1 00:00:15,356 --> 00:00:15,796 Speaker 1: Pushkin. 2 00:00:28,116 --> 00:00:31,756 Speaker 2: I'm Michael Lewis, and this is against the rules. All 3 00:00:31,796 --> 00:00:34,116 Speaker 2: this season, we're looking at the rise of sports betting, 4 00:00:34,396 --> 00:00:38,716 Speaker 2: America's newest form of legalized gambling. Today it seems like 5 00:00:38,796 --> 00:00:41,676 Speaker 2: it just suddenly happened, but it was actually a long 6 00:00:41,796 --> 00:00:43,916 Speaker 2: road and I had to do a lot of background 7 00:00:43,916 --> 00:00:47,356 Speaker 2: interviews to fully understand it. Today, I want to share 8 00:00:47,396 --> 00:00:54,316 Speaker 2: with you one of those conversations because it's fascinating. In 9 00:00:54,356 --> 00:00:57,116 Speaker 2: our previous episode, we heard briefly from a legal historian 10 00:00:57,156 --> 00:01:00,436 Speaker 2: and professor at the University of Chicago named Alison Lercroix. 11 00:01:01,316 --> 00:01:04,036 Speaker 2: Alison and I actually talked a long time about the 12 00:01:04,036 --> 00:01:08,036 Speaker 2: wider context for why in twenty eighteen, the Supreme Court 13 00:01:08,116 --> 00:01:10,876 Speaker 2: decided to overturn a federal law called the Professional and 14 00:01:10,916 --> 00:01:14,756 Speaker 2: Amateur Sports Protection Act. That context goes back to the 15 00:01:14,756 --> 00:01:18,236 Speaker 2: founding of the country actually and tension between state and 16 00:01:18,276 --> 00:01:21,756 Speaker 2: federal jurisdictions. The State of New Jersey brought up all 17 00:01:21,796 --> 00:01:23,956 Speaker 2: of that when it argued a case now called Murphy 18 00:01:24,036 --> 00:01:33,156 Speaker 2: versus Nzuba before the Supreme Court. Do you know the 19 00:01:33,196 --> 00:01:33,756 Speaker 2: case at all? 20 00:01:34,076 --> 00:01:36,556 Speaker 1: I do. I teach it in constitutional law. Yeah, oh, well, 21 00:01:36,596 --> 00:01:37,116 Speaker 1: here we go. 22 00:01:37,916 --> 00:01:42,316 Speaker 2: Are there any cases from way back when of the 23 00:01:42,356 --> 00:01:46,956 Speaker 2: federal government telling states they can't change their laws or 24 00:01:46,996 --> 00:01:50,076 Speaker 2: they can't do something in their laws, rather than the 25 00:01:50,076 --> 00:01:54,196 Speaker 2: federal government directly legislating something telling the states how they 26 00:01:54,236 --> 00:01:55,116 Speaker 2: have to legislate it. 27 00:01:56,196 --> 00:01:57,836 Speaker 1: Well, I mean, then this gets to one of the 28 00:01:58,476 --> 00:02:01,676 Speaker 1: I think trickiest points in the Murphy opinion, especially as 29 00:02:01,796 --> 00:02:05,476 Speaker 1: Justice Alito writes it. And we actually usually spend a 30 00:02:05,516 --> 00:02:07,796 Speaker 1: fair amount of time talking about this in class because 31 00:02:08,516 --> 00:02:11,916 Speaker 1: I think just this Alito says, Look, this is a 32 00:02:11,956 --> 00:02:15,436 Speaker 1: clear case of what the Court calls commandeering. And even 33 00:02:15,516 --> 00:02:19,196 Speaker 1: though it's Congress telling the states they can't do something 34 00:02:19,716 --> 00:02:23,196 Speaker 1: that is, in a theoretical sense, the same as Congress 35 00:02:23,196 --> 00:02:27,356 Speaker 1: telling the state legislatures they have to do something that's commandeering, 36 00:02:27,676 --> 00:02:30,236 Speaker 1: can't do that even though it's a negative, and so 37 00:02:30,276 --> 00:02:32,876 Speaker 1: on and so forth. But I think he spends an 38 00:02:33,036 --> 00:02:37,836 Speaker 1: enormous amount of time in the opinion dealing with the 39 00:02:37,916 --> 00:02:41,876 Speaker 1: objection to his framing, which is, what about all the 40 00:02:41,916 --> 00:02:45,836 Speaker 1: instances in which Congress passes a law, and we know, 41 00:02:46,236 --> 00:02:49,396 Speaker 1: because of how the supremacy Clause of the Constitution operates 42 00:02:50,116 --> 00:02:55,076 Speaker 1: in a doctrinal sense what lawyers call preemption, federal law 43 00:02:55,156 --> 00:02:58,556 Speaker 1: preempts state law to the extent the two conflict, and 44 00:02:58,716 --> 00:03:02,556 Speaker 1: Justice Alito says, well, that's true, but that's only true 45 00:03:02,636 --> 00:03:05,876 Speaker 1: if Congress is passing a law that isn't totally and 46 00:03:05,996 --> 00:03:10,116 Speaker 1: only directed at state legislatures. So yes, preemption, but you've 47 00:03:10,156 --> 00:03:13,316 Speaker 1: got to have some like normal regular individuals or companies 48 00:03:13,396 --> 00:03:15,876 Speaker 1: or whatever not have it be a direct order to 49 00:03:15,916 --> 00:03:19,716 Speaker 1: state legislatures. But if you go back to the nineteenth century, 50 00:03:20,436 --> 00:03:23,396 Speaker 1: they're a lot looser about how they understand the supremacy 51 00:03:23,396 --> 00:03:27,516 Speaker 1: clause operating. And there's another case in Virginia in eighteen twenty, 52 00:03:28,516 --> 00:03:31,196 Speaker 1: which is another Supreme Court justice riding circuit. 53 00:03:32,036 --> 00:03:33,356 Speaker 2: What does that mean? Riding circuit? 54 00:03:33,556 --> 00:03:36,516 Speaker 1: It means they were sitting and acting as a judge, 55 00:03:36,516 --> 00:03:39,876 Speaker 1: but they were not in the Supreme Court chamber. They 56 00:03:39,876 --> 00:03:42,676 Speaker 1: weren't in DC. They always seem to kind of go 57 00:03:42,716 --> 00:03:44,236 Speaker 1: out on a limb a little bit more when they 58 00:03:44,236 --> 00:03:46,596 Speaker 1: were riding circuit. It's like they weren't sitting there with 59 00:03:46,636 --> 00:03:50,196 Speaker 1: their brethren, and the cases they were hearing were often 60 00:03:50,276 --> 00:03:53,316 Speaker 1: trial court cases. It would be like if Justice Soda 61 00:03:53,356 --> 00:03:57,196 Speaker 1: my or spent some portion of the year sitting in 62 00:03:57,236 --> 00:04:00,196 Speaker 1: the New York Federal Court, like in the Second Circuit 63 00:04:00,676 --> 00:04:04,116 Speaker 1: or the district court hearing essentially a lot of trial 64 00:04:04,156 --> 00:04:06,676 Speaker 1: court cases, and people would be like, oh, that's Justice 65 00:04:06,676 --> 00:04:08,996 Speaker 1: Soda my or but she's riding circuit and New York 66 00:04:09,236 --> 00:04:10,116 Speaker 1: part of her circuit. 67 00:04:11,316 --> 00:04:13,956 Speaker 2: That's a weird thing to have done. So you could 68 00:04:14,036 --> 00:04:17,716 Speaker 2: conceivably have rendered some judgment that you're then going to 69 00:04:17,756 --> 00:04:19,796 Speaker 2: see again at the Supreme Court level. 70 00:04:19,956 --> 00:04:25,156 Speaker 1: Yes, and that happened a lot. And so you have situations. 