 2: boundaries of congressional districts based on the new population numbers.

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Speaker 2: It's a ritual power struggle that happens in America every

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Speaker 2: ten years. In Texas, the legislature is controlled by Republicans.

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Speaker 2: They want to redraw the congressional map so Democrats get

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Speaker 2: fewer seats, but it doesn't work. Even with the new borders,

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Speaker 2: the Democrats hold on to their seats. So in two

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Speaker 2: thousand and three, the Texas Republicans introduce a bill to

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Speaker 2: draw the boundaries all over again, and the Democrats are furious.

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Speaker 2: If you can keep redrawing the boundaries of electoral districts

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Speaker 2: over and over until you put your opponent out of business,

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Speaker 2: then you're not really in a democracy, are you. The

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Speaker 2: organizer of the revolt was Jim Dunham. He's now a

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Speaker 2: lawyer in Waco. Back in two thousand and three, he

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Speaker 2: was chairman of the state House Democratic Caucus.

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Speaker 4: I had members coming up to me and say, you know, Jim,

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Speaker 4: you got to do something right, And I was like, well,

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Speaker 4: what are we going to do?

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Speaker 1: So I will can bust a quorum.

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Speaker 2: There are one hundred and fifty legislators in the Texas Assembly.

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Speaker 2: Quorum is one hundred. If Dunham can get fifty one

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Speaker 2: Democrats not to show up, the vote can't happen.

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Speaker 4: Well, the bill was coming up on a Monday, and

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Speaker 4: I think it was the preceding Wednesday that I had

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Speaker 4: in the first meeting, and I'll tell you, I thought

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Speaker 4: I was totally wasting my time.

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Speaker 1: I told everybody, this is foolish. Nobody's going to do this.

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Speaker 4: It's because you had to go across state lines because

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Speaker 4: the Speaker of the House has the authority to issue

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Speaker 4: arrest warrants and if you're in Texas, they can grab you. Now,

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Speaker 4: if you're outside of Texas, that then you know it

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Speaker 4: doesn't have jurisdiction.

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Speaker 2: Oh, I see, that's why you had to go to Oklahoma.

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Speaker 5: Yeah.

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Speaker 4: Actually, you have my arrest warrant on my wall. It's

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Speaker 4: it's pretty cool and it says, go you were directed

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Speaker 4: to go arrest and detain Jim Dunham and bring him.

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Speaker 1: To the Texas House.

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Speaker 2: So when'd you guys leave?

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Speaker 1: Left on Mother's Day Sunday?

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Speaker 4: And you know, about Thursday, when I figured out we're

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Speaker 4: going to actually get enough people to pull this off,

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Speaker 4: I was like, good Lord, where we're.

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Speaker 1: Going to go? You know? And I will tell you.

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Speaker 1: I had some members say, well, let's go to like Charles.

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Speaker 4: Louisiana or Shreeport, Louisiana. And I said, well, we're not

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Speaker 4: going to go there because the casinos there, and in

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Speaker 4: no way we'll keep the Democrats out of the casinos

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Speaker 4: if we're in Shreeport.

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Speaker 1: And I'm serious, you know.

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Speaker 4: And so my wife's family is Marmore, Oklahoma, and God

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Speaker 4: love Ardmore, but there's nothing to do in Ardmore.

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Speaker 2: Dunham Hire's buses gets everyone to meet at a hotel

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Speaker 2: in Austin, does a head count fifty plus himself, doesn't

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Speaker 2: tell anyone where they're headed or when they're coming back.

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Speaker 2: Need to know basis only. It's an undercover operation. It

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Speaker 2: comes and when the Republicans are ready for their triumphant vote,

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Speaker 2: they suddenly realize that they don't have a quorum. They

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Speaker 2: launch a manhunt for the missing Democrats. Texas Congressman Tom

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Speaker 2: Delay gets involved. He's the House Majority leader in Washington

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Speaker 2: at the.

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Speaker 4: Time, one of the members showed up in a plane

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Speaker 4: and delay evidently called Homeland Security and reported the tail

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Speaker 4: number was missing, and in an effort to figure out

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Speaker 4: where that plane had gone, and it was I don't

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Speaker 4: know what to say, but Homeland Security couldn't find us.

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Speaker 1: But the Dallas Morning News good.

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Speaker 2: To recap. The Texas Republicans want to increase their numbers

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Speaker 2: and influence in Washington, so they try a jerrymander, then

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Speaker 2: when it fails, do a re gerrymander in violation of

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Speaker 2: every state norm, leading to a full scale state constitutional crisis,

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Speaker 2: causing the states Democratic caucused to flee in buses to

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Speaker 2: a holiday and in Oklahoma, leading to a statewide manhunt,

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Speaker 2: convincing the House Majority leader to call in Homeland Security,

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Speaker 2: triggering an international media frenzy.

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Speaker 6: What is the situation like in ard More for the

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Speaker 6: Texas Democrats right now?

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Speaker 7: John, Here at the holiday inn, I've been witnessed to

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Speaker 7: a courageous scene of defiance. Texas Democratic legislators hunkered down,

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Speaker 7: trying to conduct the people's business while subsisting only on

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Speaker 7: the contents of their mini bars.

