Is the Constitution Dead? with Nate Fischer and Timon Cline
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A recent controversy on X on the continuing validity of the Constitution was sparked by a tweet Nathan Fischer published. He said: "We live in an administrative-judicial bureaucracy w/ almost no relationship to the form of government established by the constitution." This sparked pushback from Owen Strachan, Paul Miller, Daniel Darling, Erick Erickson, Denny Burk, Andrew Walker, and others. Nate joins the podcast to discuss what he meant and answer some of the pushback.
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- 00:13
- Welcome once again to the Conversations That Matter podcast, I'm your host, John Harris. We have a special guest with us today.
- 00:19
- We have Nate Fisher, though he is driving at the moment, so you're not going to be able to see his face, but you will hear him, and he has been on the podcast once before.
- 00:28
- Hey, Nate, how you doing? How's it going, John? Good to be here. Yeah, I'm thankful that we were able to make this kind of work out.
- 00:36
- I have a very busy week, as I told my patrons, because my brother's getting married at the end of the week, and we have family staying with us, and it's just crazy.
- 00:44
- But this was a controversy. I really wanted to, while the going was good and people are still talking about it,
- 00:51
- I wanted to weigh in a little bit and give you the opportunity to weigh in with a crowd that may have seen some of the response to your particular tweet.
- 01:01
- So I should just remind everyone before we get into all that, of course, Nate, you are the founder of American Reformer, the
- 01:08
- CEO of New Founding. If people want to check those out, they go to American Reformer, I believe it's .com
- 01:14
- or .org rather, AmericanReformer .org. And what's New Founding's website, is it just NewFounding .com?
- 01:21
- That is correct. All right, so check those websites out. There's a lot of good stuff there, and maybe we can talk about that a little later as we get into it.
- 01:31
- But let's jump right into the controversy here, because I thought what you said was pretty obvious and tame, but you had a lot of pushback for this.
- 01:40
- So it starts off with Michael O 'Fallon at Sovereign Nations, kind of in an argument with Jack Besobek, who, he's on Steve Bannon's show, a lot of people don't know who that is, but he's a political commentator.
- 01:54
- And they're kind of having this back and forth, and Michael finally says, accuses
- 01:59
- Jack of advocating for an unbound executive that would end our constitutional republic. And of course, this is the looming threat people accuse, quote unquote,
- 02:08
- Christian nationalists of advocating when they hear terms like Christian prince and that kind of thing. And then you jumped in and you said, you're stuck in a nostalgic fantasy.
- 02:17
- We live in an administrative judicial bureaucracy with almost no relationship to the form of government established by the constitution.
- 02:25
- And you follow that up with, I understand nostalgia for the constitution or longing to restore the principles the founders established.
- 02:32
- But if you will not accept the reality that this is long gone, if you judge others based on fidelity to a set of principles that govern no one, then you are a fool.
- 02:41
- Strong words there. So what did you mean by that when you said that we do not have a connection or little connection to the constitution of the founders?
- 02:52
- Well, I think it's it was a descriptive statement, and that was that was one interesting point that I think most people tried to reframe it into many, many critics tried to reframe it into a prescription.
- 03:03
- It was a descriptive statement that, first of all, is just an observation that a government that is primarily run by administrative bureaucrats and judges is radically different than the form of government that was established at the founding, which
- 03:23
- I in which the legislature was clearly the preeminent branch and the president was the head of the executive branch and the second most powerful.
- 03:37
- And I think I think they all would have agreed that the judiciary was the least powerful. So here you have of the three branches named, the judiciary is arguably the most powerful.
- 03:48
- And then there's effectively a new fourth branch of government or a certainly a group of people who have very limited accountability to the other branches who have vast power over large shares of government.
- 04:03
- And you look at that and it's just it's obvious that is a very different set of rules shaping our government than than the original founding constitution.
- 04:16
- And what I meant particularly was there's sort of this strand of people, you could say on the right,
- 04:24
- I would say, O 'Fallon, it's sort of ambiguous whether he's really on the right. Maybe you would say classical liberals, certain type of libertarians who regularly try to accuse people who address reality in many ways, who either want to change the order substantially or even who want to just operate within the rules that exist today to achieve substantive goals.
- 04:51
- They'll regularly accuse them of wanting to destroy the constitution. They're effectively trying to hold over their head a set of principles that exist on paper, but don't really don't really exist in practice today.
- 05:08
- So it's it was first and foremost directed at that that attempt to that attempt to constrain actors on the right seeking substantive objectives in a way that reflects the reality of our government today.
- 05:29
- Yeah, you know, I I think this is on Saturday. I quote tweeted the language from the 1606
- 05:37
- Virginia charter that talks about Christian princes and potential other settlements from European countries that would be governed by a
- 05:46
- Christian prince. And of course, they didn't mean by that a authoritarian figure who was anything resembling even the
- 05:53
- Protestant Franco meme we see going around there. It was just kind of this archetype for what a
- 05:59
- Christian ruler should look like. And Calvin talks about this in the institutes as well. And you see people freak out about this.
- 06:07
- And it's I think it's important to remember this whole controversy we're talking about really is rooted in this freak out over scary terms and people who want to fundamentally and maybe
- 06:20
- I guess fundamental is the word. Yeah. Fundamentally change what we have currently because we know it's not working and it's evil and kids are being trans and all the rest.
- 06:30
- And it just it's curious to me because many of the people we're about to talk about who responded to you,
- 06:36
- Nate, seem to think that on some level, all is well, that there's a mechanism for correcting this and whether that's a court case that's going to come up.
- 06:45
- But somehow the federal government or the central authority is going to limit it itself. And it's just on the horizon.
- 06:51
- We just need to wait for it. Maybe it's the election this year is going to do it. But if we just are patient, then we can knock off all this nonsense about the
- 07:01
- Constitution ending because maybe we're teetering, but we're going to fall on the right side somehow.
- 07:06
- I see this optimism and I've seen it my whole life. And every single time the court or the executive or the legislative, but mostly the court seems to violate the document.
- 07:17
- We're told the same thing over and over again. And I think young people especially are just sick of it.
- 07:22
- And I don't understand why a lot of older people are not that they have such a religious devotion to this. Do you do you have an idea of why maybe some of the older folks who are against Christian nationalism, especially who should know better, who have seen this train, have such a commitment to this document that doesn't seem to actually be honored?
- 07:45
- So I think it's it's really odd when you consider that many of the same people who most vehemently react to this also did things like express disgust at the
- 07:57
- Trump Bible. They were sort of they were establishment figures who tend not to like Trump because they see
- 08:04
- Trump as I as not not being willing to play by those old rules. They obviously use the fact that he released a
- 08:10
- Bible that included the Constitution, among other things, in it as a opportunity to denounce him and then treat him as a as a heretic.
- 08:20
- And yet it seems pretty clear that I may maybe more than anyone come close to treating the
- 08:26
- Constitution as holy writ. So I would say it's I in many ways, it strikes me as a tool.
- 08:37
- What they're really doing when they express this allegiance to the Constitution as they're really
- 08:42
- I they're really expressing an allegiance to the current order.