71 00:04:25,196 --> 00:04:29,716 Speaker 1: In this eighteen twenty case in Virginia, the circuit riding 72 00:04:29,956 --> 00:04:36,076 Speaker 1: Justice Marshall was his kind of his turf, and so 73 00:04:36,156 --> 00:04:38,756 Speaker 1: he's sitting there as a trial court judge, and it's 74 00:04:38,756 --> 00:04:41,556 Speaker 1: a case about a ship that comes into Norfolk, Virginia, 75 00:04:42,076 --> 00:04:44,996 Speaker 1: and it has these crew members, some of whom, according 76 00:04:44,996 --> 00:04:48,516 Speaker 1: to the record, are quote persons of color. Virginia law 77 00:04:48,596 --> 00:04:52,636 Speaker 1: says such persons cannot be imported or allowed to migrate 78 00:04:52,676 --> 00:04:57,156 Speaker 1: into the state. Federal law says we support state law 79 00:04:57,196 --> 00:05:01,236 Speaker 1: whatever it is. And this I think is another complication 80 00:05:01,476 --> 00:05:06,436 Speaker 1: for the Murphy line of argument, because Chief Justice Marshall 81 00:05:06,476 --> 00:05:11,236 Speaker 1: basically says, we have been various Acts of Congress, including 82 00:05:11,236 --> 00:05:14,836 Speaker 1: this one that says the federal government will support states 83 00:05:14,836 --> 00:05:19,156 Speaker 1: in whatever they're doing. Visa VI persons of color, and 84 00:05:19,196 --> 00:05:23,516 Speaker 1: he basically reads it to say that limits in some 85 00:05:23,716 --> 00:05:27,956 Speaker 1: cases or some instances, what states can do. Now he 86 00:05:28,036 --> 00:05:31,996 Speaker 1: pulls back, He doesn't go all the way to saying, Virginia, 87 00:05:32,076 --> 00:05:35,076 Speaker 1: you can't say that a person of color cannot migrate 88 00:05:35,116 --> 00:05:37,756 Speaker 1: into Virginia because of federal law. And he kind of 89 00:05:37,876 --> 00:05:41,396 Speaker 1: dodges it on what he terms what we would call 90 00:05:41,476 --> 00:05:44,036 Speaker 1: statutory construction. He basically says, it's not clear from the 91 00:05:44,076 --> 00:05:46,276 Speaker 1: evidence that the law actually applies to these people. So 92 00:05:46,636 --> 00:05:49,196 Speaker 1: the end, and then he writes letters to his fellow 93 00:05:49,316 --> 00:05:53,796 Speaker 1: justices basically saying, I tried to avoid the deep constitutional question. 94 00:05:54,516 --> 00:05:56,836 Speaker 1: But I think what he was on the verge of saying, 95 00:05:56,876 --> 00:05:59,236 Speaker 1: and what he and some of the other federal judges 96 00:05:59,316 --> 00:06:03,756 Speaker 1: seem to be comfortable with, was this notion that acts 97 00:06:03,756 --> 00:06:11,196 Speaker 1: of Congress, so like papsa in Murphy, whould remove certain 98 00:06:11,356 --> 00:06:15,676 Speaker 1: options from the state legislature's toolkit, and that that wasn't 99 00:06:15,716 --> 00:06:19,476 Speaker 1: itself a constitutional problem, It wasn't commandeering to say Congress 100 00:06:19,556 --> 00:06:20,076 Speaker 1: was doing that. 101 00:06:23,756 --> 00:06:26,356 Speaker 2: Talk to me, like I am a curious seventh grader 102 00:06:26,756 --> 00:06:31,836 Speaker 2: about how this argument even starts. What the federal government 103 00:06:31,876 --> 00:06:33,636 Speaker 2: gets to do and what the states get to do. 104 00:06:34,276 --> 00:06:36,556 Speaker 1: One could go even further back and talk about the 105 00:06:36,556 --> 00:06:40,516 Speaker 1: British Empire and kind of separations between layers of government 106 00:06:40,676 --> 00:06:43,636 Speaker 1: during the colonial period. I mean, that was my first book. 107 00:06:43,676 --> 00:06:46,556 Speaker 1: It was trying to figure out did the British Empire 108 00:06:46,716 --> 00:06:50,436 Speaker 1: give a blueprint for how the founders in the seventeen 109 00:06:50,436 --> 00:06:53,956 Speaker 1: eighties thought about distributing power. And I think one of 110 00:06:53,996 --> 00:06:55,996 Speaker 1: the things that was going on when we think about 111 00:06:56,036 --> 00:06:58,836 Speaker 1: the Constitution and people drafting it in seventeen eighty seven 112 00:06:59,076 --> 00:07:02,156 Speaker 1: was they weren't new to the idea that you would 113 00:07:02,196 --> 00:07:05,116 Speaker 1: have a bunch of different levels of government that were competing, 114 00:07:05,156 --> 00:07:08,356 Speaker 1: because that had been the imperial experience. So I think 115 00:07:08,396 --> 00:07:13,316 Speaker 1: often we start like seventeen eighty seven, blank slate, but 116 00:07:13,356 --> 00:07:16,356 Speaker 1: that wasn't how they experienced it. So they're kind of thinking, Okay, 117 00:07:16,956 --> 00:07:20,196 Speaker 1: we don't have an empire, we don't have Britain and 118 00:07:20,236 --> 00:07:24,756 Speaker 1: the Crown. We're setting up this new national government. They 119 00:07:24,796 --> 00:07:26,916 Speaker 1: called it the General Government. We would call it the 120 00:07:26,916 --> 00:07:29,996 Speaker 1: federal government. But then they're kind of trying to figure out, 121 00:07:30,716 --> 00:07:32,796 Speaker 1: how do we give it some power but not all 122 00:07:32,796 --> 00:07:34,956 Speaker 1: the power because we don't want to be France. They're 123 00:07:34,996 --> 00:07:38,516 Speaker 1: constantly kind of invoking France as a structure. 124 00:07:39,036 --> 00:07:41,276 Speaker 2: This is funny and what's wrong with France? 125 00:07:41,796 --> 00:07:45,436 Speaker 1: Well, okay, so first that's pre revolutionary France. So they're 126 00:07:45,636 --> 00:07:47,556 Speaker 1: you know, they're like, there's a king, the king has 127 00:07:47,596 --> 00:07:51,876 Speaker 1: absolute power. That's not good. But also the structure of 128 00:07:51,916 --> 00:07:55,236 Speaker 1: government was like everything runs from the center. So even 129 00:07:55,276 --> 00:07:58,196 Speaker 1: though you have you know, tax collectors out there out 130 00:07:58,236 --> 00:08:00,956 Speaker 1: in the provinces in France, you know, hitting people up 131 00:08:00,996 --> 00:08:04,716 Speaker 1: for money, they didn't They worked for the center. It 132 00:08:04,756 --> 00:08:08,556 Speaker 1: wasn't like there was some local or what we would 133 00:08:08,596 --> 00:08:10,916 Speaker 1: think of as level government. There was just you know, 134 00:08:10,956 --> 00:08:12,796 Speaker 1: a bunch of people who were appointed by the king. 135 00:08:13,356 --> 00:08:16,716 Speaker 1: And the American founders were thinking, well, A, we don't 136 00:08:16,756 --> 00:08:19,636 Speaker 1: want that as a sort of theoretical matter. B we 137 00:08:19,716 --> 00:08:22,716 Speaker 1: don't have that because we have these colonial governments that 138 00:08:22,756 --> 00:08:26,596 Speaker 1: we're now going to call states. And like Massachusetts thinks 139 00:08:26,676 --> 00:08:28,916 Speaker 1: it has a certain set of powers, Virginia thinks it 140 00:08:28,956 --> 00:08:31,556 Speaker 1: has a certain set of powers. And so part of 141 00:08:31,796 --> 00:08:33,876 Speaker 1: I think part of the story in the early nineteenth 142 00:08:33,916 --> 00:08:38,116 Speaker 1: century is understanding several decades earlier that the Founders were 143 00:08:38,196 --> 00:08:42,796 Speaker 1: like consumed by this question of how do you have 144 00:08:42,916 --> 00:08:45,076 Speaker 1: multiple levels of government? And then how do we sort 145 00:08:45,076 --> 00:08:48,116 Speaker 1: of set ground rules for how they'll interact and how 146 00:08:48,116 --> 00:08:52,036 Speaker 1: do we distribute the power between the center and the peripheral. 