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Speaker 8: Homeland Security officials attempting to find some missing state legislators

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Speaker 8: who hung out at the Holiday Inn for a couple

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Speaker 8: of days. You know, we got a lot of deserters

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Speaker 8: down there, guys that are afraid to stand and fight

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Speaker 8: like our arm services do.

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Speaker 6: The legislative process was so broken that they had to

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Speaker 6: leave for Ardmore.

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Speaker 8: Thank god we didn't have those democrats at the Alamo.

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Speaker 8: God bless you.

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Speaker 4: I will tell you, probably most of the time was

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Speaker 4: dealing with the ten or eleven satellite news trucks that

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Speaker 4: showed up after a dire or two.

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Speaker 2: And who's watching all of this? Michael Paulson and Vasan Casavon,

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Speaker 2: authors of the Law Review article that found its way

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Speaker 2: to my inbox. They're working on their article as the

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Speaker 2: drama unfolds in Ardmore, and they look at everything that's

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Speaker 2: happening norm violation, constitutional crisis, Ardmore, Holiday in homeland security,

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Speaker 2: media frenzy, and their conclusion is Texas Republicans have been

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Speaker 2: thinking way too small. Michael Stokes. Paulson's argument is about Texas,

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Speaker 2: but it's also more significantly about grammar. His Law Review

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Speaker 2: article spends far more time on grammar in fact than

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Speaker 2: on anything else. Specifically, the grammar of the US Constitution,

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Speaker 2: so much so that immediately after I visited Paulson at Princeton,

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Speaker 2: I realized that I needed an emergency session with Mary Norris,

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Speaker 2: author of the brilliant book Between You and Me, Confessions

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Speaker 2: of a Common Queen.

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Speaker 5: I wonder, lookie, I have a fresher racer.

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Speaker 1: Here.

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Speaker 2: We're in Mary's Manhattan apartment. Books everywhere, creaky hardwood floors.

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Speaker 2: I've known Mary for years. We worked together at The

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Speaker 2: New Yorker. The New Yorker is a good cop bad

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Speaker 2: cop operation. The good cops are the editors. They coddle, courage, soothe,

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Speaker 2: let you go on and on. The bad cops are

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Speaker 2: the copy department. For most of my time there, the

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Speaker 2: copy department was a murderer's row of three women. First

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Speaker 2: was Anne, who was a national caliber marathoner who gave

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Speaker 2: the impression that in any disagreement she would simply outlast you.

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Speaker 2: The second Carol, who reminded me of the proper West

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Speaker 2: Indian ladies I grew up with, who could silence you

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Speaker 2: with a disapproving glance. The third was marry If Mister

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Speaker 2: and Missus Santa Claus had an irrepressible youngest daughter, it

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Speaker 2: would be marry. I have written down here three sentences

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Speaker 2: from the Constitution. I just want to introduce listeners to

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Speaker 2: the proposition that frist of all, that punctuation in particular

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Speaker 2: really matters on a document like the Constitution. And two

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Speaker 2: they were a little bit sloppy with their comments and

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Speaker 2: seven caltons at times. We're sitting at Mary's kitchen table,

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Speaker 2: a handle a sheet of paper with my constitutional selections

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Speaker 2: on it. She takes out a black number two pencil sharp.

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Speaker 2: We start with the sentence that has driven Grammarians crazy

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Speaker 2: for two hundred and fifty years, the second.

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Speaker 5: Amendment, A well regulated militia being necessary to the security

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Speaker 5: of a free state, the right of the people to

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Speaker 5: keep and bare arms shall not be infringed.

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Speaker 2: A well regulated militia comma being necessary to the security

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Speaker 2: of a free state Comma the right of the people

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Speaker 2: to keep in bear arms comma shall not be infringed. Well,

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Speaker 2: first of all, that comma is wrong before shall so yeah,

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Speaker 2: they should be. That's the that's the third comma, right, Yes,

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Speaker 2: the other two commas that you're fine.

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Speaker 5: With, well, no, they don't make sense either. Because with

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Speaker 5: the two commas, the sentence in its essence would read

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Speaker 5: well regulated militia the right of the people to keep

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Speaker 5: in bear arms shall not be infringed, which doesn't make

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Speaker 5: any sense.

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Speaker 2: It's like they loaded a shotgun with commas and fired

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Speaker 2: it at the second Amendment. It's a mess.

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Speaker 5: So a well regulated militia being necessary to the security

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Speaker 5: of a free state, comma comma, the right of the

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Speaker 5: people to keep and bear arms shall not be in fringe.

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Speaker 5: That I would lose two of those comments.

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Speaker 2: Mary had covered up the two other sentences on my

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Speaker 2: list with the legal pad. She moved the legal pad

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Speaker 2: down just enough to expose sentence number two.

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Speaker 5: The right of Citizens of the United States who are

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Speaker 5: eighteen years of age or older to vote shall not

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Speaker 5: be denied or abridged by the United States or by

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Speaker 5: any State on account of age.

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Speaker 2: Twenty sixth Amendment the United States Constitution. It's a terrible sentence.

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Speaker 6: Oh, it's terrible.

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Speaker 2: Yeah, So what if you rewrite that sentence from me?

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Speaker 2: Mary has her pencil out. She's marking up the piece

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Speaker 2: of paper like a New Yorker galley, covering the page

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Speaker 2: with graceful number two pencil lines.