- 08:48
- And it's a way for them to indicate that they're not dangerous. It's a way for them to challenge those who would assert a substantive a request for substantive political leadership.
- 09:06
- So they've been influential and they've been influential in ways that have allowed them to sort of be seen as you could call it loyal opposition to the ruling party.
- 09:18
- They make clear that they're not in any way trying to upset the system. In many ways, the
- 09:24
- Constitution, their allegiance to the Constitution is either a stand in for the current regime.
- 09:29
- So I think one thing you'll notice a lot of times when they talk about the Constitution, they're actually talking about a set of post -war in court rulings, which are substantively a long ways away from the
- 09:41
- Constitution of the founding. And certainly the way many of those exact words were interpreted for majority of our nation's history.
- 09:49
- And that's that's a real irony. That's really they're using the constitutional label. But they mean they actually mean, in many ways, our sort of current constitution and others, others will do this and they'll sort of complain about how the
- 10:01
- Constitution's been subverted. But they they sort of hang on to a proceduralism that nonetheless ties a hand behind our back and prevents us from substantively challenging the current regime.
- 10:17
- And both of those end up sort of the former one appeals to people who may be people like David French, let's say, who are really aligned with the current regime.
- 10:27
- And I would say the latter one appeals to people who might sort of fashion themselves grassroots radicals, fashion themselves sort of a little further to the right, true dissidents.
- 10:38
- But they they do so in a way that remains non -threatening. And in both cases, it allows them to sort of gain the the benefits of being a sort of nominal political leader, without any of the risks or responsibilities that go with actually trying to take on a substantive opposition role.
- 10:59
- So there's an ingratiation then to the regime. And that kind of overrides whatever wisdom should be there from age, because you've
- 11:06
- I guess when you built up so many so many years, you've been in a situation of authority, whether it's a
- 11:12
- Christian ministry or, you know, commenting on politics or maybe a political institution itself, then it's kind of hard.
- 11:20
- I supposed to look at that and say I was during that entire time working in a system where there was little hope of transforming it from within.
- 11:30
- And I'm wondering and I'm putting the best spin on it possible if that's going through their heads, like my what is my life's work?
- 11:36
- If if that's the case, if this is all just kind of dead. So anyway, well, let's move on.
- 11:45
- Let's talk about some of these responses so I can let you respond. There was a guy named Wade Stotts who made a video, and I'm assuming it was in relation to what you put out there because his video was titled
- 11:59
- Yes, the Constitution is Dead. And it's about 10 minutes long. I would encourage everyone, if you haven't seen this, go on YouTube or Twitter, check it out.
- 12:07
- It's a great little piece that communicates, I think, succinctly your concerns. Did you find that video to be the same concern that you have,
- 12:17
- Nate, or do you did you disagree with Wade at all? I agreed.
- 12:22
- I thought it was quite a it was it was a very well done piece. And it was just a great it was a great run through many of the changes that that arguably are really numerous successive constitutions.
- 12:40
- I mean, in the US, we certainly label it. We we keep a higher degree of sort of nominal continuity, whereas, say,
- 12:52
- France would just straightforward admit that they moved on from their third republic to their fourth republic to the fifth republic, etc.
- 13:00
- We've had similar similar transitions, but treated them on paper like they're just evolutions of the same regime.
- 13:10
- I think he very clearly lays out exactly what those successive constitutions are and what what are effectively evolutions of the regime.
- 13:20
- Now, I think there's one important point to make there. And his title is a little provocative. It says, yes, the
- 13:25
- Constitution is dead. I think the the point that I really made, and I think that the two tweets together add context, is the
- 13:34
- Constitution of the founding is dead. It's a meaningfully different constitution that governs us today.
- 13:40
- That doesn't mean we have no constitution. In many ways, the Caldwell thesis, which
- 13:46
- Wade talks about, is that we do live under this civil rights constitution and it is a meaningful constitution that exists in parallel with.
- 13:56
- With certain remnants of the original constitution of sort of previous constitutions that remains a constitution, that's not a that's not a state of sort of total, pure, real politic without any without any guiding principles.
- 14:16
- And that includes, obviously, a set of rules that we live in. And now I'd say that's a much weaker constitution, in some sense, taking a
- 14:24
- Lindy principle, the principle that sort of the expected life of something corresponds to its life so far, a constitution that's only evolved over the last 50 or so years is a constitution that is going to have a lot less authority, a lot less staying power than a longer one.
- 14:44
- But it remains it remains a set of rules that, if recognized, can at least frame certain types of political activity today.
- 14:53
- So that would be a certain certain point I would make is it describes an evolution of constitutions.
- 14:58
- The thing that's really dead is the original constitution. So would it be similar perhaps for the audience to think of it in terms of the king of England is a figurehead but does not have the authority that parliament has.
- 15:12
- And so to say that England's the authority of the king is still alive as well, in a sense, you could say,
- 15:18
- I suppose, but not really. And they're governed by parliament and really more so bureaucracies at this point.
- 15:25
- I know it's not directly parallel, but maybe that would help people understand. I would say it's a very close parallel.
- 15:31
- Yeah. I mean, to say that Britain is a monarchy is really it's ostensibly a monarchy, just like just like the
- 15:39
- U .S. is sort of ostensibly maintain the same form of government. And yet in no meaningful sense, is it a monarchy from a political power standpoint?
- 15:49
- So very, very similar. And that's I think understanding what is the constitution of Britain.
- 15:57
- Again, it's an unwritten constitution. So in some sense, it's actually accepted and taken for granted that you understand the you understand the rules as they exist at this time.
- 16:10
- If you want to understand the British constitution, I think the idea that the constitution has changed substantially.
- 16:17
- I wouldn't really be as controversial in Britain. They certainly don't have a single anchor point.
- 16:24
- That's the sort of sacred document that you're supposed to express. And I think that's a level of fidelity to something that was seen as that some some treat as though it represents sort of this perfect visionary form of government.
- 16:37
- In England, it's it's accepted that it's it's evolved over time. In the U .S., I think a lot of people would say it's sort of moderately been changed, but they they want to imagine that it's a lot closer to this mythical founding document.
- 16:52
- Well, we are going to get into the weeds a little more on this as we continue and we'll talk about in what ways the constitution has evolved or been reimagined and why what we have today is different than what we had.
- 17:06
- But I just want to mention we do have Tymon Klein. I think he's joining us, but his microphone is on or off.
- 17:13
- If you turn your microphone on, Tymon, I'll add you and you can weigh in on this. Of course, Tymon's the editor in chief at American Reformer.
- 17:21
- There he is. Hey, Tymon. Hey, John. Thanks. Sorry, I'm just joining now. So I don't have my bearings on what you guys have covered.
- 17:28
- That's fine. Yeah, we're we're in the beginning. And if you do have access to a camera, feel more than welcome to turn that on.
- 17:36
- You don't have to, though. So let's let's look at some of these critiques. And I want to start with with some of the more the nice way to say this,
- 17:45
- I suppose, is simple critiques. And then we'll extend to the ones that are a little more compelling, perhaps.