147 00:08:51,556 --> 00:08:54,676 Speaker 2: Powers, Because we don't want to be France, because. 148 00:08:54,396 --> 00:08:56,316 Speaker 1: We don't want to be France, although maybe we do 149 00:08:56,396 --> 00:08:59,556 Speaker 1: if you ask Jefferson and yeah. 150 00:08:58,756 --> 00:09:00,276 Speaker 2: But if we don't want to be friends, but that 151 00:09:00,516 --> 00:09:02,596 Speaker 2: doesn't mean we want to be the United Kingdom. 152 00:09:02,756 --> 00:09:05,196 Speaker 1: Correct, We definitely don't want to be either of them, 153 00:09:05,236 --> 00:09:09,876 Speaker 1: So we want to be in their words, something entirely knew, 154 00:09:10,556 --> 00:09:14,516 Speaker 1: although again they knew that they couldn't create something from 155 00:09:14,556 --> 00:09:17,636 Speaker 1: a blank slate. So so what they ended up doing 156 00:09:17,676 --> 00:09:20,436 Speaker 1: in the Constitution was saying, Okay, we're going to write 157 00:09:20,436 --> 00:09:25,516 Speaker 1: this down. That's pretty novel. Lots of countries, Britain especially 158 00:09:25,596 --> 00:09:27,916 Speaker 1: have constitutions, but they're not written down. We're going to 159 00:09:27,916 --> 00:09:30,436 Speaker 1: write it down, and when we write it down, we're 160 00:09:30,436 --> 00:09:34,436 Speaker 1: going to talk about the central The general government has 161 00:09:34,516 --> 00:09:38,396 Speaker 1: certain powers and everything that we don't say in the constitution, 162 00:09:38,556 --> 00:09:41,996 Speaker 1: or that the Constitution doesn't somehow give to the general 163 00:09:42,036 --> 00:09:45,676 Speaker 1: government is a power that stays with the states or 164 00:09:45,716 --> 00:09:47,996 Speaker 1: with the people, and we often, i think forget the 165 00:09:48,116 --> 00:09:50,236 Speaker 1: or with the people part. Today it's like it's the 166 00:09:50,236 --> 00:09:52,596 Speaker 1: states versus the federal government. Well, the people are in 167 00:09:52,636 --> 00:09:53,036 Speaker 1: there too. 168 00:09:54,996 --> 00:09:58,036 Speaker 2: What were the most contentious bits of this? Who is 169 00:09:58,076 --> 00:10:00,036 Speaker 2: fighting about what on this subject? 170 00:10:01,316 --> 00:10:04,476 Speaker 1: I mean, part of me wants to say everything, but 171 00:10:04,636 --> 00:10:08,356 Speaker 1: the specific bones of contention. The phrase they keep using, 172 00:10:08,356 --> 00:10:10,916 Speaker 1: and they keep using into the early nineteenth century is 173 00:10:11,276 --> 00:10:13,836 Speaker 1: the umpire? Who's the umpire? And one thing I love 174 00:10:13,876 --> 00:10:16,996 Speaker 1: about this is we think, oh, yeah, umpire. There wasn't 175 00:10:17,036 --> 00:10:22,196 Speaker 1: baseball yet at this point, so that's very funny. 176 00:10:22,316 --> 00:10:25,596 Speaker 2: This is riveting. Yeah, So where do they get this word? 177 00:10:25,836 --> 00:10:28,516 Speaker 1: Well, they get the word because to them it means 178 00:10:29,236 --> 00:10:35,636 Speaker 1: something like impartial judge, kind of person overseeing general rules, 179 00:10:35,716 --> 00:10:38,276 Speaker 1: a sort of judge like figure, but not necessarily in 180 00:10:38,316 --> 00:10:41,876 Speaker 1: a court. So they talk about it as okay, we're 181 00:10:41,876 --> 00:10:43,716 Speaker 1: going to have the system, it's going to be complicated, 182 00:10:43,716 --> 00:10:46,116 Speaker 1: it's going to have lots of levels of government. We're 183 00:10:46,156 --> 00:10:50,116 Speaker 1: okay with that. That's necessary, and theoretically we've worked out 184 00:10:50,156 --> 00:10:53,916 Speaker 1: why it's okay. But who's the umpire? I mean, the 185 00:10:53,956 --> 00:10:57,316 Speaker 1: way I describe it in class in constitutional law is 186 00:10:57,836 --> 00:11:00,836 Speaker 1: who decides? But then also who decides who decides? Because 187 00:11:00,836 --> 00:11:06,156 Speaker 1: it's who's going to settle the frictions and the controversies 188 00:11:06,196 --> 00:11:08,516 Speaker 1: that come up. So one of the things, and this 189 00:11:08,556 --> 00:11:13,116 Speaker 1: is actually Aimes Madison's proposal at the Constitutional Convention. Madison says, 190 00:11:13,636 --> 00:11:16,076 Speaker 1: I know what we'll do. It's going to be great. 191 00:11:16,636 --> 00:11:19,996 Speaker 1: We'll give the Senate the power to veto state laws. 192 00:11:20,596 --> 00:11:24,636 Speaker 1: And a few other states delegations support him at this 193 00:11:25,316 --> 00:11:29,956 Speaker 1: huh yeah. Now it's staggering to us because it's like, 194 00:11:30,036 --> 00:11:32,196 Speaker 1: you can't do that for all sorts of reasons. 195 00:11:33,436 --> 00:11:35,516 Speaker 2: No, it's like running the wrong way around the bases 196 00:11:35,636 --> 00:11:35,996 Speaker 2: or something. 197 00:11:36,116 --> 00:11:36,396 Speaker 1: Exactly. 198 00:11:36,436 --> 00:11:38,876 Speaker 2: It's like it's a rule that you can't imagine someone 199 00:11:38,956 --> 00:11:40,516 Speaker 2: thinking about adopting. 200 00:11:40,236 --> 00:11:43,036 Speaker 1: Right, And it's Madison, of all people. So it's not 201 00:11:43,156 --> 00:11:47,356 Speaker 1: just some you know, lesser known member of the Philadelphia 202 00:11:47,356 --> 00:11:49,316 Speaker 1: Convention sitting off in a corner, the author of the 203 00:11:49,316 --> 00:11:54,156 Speaker 1: Federalist papers exactly. And Madison calls this the federal negative 204 00:11:54,796 --> 00:11:58,076 Speaker 1: or the veto, and he's like, listen, this is the 205 00:11:58,156 --> 00:12:00,676 Speaker 1: umpire problem. The states are going to pass a whole 206 00:12:00,676 --> 00:12:03,316 Speaker 1: bunch of different laws. They'll be kind of self motivated 207 00:12:03,436 --> 00:12:07,356 Speaker 1: or parochial. We know that they'll do that. So the 208 00:12:07,396 --> 00:12:09,636 Speaker 1: problem will be to harmonize them, to keep them from 209 00:12:09,676 --> 00:12:12,476 Speaker 1: doing things that are that are focused on themselves and 210 00:12:12,516 --> 00:12:15,196 Speaker 1: selfish as opposed to being mindful of the needs of 211 00:12:15,236 --> 00:12:17,956 Speaker 1: the whole union, the sort of general welfare of everybody. 