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Speaker 5: The right of citizens who are eighteen years of age

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Speaker 5: or older to vote. That's it. You should just say

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Speaker 5: they're right of the United States citizens who are eighteen

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Speaker 5: years of age?

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Speaker 2: No call to vote. No call, because by having no commas,

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Speaker 2: what it turns into is a defining clause. By putting

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Speaker 2: commas around it, it becomes a descriptive clause.

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Speaker 4: That's right.

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Speaker 2: A defining clause in grammatical terms is a clause necessary

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Speaker 2: for the meaning of a sentence. The house where I

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Speaker 2: live is on fire. You don't put commas around the

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Speaker 2: phrase where I live because the fact that it's my

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Speaker 2: house is essential for understanding what I'm trying to say.

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Speaker 2: The house where I live is on fire. But in

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Speaker 2: the sentence the house comma built in nineteen seventy eight,

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Speaker 2: comma is on fire. We put commas around the phrase

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Speaker 2: built in nineteen seventy eight to mark it as descriptive.

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Speaker 2: It's not necessary for the meaning of the sentence, but

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Speaker 2: it helps us understand more about the house. So the

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Speaker 2: twenty sixth Amendment has commas around the clause who are

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Speaker 2: eighteen years of age or older?

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Speaker 1: Big mistake.

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Speaker 5: When was this one written?

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Speaker 2: Well, it was past in modern times.

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Speaker 5: Yeah, that's what I thought. But rus reads as if

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Speaker 5: all the citizens of the United States are eighteen years

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Speaker 5: of age or older.

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Speaker 2: American citizens are people either born here or who have

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Speaker 2: been granted citizenship, And what the twenty sixth Amendment means

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Speaker 2: to say is that a subset of that group, those

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Speaker 2: who are over the age of eighteen, have the right

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Speaker 2: to vote. But the authors of the twenty sixth Amendment

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Speaker 2: used commas interpreted grammatically, the twenty sixth Amendment says that

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Speaker 2: a citizen of the United States is anyone over eighteen anyone.

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Speaker 2: Canadians who crossed the border into Detroit to by gas

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Speaker 2: are citizens so long as they're over eighteen. Russians who

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Speaker 2: go apartment shopping in Miami with Duffel bags full of

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Speaker 2: cash are citizens so long as they're over eighteen.

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Speaker 5: Good Lord, clarity is of the utmost importance in a

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Speaker 5: legal document, right. I don't think lawyers have special rules

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Speaker 5: about semi colon's. I also don't know if there's such

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Speaker 5: a thing as a legal grammarian, but there probably should be.

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Speaker 5: You know, a US grammarian to take care of these things.

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Speaker 5: You should not volunteering.

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Speaker 2: Why you would be the perfect person to be the

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Speaker 2: grammarian in chief.

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Speaker 5: Only if I could wear one of those wigs.

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Speaker 2: And now we turn to the constitutional sentence at the

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Speaker 2: bottom of the page, the one I really care about,

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Speaker 2: the one that explains why Texans have been thinking way

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Speaker 2: too small, the big one.

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Speaker 5: New states may be admitted by the Congress into this

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Speaker 5: Union semi colon, But no new state shall be formed

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Speaker 5: or erected within the jurisdiction of any other state, nor

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Speaker 5: any state to be formed by the junction of two

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Speaker 5: or more states are parts of state without the consent

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Speaker 5: of the legislatures of the states concerned as well the Congress. Well,

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Speaker 5: that seems clear to me. You can't form any new

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Speaker 5: states without everybody agreeing that the new states can be formed.

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Speaker 2: I repeat, not a shaggy dog story. Michael Paulson first

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Speaker 2: became drawn to Article four, Section three of the US

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Speaker 2: Constitution when he was teaching a class at the University

364
00:21:37,316 --> 00:21:41,116
Speaker 2: of Minnesota Law School on the Civil War. The question

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Speaker 2: of West Virginia came up. As you may remember, Virginia

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Speaker 2: was a Confederate state during the Civil War, but a

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Speaker 2: number of counties in one corner of Virginia were anti slavery,

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Speaker 2: so they broke away and formed West Virginia, which was

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Speaker 2: admitted into the Union in eighteen sixty three. The question

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Speaker 2: Paulson had for his students was was that constitutional can

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Speaker 2: a new state be formed from a piece of an

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Speaker 2: existing state? What a trivial question? And Article four, section

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Speaker 2: three is the part of the Constitution that addresses this issue.

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Speaker 2: It was written in seventeen eighty seven. As with the

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Speaker 2: Second Amendment and the twenty sixth Amendment. However, it is

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Speaker 2: grammatically ambiguous, and as a result, it's precisely the kind

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Speaker 2: of matter that appeals to the baroque legal tastes of

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Speaker 2: Michael Stokes Pulsary. He gets together with the son Casavon.

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Speaker 2: They happily disappear down the Article four Section three rabbit

380
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Speaker 2: hole for god knows how long, and they emerge with

381
00:22:42,916 --> 00:22:46,596
Speaker 2: an exhaustive analysis of the question published in Volume ninety,

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Speaker 2: issue two of the California Law Review, pages two ninety

383
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Speaker 2: one to four hundred. This is not the Law Review

384
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Speaker 2: article that landed in my inbox and blew my mind.

385
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Speaker 2: It's the precursor the compulsory figures, if you will, before

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Speaker 2: the free skate.