- 17:50
- But the first one I want to talk about is Owen Strand. Owen Strand, for those who don't know, is a seminary professor and he
- 17:59
- I'm trying to remember the name. I'm blanking on it for some reason. I know he was at Midwestern Baptist Theological Seminary.
- 18:04
- I think I have to look up the one he's at now. It's something like Grace, Grace Baptist Theological Seminary, something like that's in Arkansas.
- 18:12
- I think you're right. Yes. OK, so. But he has an online presence and he wanted to weigh in on this.
- 18:17
- And he has a long tweet thread. It's almost an article. It's got 20 points to it.
- 18:23
- He also put out a video and I figured I would show the video. It's not that long.
- 18:28
- I don't know if it's incredibly substantive on this, but it does represent at least one of the responses.
- 18:35
- And I think it's important to respond because there were people who thought this was a good response. So here it is when door we need to bear up under hardship.
- 18:43
- We need to honor everyone, love the brotherhood, fear God and honor the emperor. We really do.
- 18:49
- We need to be good citizens while we're here. We need to first Timothy two, one to five, pray for rulers and those in authority over us.
- 18:59
- It's very frustrating to be under godless leaders. That's not a bad instinct when you feel that.
- 19:06
- That's a good instinct. But fundamentally, the agency you and I primarily have as believers is not to press a button and make a given country perfect or or righteous or a
- 19:18
- Christian. Our agency is primarily concentrated, according to first Timothy two, at least in prayer.
- 19:25
- You're supposed to pray for rulers and authorities and local officials. You're supposed to pray that God would work through them and in them such that Christ is known and that you and I can lead a quiet life.
- 19:39
- OK, I guess that's that's it there. So he has a tweet thread in which he gives the reasons for why he said what he said in there and seems to assume that those who are saying what you're saying,
- 19:54
- Nate, are essentially in favor of dumping the Constitution for a more perfect type of America.
- 20:01
- And that America is a theonomic America. So it's a critique of theonomy, essentially, or his version of theonomy, what he thinks is theonomy and that this is not grounded in the
- 20:12
- New Testament, that we're supposed to pray for our leaders. And this is a revolutionary impulse that you're advocating,
- 20:20
- Nate, that should not be advocated. So what do you say to that? Well, I think you'll see a pattern with Owen, which is often a an attack against a straw man characterization of, let's say, more sophisticated discussions on the right.
- 20:39
- And this represents that I think the. There's a couple of assumptions baked in there.
- 20:46
- The first one is just a sort of odd characterization that calling the what was framed explicitly as a descriptive statement is actually a prescriptive statement.
- 20:59
- And they called it overthrow, throw a constitutional order. And that's just that doesn't follow from this.
- 21:07
- If the original Constitution is dead, as I mentioned, there we could accept there's a weaker constitution at the same time, even if there were no constitution or no sort of significant constitution.
- 21:19
- There's still there's still plenty of reasons to accept legitimate governing authority.
- 21:28
- So a legitimate governing authority deserves a degree of respect, constitution or not.
- 21:34
- And nothing in the statement suggested suggested otherwise. So, again,
- 21:40
- I think, oh, and sort of jumping to a lot of conclusions about what's implied there, I mean, that just high level.
- 21:46
- I. It's not a revolution does not necessarily follow a recognition that there has been a previous revolution or even a previous evolution.
- 21:58
- There's no need to. There's no need to immediately launch into a a campaign for a new form of government.
- 22:10
- If anything, I would say if if a statement is true that the Constitution is substantially evolved.
- 22:16
- Well, I'll save this for a later one. The other point I think about, oh, it is he he framed that entire thing as a biblical response to this.
- 22:26
- Right. It was a descriptive statement. It was a descriptive statement. There's virtually nothing.
- 22:35
- There's virtually nothing that he cited that has anything to do with a descriptive statement about regime analysis.
- 22:46
- It's a total category error. And that, I think, is is. It's an attempt to jump into an attack against a straw man characterization of his opponents.
- 23:00
- I don't think there's much more to say about this, because you can you can analyze the sort of question about what he critiques.
- 23:07
- I would say there's a degree of there's a pretty strong degree of political abstention, almost sort of an
- 23:13
- Anabaptist approach to politics in the way he frames this, this, this almost an admonition against participating in politics in any meaningful sense, assuming that sort of no matter what the political situation is, you're told primarily to put your head down.
- 23:30
- I mean, that's, you know, there's there's verses in the Bible that certainly support the good of that quiet life.
- 23:38
- But I think there's also plenty of reasons to believe that Christians are called to politics, especially in a in a country where where we have a heritage and tradition as citizens that make us meaningful political actors by design, by the by the by both the longstanding tradition we come from and certainly by design of the
- 24:06
- Constitution that Owen would cite so admiringly.
- 24:12
- So it's a little incongruent to essentially critique us for engaging in politics, provided that politics goes beyond a very, very narrow bound.
- 24:24
- Right. Can I just say two things on that, John? Just to back Nate up here. I mean,
- 24:30
- Owen's sort of public branding, you know, he's always involved when whatever it requires for him to stay relevant.
- 24:37
- And he's kind of branded himself as being militantly detached from the tradition.
- 24:43
- He did this back during the Doctrine of God debates, the ESS debates, you know, Aquinas is the devil, these sorts of things.
- 24:49
- And it shows is my only point is he seems to have no mooring in the tradition. Otherwise, he would have recognized even as a theologian that these sorts of discussions are, you know, they're very practical and descriptive discussions, the sort of regime cycle discussions that Nate was mentioning.
- 25:07
- And these are commonplace in the tradition, even among theologians. And certainly if Owen was attached to the
- 25:14
- American tradition itself, he would recognize that, you know, the day of the ratification of the
- 25:20
- Constitution, Ben Franklin basically says something like what Nate has said. Almost all the founders expressed these similar sorts of similar sorts of despondency even in their day and recognized as good statesmen that America may be special in many ways, but it's not exceptional in the sense of regular laws of politics.
- 25:43
- And so all human regimes are finite, so on and so forth. It may be the case at some point, maybe even very early, as Benjamin Rush thought, like, you know, within 10 years that the constitutional order was no longer suited to particular people and that it was being adjusted inappropriately to be something abhorrent to their original design.
- 26:03
- So my only point is this is as American as apple pie is what Nate is doing. Many have expressed this and and also this sort of regime level analysis is, you know, very commonplace in the
- 26:15
- Western tradition. It's everywhere. So there's nothing strange going on here. We often forget, too, that we had an
- 26:20
- Articles of Confederation before the Constitution. It wasn't like we had this war and then all of a sudden the
- 26:27
- Constitution. And so it wouldn't have been uncommon for people to think that, well, maybe this won't last as long.
- 26:33
- I wanted to point out. That's my exact. John, that's an excellent point, because I tweeted the other.
- 26:38
- This is the point of my tweet. It's actually inspired. It was the way we do regime change in America is imperceptibly.
- 26:44
- It just happens. And everyone thinks the forms are the same and everything's continuing. What happened to the Articles of Confederation?
- 26:50
- Can anyone actually tell us what went on there? Does anyone know anything about that? That period of that sort of intermittent period?