212 00:12:18,316 --> 00:12:20,196 Speaker 2: He saw Nevada coming a mile away. 213 00:12:21,476 --> 00:12:26,396 Speaker 1: That's exactly right. And so he kind of goes day 214 00:12:26,476 --> 00:12:29,596 Speaker 1: after day in the convention telling people like, this is great, 215 00:12:29,716 --> 00:12:32,076 Speaker 1: and he even at one point invokes the British Empire 216 00:12:32,116 --> 00:12:35,836 Speaker 1: and he's like, you know, yeah, problems and implementation, but 217 00:12:36,716 --> 00:12:39,196 Speaker 1: it was a good idea, and other people support him. 218 00:12:39,196 --> 00:12:41,156 Speaker 1: There are other delegates that go along with him for 219 00:12:41,636 --> 00:12:44,316 Speaker 1: a while on this. Obviously, in the end it doesn't 220 00:12:44,356 --> 00:12:47,516 Speaker 1: end up passing. What they end up putting in instead 221 00:12:47,636 --> 00:12:50,636 Speaker 1: is what we know, which is a system with an 222 00:12:50,716 --> 00:12:53,036 Speaker 1: umpire in the form of the Supreme Court of the 223 00:12:53,116 --> 00:12:55,516 Speaker 1: United States. They don't really specify what it's going to 224 00:12:55,596 --> 00:13:00,516 Speaker 1: look like, and things like enumeration and the enumerated powers, 225 00:13:00,556 --> 00:13:03,436 Speaker 1: so the federal government only has certain powers, the states 226 00:13:03,436 --> 00:13:06,756 Speaker 1: have the rest. And also something in the Constitution that 227 00:13:06,796 --> 00:13:10,996 Speaker 1: we call the Supremacy Clause Article six, which basically says 228 00:13:11,516 --> 00:13:14,996 Speaker 1: federal law is supreme even if state law appears to 229 00:13:15,036 --> 00:13:18,636 Speaker 1: contradict it. What's really interesting about all this, though, to 230 00:13:18,756 --> 00:13:21,876 Speaker 1: me is that Madison, to the end of his life 231 00:13:22,116 --> 00:13:25,876 Speaker 1: and he lived to eighteen thirty six, was still defending 232 00:13:25,916 --> 00:13:28,996 Speaker 1: the negative and still saying this would have been better. 233 00:13:29,836 --> 00:13:32,356 Speaker 2: It's kind of great that even James Madison doesn't change 234 00:13:32,356 --> 00:13:36,196 Speaker 2: his mind exactly, and nobody ever changes their minds, they 235 00:13:36,236 --> 00:13:39,596 Speaker 2: just die. So but if you're you saying that if 236 00:13:39,636 --> 00:13:44,356 Speaker 2: Madison's argument had won, we wouldn't have a Supreme Court, we. 237 00:13:44,316 --> 00:13:47,876 Speaker 1: Would have a Supreme Court, I think because that is 238 00:13:47,996 --> 00:13:50,556 Speaker 1: in the Constitution. And I think he did not view 239 00:13:50,556 --> 00:13:53,796 Speaker 1: that as he didn't view it as one or the other, 240 00:13:53,996 --> 00:13:56,516 Speaker 1: the federal negative or the Supreme Court. But I see, 241 00:13:56,716 --> 00:13:59,556 Speaker 1: but he thought that a lot of the time, and 242 00:13:59,596 --> 00:14:02,276 Speaker 1: this is how he talked about the negative. You would 243 00:14:02,356 --> 00:14:06,756 Speaker 1: just say, okay, state legislature, like Illinois legislature, you've passed 244 00:14:06,796 --> 00:14:10,756 Speaker 1: a law. Before the law becomes fine, the Senate of 245 00:14:10,756 --> 00:14:13,396 Speaker 1: the United States will essentially have to ratify it, so 246 00:14:13,436 --> 00:14:17,196 Speaker 1: it's part of the legislative process, and then later down 247 00:14:17,276 --> 00:14:19,756 Speaker 1: the road maybe someone will challenge it in court for 248 00:14:19,796 --> 00:14:22,756 Speaker 1: some other reason. But that's a kind of after the 249 00:14:22,836 --> 00:14:25,796 Speaker 1: fact corrective. And actually there's this interesting exchange of letters 250 00:14:25,836 --> 00:14:29,236 Speaker 1: that Madison had with Thomas Jefferson, who's off in Paris, 251 00:14:29,716 --> 00:14:32,116 Speaker 1: and Madison's kind of reporting to him on his plans, 252 00:14:32,236 --> 00:14:36,036 Speaker 1: very proud about the Federal Negative, and Jefferson just writes 253 00:14:36,076 --> 00:14:39,316 Speaker 1: back and says, prima facia, I do not like it, 254 00:14:39,356 --> 00:14:41,836 Speaker 1: which just feels like that must have been a tough 255 00:14:41,916 --> 00:14:48,996 Speaker 1: letter to get. And Jefferson's like it's too big, like 256 00:14:49,076 --> 00:14:51,876 Speaker 1: it will cover ninety nine out of one hundred cases 257 00:14:51,876 --> 00:14:54,716 Speaker 1: that it doesn't need to. We can just wait. If 258 00:14:54,836 --> 00:14:58,396 Speaker 1: people are really aggrieved and the states have overstepped down 259 00:14:58,436 --> 00:15:03,196 Speaker 1: the road, some person will bring a lawsuit and that's 260 00:15:03,196 --> 00:15:06,636 Speaker 1: how we'll deal with it. And that's what happened, and 261 00:15:06,676 --> 00:15:07,516 Speaker 1: that's what happened. 262 00:15:10,436 --> 00:15:12,476 Speaker 2: When we return, Alison and I get into a what 263 00:15:12,516 --> 00:15:16,836 Speaker 2: if scenario for James Madison's alternate vision for American government. 264 00:15:27,316 --> 00:15:29,596 Speaker 2: I'm back with the University of Chicago law professor and 265 00:15:29,676 --> 00:15:33,636 Speaker 2: legal historian Alison Lacroix. She's the author of a book 266 00:15:33,676 --> 00:15:37,516 Speaker 2: called The Innerbellum Constitution. I found it fascinating to think 267 00:15:37,516 --> 00:15:40,316 Speaker 2: about the America that James Madison wanted to construct with 268 00:15:40,436 --> 00:15:43,756 Speaker 2: the Constitution, a nation where Congress would have veto power 269 00:15:43,796 --> 00:15:48,236 Speaker 2: over state laws. He called it the Federal Negative. What 270 00:15:48,276 --> 00:15:50,516 Speaker 2: would the world look like if Madison had his way. 271 00:15:52,156 --> 00:15:57,516 Speaker 1: That is a very interesting question. So one thought would 272 00:15:57,556 --> 00:16:02,676 Speaker 1: be we would not have as many great constitutional questions 273 00:16:03,036 --> 00:16:05,356 Speaker 1: in the Supreme Court. We would probably have had a 274 00:16:05,356 --> 00:16:07,476 Speaker 1: lot of them fought out in the Senate, and that 275 00:16:07,516 --> 00:16:10,076 Speaker 1: would have gone in lots of different ways. So, for instance, 276 00:16:10,236 --> 00:16:14,396 Speaker 1: South Carolina in eighteen nineteen passes this law that they 277 00:16:14,396 --> 00:16:17,476 Speaker 1: call the police Bill. It has various other names, and 278 00:16:17,476 --> 00:16:21,796 Speaker 1: that state law basically says any sailor or seaman who's 279 00:16:21,796 --> 00:16:25,196 Speaker 1: a black person. They use the color distinctions of the time, 280 00:16:25,236 --> 00:16:26,836 Speaker 1: but we could think of it as an African American 281 00:16:26,876 --> 00:16:30,556 Speaker 1: sailor from anywhere in the world who comes into port 282 00:16:30,636 --> 00:16:33,476 Speaker 1: in South Carolina has to be jailed while their ship 283 00:16:33,516 --> 00:16:35,916 Speaker 1: is in port. And it leads to this whole federal 284 00:16:36,076 --> 00:16:40,636 Speaker 1: court case, a literal federal court case. And so it's 285 00:16:40,676 --> 00:16:43,916 Speaker 1: an interesting question to think. Okay, imagine Madison's negative. South 286 00:16:43,916 --> 00:16:47,356 Speaker 1: Carolina passes this police bill, Does it die in the 287 00:16:47,356 --> 00:16:52,476 Speaker 1: Senate or does South Carolina get Georgia some of the 288 00:16:52,516 --> 00:16:55,236 Speaker 1: other sort of deep southern states to go along with it. 289 00:16:55,276 --> 00:16:57,956 Speaker 1: Does some of the northern states feel like it's pro trade. 