Episode Transcript
[00:00:00] Speaker A: In this episode, we hit some key takeaways from the Supreme Court decision to forbid states from taking Trump or any other, quote, oathbreaking insurrectionists off the ballot under the 14th Amendment. And in part two, we'll consider the idea that our brains are wired to avoid exercise and also what can be done to overcome this.
Hello.
Welcome to the call like I see it, podcast. I'm James Keyes. Riding shotgun with me today is a man who, on the frontiers of podcasting, could be considered a Buffalo soldier. Toonday Yoga, and Lana Tunde, you ready to bring some fight to the show?
[00:00:52] Speaker B: Course.
[00:00:53] Speaker A: All right. All right. Now, before we get started, if you enjoy the show, I ask that you please hit subscribe on YouTube or on your podcast app. This really helps us as far as getting the show out in front of more people.
Now, recording this on March 5, 2024, Antune, we've had a decision come down from the Supreme Court, Trump v. Anderson. Now, this was an appeal from the Colorado Supreme Court decision that found that Donald Trump engaged in an insurrection on January 6. And because of that, and because he had previously taken an oath to support the Constitution, he was barred under the disqualification clause of the 14th Amendment, which is section three of the 14th Amendment. And as we know at this point, the Supreme Court reversed this removal of Trump from the ballot, but not because they found that he didn't engage in insurrection, but instead they found that in this type of situation, that Congress has to act and states are not free to enforce this disqualification clause against people they find have committed insurrection and had previously taken a note. So just what's your general reaction to the Supreme Court ruling? What really stood out to you?
[00:01:58] Speaker B: It's interesting. I feel like in preparation for this discussion, my initial answer is, this was the outcome that I had expected in following what I had followed just prior to this, in the regular kind of consumption of media about it, and also just understanding the makeup of this court, I didn't see that this would be ruled any differently. What was not a surprise to me, but just stuck out a bit, is that it was a nine to zero vote. So it was a unanimous vote by the Supreme Court. So in one way, I feel that's good, because it just shows unity in one way. But in another way, I'm not happy with the outcome of basically the Supreme Court kind of changing the nature of how the Constitution works as relates to that clause. And I know we're getting very nuanced here, so we'll discuss that, and I'll give you my reasons for that. And then the last thing I'll say before just handing it back is it's just a good reminder that at the end, it's another reminder that in the end all of these norms and even laws and systems like the Constitution are subject to malleability. If I can kind of pull that word out of the know, there's been times when states rights has taken precedent and arguments, I think of Bush v. Gore in Florida, that election and then now.
[00:03:30] Speaker A: Well, no, but that was similar to this. Well, no. Remember Bush v. Gore? That was the federal government, the Supreme Court telling the state of Florida and the Florida Supreme Court that you can't count your votes in the way that you want to, you have to do.
[00:03:41] Speaker B: It in the way that we.
[00:03:43] Speaker A: A similar kind of thing. Yeah.
[00:03:45] Speaker B: And even though the Constitution appears to afford states the abilities more than other things the Constitution allows states to do to really control their processes of elections.
That's what I mean.
There's a lot of irony in all of it.
I'll pass it back. I know this is our discussion.
[00:04:05] Speaker A: Well, no, I think that's a good point. Definitely. I'm going to reference Bush v. Gore, what they did in the year 2000 as well, because I think that is a precursor to this. That actually, I think is probably a line of demarcation where the current form of the Supreme Court has kind of taken a detour in a way that's not something that we haven't seen in the history of the United States, but just a very particular detour where they kind of just decide what they want to do. They're not interested in being consistent or anything like that. But what stands out to me, and this kind of plays on what you just said, is that ultimately Americans like to say, and it's been said in our past, that american is a nation of laws and not men. And that's just not true. I mean, what it is is a nation of men or men and women, and there are laws, but the laws are always subject to what the men and women alive at that point are in position of powers at that point want them to be or how they want them to be enforced. Because you look at it throughout history, throughout history, or if you go post civil war, there's been an amendment in the Constitution that guarantees every american the right to vote. Yet there were many a times that those cases came up where people were being denied the right to vote. And the courts of the time or whatever said, no, we won't enforce this part of the Supreme Court. There was required another law, a voting rights act in the 1960s to remedy this. And in this case, again, we have laws on the books. And I should say I'm not surprised by the ruling. I think we all saw the tea leaves blowing, that the Supreme Court ultimately just didn't want to take Trump off or allow Trump to be taken off the ballot. So they were going to figure out a way to do it. The way they do it was a bit heavy handed, so we can get into that later. But what we're seeing here is that this law is on the book in terms of the Constitution, the ultimate law of the land. And they decided they just didn't want this law to control.
There were some notes in there. They said, hey, it's too much chaos if the states are allowed to, or we shouldn't be forced to endure the chaos if the states are going to be allowed to do this. And it's like, well, that's federalism. That is states rights. When you say states have their rights to do this and that it's not going to be uniform, but they say they don't want that anymore, or at least in this case. So it's just interesting how, to your point, the malleability, it's like, okay, well, the people that are in charge at a given moment have, and in this case are just deciding to ignore pieces of what's written and saying, well, we just don't like the outcome, so we're going to do something different. And you just got to live with it. It's like, okay, well, we were hoping for or expecting consistency because all this stuff is written down in a constitution, and clearly that's just not going to be the case.
[00:06:45] Speaker B: Yeah, I think it's interesting because a lot of this stuff also sits on the side of one's opinion, right? Because you make a great point that the Constitution has the 15th Amendment, which allows all United States citizens to vote. But yet for 100 years, there were citizens of this country that were legally excluded without real recourse up until the 1960, was it 65 or 68, voting Rights act. So you make a good point there.