- 26:57
- No, they don't. It's just kind of gone. But what you know, one way to describe that is, is
- 27:03
- America's first coup. That's one way to describe what happened. So I'm just saying more radical things have happened before.
- 27:10
- This is not strange again. And that was supposed to be a perpetual union. The articles literally says that one of the things
- 27:18
- I wanted to point out was Dr. James White, who actually teaches at the seminary that Owen works at.
- 27:24
- So their colleagues. I don't have it up on the screen, but I do have it on my phone. If people can can see that this is from 2015.
- 27:35
- And it says that we have. So this is, I think, probably right after the Obergefell decision.
- 27:41
- But he says he quotes John Adams and saying that we have no government armed with power, capable of contending with human passions, unbridled by morality and religion.
- 27:52
- Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution as a whale goes through a net.
- 27:58
- Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
- 28:04
- And James White then says our IP Constitution with flames, a picture of flames engulfing the document.
- 28:11
- This is interesting to me just because this is one of the colleagues that Owen Strand has been working with.
- 28:17
- And it doesn't seem like it was a problem when James White and I know there were others at the time after the
- 28:24
- Obergefell decision were saying things like this. But all of a sudden, if someone who's affiliated, associated or has given any platform or had conversations with, quote unquote,
- 28:33
- Christian nationalists, says the same thing, they're in trouble. And I need to point out that what
- 28:38
- I think is is somewhat of a hypocrisy there. So, of course, Owen was not the only one to critique.
- 28:45
- Other critiques came in. We have Dr. Jordan Cooper, who said that that Nate, he said that you were not all you were critiquing the longing to restore the principles the founders established as well.
- 29:02
- So it wasn't just an acknowledgement in a a descriptive manner, but you were prescribing that we should not seek to recapture what the founders had.
- 29:12
- And I'd be curious about your response to that particular critique, since, you know,
- 29:18
- I think this is a little bit more sophisticated than the one we just went over. I would say it's a straight misreading of my post.
- 29:27
- I said, I understand a longing to restore the founders, the principles put in place. I I don't respect attempting to hold people to them when they don't exist.
- 29:39
- So I actually think my my description there is entirely consistent with with efforts to restore the founding principles.
- 29:51
- There was a great scenario that C .J. Engel gave where he talked about I he essentially gave a scenario of, let's say,
- 29:59
- President Trump came in and took complete control using very aggressive moves to complete control of the executive agencies, fired lots of people,
- 30:10
- I really manhandled, in a sense, the government into something that actually resembled the the executive branches prescribed in the
- 30:22
- Constitution. That would be that would require a lot of actions that a lot of the people who are very concerned about constitutional procedure would get upset about.
- 30:33
- And it would effectively be, you could argue, sort of extra constitutional action in a direction that would actually move us back toward the constitutional order.
- 30:45
- And I think I affirmed that as a positive example. So you can recognize that you can certainly recognize that it's legitimate to want to restore those principles.
- 30:57
- I think there's at least a lot of good debates to be had over the extent to which those principles still are still are possible in America.
- 31:09
- All I reject is the idea that those should be imposed as dogmatic when they're not yet effectively, they're not yet in effect as constitutional rules.
- 31:23
- Yeah, and maybe we can talk about that a little later, because I was I immediately remember the George W. Bush quote about we need to kind of I don't remember exactly how he phrased it, but we need to kind of go outside of the
- 31:34
- Constitution to save the Constitution, which I think was a tool at that point that was used against the
- 31:41
- Constitution. And we have seen negative fruit from it. But but what if someone who had the goodwill and actually valued the principles behind the
- 31:49
- Constitution decided that, you know, we're so far gone, I'm going to use power to kind of roll back everything.
- 31:58
- You know, would that be a viable option? And yeah, it's it's certainly a discussion worth having.
- 32:04
- But it seems like you can't even have the discussion without people accusing you of betraying the founding somehow, which is what seems to be happening here.
- 32:12
- And Eric Erickson was the next one. He said, no, and John on that, I mean, something that that most of these people who
- 32:19
- I think we can categorize as sort of whatever their their classical liberals or whatever they would call themselves when they talk about the
- 32:26
- Constitution and the founding, they may not recognize everything that's happened, you know, in the way Christopher Caldwell describes it or whatever.
- 32:32
- But they're really talking about the post -Civil War Constitution. And they venerate Lincoln. And they think everything he did was great and perfectly constitutional.
- 32:41
- And any good historian, even ones that do venerate Lincoln themselves, will tell you that's simply not the case.
- 32:47
- So so it was run roughshod over. There were many extra constitutional liberties taken by the executive at that point, simply unprecedented.
- 32:56
- But all that is fine. I mean, I assume because there's enough chronological distance and it's been accepted.
- 33:02
- But the point is, you know, again, they're being sort of hypocritical and inconsistent because all that was great.
- 33:07
- But if they're really arguing about these ironclad principles that can't ever be, you know, can't ever be challenged in any sense for the sake of the nation in any scenario, which is, you know, wrong to say that any structure should control over and against the health and wealth of the of the nation.
- 33:27
- But, you know, if they're holding these principles this rigidly, then they should thoroughly reject
- 33:32
- Lincoln's administration. And we know they're not going to do that. And this might be a good time before I get to the critique from Eric Erickson, which really wasn't much, but we maybe should just go over some of the things that have changed or transformed the
- 33:49
- Constitution or what we think of as the Constitution. You mentioned the Civil War. Of course, we could go before that.
- 33:54
- But Lincoln, you know, suspended habeas corpus and jailed all kinds of journalists. The first income tax is under Lincoln.
- 34:02
- We have, you know, the war powers greatly extended under Lincoln for the executive, which has been a precedent in future wars.
- 34:11
- And this was really the the union triumphing over the
- 34:17
- Constitutional Republic in the way that people even thought about the United States. And now this is just, of course, accepted, along with the
- 34:24
- FDR regime and the civil rights regime that we have now. But what are some other things that you could point to, maybe court cases or executive overreach or judicial overreach, whatever the case is, that really shows you clearly,
- 34:39
- OK, we don't have the document that we started with anymore. Time it for you,
- 34:46
- I guess it's you. I mean, I mean, the one that I have, of course, is just a hobby horse of mine. So I use it as just it's mass incorporation, right, of the
- 34:54
- Bill of Rights into the states. This is completely destroys the original model and the structure of the federalist model.
- 35:00
- It's it's dead after that. There's there's no nothing similar about the function of the of the polity after that.
- 35:08
- So, you know, that's obviously post -Civil War. It's not necessarily Lincoln's doing, but it's something that and it takes time to develop about 100 years or so to get the significant things incorporated.
- 35:19
- But that thoroughly changed the changes, the polity. That's not the same constitutional order you had in 1787 or 1791.
- 35:27
- It's just totally different. And that's why you have Satan statues erected and you can't have Christmas displays in certain areas.
- 35:36
- I mean, it all comes down to this is really totally it totally undercuts the. I mean, you don't have to be like a, you know, lost causer on this.