290 00:16:58,676 --> 00:17:01,436 Speaker 1: So I think we'd be having those constitutional fights in 291 00:17:01,476 --> 00:17:03,956 Speaker 1: the Senate on top of the other constitutional fights that 292 00:17:03,956 --> 00:17:05,036 Speaker 1: were going on in the Senate. 293 00:17:05,556 --> 00:17:12,956 Speaker 2: What are in the innerbellum period? Are there any states 294 00:17:13,036 --> 00:17:16,956 Speaker 2: rights cases that come before the Supreme Court that have 295 00:17:17,116 --> 00:17:20,276 Speaker 2: any kind of relevance for the present moment and that 296 00:17:20,916 --> 00:17:24,876 Speaker 2: might become relevant all of a sudden before the Supreme Court. 297 00:17:25,956 --> 00:17:29,276 Speaker 1: Absolutely, I mean, one of the most interesting things about 298 00:17:29,316 --> 00:17:32,836 Speaker 1: the interbellum period is you start looking for states rights 299 00:17:32,836 --> 00:17:35,396 Speaker 1: type arguments, and they're everywhere. So there are lots of 300 00:17:35,396 --> 00:17:39,956 Speaker 1: states rights arguments, but they're basically like proto or very 301 00:17:40,036 --> 00:17:45,076 Speaker 1: explicitly pro slavery. They're like South Carolina nullifying federal law 302 00:17:45,236 --> 00:17:48,796 Speaker 1: or seceding. But in fact, we see them coming up 303 00:17:48,876 --> 00:17:51,676 Speaker 1: in all sorts of different guises and from different places. 304 00:17:51,716 --> 00:17:54,756 Speaker 1: So one of my favorite examples is one that I 305 00:17:54,796 --> 00:17:57,876 Speaker 1: talk about in the last chapter of the book involving Wisconsin. 306 00:17:58,676 --> 00:18:02,756 Speaker 1: So in eighteen fifty, Congress passes this Fugitive Slave Act 307 00:18:02,796 --> 00:18:07,556 Speaker 1: that basically says slavery is the national norm. Essentially, so 308 00:18:07,596 --> 00:18:11,356 Speaker 1: even if a state says, like Wisconsin, slavery is not 309 00:18:11,356 --> 00:18:14,756 Speaker 1: permitted Wisconsin as a free state, if someone who is 310 00:18:14,796 --> 00:18:17,836 Speaker 1: alleged to be a fugitive slave ends up in Wisconsin. 311 00:18:18,596 --> 00:18:22,556 Speaker 1: There enslaver can come find them and bring the full 312 00:18:22,596 --> 00:18:26,436 Speaker 1: force of the federal government to bear and capturing their fugitive. 313 00:18:27,276 --> 00:18:29,556 Speaker 1: And so there's a case that comes up in eighteen 314 00:18:29,636 --> 00:18:33,356 Speaker 1: fifty four with an individual, one person, a man named 315 00:18:33,436 --> 00:18:37,276 Speaker 1: Joshua Glover, and he's a free black man. He is 316 00:18:37,436 --> 00:18:41,836 Speaker 1: a fugitive. He is living in Racine, Wisconsin, and he's 317 00:18:41,876 --> 00:18:47,156 Speaker 1: captured by federal authorities. He's dragged to Milwaukee jailed, and 318 00:18:47,196 --> 00:18:51,636 Speaker 1: there's this dramatic jail break on behalf of helping Glover 319 00:18:51,836 --> 00:18:56,516 Speaker 1: become free. And then there's this year's long political and 320 00:18:56,636 --> 00:19:01,796 Speaker 1: legal conflict because Wisconsin claims states' rights. They basically say, 321 00:19:02,556 --> 00:19:06,116 Speaker 1: Wisconsin is a sovereign state. How dare these other states 322 00:19:06,236 --> 00:19:09,036 Speaker 1: or even the federal government tell us what sorts of 323 00:19:09,156 --> 00:19:12,556 Speaker 1: protections we can give to persons within our borders. And 324 00:19:12,596 --> 00:19:14,996 Speaker 1: if you take away the name Wisconsin and you look 325 00:19:15,036 --> 00:19:17,316 Speaker 1: at some of the documents or the arguments, and I've 326 00:19:17,316 --> 00:19:20,556 Speaker 1: done this, you show it to students or other folks 327 00:19:20,596 --> 00:19:24,476 Speaker 1: who are coming to the materials, they're shocked that it's 328 00:19:24,476 --> 00:19:27,756 Speaker 1: Wisconsin because they think, well, no, the state's rights arguments, 329 00:19:28,116 --> 00:19:29,996 Speaker 1: that's what the Southerners are making, that's what the sort 330 00:19:30,036 --> 00:19:32,796 Speaker 1: of pro slavery people are making. But the fact is 331 00:19:32,836 --> 00:19:35,676 Speaker 1: that some of the northern and Midwestern states make the 332 00:19:35,796 --> 00:19:40,716 Speaker 1: argument too, because they view it as a state invading 333 00:19:40,796 --> 00:19:45,076 Speaker 1: them the preferences of other states like South Carolina, North Carolina, 334 00:19:45,196 --> 00:19:49,676 Speaker 1: Georgia invading the sovereign territory of Wisconsin, and they regard 335 00:19:49,756 --> 00:19:53,196 Speaker 1: that as an offense against their state's sovereignty. 336 00:19:53,996 --> 00:19:55,636 Speaker 2: What happens with this case, well. 337 00:19:55,556 --> 00:19:59,076 Speaker 1: It ends up going to the Supreme Court. And so 338 00:19:59,196 --> 00:20:01,956 Speaker 1: this is now eighteen fifty nine on what we know. 339 00:20:02,356 --> 00:20:06,356 Speaker 2: Yeah, and where is his name, Joshua Glover? 340 00:20:06,516 --> 00:20:07,196 Speaker 1: Joshua Glover? 341 00:20:07,476 --> 00:20:08,516 Speaker 2: Where is Joshua Glover? 342 00:20:08,556 --> 00:20:13,036 Speaker 1: For these five he has escaped to Canada, so he's 343 00:20:13,076 --> 00:20:16,036 Speaker 1: no longer even he's no longer even interested in it. 344 00:20:17,756 --> 00:20:21,156 Speaker 1: The case is now a journalist from Milwaukee named Sherman 345 00:20:21,276 --> 00:20:24,556 Speaker 1: Booth who was involved in stirring up the crowd and 346 00:20:24,596 --> 00:20:28,716 Speaker 1: breaking Clever out of the jail in Milwaukee at a 347 00:20:28,756 --> 00:20:32,636 Speaker 1: federal marshal. The federal marshal, who again we're very primed 348 00:20:32,676 --> 00:20:36,316 Speaker 1: by twentieth century and recent history to think the federal 349 00:20:36,356 --> 00:20:39,956 Speaker 1: government on this they're going to be like the nineteen sixties, 350 00:20:39,956 --> 00:20:42,036 Speaker 1: they're going to be like Eisenhower and Little Rock. They're 351 00:20:42,036 --> 00:20:44,996 Speaker 1: going to be the ones saying, you know, emancipation and 352 00:20:45,356 --> 00:20:49,516 Speaker 1: equal rights. No, the federal Marshal is trying to bring 353 00:20:50,036 --> 00:20:53,556 Speaker 1: suit and penalties against the journalists for helping the fugitive. 354 00:20:53,676 --> 00:20:56,436 Speaker 2: And so in that moment, the federal government, had they 355 00:20:56,436 --> 00:20:59,516 Speaker 2: got their myths on Joshua Glover, would have returned him 356 00:21:00,556 --> 00:21:01,316 Speaker 2: to his owner. 357 00:21:01,556 --> 00:21:03,556 Speaker 1: Yes, yes, who was his owner? 