[00:07:16] Speaker A: Even the 14th Amendment, equal protection under the law. But the Supreme Court, and I'm getting a little ahead of ourselves, but it's another good example. The 14th amendment guarantees all citizens the equal protection under the law. But at the same time, the Supreme Court in the late 1890s said, oh, well, that separate but equal is okay. So we end up with this caste system encoded in law through Jim Crow. And it's like, well, hold on, I thought the constitution said equal protection under the law. But the Supreme Court said, oh, well, but you can play with that because the men alive at that time, the men in charge at that time, decided that separate but equal was good enough, even though the constitution said something. You know, I think if you look at it through a historical context, this isn't abnormal, but it's a reminder. And it's something that, honestly, that's why it matters who's in control and who's in charge at a given moment, because.
[00:08:04] Speaker B: That'S where I was going. And it's interesting because you bring up things, and I say this in a serious note. This is why it's offensive to me when we have leaders in american politics, whether it be governors or in other positions that keep trying to just make sure we don't discuss our nation's history, because the things you just laid out actually are very important in understanding the nuances of even this kind of ruling today. But we just don't discuss that period of history in the United States, kind of the post civil war era, through, let's say, the 1930s, this kind of flyover history.
But where I'm getting at with this is interesting, and I'm glad you brought up that last point, because this is really what it looks like to live in a democracy as well. Right? It's the active long term participation of the public that ends up giving us things like senators and presidents who then make decisions about judges and whether it be appellate judges, federal judges, or even the Supreme Court. And so these rulings matter because it's on the back of all these decisions that led to these people being there. And where I'm getting at is I can see the opposite. Let's say in the 1960s, there were states, to your point, about separate but equal states interpreted that Supreme Court ruling in their own different ways. So state like Mississippi would have treated you and I much differently in 1945 or 1958 than, let's say, the state of California or the state of Nevada. Right? And so the federal government and the Supreme Court starting, let's say, with brown versus Board of Education all the way through the rulings of the early 70s, forced states to make changes around those things.
[00:09:46] Speaker A: And a lot of, by the 14th amendment of the Constitution, like in the 15th amendment, to say, hey, you guys got to obey the Constitution. Not this plessy v. Ferguson made up thing. But the actually what it says where.
[00:09:59] Speaker B: I'm getting at, though, is there was a group of Americans that were upset by that. Maybe not our parents, right. But other people in that generation that didn't necessarily benefit from that. And that's what someone like Barry Goldwater got popular for in the early 60s, saying, oh, states rights, and states should be left alone to figure this all out in their own. And so this is the messiness of the system, is that, like you said, in the end, we do have men and women that are making these decisions about how the law should be applied. And in this case, they made a decision that what the Constitution says and what a Supreme Court in the state of Colorado decided based on the Constitution and their interpretation of it should not be allowed to take place here because they're more worried about the current political climate and how human beings will act in the face of maybe former President Trump being left off a ballot in one state versus if he's not.
[00:11:05] Speaker A: So here we mean, to your point, as far as, like, I think it said a different way, it's that the participation, the ongoing participation of the public, if you have a government of the people, by the people, for the people, then the ongoing participation of the public things may seem like it doesn't matter, but it does, because these things stack up. And over the past, I'm sure this is something that has been present throughout history. But just in my life, I can speak on more specifically is just I have seen a shift more towards ideology in terms of people who I'm going to support, who person is going to support versus integrity and things like principles. So people say, okay, well, the idea of split ticket voting and stuff like that has gone largely away in our modern environment because people are saying, I'm going to vote along with how people are aligned from an ideological standpoint. And I'm not saying this is applying equally everywhere, but I'm just saying this is what's the trend overall. I'm saying, okay, this person's ideology or this person's, they're part of this club or this political party or whatever, so I'm going to support them. And things like integrity and principles aren't going to matter to me because it's only a matter of which club are you in or which ideology you're part of. And a necessary implication of that, or I should say a necessary result of that, is that you won't see a bunch of principled people in government anymore because being principled doesn't get you into, and get your hands on the levers of power and get you into power because the voters aren't looking for principal. And by and large, in large part, there are large blocks of voters who aren't looking for this so it's easy for someone who is ideologically driven and not integrity or principle driven to say, in one situation, I think states rights are very important, in another situation, say no, the state shouldn't be able to determine this because the outcome would be too messy. And it's like, well, but both of those, that's literally a complete hypocritical stance. But we don't even blink anymore when people do things that are self serving and not principled because that's no longer the expectation amongst our leadership anymore because it's really about, okay, well, which team are you on? And that's how we support. So I think we end up in situations a lot of times that it's based on the overall trends of, okay, well, this is how people are voting. This is the people that they want representing them, and therefore the people making decisions on these types of things. And so therefore, this is the bed you make. This is the bed you lay in. And so participation overall, and in some of this, I should say just real quick, the people who are most engaged and participate the most are people probably that are most ideologically driven. The people that are more kind of like, oh, I'm not so focused on an ideology are the ones that tend to kind of can sit back a little bit. And that's just not what we need. This is why we need everybody to participate, because full participation guards us against the extremists or the ideologues in one group or another. The full participation is the buffer for that. And so when we don't have that, we end up with a situation where just only the people that are the most blinders on narrow minded are that.
[00:14:13] Speaker B: Drive the system well. And I think that's a great point because I think that's part of this battle where the courts have become now an area that we all hope, believe, and or at least want to believe are impartial. But they have also become manipulated by the levers of politics. And we can see that in the recent years of how things like Supreme Court justice picks have been treated. We all know the famous case of Senator McConnell, who held up Obama's ability in his last year to nominate a Supreme Court justice of his choosing by saying, it's an election year. And then when we were within the period of people starting to vote in 2020, when Ruth Bader Ginsburg died, the late justice he okayed ramming through Amy Coney Barrett within a month before the election. And so when the public sees those two contrasts, that makes it just appear that there's no integrity. It is political.
[00:15:22] Speaker A: Yeah. One other thing I wanted to get to on this is just the idea. Now, you use the term malleability before, and that's an interesting term to put in here because rigidity, when you have a large population, would seem to be dangerous. Rigidity would seem to be prone to breaking more often.