- 35:43
- It totally undercuts the the authority of what were originally thought of as small nations within a confederation to handle domestic policy, which includes the the moral health, you know, so on and so forth of the of their particular state, which they thought were so distinct that, you know, this was necessary.
- 36:02
- Of course, the the anti -federalist argued that was impossible for a legislature that was national to legislate over the entire body.
- 36:08
- It's too different. So you've you've come in just a totally different thing. It's something that couldn't be. Well, it's not that it could have been imagined in the late 18th century, but it's thoroughly rejected.
- 36:18
- So you it is necessarily antithetical once you make those developments. I think of the
- 36:24
- United States or not, not sorry, the wrong one, Wickard versus Filburn, which essentially extends the interstate commerce clause.
- 36:33
- This was a New Deal court case to basically regulate what farmers can do because it will impact prices, what they grow and what they don't grow.
- 36:43
- I mean, that is an abuse of the interstate commerce clause. There's no doubt about it. The founders would be aghast that anyone would apply it in this way.
- 36:50
- And yet that standard now. So we have a number of things that are just like that with an army of bureaucracies who are willing to enforce these extra constitutional rules and departments that have no place in the
- 37:04
- Constitution, overriding the states. And of course, there's no outcry about this because this is just accepted.
- 37:11
- And I think that's Nate's point, that we've reached a point where the document doesn't really it doesn't limit the government the way it was intended to limit government, the national government, that is.
- 37:23
- So, yeah, if any of you want to add, we can always add more later. But if any of you have examples you want to put out there that just show, hey, this is egregious.
- 37:30
- This isn't the constitution that we started out with. Go for it. I mean, I think an early one is
- 37:37
- Marbury versus Madison. It was at least debatable whether whether the
- 37:42
- Supreme Court had that supreme authority to arbitrate these disputes between the branches and not just Marbury.
- 37:50
- That was obviously sort of an early step. But a number of cases in that sequence that I substantially increased the power of the judiciary, the judicial branch, all the way up to the point that you can have a random federal judge in,
- 38:05
- I believe, Hawaii issuing an injunction to nationwide injunction to block a presidential order on a matter that is sort of very clearly.
- 38:16
- Actually, I believe was at least one of these was Trump reversing a policy of Biden, of of Obama's that itself was sort of on its face unconstitutional.
- 38:30
- Trump reverses that. And you have a judge issuing a nationwide injunction blocking Trump from reversing that.
- 38:37
- And you've gotten to the point that that's sort of a comical level of judicial supremacy over the elected president of the
- 38:45
- United States. And I think that's I that's started with a sort of a sequence of cases started with Barbara versus Madison and just assertion of judicial authority beyond what was clearly prescribed in the
- 39:01
- Constitution. And I just thought of another example, too, like Hamilton and Jackson, of course, getting rid of the
- 39:07
- National Bank because it was unconstitutional. And now we have the Fed. It's like, you know, that was a debate at one time.
- 39:14
- People can't believe that. But that really was. And and now it's just assumed that the there's there's, of course, a national bank and there's a
- 39:23
- Federal Reserve that controls interest rates and all the rest. So. All right.
- 39:28
- So let's go through some of these other pushback tweets that came against you,
- 39:34
- Nate. There is one from Eric Erickson, who's a radio host down in, I believe,
- 39:39
- Atlanta, conservative talk radio kind of host. And he says, notice it's your original tweet.
- 39:46
- Notice he thinks we are both not under the system we're still under and also doesn't actually want the system the founders gave us, but something else.
- 39:54
- And this is very similar to the last one, but he follows it up with this. This is why I wanted to read this. There is no difference from the
- 39:59
- Marxists. So, Nate, you're you're Marxist, I guess.
- 40:05
- I don't understand what the logic is there. Eric is Eric is a hysterical guy.
- 40:12
- I think he he has a pattern of excessive responses that display sort of a little connection to certainly a little sober minded analysis.
- 40:25
- He's a very bloodthirsty person, which is is concerning. I think he probably has more tweets expressing a desire for sort of mass killings of various groups of people than anyone
- 40:37
- I've seen. And I think he responds with a similar hysteria to political statements he disagrees with.
- 40:45
- All right, fair enough. Let's go to Daniel Darling then. He says something similar. He says that he doesn't say
- 40:51
- Marxism. He just says you're using the same logic of postmodernism reflected in the 1619 project.
- 40:58
- I don't even maybe you're going to give the same response. I don't even know what to say. That's just bonkers. I mean, what's what's striking about that is he was challenged on that by many, many people.
- 41:10
- He never engaged. I asked him to clarify. This is a professor. This is a seminary professor.
- 41:16
- And I at at a Baptist seminary and refused to engage at all, even though he's directly attacking me, is directly making a range of accusations.
- 41:26
- I actually I actually sent a letter to a number of the people at the seminary, a number of the leaders there, sort of noting the impropriety of this level of of public accusation.
- 41:42
- I I await a response there. But I think it's I would just say it's sort of a sign of.
- 41:50
- His character that he that he sort of jumps to a bunch of conclusions, makes moral and spiritual conclusions, makes just some moral and spiritual aspersions about that and then slinks away and I doesn't doesn't even respond to my direct request for clarification.
- 42:13
- And I think for those who are considering Southern Baptist seminaries, I just had someone again yesterday asked me,
- 42:18
- John, what seminary should I go to in the SBC? Southwestern is not one I would recommend, and it's because of stuff like this.
- 42:24
- And you might say, well, this is one guy. But again, you know, Nate, you wrote these letters. If you have guys like this who, you know, he's not a
- 42:32
- Greek professor. He literally runs the Land Center for Cultural Engagement at Southwestern. That's his job.
- 42:38
- He's supposed to engage culturally, and he's very bad at his job. So what does that say about the other departments, in my opinion?
- 42:46
- But he he invokes horseshoe theory. That's the only justification. I don't really
- 42:52
- I think it's really all comes down to an authoritarianism. They just think that if you get rid of the Constitution, a woke wants to do that, you
- 42:59
- Christian nationalists want to do that in their minds. And so that just means that you're both going to come to some some sort of authoritarianism, as if we don't already have authoritarianism in a techno technological sense,
- 43:10
- I suppose. Yeah, that's the key point, is I would just say it's it's a very shallow level analysis. I think he's sort of he's widely recognized sort of sort of like, oh, and he's widely recognized as.
- 43:24
- Not not capable of serious discussion in these spaces. I think there's critics who had a lot of there's critics who had some serious pushback, and I think it deserves deserves consideration, certainly prudential, prudential critiques of both discussion of this sort of challenging the premise with.
- 43:45
- With real arguments. And then you have comments like Dan's and Owen's that are that are really just cursory and and very shallow.
- 43:56
- Yeah. And that that's a that's an indictment. That's not that should be embarrassing. I think I one of the leading
- 44:02
- Southern Baptist seminaries should be able to do better than that. Yes, absolutely. So speaking of Southern Baptist, Andrew Walker wrote an entire article, which
- 44:12
- I'm sure both of you have probably read at this point. It's only a few paragraphs. But I think the key point here is that he says it is an offhanded remark.