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Speaker 3: Now there is this language, but no new state shall

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00:23:07,996 --> 00:23:10,636
Speaker 3: be formed or erected within the jurisdiction of any other

389
00:23:10,716 --> 00:23:15,876
Speaker 3: state semichel. You could read that if it were just

390
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Speaker 3: that as a flat prohibition on carving out a news

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Speaker 3: state from within an existing state.

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Speaker 2: If it stops there, If it had stopped there and

393
00:23:23,916 --> 00:23:26,516
Speaker 2: there was nothing that came after, we have no arguments here.

394
00:23:26,956 --> 00:23:29,716
Speaker 2: No new state shall be formed or erected within the

395
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Speaker 2: jurisdiction of any other state. No ambiguity there.

396
00:23:33,876 --> 00:23:35,476
Speaker 3: Right, it would say, you can't do.

397
00:23:35,436 --> 00:23:38,316
Speaker 2: It, you can't, so West Yugrainia would not be right legitimate.

398
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Speaker 3: But then it goes on after the semi colon. And

399
00:23:42,516 --> 00:23:45,716
Speaker 3: this real question is is that semi colon more like

400
00:23:45,796 --> 00:23:49,556
Speaker 3: a period that ends one prohibition and then another prohibition

401
00:23:49,796 --> 00:23:52,476
Speaker 3: picks up, or is it more like a pause, Is

402
00:23:52,516 --> 00:23:55,676
Speaker 3: it more like a comma. After that semi colon, it

403
00:23:55,716 --> 00:23:58,996
Speaker 3: goes on to talk about well, let me read it again.

404
00:23:59,156 --> 00:24:02,156
Speaker 3: Nor any state be formed by the junction of two

405
00:24:02,236 --> 00:24:05,116
Speaker 3: or more states or parts of states without the consent

406
00:24:05,196 --> 00:24:08,276
Speaker 3: of the legislatures of the states concerned, as well as

407
00:24:08,316 --> 00:24:09,036
Speaker 3: of the Congress.

408
00:24:09,796 --> 00:24:13,836
Speaker 2: Article four, Section three would be crystal clear if the

409
00:24:13,916 --> 00:24:16,596
Speaker 2: founders had used a period in the middle of it.

410
00:24:17,356 --> 00:24:21,236
Speaker 2: A period would mean you can't subdivide a state. Ever,

411
00:24:22,196 --> 00:24:25,316
Speaker 2: on the other hand. If you want to combine two states,

412
00:24:25,476 --> 00:24:29,396
Speaker 2: you can, so long as everyone consents, And it would

413
00:24:29,436 --> 00:24:32,916
Speaker 2: be equally clear if they had used a comma. A

414
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Speaker 2: comma would mean that the consent provision applies to everything.

415
00:24:37,436 --> 00:24:40,676
Speaker 2: Both subdividing and combining are legal so long as Congress

416
00:24:40,716 --> 00:24:43,436
Speaker 2: signs off on it. But they don't use a period

417
00:24:43,636 --> 00:24:47,796
Speaker 2: or a comma. They make a punctuation decision guaranteed to

418
00:24:47,876 --> 00:24:54,836
Speaker 2: tie generations of constitutional scholars in knots. They choose a semicone.

419
00:24:54,836 --> 00:24:58,436
Speaker 3: When it says, without the consent of the legislatures of

420
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Speaker 3: the states concerned as well as of the Congress, does

421
00:25:01,396 --> 00:25:07,516
Speaker 3: the consent qualification apply also to carving a small state

422
00:25:07,556 --> 00:25:10,636
Speaker 3: out of an existing new state? And it all turns

423
00:25:10,676 --> 00:25:13,716
Speaker 3: on whether the semi colon is read as a full

424
00:25:13,756 --> 00:25:18,596
Speaker 3: stop separate prohibition or is just one in a series

425
00:25:18,636 --> 00:25:20,716
Speaker 3: of things to which consents can be given.

426
00:25:22,196 --> 00:25:25,036
Speaker 2: Does the Constitution say you cannot break off a piece

427
00:25:25,076 --> 00:25:28,476
Speaker 2: of an existing state ever, or does it say you

428
00:25:28,596 --> 00:25:34,036
Speaker 2: can so long as Congress says okay. Paulson and Casavon

429
00:25:34,236 --> 00:25:37,796
Speaker 2: spend ninety pages on this question in their California Law

430
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Speaker 2: Review article ninety pages, and it's riveting reading because the

431
00:25:42,076 --> 00:25:46,116
Speaker 2: whole time you're thinking, good lord, West Virginia is hanging

432
00:25:46,196 --> 00:25:52,316
Speaker 2: in the balance. If that semi colon from seventeen eighty

433
00:25:52,316 --> 00:25:54,876
Speaker 2: seven is meant as a full stop, then someone has

434
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Speaker 2: to go down to the State House in Charleston and

435
00:25:56,916 --> 00:26:00,036
Speaker 2: break the news to everyone there that the party's over.