Now there's rigidity principled. These are all kind of swim in an area where it's hard to tell the difference between them sometimes. But decisions like this, like the Supreme Court, clearly based on when they had the hearing and the questions they were asking, the things they were talking about, little nuggets that are in the decision itself, clearly were worried about what would happen if they okayed this, the chaos, quote unquote, in their term, that would ensue. Would other states then start doing this? Would then maybe republican states start retaliating or states that were controlled by republican governor and legislature start trying to take Biden off the ballot? I'm not sure what the grounds would be know, like, Biden didn't engage in an insurrection, but maybe, again, not a nation of laws, but a nation of men, they just make up something. But in any event, the Supreme Court seemed very concerned about that, so almost seeming as to think their role was to try to keep the peace in this situation. And so do you think decisions like this, which pretty on their face, compromise principles for the sake of expediency or what makes people comfortable, do you think these may be necessary sometimes to preserve a large union? Or do you think it's a fool's errand to try to play that game with decisions that are supposed to be based on law?
[00:17:00] Speaker B: That's a very difficult thing to answer because I think there's a term that.
[00:17:04] Speaker A: It's an abstraction, for sure.
[00:17:05] Speaker B: No, I know, but on a serious note, because there's a term that people recognize that I'll use here, chaos theory. There's too many unpredictable things that can cascade out of these kind of decisions. It's just hard to predict because it's really about who's on the other side of that conversation and that decision. So, for example, compromising with the confederate states through the 1840s, 1850s. Remember, we did the show about the whole mexican american war, that we invaded another country and annexed huge parts of their country into ours because people just couldn't get off of not having slavery as the country expanded west. And again, these are the things we don't like to talk about in our history, but they're all facts. So all those compromises, the compromise of 1850 and 1852. And all these things didn't appease these people. They still broke it, and we ended up having a war. Now, it's the same thing I say, and this is why it's about the personality on the other side. You know, me and how I feel about Russia's invasion of Ukraine. Just to go on a different topic, but in a similar vein, I think we should have invaded Russia a year ago, us plus NATO. If we had Germany, France, England, United States, Canada, everybody go in and make a point, right? With tanks all up on the edge of Moscow city limits, maybe this will be over. But everybody, oh, he's going to threaten a nuke and this and that. And I see last week, here we are in 2024, he just threatened using nuclear weapons over the whole Ukraine thing. So the way I look at it is Putin is going to break something in Europe more.
So my point is that by not.
[00:18:50] Speaker A: Who you're talking about compromising with, correct?
[00:18:52] Speaker B: Yeah. So, so it appears to me that the personality not only of former President Trump, but of his supporters, a lot of them don't want to compromise at all. And they're right. They know the election was stolen. They know that the system is rigged. They know that wokism is going to ruin America. Right? They don't want to compromise with anyone. So, again, by giving all these little concessions, my concern is that they're just going to break in stuff worse over time because no one's stopping them. Remember, again, the Senate could have impeached him at least in the second, right after the insurrection and the second impeachment, we wouldn't be here right now with the Supreme Court even having to be forced to make these kind of.
[00:19:34] Speaker A: Right now, do you remember the thing? Oh, well, it doesn't matter anymore. Now he's out of.
[00:19:40] Speaker B: So, and it's this attitude. Right? And so now this is where I want to get your thoughts on it. The fact that it appears, the way I understand it, and I'm not a legal mind like you, that they actually force now the constitution to be changed, because now what the amendment says is that, and I won't read the whole thing, but I'll quote here, that they shall have engaged in insurrection or rebellion against the same. Those are the people who can't rerun for high office in this country.
And now the Supreme Court, my understanding is saying, well, no, Congress actually has to legislate.
[00:20:13] Speaker A: Yeah.
[00:20:13] Speaker B: To me, doesn't that mess up the co equal branches of government?
[00:20:16] Speaker A: Because they effectively rewrote the constitution with this. Yeah.
[00:20:21] Speaker B: Because now the judiciary can't check the Congress, right? At least in that.
[00:20:24] Speaker A: Well, no, it's a trap, too, because they said, oh, well, Congress has to write a law in order to do this. But then as soon as Congress writes a law, somebody will sue the government saying the law is unconstitutional. And the supreme court then will be able to say, yeah, the law is unconstitutional. So it's a double cross across the board. But they rewrote the constitution. Briefly, section three of the 14th amendment says, okay, so if you've already given an oath or taken an oath to support the Constitution, and then you engage in insurrection or rebellion, then after that you're disqualified. Based on those two, you are disqualified under that amendment. And it also says that Congress can remove the disqualification by a supermajority vote. So it does state there's a role for Congress, but it's in reinstating someone who has been disqualified. It doesn't say anything about Congress having to make rules as far as people being disqualified. The Supreme Court added through their decision a new requirement. Now, this part of the decision wasn't unanimous. Therefore, the justices did not agree with this part of the decision. But now they're saying that the majority said that actually Congress needs to make a law in advance which has the standards and everything like that in order for this to happen. Then the Supreme Court also said that states can't do this for federal offices, which, again, is completely contrary to anyone who has a federalism kind of approach, which is that states and the federal government are both sovereign entities, and states can run their election and they can do their things as well. So with that, though. But I want to address the issue that I brought up to you, which is the idea of compromise, and I think you're right, the compromise between two parties that are approaching things in good faith is valuable. It's something that we should look to and say, okay, everybody, like a good faith disagreement. We both want this to work. Key phrase, we both want this to work. But let's figure out if there's a middle ground that we can both kind of leave halfway. Okay, we leave halfway happy, both of us. I think the bigger issue is that you have to identify whether whoever you're engaging with is someone who is approaching whatever dispute in good faith and do they want it to work? Do they want the overall principle or, excuse me, the overall project to work, or do they just want, it's either their way or the highway. And if someone's approaching something with a my way or the highway thing or my way or let's blow it up. That's not the person to compromise with, being able to identify that, the person who's approaching it from that standpoint.