358 00:21:03,996 --> 00:21:04,836 Speaker 2: Who was his owner? 359 00:21:04,996 --> 00:21:07,916 Speaker 1: It was a man by the name of Benamey Garland 360 00:21:08,156 --> 00:21:08,876 Speaker 1: from Missouri. 361 00:21:09,356 --> 00:21:11,716 Speaker 2: Wrong side of history, that dude. Yeah, But all right, 362 00:21:12,036 --> 00:21:15,716 Speaker 2: So and where was he? Where was he? 363 00:21:15,716 --> 00:21:19,276 Speaker 1: He was outside Saint Louis, who was in Missouri, had 364 00:21:19,316 --> 00:21:21,916 Speaker 1: a plantation, and he was actually there. I mean, he 365 00:21:21,996 --> 00:21:25,716 Speaker 1: came to Wisconsin and sort of got his law abiding 366 00:21:25,836 --> 00:21:29,916 Speaker 1: group of people, you know, who to us are vigilante kidnappers, 367 00:21:29,956 --> 00:21:31,796 Speaker 1: but under the terms of the law at the time, 368 00:21:32,516 --> 00:21:36,476 Speaker 1: they were complying with federal law. And so it goes 369 00:21:36,556 --> 00:21:38,436 Speaker 1: up to the Supreme Court of the United States in 370 00:21:38,476 --> 00:21:43,076 Speaker 1: eighteen fifty nine and the court issues a unanimous decision 371 00:21:43,436 --> 00:21:48,116 Speaker 1: and they say, Wisconsin, you are not allowed to nullify 372 00:21:48,236 --> 00:21:53,076 Speaker 1: federal law, but you know that's eighteen fifty nine. That's 373 00:21:53,116 --> 00:21:57,956 Speaker 1: what the Court says. The Wisconsin legislature maintains for three 374 00:21:58,036 --> 00:22:00,596 Speaker 1: more years that it has the power to nullify the 375 00:22:00,636 --> 00:22:06,516 Speaker 1: Federal Fugitive Slave Law. The Legislature of Wisconsin only reverses 376 00:22:06,556 --> 00:22:10,476 Speaker 1: that view in I think six once the Civil War 377 00:22:10,516 --> 00:22:14,076 Speaker 1: has started, and then they're like, Okay, yeah, we're not 378 00:22:14,116 --> 00:22:17,876 Speaker 1: doing the state's rights thing anymore. We'll be right back. 379 00:22:29,236 --> 00:22:32,116 Speaker 2: Look, I'm aware my show isn't the History Channel, and 380 00:22:32,156 --> 00:22:34,316 Speaker 2: we've been covering a lot of legal history with my 381 00:22:34,356 --> 00:22:37,476 Speaker 2: guest Alison Lercroix. But all of this history gets us 382 00:22:37,476 --> 00:22:40,876 Speaker 2: to the constitutional back door that's allowed states to legalize 383 00:22:40,916 --> 00:22:44,916 Speaker 2: sports betting. It goes back to arguments about federalism, a 384 00:22:44,956 --> 00:22:47,956 Speaker 2: concept in the Constitution about how power should be shared 385 00:22:47,996 --> 00:22:51,796 Speaker 2: between the national government and the states. The Supreme Court's 386 00:22:51,836 --> 00:22:54,436 Speaker 2: built to be the umpire of such things, but the 387 00:22:54,516 --> 00:22:58,516 Speaker 2: umpire is changing all the time. So I'm kind of 388 00:22:58,556 --> 00:23:02,476 Speaker 2: curious how federalists the Supreme Court has been over time 389 00:23:02,556 --> 00:23:06,036 Speaker 2: and where we are when we get to Murphever's NCAA 390 00:23:06,236 --> 00:23:08,996 Speaker 2: compared to other times in history. 391 00:23:09,236 --> 00:23:12,996 Speaker 1: Well, even what the Court means when it talks about 392 00:23:12,996 --> 00:23:15,716 Speaker 1: federalism has sometimes changed, and so there's a little bit 393 00:23:15,756 --> 00:23:20,116 Speaker 1: of a yes, yeah, the sort of moving target kind 394 00:23:20,116 --> 00:23:22,716 Speaker 1: of are we all agreed about what this term that's 395 00:23:22,716 --> 00:23:28,276 Speaker 1: so important but very underspecified actually means. Yes, It's not 396 00:23:28,396 --> 00:23:30,916 Speaker 1: a sort of straight line one way or the other. 397 00:23:31,076 --> 00:23:34,476 Speaker 1: It's not like in the olden days whenever those were 398 00:23:35,156 --> 00:23:37,756 Speaker 1: they didn't care about federalism, and now we do. Nor 399 00:23:37,836 --> 00:23:39,556 Speaker 1: was it they used to care a lot and now 400 00:23:39,596 --> 00:23:43,076 Speaker 1: we don't, which I think goes to sometimes how again, 401 00:23:43,156 --> 00:23:46,596 Speaker 1: the Supreme Court today sort of acts like in the 402 00:23:46,636 --> 00:23:50,516 Speaker 1: good old days, everybody understood federalism was real and this 403 00:23:50,596 --> 00:23:53,276 Speaker 1: is what it meant. We need to bring that back 404 00:23:53,996 --> 00:23:57,796 Speaker 1: because one of the most significant facts or kind of 405 00:23:57,916 --> 00:24:01,916 Speaker 1: again surprises in many ways about the early nineteenth century 406 00:24:02,756 --> 00:24:07,436 Speaker 1: is just how nationalistic in lots of ways the Supreme 407 00:24:07,476 --> 00:24:12,596 Speaker 1: Court was of people were and they disagreed what the 408 00:24:12,636 --> 00:24:15,316 Speaker 1: purpose of the union, what the purpose of that was, 409 00:24:15,356 --> 00:24:18,716 Speaker 1: what it was supposed to look like, wild disagreement. But 410 00:24:18,836 --> 00:24:24,196 Speaker 1: did they believe in significant federal national power much of 411 00:24:24,236 --> 00:24:28,916 Speaker 1: the time. The answer is yes, in part because Southerners, 412 00:24:28,996 --> 00:24:31,156 Speaker 1: to take the usual objection right, which would be wholl 413 00:24:31,196 --> 00:24:33,276 Speaker 1: but what about all these Southern slave owners who want 414 00:24:33,316 --> 00:24:36,836 Speaker 1: states rights they do when they don't, because when you 415 00:24:36,876 --> 00:24:41,636 Speaker 1: look more closely, you can find plenty of Southern slave owners, 416 00:24:41,636 --> 00:24:45,276 Speaker 1: including James Madison, including John Marshall, and lots of others 417 00:24:46,276 --> 00:24:50,676 Speaker 1: who think they're going to control the national government because 418 00:24:50,676 --> 00:24:52,916 Speaker 1: of all the things in the Constitution that give them 419 00:24:52,956 --> 00:24:58,356 Speaker 1: more power. From the three fifths clause, which says, for 420 00:24:58,396 --> 00:25:02,116 Speaker 1: purposes of Congressional representation, a state with a lot of 421 00:25:02,236 --> 00:25:05,956 Speaker 1: enslaved people, those people all count for purposes of population 422 00:25:06,196 --> 00:25:08,916 Speaker 1: at least three fifths of a person. We look at 423 00:25:08,916 --> 00:25:11,836 Speaker 1: that and where like, how could they have counted any 424 00:25:11,876 --> 00:25:15,476 Speaker 1: person as three fifths of a person? But it was 425 00:25:15,636 --> 00:25:20,396 Speaker 1: giving additional representation in Congress to states that had slavery, 426 00:25:20,436 --> 00:25:23,676 Speaker 1: which meant for much of the early nineteenth century, the 427 00:25:23,716 --> 00:25:27,956 Speaker 1: federal government is in the hands of Southern slaveholders, and 428 00:25:27,996 --> 00:25:32,316 Speaker 1: that goes just from Congress all the way to