436
00:26:03,076 --> 00:26:06,996
Speaker 2: Paulson and Cassavon comb through earlier drafts of that clause,

437
00:26:07,556 --> 00:26:11,116
Speaker 2: the legislative history of the Constitution, the records of the framers,

438
00:26:11,636 --> 00:26:18,836
Speaker 2: and they conclude West Virginia is constitutional. Everyone involved the

439
00:26:19,156 --> 00:26:22,156
Speaker 2: sign off. That's their concern, right. So once you so,

440
00:26:22,676 --> 00:26:26,196
Speaker 2: in other words, that makes it quite clear that the

441
00:26:26,316 --> 00:26:30,676
Speaker 2: last clause modifies everything.

442
00:26:30,756 --> 00:26:31,196
Speaker 1: Everything.

443
00:26:31,396 --> 00:26:35,516
Speaker 2: Yes, But once it's clear that the last clause modifies everything,

444
00:26:35,956 --> 00:26:39,116
Speaker 2: then the semi colon cannot be functioning as a period.

445
00:26:39,356 --> 00:26:39,996
Speaker 3: It cannot be.

446
00:26:42,956 --> 00:26:45,116
Speaker 2: Forgive me if I'm going on and on about this,

447
00:26:45,956 --> 00:26:51,276
Speaker 2: but everything depends on this interpretation of Article four, Section three.

448
00:26:51,396 --> 00:26:54,316
Speaker 2: For years, people have been dismissing the implications of that

449
00:26:54,396 --> 00:27:01,476
Speaker 2: sentence because they've assumed that it's ambiguous. It is not ambiguous.

450
00:27:03,476 --> 00:27:06,956
Speaker 2: And here's what clinched it for me. Mary Norris, the

451
00:27:07,036 --> 00:27:08,676
Speaker 2: comic Queen, agrees.

452
00:27:09,796 --> 00:27:14,236
Speaker 5: Okay, well, I think that hinges on this nor. In

453
00:27:14,236 --> 00:27:19,916
Speaker 5: spite of the semi colon, the nor connects this to

454
00:27:19,956 --> 00:27:21,116
Speaker 5: the butt. To the butt.

455
00:27:22,156 --> 00:27:26,716
Speaker 2: The Constitution says, but no new state shall be formed

456
00:27:26,836 --> 00:27:30,836
Speaker 2: or erected within the jurisdiction of any other state semi colon,

457
00:27:31,516 --> 00:27:36,996
Speaker 2: nor any state be formed dot dot dot. I've read many, many,

458
00:27:36,996 --> 00:27:39,756
Speaker 2: many commentaries on this. You're the first person to talk

459
00:27:39,796 --> 00:27:43,196
Speaker 2: about this butt nor being significant.

460
00:27:44,316 --> 00:27:47,316
Speaker 5: Well, you don't have a nor unless you're referring to

461
00:27:47,356 --> 00:27:52,236
Speaker 5: something before it. You know, neither nor nor. One of

462
00:27:52,236 --> 00:27:56,796
Speaker 5: the things that copy editors look for is a nor

463
00:27:56,876 --> 00:27:57,556
Speaker 5: standing alone.

464
00:27:57,596 --> 00:27:58,756
Speaker 6: It doesn't make any sense.

465
00:27:59,476 --> 00:28:02,036
Speaker 5: We try not to let sentences begin with nor. We

466
00:28:02,116 --> 00:28:04,276
Speaker 5: try not to have a nor where there's not a neither,

467
00:28:07,796 --> 00:28:10,036
Speaker 5: So that nor has to can to something, And I

468
00:28:10,076 --> 00:28:14,436
Speaker 5: think it connects to the butt, so I think they're related.

469
00:28:17,396 --> 00:28:20,996
Speaker 2: There in Mary's apartment, I had a flashback to the

470
00:28:21,036 --> 00:28:23,556
Speaker 2: final round of editing of The New Yorker, something I've

471
00:28:23,596 --> 00:28:27,036
Speaker 2: done many times. You're sitting in a room, you you're

472
00:28:27,036 --> 00:28:30,996
Speaker 2: good cop editor, and Carol Ann or Mary going through

473
00:28:30,996 --> 00:28:35,636
Speaker 2: your piece line by line, peeling away everything superfluous and confusing,

474
00:28:36,396 --> 00:28:39,916
Speaker 2: truly formidable intellect devoted to making words mean what they're

475
00:28:39,956 --> 00:28:43,116
Speaker 2: supposed to mean. If you've never had someone do that

476
00:28:43,196 --> 00:28:46,276
Speaker 2: for your words, you haven't written. But you're saying if

477
00:28:46,276 --> 00:28:49,876
Speaker 2: I have a bot nor construction. If I say I

478
00:28:49,996 --> 00:28:54,956
Speaker 2: like all kinds of animals, but I don't like horses,

479
00:28:56,556 --> 00:29:04,316
Speaker 2: and nor do I like dogs because they smell? Is

480
00:29:04,436 --> 00:29:06,556
Speaker 2: because they smell modifying horses and dogs?

481
00:29:10,836 --> 00:29:13,476
Speaker 5: I think so, Yes, I think the North Connecto.

482
00:29:14,036 --> 00:29:18,916
Speaker 2: Yes, that's crucial. Mary, you are you have entered into

483
00:29:20,036 --> 00:29:26,036
Speaker 2: a hugely significant constitutional today, which brings us to the

484
00:29:26,076 --> 00:29:28,996
Speaker 2: second case of on puls and paper. That's the one

485
00:29:28,996 --> 00:29:32,956
Speaker 2: my friend sent me. Texas Law Review, Volume eighty two,

486
00:29:33,076 --> 00:29:38,236
Speaker 2: the necessary and far more consequential companion to their constitutional

487
00:29:38,276 --> 00:29:44,516
Speaker 2: exoneration of West Virginia. The articles called Let's mess with Texas.