In our system of government, you just have to outvote that person. You just have to beat them at the ballot box because they've made it very clear that, no, if I won't agree to some half measure, I want the whole show or I'm going to be unhappy and I'm going to agitate. And so I think that's actually what the Supreme Court is doing here, is trying to, in Amy Coney Barrett's words, turn the temperature down. But I don't think they did that. What they did is they tried to appease a selection of people. They said, okay, we're afraid that the Supreme Court's saying, we're afraid that if we allow Trump to be taken off, then other people will do things illegally to remove Biden from the ballot, and we're going to end up in this chaos. And it's like, well, so you're now making rulings because you're afraid that someone else is going to do something in response to your ruling illegally once you start going down that path, like, oh, well, we don't want to arrest this. Just as an example, we don't want to arrest this guy because if we arrest him, then when he gets out, he'll commit another crime. Or if we arrest him, he'll do something else. He'll attack a prosecutor. And it's like, well, no, you don't say, we're not going to arrest somebody because if we arrest them, they're going to attack a prosecutor. You arrest them and then you don't allow them. You lock them up or you say you don't allow them to attack the prosecutor. So it's a dangerous game where you're saying, okay, well, because we're afraid that you're going to do something else wrong. We're going to give you what you want now because to that there is no end. You've already shown your hand that, hey, they run you, they control you. So I don't think it is a good way to run a country, basically. And as you pointed out with the civil war, all those compromises that were made prior to that didn't avert the civil war because the people in the south had made it very clear, like, no, we're not interested in compromising on the issue of slavery. And if we don't get what we want, we don't want this to work. So that I think is the question when you're looking at, or that's the answer when you're looking at a question like this on whether it is necessary, whether it's good to compromise sometimes or what situations it's good to compromise and which ones it doesn't.
[00:24:50] Speaker B: I mean, that is exactly the point I made about the whole thing with Ukraine and Russia, which know the fear of Russia using nukes was the reason why we weren't going to send planes and more weapons and all that a year ago to Ukraine, which might have been able to have finished this war already with more support. And now he's threatening nuclear weapons anyway. So it's the same thing here.
[00:25:14] Speaker A: Well, he'll continue to threaten nuclear weapons anytime he wants us to back down.
[00:25:18] Speaker B: Exactly. Well, that's my point about, like you said about a group of people now that occupy one half of our political system. And that's the sad part. This isn't a knock on Republicans in terms of debates in general or people that are conservative and the ideology of being on the political right in the United States. Like we've said many times, the country needs a healthy conservative and liberal wing. And them, like you said, to debate and compromise in the middle for the best outcome of the future of the country.
[00:25:51] Speaker A: We need both sides to want it to work correct.
[00:25:56] Speaker B: Right now. And this is what I guess we're identifying in this conversation.
We already have seen that we have people here that aren't about that. Right. And so here's the thing. And actually, I've got a question for you on this. From a legal standpoint, one of the things that has me feeling as if this is definitely bs and this was an attempt to try and appease people because to your point, I had a friend I had a conversation with recently, and he was, you know, but if they let this go, then all these republican states are going to try and kick Joe Biden off the ballot. And again, coming this off, fear. Right. And I was just saying, like, well, they'd have to show some sort of evidence that Biden violated the Constitution. And I go, and if he did, then I guess we can have a conversation. And my point at my friend, I said, why don't we focus on nominating people to higher office that just don't violate the Constitution?
It's sad that we now have people that they themselves have disrespected our order. And that's what I mean. Like Putin disrespected the kind of european post World War II order by rolling tanks over a border. So now we see that and everyone's just watching. And now what I also learned in preparing for today, these are all things that came back to me because we've learned so much and there's so much information out there. I forgot that there was a group of congresspeople that already asked for pardons by like January eigth. And so their names are Mo Brooks, Matt Gates, Andy Biggs, Louis Gohmert, Scott Perry, and Marjorie Taylor Green. And again, these people put things in writing so there's proof. Five days after the Capitol attack, Mo Brooks sent an email to the White House with the subject line pardons. Brooks said that he had been instructed by President Trump to send a letter and that it was pursuant to request from Matt Gates.
And as an attorney, James, this is what I want to ask you. I've heard that asking for a pardon, and it's kind of a tacit acknowledgement that you did something that you're concerned.
[00:28:00] Speaker A: Is, well, at minimum, you're concerned that charges could be brought against you. You're concerned that reveals kind of, they're saying, the Supreme Court saying Congress has to do this, but it's like, well, that's kind of nonsensical in the context of the 14th amendment because people don't engage in insurrection by themselves.
So it's like, what if members of the Congress are part of people that engaged in insurrection? Congress isn't going to then pass a law to make themselves.
[00:28:32] Speaker B: Terrible.
[00:28:33] Speaker A: This ruling was designed to make sure that the section three of the 14th amendment can't be enforced. That's pretty much what it was designed to do. You wonder why the Supreme Court would do that, especially because, like, what it would be Kagan, Sotomayor, Jackson and Barrett, who didn't agree with that extension of this beyond just saying that they're going to keep Trump on the ballot, but actually put this additional requirement onto if you want to enforce the 14th amendment is, well, why would those five members of the Supreme Court want to do that so bad? They'd say, oh, well, not only are we going to keep Trump on, but we're going to make it so that you can't enforce this reasonably.
That's all speculation on why they would do that.
[00:29:14] Speaker B: I give you a conspiracy point.