- 44:22
- But, you know, he tries to distance himself from being a boomer con and that he trying to say,
- 44:29
- I understand the dilemma. But we are what he says. We can we can basically eliminate or destroy the administrative state because we have the
- 44:41
- Chevron ruling to come. So he's holding out hope that the Chevron ruling is going to somehow delete the administrative state, which
- 44:51
- I almost laughed when I saw that. For those who don't know, and this is maybe you can expand on this more time and I'm sure you've been keeping up with this.
- 44:59
- But this ruling would essentially overturn the I think it's called the Chevron principle in which bureaucracies get to essentially interact with Chevron deference is
- 45:09
- Chevron deference. Yeah. So this would make it so that they can no longer interpret ambiguous language themselves.
- 45:17
- So therefore, Congress has to, I guess, interpret it or they can't. Like I think what the example was in the fishing industry, regulators are paid by the fishing ship companies or something.
- 45:30
- And so they and it's because of some misreading or not even misreading, just an ambiguous reading of some bureaucratic directive.
- 45:39
- And the case would say that you can't do that anymore. So do you think that that has the potential to destroy the administrative state?
- 45:48
- No, this is it's a strange I skimmed this article, Andrew. And Andrew's a friend, you know, but he knows we don't agree on many, many things.
- 45:57
- That was such a strange invocation of him on this particular issue. One, because I am partial to,
- 46:04
- I think, just as a fact of the matter, many, you know, scholars of administrative law, that something like Chevron deference will always exist.
- 46:13
- It's inevitable if you're going to have this kind of structure, this kind of bureaucratic structure, that this will happen.
- 46:19
- It's just we happen to have a case right now that's an easy target. So, you know, they can do what they want with it, but it will probably continue to pace.
- 46:25
- It's probably a futile, you know, project to try to overturn this. So that's one thing. The other thing is, even if you were able to to remove the sort of significant leeway that has been given to the administrative agencies,
- 46:38
- I don't understand intellectually, and maybe both of you can help me with this, how it has any any relevance at all with with what we're talking about.
- 46:47
- And in fact, my my primary impetus for for talking about these things like the
- 46:53
- Constitutional order is totally different now than it was, you know, in the in the late 18th and early 19th century has nothing, almost nothing to do with the administrative state.
- 47:01
- I mean, you know, that's that's something that I would critique on on different bases, but it's not central to the case, the descriptive case, in my opinion.
- 47:11
- Yeah, I don't really have anything to add to that. I thought that was a very odd thing to say. And by the way, my reception is pretty poor.
- 47:17
- If it's bad, feel free to mute me and continue the conversation. But I. I mean, what
- 47:23
- I think Andrew is getting to, and I it makes sense to me, is is pushing back on the extent to which
- 47:30
- I was I was I sort of strongly claim the Constitution is dead. I think what he was saying is the
- 47:37
- Constitution. Has changed significantly, but elements of it do exist.
- 47:44
- And the fact that you would see a Supreme Court case that would on constitutional grounds,
- 47:49
- I significantly restrict something that I've already cited as one of the core elements of of change from the original
- 47:57
- Constitution actually indicates that the Constitution is not dead, that that an element that it's weakened, that it's certainly limited.
- 48:06
- But an element of it survives. And I'm sympathetic that I think that's actually the most substantive challenge to my point, which is it wasn't.
- 48:14
- If it's not totally gone, then at the very least, we want to strategically, tactically preserve a preserve an elevation of and to the extent it actually can actually sway people a sort of continued public deference to those elements of the
- 48:38
- Constitution that are actually that remain in effect and are actually important for our for protecting us in our current environment.
- 48:46
- I think that's a I think that's a reasonable challenge to the prudence of sort of rhetorically throwing out the
- 48:56
- Constitution, because there is a very real sense in which the Supreme Court has remained one of the major one of the major institutions protecting us against extreme overreach from other institutions, other sort of appendages of the regime.
- 49:15
- And I. A lot of those are grounded in in original constitutional language, and if that's the case, then we certainly want to, you know, recognize the
- 49:27
- Constitution has changed, recognize the rules that exist, essentially recognize which rules remain, which rules remain in place, which ones have meaningfully changed ways in which the game has meaningfully changed.
- 49:43
- And we will play by the rules that we need to in different domains.
- 49:49
- And one of those rules might be where the Constitution, where the original Constitution remains in effect, where that provides important protections.
- 49:57
- We continue to emphasize the importance from a from a conservative framing of preserving the legitimacy of that institution.
- 50:06
- I mean, there's maybe it's not without reason that the Dems are often trying to delegitimize the
- 50:13
- Supreme Court and delegitimize any concept of originalism. If they're trying to do that, then maybe it's in our interest to do the reverse and actually emphasize the legitimacy of that.
- 50:24
- Even as we even as we sort of understand ways in which the rules have changed in other domains and get very good at administrative rulemaking, for instance, which is something that traditionally
- 50:35
- Republicans didn't even try or get good at, get good at executive orders, get good at using executive authority where executive authority has been able to be used, perhaps in ways that would would seem outside of the original
- 50:49
- Constitution. But I but have successfully been used to achieve change. So I think it's sort of it's fair to recognize that this isn't necessarily a binary question.
- 51:06
- And it's not a question of sort of the entire thing is dead. And I think what I would emphasize is what
- 51:11
- I was really what I really intended to refer to as dead in my original post was particular sets of principles that I think we should not be held to because they're no longer operative.
- 51:24
- I didn't mean I didn't I wouldn't mean to say we shouldn't. We shouldn't treat as legitimate and really emphasize the legitimacy of other sets of principles, some of which may be traced to the original
- 51:38
- Constitution. So you is there a disagreement, then? Do you agree?
- 51:44
- Well, I was I was I was sort of emphasizing the point of agreement with Andrew's Andrew's post there, which is
- 51:50
- I think what he was saying is it's not all that. And if it's not all dead, then
- 51:56
- I think there's a prudential debate there. And I was trying to frame it in a in a positive way.
- 52:02
- But Nate, isn't this doesn't this express the I mean, I think this emphasizes the point that if someone is the response to your original tweet is, hey, it's not all dead.
- 52:13
- We might overturn Chevron deference. I mean, this is just peanuts, right? Like this is this is something that's that's so minor.
- 52:21
- And like it expresses or it compounds the extent to which you have distance from the original constitutional order, don't you think?
- 52:33
- Perhaps. I think that's a I think that's a fair, prudential debate. And probably beyond what I was probably beyond what
- 52:40
- I was intending to say with the original post. I think that to some extent, going to your sort of origin, your point about the founders slightly after the ratification of the
- 52:53
- Constitution, perhaps the Constitution has always been a fairly limited and fairly weak document, in which case something like overturning overturning
- 53:03
- Chevron on the basis of constitutional separation of powers, actually, maybe that's sort of as strong a affirmation of constitutional principle as as we could have expected at most points in the country's history.
- 53:19
- So it sort of emphasizes the weakness of the Constitution. We're certainly not rigidly enforcing every principle.
- 53:25
- And that would be in line with my original point. At the same time, it might mean that it's not dead any more than it's been dead at many points in history.