things 429 00:25:32,356 --> 00:25:36,636 Speaker 1: like the Electoral College to appointments to the Supreme Court. So, 430 00:25:37,196 --> 00:25:39,556 Speaker 1: in a sense the sort of where is slavery and 431 00:25:39,596 --> 00:25:42,156 Speaker 1: all this, the answer is it's kind of everywhere. But 432 00:25:42,236 --> 00:25:47,476 Speaker 1: I think much of the impetus of Marshall and even Jefferson, 433 00:25:47,516 --> 00:25:50,676 Speaker 1: people who we think of as skeptics of some forms 434 00:25:50,676 --> 00:25:55,236 Speaker 1: of national power. Their primary focus was building a union 435 00:25:55,276 --> 00:25:59,996 Speaker 1: and having a union, and so they believed in national power, 436 00:26:00,756 --> 00:26:04,396 Speaker 1: and they said, federalism means both, we have this national 437 00:26:04,516 --> 00:26:08,636 Speaker 1: layer of government, but the states are not just districts 438 00:26:09,436 --> 00:26:13,596 Speaker 1: administrative arms of the center. There's a tension there. And 439 00:26:13,596 --> 00:26:17,276 Speaker 1: then I think, for say eighteen fifteen to eighteen sixty one, 440 00:26:17,556 --> 00:26:20,716 Speaker 1: tons of federalism talk, but very different views of what 441 00:26:20,876 --> 00:26:25,316 Speaker 1: federalism is. Like, does it mean Andrew Jackson as president 442 00:26:25,516 --> 00:26:28,916 Speaker 1: gets to tell South Carolina stop nullifying federal law or 443 00:26:28,916 --> 00:26:32,676 Speaker 1: I'll send in the army. Yes, in fact Jackson says 444 00:26:32,716 --> 00:26:36,636 Speaker 1: that right, But it also means, you know, Jackson is 445 00:26:36,756 --> 00:26:41,596 Speaker 1: comfortable allowing Georgia to expropriate land from the Cherokee Nation 446 00:26:41,716 --> 00:26:45,956 Speaker 1: and lots of other indigenous nations. And then around about 447 00:26:46,316 --> 00:26:49,116 Speaker 1: I would say eighteen sixty three, it's like midway through 448 00:26:49,156 --> 00:26:51,116 Speaker 1: the Civil War that I think we start to get 449 00:26:51,156 --> 00:26:57,236 Speaker 1: a resurgence of kind of unabashed nationalism and not as 450 00:26:57,316 --> 00:27:01,756 Speaker 1: much states rights ism. And then the twentieth century, the 451 00:27:01,796 --> 00:27:04,676 Speaker 1: New Deal, the civil rights movement, a lot of expansion 452 00:27:04,716 --> 00:27:06,916 Speaker 1: of federal power. And then I think the nineteen eighties 453 00:27:06,916 --> 00:27:10,836 Speaker 1: and nineteen nineties, the Supreme Court. He discovers what it 454 00:27:10,996 --> 00:27:14,436 Speaker 1: calls federalism, and that's where we get the cases that 455 00:27:14,556 --> 00:27:18,036 Speaker 1: lead us to Murphy versus NCAA, the commandeering or anti 456 00:27:18,036 --> 00:27:24,196 Speaker 1: commandeering cases that say, take states seriously, don't let Congress commandeer, 457 00:27:25,156 --> 00:27:29,236 Speaker 1: and reading the Tenth Amendment as all about preserving power 458 00:27:29,316 --> 00:27:30,036 Speaker 1: for the states. 459 00:27:31,996 --> 00:27:33,756 Speaker 2: Why do you teach Murphy? 460 00:27:33,996 --> 00:27:37,316 Speaker 1: Well, I teach Murphy because I teach the commandeering cases 461 00:27:37,356 --> 00:27:40,596 Speaker 1: that preceded it, which are Congress telling the states do 462 00:27:40,756 --> 00:27:45,876 Speaker 1: this thing like pass a law that allows hazardous waste 463 00:27:45,916 --> 00:27:48,756 Speaker 1: disposal or else you the state own the hazardous waste. 464 00:27:48,796 --> 00:27:51,876 Speaker 1: Court says, no, you can't do that. Another case where 465 00:27:51,916 --> 00:27:56,036 Speaker 1: the Court says, hey, states help set up gun registries 466 00:27:56,476 --> 00:27:59,036 Speaker 1: and state officials have to maintain them while we get 467 00:27:59,036 --> 00:28:01,276 Speaker 1: the federal system up and running. The Court says, no, 468 00:28:01,396 --> 00:28:04,556 Speaker 1: you can't do that. Commandeering and Murphy is like the 469 00:28:04,636 --> 00:28:08,516 Speaker 1: hypothetical you would ask in class where you said, Okay, 470 00:28:09,116 --> 00:28:12,596 Speaker 1: Congress can't take over and command your state legislatures and 471 00:28:12,596 --> 00:28:15,636 Speaker 1: state officials by telling them what to do? Can I 472 00:28:15,716 --> 00:28:17,796 Speaker 1: tell them what not to do? And that is like 473 00:28:17,836 --> 00:28:22,916 Speaker 1: a classic law professor move to say okay, we talked 474 00:28:22,916 --> 00:28:25,556 Speaker 1: about the positive case, what about the negative? Can Congress 475 00:28:25,556 --> 00:28:28,276 Speaker 1: say you can't do this? And that's Murphy? Murphy is 476 00:28:28,276 --> 00:28:31,556 Speaker 1: the hypothetical that a lot of us were asking, because 477 00:28:31,556 --> 00:28:34,596 Speaker 1: it's can Congress say to the states, here are things 478 00:28:34,676 --> 00:28:38,556 Speaker 1: you cannot do? And pre Murphy, I think the answer 479 00:28:38,636 --> 00:28:43,116 Speaker 1: would have been, that's basically a supremacy clause preemption question. 480 00:28:43,196 --> 00:28:45,596 Speaker 1: They do it all the time, and that's why Justice 481 00:28:45,636 --> 00:28:47,636 Speaker 1: Alito and the majority in Murphy have to do this 482 00:28:47,756 --> 00:28:51,876 Speaker 1: intense hair splitting that they do about this is targeting 483 00:28:51,916 --> 00:28:53,836 Speaker 1: the states, it's not private parties. 484 00:28:54,476 --> 00:28:58,436 Speaker 2: When you say this to the class, can Congress tell 485 00:28:58,476 --> 00:29:03,116 Speaker 2: states what they can't do? What kind of responses do 486 00:29:03,156 --> 00:29:03,476 Speaker 2: you get? 487 00:29:05,156 --> 00:29:09,036 Speaker 1: I think people are suspicious, they feel like they're being tricked. 488 00:29:10,076 --> 00:29:12,036 Speaker 1: Maybe that's just you know, another day in a law 489 00:29:12,076 --> 00:29:14,916 Speaker 1: school classroom. But I mean it depends how you frame 490 00:29:14,956 --> 00:29:17,876 Speaker 1: the hypothetical, because I think if you say, can Congress 491 00:29:17,916 --> 00:29:22,116 Speaker 1: tell the states the state legislature is what they can't do, well, 492 00:29:22,436 --> 00:29:26,636 Speaker 1: let's say Congress passes wage and hour's laws, federal minimum 493 00:29:26,636 --> 00:29:30,676 Speaker 1: wage or things about safety. Isn't that implicitly telling the 494 00:29:30,716 --> 00:29:33,956 Speaker 1: state you can't have a law that says you can 495 00:29:33,996 --> 00:29:36,076 Speaker 1: pay people sub federal minimum wage. 496 00:29:36,596 --> 00:29:37,756 Speaker 2: You can't have child labor. 