[00:29:16] Speaker A: Well, but the point being is that a lot of these know alitos of the know, these are people, these are people that have there for their whole legal career talking about how that you have to look at the text of the Constitution and you shouldn't be adding in other stuff and everything like that. So the hypocrisy of it is jarring. But beyond the hypocrisy, because I know with hypocrisy, people only get upset about hypocrisy when it's hypocrisy that goes against what they believe, people can usually look the other way on hypocrisy that supports what they want. So beyond that, it's something that goes beyond, and you mentioned separation of powers. This is another thing goes to separation of powers. The way constitution is amendment isn't by fiat by the Supreme Court. The way the Constitution amendment. We got to have states have to vote on it, then Congress has to vote on. And you supermajorities and all this stuff. And it's like these guys literally just decided to kind of rip the page out of this section of the Constitution. And they did it simply by saying it. And cleverly, they know that the people who could call them out for this is the Supreme Court. So you'll need, in the same way that Plessy v. Ferguson meant that equal protection under the law no longer meant equal protection under the law. It meant separate but equal. Now we're going to need 50 years from now, like Brown b board of education, another court to come along and say, okay, yeah, this was ridiculous. This never was what it was supposed to be. And they're going to have to overturn this. And so they put us in this situation now where we're going to need the court to come a better court, a court of more integrity, a court that actually, if there are going to be originalists, actually believe in originalism, not just working to waive whatever outcome they want. So, I mean, the damage that's done here is, from a legal standpoint, is very apparent now, and it's going to be apparent in the future. I want to ask you, though, what do you think about the damage that's done from a perception standpoint? Like, do you think this decision, this Trump v. Anderson decision in the Supreme Court helps or hurts their credibility and legitimacy moving forward? Because, again, they are doing this, according to them, they're doing this to try to smooth over a political problem that they think we. So does that help their credibility or does that hurt their credibility? Or what do you think? How are we going to look at the Supreme Court over the next three years because of it?
[00:31:28] Speaker B: So to answer directly, no, I don't think it helps their credibility. I think it only undermines it further, which they've already had credibility issues just in general. Right. Like the stuff we talked about in terms of the flip flopping over certain things between states and the federal government. I think also just the recent stuff we learned in recent years about corruption. I mean, the fact that no one's addressing the fact that Clarence Thomas'mama's house is paid by a billionaire. Right. And that they paid the kids tuition and that these guys, Alito and all these guys are going on trips that they're not disclosing. And then these people have their think tanks and bringing cases in front of the Supreme Court that seem to serve the interest of these billionaires, like stripping the SEC of its powers and the consumer protection boards and all these things. And it just smacks of the gilded age again. Right. And that's why this is nothing new. We've been through this before as a nation, as humanity. But again, if you don't have the perspective of history, then you don't understand that this is just another pattern of that stuff happening again of just power and money just taking over a system. Right.
[00:32:34] Speaker A: Yeah, it almost seems inevitable, but just real quick, by the way, we're going to do a show on this later, but it almost seems inevitable. But once you have a certain threshold of concentration of wealth, that wealth gets so concentrated, it's almost inevitable that you're going to start having these issues. Like the way it was broken before was with antitrust and with high top tax bracket. You put a 93% tax on it, you start enforcing the Sherman antitrust act, then the influence of money starts going.
[00:33:01] Speaker B: In a whole different direction.
[00:33:02] Speaker A: You're going to come, I'm not going to go into that, but I'm just saying, you point out the gilded age, but I'm saying what was similar about that time is that the wealth concentrated, the concentration of wealth was so high, and it almost seems like inevitable that once you get this type of concentration of wealth that we're back there. But go ahead. I'm sorry.
[00:33:19] Speaker B: Well, here's the thing, because it's a couple of things. So one is in just that direction you were going that I think is worth us bringing up. But I want to bring something up first is the fact that, yes, I think, and again to the audience, as I joke with James about him going into economic stuff and all that, but the reality is, yes, the economic interest of the few and the desire to protect what they feel is their interest against the many is what leads to the breaking down of the democratic process where the judiciary has become, especially in the last 20 years, more of a political arm to serve those few. And this isn't a conspiracy theory. Like I'm Mishma talks wealthy. Yeah. No, but what I'm saying is, on a serious note, this is why the public gets frustrated and it creates apathy in the democracy. This is the danger of all this kind of spiraling downwards is. Think about how unpopular something like the Dobbs decision know, the overturning of Roe versus, uh, that didn't happen democratically through Americans voting for that. That was judicial manipulation. And that could be seen as manipulation from someone like Mitch McConnell, like I mentioned before, who manipulated how the Supreme Court would be made up a few years ago, all the way to the manipulation of those who put in the Dobbs case, knowing it would get to the Supreme Court and that they had the right justices in place to challenge it, that this has been a very focused attempt at changing our system, our norms in a sense. And this, think about, we've discussed this in other shows and not to go on a tangent, the amount of Americans is about 90% that think we should have some sort of stronger protections for the public against firearms and in terms of background checks and people with mental health issues or domestic violence history shouldn't have access to them. For some reason, the democratic process doesn't work there. And it's because, again, those few have figured out how to manipulate the courts to block these.
[00:35:23] Speaker A: Let me, let me respond to something you said real quick, because I think it's important to note popularity isn't really the standard, though. So, yes, you could point to dobbs being, hey, this is a very unpopular decision, or the inaction on firearms being a very unpopular. The standard is supposed to be constitutionality. And so I'm sure Brown v. Board of education wasn't an overly popular decision. Plessy v. Ferguson probably know. So popularity can't be what we're going by necessarily, when you're talking about these decisions from the court. Popularity should be what we're going for. When you're talking about what the Congress is doing by the laws and then just, they do what's popular within the constraints of the Constitution, that's the way it's supposed to work. And so when you get into trouble is when you're making these decisions not based on popularity and then also not necessarily based on what's in the constitution, but just based on ideology. And so that's a third prong that we're introducing here where it's saying, okay, we want to put forth in our laws certain things that are consistent with our ideology. They're not supported by know, we don't have the popularity and we don't have the constitutional grounds to do it. How can we do it? Well, you can't vote it, know you're not going to be able to get Congress to vote it in. And if we can't do it constitutionally, then you won't be able to do it through legislation anyway. And so what the hack that's been figured out basically is that you can appoint a bunch of judges. They can make up rationales basically, and it would take years. Plessy v. Ferguson as an example. It will take years, decades, once the courts ruled on these things, for things to straighten themselves out. And so it's a gambit basically to get around the constitutional republic with democratically elected officials. It's a workaround basically. Like we can get things in that benefit the few or that benefit however or that serve my ideology and avoid our system. If we use this hack with judges that are appointed for life and aren't democratically accountable to anyone because they're not democratically accountable to anyone, they can say what they want and the mechanisms for checking them are all bogged down. Congress doesn't function, so to speak.