- 53:36
- And yet there's been value in venerating it as as legitimate.
- 53:42
- You can argue there's a civic virtue in in emphasizing something, perhaps, that's important to the country and it needs recognition.
- 53:57
- I think that's a it's a prudential question that I, I can respect.
- 54:03
- And I think that was that was Andrew's point. So that's kind of my point is I know I think that's right. I mean,
- 54:09
- I think that's right. The only narrow point I ever want to make kind of in this debate is when they say, you know, when they're sort of defending the
- 54:15
- Constitution, all the people we've covered, they're relying upon the weight of something that is that is mythical.
- 54:22
- And, you know, goes back to the founding, to the genesis of the country to say this, this is still, you know,
- 54:28
- I'm appealing to this and I'm defending it. And therefore, I'm more virtuous than you are. And I have more faith in the country than you do.
- 54:35
- I think the point is exactly right to say there's a sense in which it was dead very, very early.
- 54:41
- And therefore, to say it's dead now is not strange at all, because we're saying it's dead from the perspective of what they are sort of in a juvenile way appealing to is something that they're light years away from.
- 54:55
- But that's where they're landing all their weight. They're not just making a simple point of, hey, we're all still alive and the country is still functioning in some regard.
- 55:03
- That point is not compelling to anybody. The country is still functioning. And no one can disagree with that.
- 55:09
- It's still functioning in some way. What they're wanting to do is something much higher and more elevated than that. And I think that's where it falls flat to say that even this point we're belaboring now, but that we might roll back some of the discretion that administrative agencies have.
- 55:24
- Therefore, we have great continuity with the founders. You know, I think that's a ridiculous point.
- 55:31
- He also talks about, like, the need for a moral religious people, that the Constitution can't produce this and it's needed for the
- 55:37
- Constitution to work. And then he kind of turns around at the end and says, well, we need the
- 55:44
- Constitution because it limits the tyranny and gives us self -government.
- 55:50
- Like, I don't know if there's a tension there. I seem to think there might be because he's saying it distributes liberty while checking power.
- 55:58
- But at the same time, he admits that we're really not a country that's worthy of liberty. We can't manage it properly.
- 56:05
- So there's this kind of like this holding to the spirit of what used to be and thinking that's still what it is.
- 56:14
- But it seems like it's in conflict with the assessment of where we are now. And so there's an appeal to the
- 56:21
- Constitution and a hope, I would say, that we would get back to this and be able to live under these terms.
- 56:28
- But it's not Nate who's the one that's accelerating this by showing or admitting what's clearly in front of us.
- 56:36
- This is just what's happening. It's not Christian nationalists who are somehow nefariously plotting to have a
- 56:42
- Christian prince that's going to overturn all of this. It's just a response to what's actually before us.
- 56:49
- And I think that disconnect, I don't even see that really addressed well here. At least that's what
- 56:55
- I see with all these responses, is they're not really getting at the heart of what Nate seems to be saying. So I think there's a tension.
- 57:00
- I think he recognizes there's a tension there. I would say the difference, what
- 57:08
- I made to Denny Burke as well, when he made some similar points, is you can recognize that the
- 57:16
- Constitution requires a moral and religious people. You can recognize we're not a moral and religious people. The question becomes, what then?
- 57:24
- What do we do? And I think they rightly, to some extent, they may rightly recognize that when you have a people who are not particularly virtuous, it's actually perilous to overturn the existing order.
- 57:41
- Now, I would say that has less to do, I actually pointed out this sort of a strong adherence to the original
- 57:47
- Constitution. This was a response to Denny was a strong adherence to the original
- 57:53
- Constitution. If you actually say it's still authoritative and binding, that arguably requires you to sort of actively resist the current order, to the extent to which the current order is not in line with the
- 58:08
- Constitution. That arguably requires a degree of revolution. And I think the prudential point that Andrew's getting here, that I think is reasonable to consider, is that in a time where you lack a lot of virtues, there is a case to be made for a conservatism, for a sort of inherent conservatism, a deference to current institutions, because revolution is likely to be particularly dangerous.
- 58:41
- Absent a, you could even say, absent a sort of particularly virtuous leader, there's a high probability that with an unvirtuous people, any overturning in a system is going to result in something that's just worse than that.
- 58:53
- I don't think that's wrong. I think that's an accurate point. I would just separate that from, I would separate that a little bit from discussion of the
- 58:59
- Constitution. You could say that maybe applies to sort of the prudence of discussion of a, of a mythical Constitution.
- 59:05
- But I would say that that's more a case for why we don't want to recklessly depart from the current order, including those components of sort of, those components of constitutional protection that remain and have some continuity to the original
- 59:20
- Constitution. So again, I'm sympathetic to that argument. I just think it's actually a different argument than one that says the
- 59:28
- Constitution as written is actually ineffective binding since that statement would actually arguably necessitate revolution.
- 59:40
- The difficulty I have, this is more of a strategic thing, and you're right, it is somewhat of a separate discussion, is if we do maintain this respect for the document, and especially more than a respect, an assumption that significant elements of it are still binding us.
- 59:58
- Conservatives have a tendency to remain bound, while the left tends to push the boundaries into new territories and they do not respect the document.
- 01:00:07
- They, in fact, use it as a means to, they misinterpret it as a way to kind of attack the right.
- 01:00:14
- And so if we are to be smart about this, it would seem that we cannot play with our hand behind our back and try to bind ourselves by the set of rules that the other side refuses to bind themselves by.
- 01:00:32
- And thereby, perhaps the strategy should be, whenever they expand into new territories, we should beat that back as much as possible.
- 01:00:39
- And when they're in power, we beat them back. When we're in power, though, we have to be smart about, for example, executive orders is a good example of this.
- 01:00:48
- When Trump comes into office, does he just roll back every unconstitutional executive order the Biden administration put in there?
- 01:00:55
- Or does he say, you know what? Executive orders are unconstitutional. I'm just not going to engage in this. That would be very bad if he did not use the authority that the
- 01:01:06
- Obama and Biden administration have cultivated to then roll back the innovations that they foisted on us.
- 01:01:12
- You know what I mean? Well, I think you could take it a step further and you could say, practically speaking, these executive orders, regardless of their constitution, were allowed to have great effect on the country, meaning executive orders are actually a way to get things done in our current order.
- 01:01:29
- If you understand the real rules of the current system, then yes, you may eventually get some sort of Supreme Court restriction, but it's allowed to have great effect.
- 01:01:39
- So in that case, you could make the strong case that Trump shouldn't just roll back their unconstitutional executive orders, but that Trump should proactively advance policy wherever he has the ability and wherever such orders are likely to achieve something meaningful, even if we would prefer to say they are outside of the constitution.
- 01:02:06
- You recognize that essentially the actual constitution that exists today, the actual rules allow those orders as at least sort of interim ways of having meaningful effect.
- 01:02:20
- And that would be an example of sort of the difference between the written constitution and the real constitution. And you understand the rules that exist, whether that's sort of a constitution or rules of politics in the absence of a constitution in certain spaces or in the case of a weaker one, and actively leverage, actively use those levers during the limited years that we may have in control of them.