488
00:29:45,276 --> 00:29:48,756
Speaker 2: It begins with a quotation from the congressional resolution under

489
00:29:48,796 --> 00:29:51,996
Speaker 2: which Texas was admitted to the Union in eighteen forty five.

490
00:29:52,756 --> 00:29:57,636
Speaker 2: The relevant passage goes like this, new states of convenient

491
00:29:57,756 --> 00:30:02,436
Speaker 2: size not exceeding four in number, in addition to said

492
00:30:02,516 --> 00:30:07,996
Speaker 2: State of Texas, and having sufficient population, may hereafter, by

493
00:30:08,036 --> 00:30:11,516
Speaker 2: the consent of said state, be formed out of the

494
00:30:11,636 --> 00:30:18,876
Speaker 2: territory thereof. Congress gave Texas permission to form another four

495
00:30:19,036 --> 00:30:23,116
Speaker 2: states within its borders, which makes sense. Texas was an

496
00:30:23,156 --> 00:30:25,476
Speaker 2: independent country at the time it joined the Union, and

497
00:30:25,516 --> 00:30:28,596
Speaker 2: a very big country at that There were complicated political

498
00:30:28,636 --> 00:30:32,116
Speaker 2: considerations in eighteen forty five about the balance between slave

499
00:30:32,156 --> 00:30:36,156
Speaker 2: states and free states. That's a whole other story. What

500
00:30:36,316 --> 00:30:41,596
Speaker 2: matters is that, according to Casavon and Paulson's exhaustive constitutional analysis,

501
00:30:42,516 --> 00:30:48,356
Speaker 2: the offer still stands. New states of convenient size may

502
00:30:48,396 --> 00:30:53,996
Speaker 2: be formed. That's why their interpretation of Article four, Section three,

503
00:30:54,196 --> 00:30:58,276
Speaker 2: with its confusing semi colon and crucial nore, is so important.

504
00:30:58,836 --> 00:31:01,196
Speaker 2: It means that all that has to happen is for

505
00:31:01,236 --> 00:31:04,916
Speaker 2: the Texas legislature to sign off on division, and it's

506
00:31:04,916 --> 00:31:05,556
Speaker 2: a done deal.

507
00:31:06,076 --> 00:31:09,076
Speaker 3: When Congress pass that statue saying you could do this,

508
00:31:09,676 --> 00:31:14,516
Speaker 3: that's consent. They consented in advance, they consented on these terms,

509
00:31:14,836 --> 00:31:17,036
Speaker 3: and the consent has not been taken away.

510
00:31:19,356 --> 00:31:21,996
Speaker 2: That's as many as five states where there is now

511
00:31:22,036 --> 00:31:25,716
Speaker 2: only one ten US senators, where Texas now is only

512
00:31:25,756 --> 00:31:32,036
Speaker 2: two Texans in control of American politics for the next century.

513
00:31:36,476 --> 00:31:39,436
Speaker 6: We don't usually draw stages, but you've made me czar,

514
00:31:39,556 --> 00:31:42,476
Speaker 6: so I will do that.

515
00:31:43,156 --> 00:31:45,596
Speaker 2: If you ask around about who knows the most about

516
00:31:45,596 --> 00:31:48,996
Speaker 2: the political demographics of Texas. One name comes up a lot.

517
00:31:49,396 --> 00:31:54,796
Speaker 2: Michael Lee, studious guy, somber suit, glasses, loyally haircut, grew

518
00:31:54,836 --> 00:31:57,876
Speaker 2: up in Houston, went to the University of Texas, now

519
00:31:57,916 --> 00:32:00,716
Speaker 2: works at the Brennan Center for Justice at New York University.

520
00:32:01,316 --> 00:32:04,196
Speaker 2: It occurred to me that I'm potentially complicit in all

521
00:32:04,236 --> 00:32:07,596
Speaker 2: of this. I'm the one publicizing the Pulse in Casavon

522
00:32:07,716 --> 00:32:12,236
Speaker 2: manifesto for a complete makeover of American politics, so I

523
00:32:12,276 --> 00:32:14,716
Speaker 2: needed to find out what I'm getting everyone into.

524
00:32:15,436 --> 00:32:20,156
Speaker 6: I would create a district that or a district a

525
00:32:20,316 --> 00:32:24,836
Speaker 6: state that stretch that included Houston and the stretch to

526
00:32:25,036 --> 00:32:27,116
Speaker 6: the border with Louisiana.

527
00:32:27,516 --> 00:32:29,716
Speaker 2: Michael Lee and I met in a big conference room

528
00:32:29,756 --> 00:32:32,236
Speaker 2: near Wall Street. He brought with him a map of

529
00:32:32,236 --> 00:32:35,076
Speaker 2: Texas so large it covered the entire end of the table.

530
00:32:36,036 --> 00:32:38,396
Speaker 2: Lee started by drawing the borders of the new state

531
00:32:38,396 --> 00:32:40,836
Speaker 2: of Houston five million people.