Let me answer the question because I know I want to get done with this topic as well. So my thought on the actual question, though, I don't think it changes the legitimacy either. Like I said, I think earlier, I think the court kind of went on this path noticeably at least around 2000, where the Bush v. Gore decision was indefensible in any way, any kind of construct, any kind of say, okay, here's my legal principle. Here's my legal principle. There it was indefensible. They wanted a certain outcome and they said, okay, we're just going to produce this outcome and Mike makes right, basically, we're just going to go with it. So that's what they did. They tried to put a caveat, say, hey, this decision is only for here. It doesn't apply anywhere else. And it's like, well, that's not how Supreme Court decisions are supposed to work. But at that point, they revealed their hand of, okay, what we're doing here is not necessarily trying to find what's constitutional, trying to use limited means of judicial power just to keep society within the certain bounds. We're trying to actually advance ideological or even political goals. And so I think once that what we get now is more confirmation of that or more evidence of that, but this is just along the same trajectory we've been on. And it's going to be interesting to see if anything can change that trajectory I don't know. But right now, in terms of, I don't think we even look to the Supreme Court for principles and integrity anymore. We kind of know it's baked in. Nobody was surprised by this decision. Nobody was surprised by it. The only question amongst a lot of the experts was what rationale were they going to try to pick and use or what were they going to come up with? And that's what we got. That was a surprise from yesterday.
[00:39:10] Speaker B: Yeah. I wanted to ask your opinion of this idea of a self executing our amendments in the constitution, because there was an article I read which did a really good job, basically explaining that the self executing mechanisms of something like the 14th Amendment specifically means that it shouldn't require legislation. And what they said was, and this is where my conspiracy theory and that jokingly comes in, and I hope I'm just joking that this doesn't play out, meaning with this precedent now that the Supreme Court basically said that, well, this part of the Constitution we can say is now invalid because we're going to say Congress has to legislate this. This is no longer self executing. Then think about due process, the second amendment, the First Amendment, all of these are self executing. We don't have a law that says Congress wrote the law, freedom of speech, or that we all can have guns. That's all just self executing amendments in the Constitution.
[00:40:07] Speaker A: And that's what it means, basically.
[00:40:09] Speaker B: That's what I wanted to get your thoughts on that as an attorney. When we say, or we hear people like me that are laymen on this stuff through like, say, the media ecosystems, that when you hear this thing of, oh, they just changed or they upended the Constitution. When I read that part, I was like, oh, yeah, I guess someone could come in now and say, hey, I'm just going to challenge freedom of speech. I'm going to challenge the idea of legislating a religion.
[00:40:33] Speaker A: Well, actually, more particularly, someone could challenge equal protection under the law and say, oh, well, this isn't self executing.
It's a good point. And I mean, it does get into the legal jargon, but basically self executing is, as you point out, like, you don't need a separate accompanying law from Congress to actually enforce this. Right. And so with freedom of speech, we don't need a law on the books to cite to say, I have freedom of speech. If the government tries to lock me up for something I say, then I can just cite the First Amendment. Now with the self executing thing, I mean, really what that is. And we can get know, I don't necessarily want to get into the nuance, but I just said that. How? The only question amongst the experts was what rationale the court was going to use to get. We knew they wanted to get to this outcome. So what rationale were they going to use? Because there were several.
We did a show back in December on this, and the thing is that the amendment says what it says, and there's not much wiggle room in terms of if you took the oath and then you engaged in insurrection, you're out, you're disqualified. And so if it says that, then a textualist, the originalist, their hands are pretty tied in that scenario. But it's like, okay, well, they're not going to do it because they don't want to do it. So were they going to find that Trump wasn't a quote unquote officer of the Supreme Court when he engaged in the insurrection? So therefore, that was one of the off ramps, so to speak, that they could have used another one was first.
[00:41:56] Speaker B: Off ramp was him saying, I didn't take an oath to the constitution.
[00:41:58] Speaker A: Yeah, he didn't take an oath to.
[00:41:59] Speaker B: The show, the video where he had his hand on the Bible.
[00:42:02] Speaker A: Yeah, well, no, and that's kind of what his lawyers did, is they created all these kind of off ramps, so to speak, to say, hey, you can do this one. One of them was that this amendment isn't self executing, that you need a law from Congress. And so that's the one that they chose. That's the rationale that they chose.
None of the rationales would have necessarily made a lot of sense. This one was particularly harmful, though, because it calls into question the enforceability of this. It pretty much eviscerates the enforceability of this section of the 14th amendment altogether. So they were very heavy handed with it. And that's the question that I asked. That's the question that the justices sotomayor, Kagan and Jackson asked, like, well, why did you feel the need to go so far on this? You could have gotten to the conclusion you wanted to reach, which the liberal justices apparently wanted to reach as well, for whatever reason.
But why did you have to go so far? And so to me, that opens the conspiracy. I was going to say, that's the door that we haven't seen open yet as to how this is going to play out in the future, because conceivably, this means that you're free to create insurrection as much as you want, and you can't be barred under the 14th amendment as long as you can prevent Congress from passing a law. So, hey, if enough people in Congress decided to commit insurrection, they could just always prevent themselves from being disqualified.
[00:43:18] Speaker B: But you know what's cool? I just realized that if I'm going to commit a crime, that I'll just go do it and I'll tell my lawyers, listen, send the judge like four or five different reasons why it made sense that I did this so that they can pick one and make that part of.
[00:43:33] Speaker A: But that only works if the judge wants to rule for you and has already decided to rule for you. And then the judge just has to pick one of the rationales which makes the judge feel good or feels is less harmful or whatever. But it contrasts with Bush v. Gore, where that court just did what they wanted to do. They tried to keep it very narrow. They say, hey, you know, this isn't something that we want other people citing in the future, which isn't really appropriate either. But in this case they were, no, no, actually, we're going to do this and we're going to make it so we want other people to cite this decision in the future. We don't want states doing this. And Congress has to pass a law knowing that Congress won't pass a law. But I do want to wrap from here, you know, like, we appreciate everybody for joining us on this part one. Part two will come up next.