497 00:29:38,036 --> 00:29:41,316 Speaker 1: You can't have child labor. Yeah, and the answer has 498 00:29:41,396 --> 00:29:45,956 Speaker 1: to be read the supremacy Clause Article six says federal 499 00:29:46,036 --> 00:29:51,116 Speaker 1: laws supreme any state law to the contrary notwithstanding. So 500 00:29:51,316 --> 00:29:54,876 Speaker 1: what is it that's different? And I actually find it 501 00:29:54,876 --> 00:30:00,116 Speaker 1: it's actually quite hard to frame the holding of Murphy 502 00:30:00,116 --> 00:30:03,076 Speaker 1: in a way that brings the class along. It feels 503 00:30:03,196 --> 00:30:07,796 Speaker 1: very hair splitting. I think because the overall picture of 504 00:30:08,316 --> 00:30:10,796 Speaker 1: Congress can put things on the table for the states, 505 00:30:10,916 --> 00:30:13,196 Speaker 1: it can take things off the table. It can't compel 506 00:30:13,276 --> 00:30:14,516 Speaker 1: the states to do things. 507 00:30:15,316 --> 00:30:17,476 Speaker 2: What are the consequences of having Murphy as. 508 00:30:17,356 --> 00:30:21,636 Speaker 1: A precedent, As often happens, when you take a federal 509 00:30:21,716 --> 00:30:25,436 Speaker 1: rule off the table, you get this explosion of state activity. 510 00:30:25,556 --> 00:30:29,236 Speaker 1: And the happy federalism story is the states act as 511 00:30:29,316 --> 00:30:34,436 Speaker 1: laboratories of democracy, and the sad federalism story is race 512 00:30:34,556 --> 00:30:38,596 Speaker 1: to the bottom. But you get states that say great, 513 00:30:38,676 --> 00:30:42,076 Speaker 1: you know, the states are more in touch with their constituencies, 514 00:30:42,116 --> 00:30:45,276 Speaker 1: like New Jersey can decide to have sports gambling to 515 00:30:45,316 --> 00:30:46,996 Speaker 1: the extenate wants to California. 516 00:30:48,276 --> 00:30:52,636 Speaker 2: But are there broader consequences outside of sports? Gambling. If 517 00:30:53,756 --> 00:30:56,956 Speaker 2: you've got the president of Murphy, where the Supreme Court 518 00:30:57,036 --> 00:31:00,316 Speaker 2: has said Congress can't tell the states what they can't do, 519 00:31:01,236 --> 00:31:04,356 Speaker 2: what else might Congress not be able to tell the 520 00:31:04,396 --> 00:31:05,356 Speaker 2: states they can't do. 521 00:31:06,916 --> 00:31:09,796 Speaker 1: Well, potentially a whole host of things. I think Justice 522 00:31:09,796 --> 00:31:12,196 Speaker 1: Alito has this line in his opinion in Murphy, where 523 00:31:12,196 --> 00:31:14,996 Speaker 1: he says, this is like a member of Congress is 524 00:31:15,036 --> 00:31:18,876 Speaker 1: standing over the shoulder of the state legislators. That's different 525 00:31:18,916 --> 00:31:22,796 Speaker 1: from Congress passes a federal law that says, you know, 526 00:31:22,956 --> 00:31:25,956 Speaker 1: drug labels have to have the following information, or you 527 00:31:26,076 --> 00:31:28,876 Speaker 1: have to have the following kind of environmental standards or 528 00:31:28,916 --> 00:31:33,276 Speaker 1: scrubbers on factories or whatever. Because we understand that to mean, okay, 529 00:31:33,356 --> 00:31:36,916 Speaker 1: the states can't pass a conflicting state law, but the 530 00:31:36,956 --> 00:31:39,796 Speaker 1: federal law is directed at other players beyond just the 531 00:31:39,836 --> 00:31:43,996 Speaker 1: state legislature, like they're also talking there to you know, 532 00:31:44,036 --> 00:31:49,636 Speaker 1: to factories or to other parties. But sure, you can 533 00:31:49,676 --> 00:31:55,076 Speaker 1: certainly imagine, especially in our moment right now, a situation 534 00:31:55,196 --> 00:31:59,436 Speaker 1: where whatever we're talking about, whether it's all the different 535 00:31:59,476 --> 00:32:04,676 Speaker 1: federalism adjacent issues right now, abortion, the border, the mif 536 00:32:04,716 --> 00:32:08,996 Speaker 1: of pristone with the interstate shipment of abortion inducing medication 537 00:32:09,116 --> 00:32:13,436 Speaker 1: and having a federal rule in lots of cases seems 538 00:32:13,476 --> 00:32:18,596 Speaker 1: desirable because we have uniformity. But it's also true that 539 00:32:18,676 --> 00:32:21,876 Speaker 1: people are going to have very different policy views about 540 00:32:21,916 --> 00:32:25,116 Speaker 1: those things and might in fact say, you know, no, 541 00:32:25,636 --> 00:32:29,276 Speaker 1: it's actually better to have different states having different rules. 542 00:32:29,316 --> 00:32:32,476 Speaker 1: So a rule that says Congress can't prohibit the states 543 00:32:32,476 --> 00:32:35,836 Speaker 1: from doing things potentially, I mean, this is one of 544 00:32:35,836 --> 00:32:38,476 Speaker 1: the ironies actually in the Court's opinion right where they 545 00:32:39,556 --> 00:32:42,996 Speaker 1: I think they think of themselves as doing They say 546 00:32:43,036 --> 00:32:45,236 Speaker 1: they don't want to do judicial activism, they're not big 547 00:32:45,236 --> 00:32:47,916 Speaker 1: fans of broad judicial power and so on and so forth, 548 00:32:48,796 --> 00:32:52,436 Speaker 1: but they issue rules that do really affect the behavior 549 00:32:52,476 --> 00:32:55,516 Speaker 1: of other institutions and other people. Congress has to be 550 00:32:55,596 --> 00:32:57,916 Speaker 1: very clear what it's preempting in the statute. Get some 551 00:32:57,996 --> 00:33:01,156 Speaker 1: private parties, not just state actors in there. But we're 552 00:33:01,196 --> 00:33:04,076 Speaker 1: going to have a lot of litigation about what can 553 00:33:04,116 --> 00:33:07,716 Speaker 1: states do up to that point, and you know, can 554 00:33:07,836 --> 00:33:10,796 Speaker 1: they make their own rules or can they not make 555 00:33:10,836 --> 00:33:11,916 Speaker 1: their own rules? 556 00:33:12,836 --> 00:33:13,996 Speaker 2: Thank you so much for this. 557 00:33:14,076 --> 00:33:15,036 Speaker 1: Thank you very much. 558 00:33:17,916 --> 00:33:20,796 Speaker 2: Alison Ler Croix is the Robert Newton Reed Professor of 559 00:33:20,876 --> 00:33:24,236 Speaker 2: Law at the University of Chicago. And author of the 560 00:33:24,236 --> 00:33:29,676 Speaker 2: Interebellum Constitution, Union, Commerce, and Slavery in the Age of Federalisms. 561 00:33:32,356 --> 00:33:34,796 Speaker 2: Against the Rules is written and hosted by me Michael 562 00:33:34,836 --> 00:33:39,076 Speaker 2: Lewis and produced by Lydia gen Kott, Catherine Gerardeau and 563 00:33:39,156 --> 00:33:44,396 Speaker 2: Ariella Markowitz. Our editor is Julia Barton. Our engineer is 564 00:33:44,396 --> 00:33:48,876 Speaker 2: Sarah Bruguer. Against the Rules is a production of Pushkin Industries. 565 00:33:49,356 --> 00:33:53,156 Speaker 2: To find more Pushkin podcasts, listen on the iHeartRadio app, 566 00:33:53,476 --> 00:33:57,716 Speaker 2: Apple Podcasts, or wherever you listen to podcasts, and if 567 00:33:57,756 --> 00:34:00,196 Speaker 2: you'd like to listen to ad free and learn about 568 00:34:00,236 --> 00:34:03,436 Speaker 2: other exclusive offerings, don't forget to sign up for a 569 00:34:03,476 --> 00:34:08,476 Speaker 2: Pushkin Plus subscription at pushkin dot fm, slash Plus, or 570 00:34:08,516 --> 00:34:09,716 Speaker 2: on our Apple showpage.