532
00:32:41,156 --> 00:32:43,916
Speaker 6: And then on the western side, I would probably cut

533
00:32:43,916 --> 00:32:49,276
Speaker 6: it off somewhere in between Houston and Austin, which is

534
00:32:49,316 --> 00:32:50,876
Speaker 6: in central Texas.

535
00:32:51,196 --> 00:32:54,036
Speaker 2: The way he talked, he made it sound natural as

536
00:32:54,076 --> 00:32:56,396
Speaker 2: if Texas actually makes a lot of sense divided up

537
00:32:56,436 --> 00:32:59,996
Speaker 2: five ways. He saw a third state in Central Texas.

538
00:33:00,196 --> 00:33:03,116
Speaker 2: Set it around booming Austin, already the eleventh largest city

539
00:33:03,116 --> 00:33:05,716
Speaker 2: in the United States. The fourth state would be West

540
00:33:05,756 --> 00:33:10,076
Speaker 2: Texas Lubbock, Midland, Odessa, Flat and Dusty Oil Country. The

541
00:33:10,116 --> 00:33:12,636
Speaker 2: fifth state would run along the Mexican border, beginning with

542
00:33:12,716 --> 00:33:14,676
Speaker 2: San Antonio in the east and running all the way

543
00:33:14,676 --> 00:33:18,956
Speaker 2: to El Paso. When Paulson and Casavon published their law

544
00:33:18,996 --> 00:33:22,076
Speaker 2: review paper back in two thousand and four, the assumption

545
00:33:22,276 --> 00:33:24,876
Speaker 2: was that if Texas subdivided, this would be a net

546
00:33:24,956 --> 00:33:28,796
Speaker 2: wind for Republicans. Texas hasn't sent a Democrat to the

547
00:33:28,876 --> 00:33:33,436
Speaker 2: US Senate since the early nineteen nineties. It's the Republican heartland.

548
00:33:34,036 --> 00:33:36,876
Speaker 2: That's why they wrote that Texas. Republicans were thinking way

549
00:33:36,956 --> 00:33:41,316
Speaker 2: too small, why not quintupple their influence in Washington. But

550
00:33:41,396 --> 00:33:44,036
Speaker 2: in the years since then, the state's demographics have been

551
00:33:44,036 --> 00:33:48,636
Speaker 2: in upheaval. West Texas Oil Country would remain solid for

552
00:33:48,676 --> 00:33:52,396
Speaker 2: the Republicans two senators, but the new states of Houston

553
00:33:52,476 --> 00:33:56,116
Speaker 2: and Dallas and Central Texas, those are purple. They could

554
00:33:56,156 --> 00:33:59,236
Speaker 2: go either way. As for the state running along the

555
00:33:59,276 --> 00:34:02,636
Speaker 2: Mexican border, the one with its capital in San Antonio.

556
00:34:03,036 --> 00:34:06,316
Speaker 6: This is a heavily democratic state, and I think that

557
00:34:06,356 --> 00:34:09,596
Speaker 6: the state would be more Latino than New mexic Ago,

558
00:34:09,996 --> 00:34:13,076
Speaker 6: and it would elact not only Democrats, but probably Latino

559
00:34:13,116 --> 00:34:14,796
Speaker 6: Democrats to the Senate.

560
00:34:17,236 --> 00:34:19,876
Speaker 2: It's a whole new ballgame. Michael Lee and I did

561
00:34:19,876 --> 00:34:23,116
Speaker 2: the math for the ten new Texas Senate seats. Two

562
00:34:23,276 --> 00:34:26,236
Speaker 2: are a lock for the Republicans and they can probably

563
00:34:26,276 --> 00:34:28,796
Speaker 2: count on another from one of the toss up states.

564
00:34:29,116 --> 00:34:30,116
Speaker 2: So three in total.

565
00:34:30,916 --> 00:34:32,636
Speaker 6: Yeah, three, yeah, I think.

566
00:34:32,636 --> 00:34:35,116
Speaker 2: And it says like four are a lock for the

567
00:34:35,116 --> 00:34:37,556
Speaker 2: Democrats and three are up for grabs. Is that would

568
00:34:37,596 --> 00:34:41,956
Speaker 2: that be a fair I think so? Yeah, yeah, yeah,

569
00:34:42,196 --> 00:34:44,036
Speaker 2: which is a pretty big shift from the way things

570
00:34:44,036 --> 00:34:49,596
Speaker 2: are now. Right, all right, that's now. But if Texas

571
00:34:49,636 --> 00:34:54,436
Speaker 2: continues to grow and change, the three toss up states Dallas, Houston,

572
00:34:54,596 --> 00:34:59,436
Speaker 2: and Austin get even more democratic, especially the state of Houston.

573
00:34:59,876 --> 00:35:03,516
Speaker 2: So we'll say it's at the moment it's fifty to fifty.

574
00:35:04,636 --> 00:35:07,916
Speaker 2: But long term, if I said to you ten years

575
00:35:07,956 --> 00:35:10,156
Speaker 2: from now, you would not be prize if it elected

576
00:35:10,156 --> 00:35:10,876
Speaker 2: two Democrats.

577
00:35:10,916 --> 00:35:11,956
Speaker 6: That's right, that's right.

578
00:35:12,596 --> 00:35:15,756
Speaker 2: In a generation, could the five states of Texas send

579
00:35:15,916 --> 00:35:19,596
Speaker 2: eight Democratic senators to Washington against two Republicans.