All right. Welcome back. Part two of our discussion today, this discussion we wanted to discuss the, or we wanted to take a look at. There's some research, some discussion on the idea that our brains, human beings, our brains are wired in a certain way to avoid exercise, just in a way that we're wired to conserve energy.
You sent this to me. I thought it was interesting. You and I both enjoy exercising and make a routine out of exercising. So I know less and less on this.
[00:44:43] Speaker B: I said less and less as I age.
It hurts more.
[00:44:49] Speaker A: It hurts so good, though. What was your thought on just this idea that we have to overcome our own wiring in our brain to exercise consistently?
[00:44:59] Speaker B: No, I thought it was cool. I was reminded in reading this that humans as well as horses are the only mammals that sweat. I've always found that interesting. Why? It's us and horses. No other primate, other primates don't do it. And I guess other bovines or whatever, horses don't do it either.
But no, you're right. And it makes a lot of sense when you think about in reading that article, the idea that I think just in nature, right. There's a lot of activity when you're in the wild especially, I'm sure, when humans were hunter gatherers. You're always moving around so the brain naturally is trying to conserve energy so that you're not wasting calories and precipitating your demise even quicker. So the article gave a good example. Like, the brain is wired not to walk 20 miles just to get a handful of berries because that would be too much expending, too much energy for the reward of just a few calories for all that walking and energy that you use. So in that sense, it makes sense that the shortest distance between two points for the human body is the straight line. And do something, expend the energy and then conserve for the immediate payoff.
[00:46:17] Speaker A: For the immediate payoff, not the immediate payoff. That's supposed to outweigh the energy that you spend. Yeah. To me, what really stood out to this with me was just that our bodies are like the product of millions of years of evolution that is wired to thrive or survive amongst scarcity. It seems like this would be the comparable piece of our minds that makes us want to overeat. That says, okay, when there's calories around, you better eat as many as you can because you don't know, like, hey, winter is coming, or we may not come up on this type of, this level of abundance. Abundance isn't going to be perpetually available. And so when there is abundance, we got to take advantage and then that will allow our body. That's why we can store fat. That's why we can do all those things. So to me, the exercise piece is.
[00:47:09] Speaker B: Like, or you got teenage kids in the house.
[00:47:11] Speaker A: Well, that's the thing. Our society, we haven't changed, but our.
[00:47:14] Speaker B: Society, I got to eat fast or else my sons will eat all the food.
[00:47:18] Speaker A: There you go. You just have a bunch of teenagers in the house and then that'll create the scarcity you need in the house. But yeah, the exercise thing is the same thing. You're exercising for an abstract reason, so to speak. If I go and go lift weights, I'm not then going to get something tangible out of that at that moment. Like, it's not going to be okay, I go lift up a rock and roll it to the top of a mountain or a hill and then push it down and then it rolls over a deer or something like that. And then I can eat the deer. It's like then pushing that boulder up the mountain was worth it, so to speak, in the short term. So I think that that part was very interesting to me. Just how, yeah, we have to keep in mind that we are wired in ways that is designed to survive in scarcity. And when we live in a land of abundance, that completely throws everything off. And the same piece, though, and then the other part about this was the article talked about how to kind of also focus on the long term benefits. Because when you're talking about exercise, that's really what you're talking about, or even watching what you eat or something like that, they're talking about the long term benefits. And your brain has that kind of wiring in it, too. It's not as prominent or prevalent. So I mean, that part about it, either comment on that or just how do you yourself kind of get the motive or keep the motivation going for your walks and for your exercise and in the garage and stuff.
[00:48:39] Speaker B: Vanity.
[00:48:43] Speaker A: So is that an immediate payoff or is that a long term payoff?
[00:48:47] Speaker B: It's probably both now. It was like, funny. I was thinking about like, yeah, why don't I just be honest and say, hey, I work out because I like staying in shape and looking good. I'll just be honest with that. And I'm not saying it in an arrogant way, like, I'm so good looking. What I mean is, but you would.
[00:49:02] Speaker A: Be worse looking if you didn't work out.
[00:49:04] Speaker B: Yeah, it feels good to be in shape, right? And to be able to still fit into my high school basketball jersey if I pull it out of the closet. So that feels good. I'm not going to lie. Right. But I would say this on a serious note.
It's at a point for me because I've been living this way so long that it really is a lifestyle. I don't have to think about it. So I'm not sitting there every morning saying, oh, I got to work out just so I can still have a six pack or something. It's just more of, I've just conditioned my body. I eat a certain way, I exercise a certain way where if I go off that track, I just don't feel good. If I start eating too much processed food and certain thing like, I don't eat potato chips, I don't drink sodas, things like that. So if I know if I start doing that, I literally will have a stomachache for the whole second half of the day. I'll feel miserable. And my body just rejects that kind of stuff. So I think part of it is, but I didn't used to always be like that. I mean, I grew up eating junk food and just being a regular american kid, so there must have been a period of time maybe my 20s or early 30s, where I really spent enough time not eating certain things that when I tried them again, my body just didn't like it. That's one thing. And then the second thing, I don't know if this comes with more being a male or something or just the athlete part of me that's still there even as I age. That same thing with movement. If I don't walk, at least walk. Do something physical almost on a daily basis. Again, I feel kind of jittery and fidgety, like, get depressed and all that. So, for me, it's really part of my lifestyle. Just moving, exercise, and eating right and all that. So that's why I say the vanity part is fun, but the serious part is just, I think, as I've aged. I mean, it's funny. We joke even sometimes in private conversations, right? Like, I can't drink bottom shelf liquor since I turned 41 back in the day.
I remember in college, I could drink a half a bottle of southern comfort and feel great the next day. Now I got to drink, like, the jack Daniels single barrel $80 bottle. And that's the only way I can wake up the next morning and function, because if I drink bottom shelf liquor, it takes three days. And the way that I work now, which I need a lot of brain energy, I got to be on point mentally. I don't like that feeling. So then I just shy away from that kind of consuming those kind of things.