- 01:02:47
- Right. So this is exactly right. I mean, if the people commenting and they're using the
- 01:02:53
- John Adams quote that everybody uses, if they're recognizing in any sense that the necessary preconditions for the original constitutional order are gone, which we all do, and assuming that they actually do, then the only path forward into any sort of recovery would be to act prudently within the existing rules of the game, as Nate was describing them, in order to attempt to reproduce those conditions that would allow you to return to some semblance of what we had before, if that's what they really want.
- 01:03:22
- I mean, everyone's got to decide what their actual goals are. Is it just to defend the status quo and pretend nothing has changed and sort of play upon the authority of the
- 01:03:31
- Founders, capital F? Or is it actually to produce good governance for the
- 01:03:36
- American people and try to replicate the conditions that would allow you to return to something more like the way of life that the people of the early republic had?
- 01:03:45
- I mean, people just have to decide what they want. But in any case, you have to play within the current constitutional order and it behooves us to just recognize that that exists and that it's real and that when we're talking about the
- 01:03:58
- Constitution, you know, it's of limited use to refer to things that are now something we lament, but are extremely outdated in terms of their relevance and function.
- 01:04:10
- So we've been going over an hour, so we already talked about Denny Burke a little bit. Nate mentioned him. I just want to go to one last critique here that I thought was important, similar to the one from,
- 01:04:22
- I think it was Andrew Walker, Justin Taylor from the Gospel Coalition. So he has some hope here that the constitutional order of the
- 01:04:31
- Founders isn't dead. And the reason is because religious freedom is on a massive decade -long winning streak at the
- 01:04:36
- Supreme Court, says Luca Goodrich, a religious liberty lawyer at Beckett. This 15 case winning streak hits every major area of religious freedom law, religious exemptions, autonomy, speech, symbols and funding for religious groups.
- 01:04:50
- Now, you know, I know Nate is a lawyer or was a lawyer. And, you know, either one of you can really weigh on this.
- 01:04:58
- Maybe both of you should weigh in. But this seems like a little bit of a Pollyanna. I mean, I'm positive about some of these cases and winning them, but it seems like it's a two -step or one step forward, two steps back kind of thing.
- 01:05:12
- I mean, are you energized over this? Does this give you hope that the constitutional order of the
- 01:05:18
- Founders can be taken back because the court seems to be on a supposed winning streak?
- 01:05:24
- Well, I think Tymon could expand on this. But first of all, I would say measuring the, measuring the fidelity of our current order to the original
- 01:05:34
- Constitution by the degree of religious liberty is just, it's a non sequitur.
- 01:05:42
- It's not relevant. Yes, we have had far more incorporation and expansion of First Amendment rights and their imposition on the states.
- 01:05:53
- That is not necessarily, that is not what the original Constitution specified. They were not incorporated as Tymon mentioned.
- 01:06:00
- So it's actually an example of an area where, yes, this current Constitution, which is a
- 01:06:06
- Constitution that certainly, it's certainly a civil liberties Constitution, you could say it's sort of a civil rights
- 01:06:12
- Constitution, civil liberties Constitution. You could say that it's certainly, there are trends that are protecting certain rights that some of us may care about.
- 01:06:30
- But that's a separate question from the original Constitution. If anything, it actually makes the point that it's changed.
- 01:06:36
- That would support the fact that there is a Constitution today, just not the same one as the founding. Yeah, I mean,
- 01:06:43
- I totally agree with Nate. I mean, we didn't, the First Amendment was basically irrelevant to the
- 01:06:50
- Supreme Court for, you know, like 100 years into the country's history. So, you know, this is not a good metric by which you measure fidelity to the original constitutional order.
- 01:07:01
- And that was, again, because of the, Nate just mentioned it again, you know, the lack of incorporation and the sort of purview that the states had over religious matters.
- 01:07:10
- And of course, there were establishments and all these things. So to appeal to what basically now is religious liberty is understood as a pluralist construct.
- 01:07:18
- And to appeal to the fact that there is more pluralism today than there was before is very bizarre.
- 01:07:25
- It says nothing about the original constitutional order and way of life, the country as it existed for a long time.
- 01:07:31
- And then even more problematic, in my opinion, is, okay, let's accept that these things have been incorporated.
- 01:07:39
- There's now religious liberty jurisprudence, such as it is in a meaningful sense. All you're really appealing to, and this is something
- 01:07:45
- I talk about frequently, is this conundrum that Christians are in in the country, which is every time you take
- 01:07:55
- Jack Phillips to the Supreme Court and you defend him because you're a good lawyer and you want to get him off the hook, you're actually undercutting yourselves.
- 01:08:03
- You're asking for table scraps and for your prayer closet, right? This is not a win. These are not wins in the sense of preserving, again, the preconditions necessary for the constitutional order, you know, a la
- 01:08:17
- John Adams that everyone's citing. So it's completely counterproductive, actually, except in the particular case in controversy of helping the appellant to get their life back.
- 01:08:29
- This is not a sign of health. This is not a sign of the original constitutional order flourishing.
- 01:08:34
- It's not a sign of a healthy people in any sense. So that's a completely self -defeating point from Justin Taylor, which
- 01:08:41
- I suppose is to be expected, given his track record. But anyway. Yeah. So being excited that we have some scraps really is what that amounts to.
- 01:08:49
- Like we're able to still live and operate. And, you know, that's a great point.
- 01:08:54
- This is a David French point. This is a David French basis. His entire morality is his assessment of First Amendment jurisprudence at any given time.
- 01:09:03
- That's why he's now willing to accept gay marriage, because Christians are sufficiently protected from being forced to do anything they don't want to do.
- 01:09:10
- That is not a good barometer for the health of your society and the virtue, certainly, that is necessary for the constitutional order, which itself can't produce those underlying conditions.
- 01:09:22
- So it goes round and round. But this is a terrible way to approach anything.
- 01:09:28
- But it's very common. David French has popularized it more than anyone for this to be a quip, right, that things are going really, really well, because we have more and more exemptions from mainstream policy.
- 01:09:40
- So anytime you're getting exemptions, it means you're necessarily at the center. And so if you believe anything about the founding and its moral orientation, its religious orientation, you should recognize immediately this is a mark of departure.
- 01:09:54
- Well, it's been good to have you both on. We are about an hour and 10 minutes. So I'd like to land the plane.
- 01:10:00
- But if you want to check out Nate Fisher's organization, you can go to newfounding .com.
- 01:10:07
- Here's what the website looks like. And there's a lot of information here on businesses and investments and forming a network that's not woke and real estate investments as well.
- 01:10:20
- So check that out. And then if you want to check out some good political commentary, go to americanreformer .org.
- 01:10:28
- And Tymon is the editor in chief there. This is a company that or an organization
- 01:10:33
- Nate Fisher founded. And actually, there's a great article. I just noticed CJ Engel. Is there a woke right? That's another topic being talked about quite a bit right now.
- 01:10:41
- So go check that out. Thank you to both of you just for giving me some of your time tonight and everyone else to work through these issues and clarify things.