580
00:35:20,076 --> 00:35:22,796
Speaker 6: It's amazing how many times you'll hear Republicans in Texas

581
00:35:22,836 --> 00:35:26,036
Speaker 6: say like, Texas is the Alamo of the United States. Right,

582
00:35:26,236 --> 00:35:29,316
Speaker 6: it's meaning like it's it's what homes like, you know,

583
00:35:29,396 --> 00:35:33,396
Speaker 6: the republic is in power. It's the wall against you know,

584
00:35:33,476 --> 00:35:36,236
Speaker 6: this like liberalism from places like New York and California.

585
00:35:37,036 --> 00:35:38,956
Speaker 6: I've always thought that was sort of a funny analogy

586
00:35:38,996 --> 00:35:41,836
Speaker 6: because everyone guided the almost you know, but you know,

587
00:35:41,876 --> 00:35:45,196
Speaker 6: that's the one that they use, and so.

588
00:35:46,716 --> 00:35:53,716
Speaker 2: An inadvertently talent analogy. Texas Democrats have been thinking way

589
00:35:53,756 --> 00:36:06,356
Speaker 2: too small. Imagine a governor of Texas reads your law

590
00:36:06,396 --> 00:36:08,556
Speaker 2: review article and said.

591
00:36:08,756 --> 00:36:10,316
Speaker 3: That's enough premises it is.

592
00:36:11,436 --> 00:36:14,596
Speaker 2: It says, okay, I want to well, I want to

593
00:36:14,636 --> 00:36:19,076
Speaker 2: trigger it. Okay, okay, So walk me through how triggering

594
00:36:19,156 --> 00:36:20,196
Speaker 2: might work in the real world.

595
00:36:20,396 --> 00:36:25,236
Speaker 3: Well, imagining a real world where people take law review

596
00:36:25,356 --> 00:36:27,876
Speaker 3: articles seriously, it's a it's a good it's a better

597
00:36:27,916 --> 00:36:34,196
Speaker 3: real world. All we know is that Congress has granted

598
00:36:34,196 --> 00:36:37,916
Speaker 3: its consent for the sovereign state of Texas to do

599
00:36:37,996 --> 00:36:38,876
Speaker 3: what it needs to do.

600
00:36:39,036 --> 00:36:41,876
Speaker 2: But the significant fact here is that given the Congress

601
00:36:41,916 --> 00:36:46,316
Speaker 2: has already granted its permission. The all that has to

602
00:36:46,316 --> 00:36:48,196
Speaker 2: happen is for Texas to get its act together.

603
00:36:48,516 --> 00:36:49,476
Speaker 3: It's up to Texas.

604
00:36:53,116 --> 00:36:55,836
Speaker 2: Let's say that as Texas is putting together this plan,

605
00:36:56,436 --> 00:36:59,196
Speaker 2: Congress is getting really alarmed and they don't want it

606
00:36:59,196 --> 00:37:03,316
Speaker 2: to happen. Can they revoke the permission that was granted

607
00:37:03,596 --> 00:37:05,116
Speaker 2: before Texas acts.

608
00:37:05,236 --> 00:37:07,716
Speaker 3: I don't see why not. I think they can.

609
00:37:08,316 --> 00:37:10,916
Speaker 2: Oh, I see it. So if Texas wants to do this,

610
00:37:10,996 --> 00:37:11,596
Speaker 2: they need to do it.

611
00:37:11,676 --> 00:37:13,556
Speaker 3: They got to get there, they get well, they just

612
00:37:13,556 --> 00:37:16,876
Speaker 3: gotta do it. Texas has to get its act together

613
00:37:17,436 --> 00:37:20,516
Speaker 3: quicker than Congress can get its act together to say no.

614
00:37:25,156 --> 00:37:35,716
Speaker 2: For the love of God, Texas, just do it. Revision's

615
00:37:35,756 --> 00:37:38,916
Speaker 2: History is a panoply production. The senior producer is Mei

616
00:37:39,036 --> 00:37:43,436
Speaker 2: LaBelle with Jacob Smith and Camille Baptista. Our editor is

617
00:37:43,516 --> 00:37:47,836
Speaker 2: Julia Bardon. Vlon Williams is our engineer. Fact checking by

618
00:37:47,916 --> 00:37:52,476
Speaker 2: Beth Johnson. Original music but Luis Kira special thanks to

619
00:37:52,516 --> 00:38:02,116
Speaker 2: Andy Bauers and Jacob Weisberg. I'm Malcolm, glad you don't

620
00:38:02,156 --> 00:38:06,156
Speaker 2: have any any bad memories of copy editing. A peace

621
00:38:06,196 --> 00:38:07,196
Speaker 2: of mind to you.

622
00:38:07,236 --> 00:38:10,676
Speaker 5: No, no, not at all. In fact, I use you

623
00:38:10,716 --> 00:38:14,316
Speaker 5: as the example of somebody who the pencil kind of

624
00:38:14,356 --> 00:38:15,116
Speaker 5: bounces off.

625
00:38:15,876 --> 00:38:17,276
Speaker 6: You do a very nice job.

626
00:38:17,996 --> 00:38:20,716
Speaker 2: My mother will be very pleased to hear that a

627
00:38:20,796 --> 00:38:21,276
Speaker 2: nice job