[00:51:28] Speaker A: You threw a lot out there, I'd say, from the article we did, which will be in the show, notes, the idea of the brain being able to like this short term versus long term, I thought was very instructive as far as, like, okay, yeah. The wiring that we have, kind of the unconscious is that short term, and it's the conscious that can actually hold these long term goals, and that's a way to overcome the feeling of, oh, your body is literally telling you in the unconscious part of your body, don't go to the gym. Don't do it. Don't do it. And so how do you work through that in a time when it's not like you have infinite time? So you got to overcome a lot of things to work out consistently. I'll use a different word, but I think you're really onto something. Once you become acclimated to a certain way of living, then it seems like your body does try to maintain that. And so that can work in both ways. If you're acclimated to little movement and potentially bad eating, then you almost had you have the hunger pains, and if you try to go off of that, there's an adjustment period. I think the reverse works as well because I'm the same as you. Like, if I go a couple of days without exercising, then I feel different. I feel more sluggish. I don't feel like. I feel like my brain doesn't pop as well. And so I feel like I'm acclimated to working out, exercising. Whether, again, whether it's hard working out or taking long walks or whatever, I'm acclimated to that in a way that my body now expects it. And that's part of me maintaining kind of my homeostasis is being in that kind of mindset. And the conversion to piggyback on something also, you said, is how your body becomes more sensitive to things as you get older. Like, for me, vanity is less of an issue as far as why I do it, it's more performance. Honestly, I don't want to. I wanted to be able to get out with my kids and do stuff. I don't want to be hurting myself every time I go try to shoot hoops with my kids or toss a baseball or football or something like that. So I like to be able to. Obviously, I'm not going to be able to perform the way I could at 20, but I'm still at an age where I can do things pretty well. And I like that. I like to be able to do that. And so a lot of my exercising is geared towards not looking super this or that, but also like, my muscles working well and so forth. So I think that you can find motivation in different things that may appeal to you, and different things will motivate different people, but ultimately it's going to just be an uphill climb. I mean, that's what I took away from this, is that the acclamation piece can help, but you're busy and then your body's wired to try to conserve calories. Hey, the drought is coming, so to speak, in our bodies at all times. And so the acclamation can help the long term goals or the overriding goals that you have. But ultimately, it seems like it's going to be a day to day battle for people in general. And the other thing I'll say is habituating, scheduling it, have it, so it's part of your schedule can help, but it's one of those things that it doesn't ever become like second nature. It always becomes something that it's okay, it's time to do this, let's do it. Let's not procrastinate it, then. You might run out of time or whatever. But it's interesting to see the reaffirming of, like, okay, yeah, there's some level of intentionality that's required with this.
[00:54:50] Speaker B: Yeah. And I think part of it. So there's a couple of things you said that I'll pick apart in observation, which is, number one, the intentionality part, I think, partly comes from just the way we've developed our own way of living in our culture. So, for example, I saw a documentary, I think it was on Netflix, about aging and kind of looking at why people in certain regions of the world live to 100 more than in terms of the overall population, more than other regions. I found it fascinating when they looked at Okinawa in Japan, because they were showing people in their late 90s. I'm talking like, 97, 98 years old, like, ripped, just looking great and moving around still.
[00:55:33] Speaker A: And all that poster you put up over your bench press right there, that's the poster you have up. Those are the goals.
[00:55:40] Speaker B: No, because we don't have that lifestyle here. That's why I don't want to be alive at 100 in America, because I'll be in and out of freaking nursing homes, hospitals at that age. Because, number one, I'm sure their food is different and all that, not processed and all that. So that's a whole different conversation. But what I'm getting at here is the fact that what I realized, everything's low, meaning in that culture where they live in that part of Japan, meaning their beds are low, they eat on the floor. Right. Everything. So what happens is they're doing 60 to 80 squats every day just by bending and getting up to eat, go to bed. The way they sit and talk, it's all on the ground. And there's other cultures like that, too. So that's what they were saying, that just naturally they incorporate that kind of movement into their daily routines. And like you're saying, it naturally helps them because they're physically continuing to move their bodies through their lifetime.
[00:56:36] Speaker A: It actually takes less intentionality because the way society is designed, like, you've seen that also with cultures where walking and that kind of stuff is just more a part of your day to day life.
[00:56:47] Speaker B: Like anyone who's been to Europe versus the United States will recognize. Yeah. That walking and all that, it makes a big difference and impact long term on the entire population. And so that's one thing. The second thing that you mentioned I think is good to mention here is, again, this is part of, I think just the culture we've developed and how we do things like work, commute back and from work in our country in terms of the amount of people sitting in cars and all that is, if the brain is looking to conserve calories and energy at a subconscious level, then, of course, working out is much harder for us in the United States because we're so burnt out and stressed from just other parts of our life. So that's why, to your point, about making it intentional and acclimating it into our schedule makes sense in the United States. Like, all right, I got to do an hour of exercise every day and kind of putting it in because if you're not that intentional, your body naturally will not want to work out on its own. That's why for me personally.
[00:57:48] Speaker A: And it'll acclimate to other ways of dealing with all that stuff.
[00:57:52] Speaker B: Yeah, exactly.
[00:57:52] Speaker A: And so it may become pharmaceutical solution.
[00:57:55] Speaker B: Turning to drugs and alcohol.
[00:57:56] Speaker A: That's what I'm saying. It could be a pharmaceutical solution. It could be a food type of solution, like other things. And so, yeah, it's a great point that your body is going to look for another way to outlet whatever's built up and so forth.
It's something that can make a difference, but that's going down a whole nother path.
[00:58:16] Speaker B: That's another show.
[00:58:17] Speaker A: Yeah. Let's wrap the show from there. We appreciate everybody, for joining us on this episode of call. Like I see it, subscribe to the podcast, rate it, review it, tell us what you think. Send it to a friend. Till next time. I'm James Keys.
[00:58:27] Speaker B: I'm Tunde Ogunlana.
[00:58:28] Speaker A: All right, we'll talk to you next time.
