Ask the Professors!

Professors Richard Epstein and John Yoo are kicking off the fall semester with a bang, as they invite classroom participation in the form of questions from Law Talk listeners. On a wide-ranging episode, they cover the controversies over the Texas and Mississippi abortion laws, the crisis on the southern border, vaccine mandates, and a smattering of questions on everything from long-dead Supreme Court justices to the possibility of a new constitutional convention to revising the Declaration of Independence. You’ll hear all the wisdom and insight you’ve come to inspect from the professors plus a potentially career-ending gaffe from our intrepid moderator, who assures us he will submit to the Montreal Cognitive Assessment.

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  1. Brian Watt Member
    Brian Watt
    @BrianWatt

    @troysenik @johnyoo @richardepstein – Re: the question about immigration law – Unfortunately, Troy did not read the second part of my question. President Biden isn’t merely ignoring standing federal immigration law in a passive way, he has actually ordered the US military to use its resources to relocate illegal aliens to other parts of the country. This is a clear violation of the law and I would think that the states impacted by Biden’s illegal order would have standing to sue the federal government.

    So, try again to answer the question. 

    • #1
  2. Quickz Member
    Quickz
    @Quickz

    Highly entertaining podcast from y’all as usual!

    Curious if any of the hosts would like to expand on their hesitancy in supporting a Convention of States for the purposes of proposing Amendments. The reasons given seemed thin and casually dismissive considering the breadth of the two hosts. I thought that any Amendment coming from this Convention of States would have to be voted on and passed by 3/4 of the States to become an Amendment – the same hurdle a Congressional-proposed Amendment would have to meet?

    Ok, while writing this I went to clip and post part of the Amendment and, much to my surprise (I’m with you Senik!) I seem to have misread my documents! I see this part here, and the “runaway” convention clause I have bolded:

    …amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress…

    Oh my. So after a Convention of States is called, and Amendments are proposed (how we do not know, that would all have to be debated, designed, and agreed to by some system of majoritarianism I assume), they DO NOT return said Amendments to the State Legislatures for approval but rather back to the Convention of States itself to approve!

    This would mean that yes, a Convention of States could be called and representatives from each of the States sent and then those representatives could propose and ratify what they deem appropriate – never having to return to the State Legislatures for approval! This is wild.

    I respectfully withdraw my questions and agree with the hosts that a Convention of States has the potential to be a “runaway” convention!

    • #2
  3. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Quickz (View Comment):

    Highly entertaining podcast from y’all as usual!

    Curious if any of the hosts would like to expand on their hesitancy in supporting a Convention of States for the purposes of proposing Amendments. The reasons given seemed thin and casually dismissive considering the breadth of the two hosts. I thought that any Amendment coming from this Convention of States would have to be voted on and passed by 3/4 of the States to become an Amendment – the same hurdle a Congressional-proposed Amendment would have to meet?

    Ok, while writing this I went to clip and post part of the Amendment and, much to my surprise (I’m with you Senik!) I seem to have misread my documents! I see this part here, and the “runaway” convention clause I have bolded:

    …amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress…

    Oh my. So after a Convention of States is called, and Amendments are proposed (how we do not know, that would all have to be debated, designed, and agreed to by some system of majoritarianism I assume), they DO NOT return said Amendments to the State Legislatures for approval but rather back to the Convention of States itself to approve!

    This would mean that yes, a Convention of States could be called and representatives from each of the States sent and then those representatives could propose and ratify what they deem appropriate – never having to return to the State Legislatures for approval! This is wild.

    I respectfully withdraw my questions and agree with the hosts that a Convention of States has the potential to be a “runaway” convention!

    That’s not the way I read that.  Proposed amendments would be returned to the states for ratification in each state by either the legislature or a convention within the state. (How membership in that convention would be determined being a significant but unknown issue) 
    A bigger objection is that a runaway convention could wipe the whole Constitution. Recall that the Constitution we have now was the result of a convention called to fix the articles of confederation –  not to write a whole new document. And the new constitution contained its own rules for ratification. 

    • #3
  4. Gary Robbins Reagan
    Gary Robbins
    @GaryRobbins

    I was really disappointed that John Yoo did not talk about McRib sandwiches.  

    • #4
  5. Norm McDonald Had A Farm Coolidge
    Norm McDonald Had A Farm
    @Pseudodionysius

    I’m disappointed none of my questions were answered. I’m also disappointed I didn’t listen to the podcast. I’m also disappointed I’m not the real Norm MacDonald. Ee Eye E Eye Oh.

    Its all just one big McFib.

    • #5
  6. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Norm McDonald Had A Farm (View Comment):

    I’m disappointed none of my questions were answered. I’m also disappointed I didn’t listen to the podcast. I’m also disappointed I’m not the real Norm MacDonald. Ee Eye E Eye Oh.

    Its all just one big McFib.

    Given that the real Norm MacDonald died last week, are you REALLY disappointed?

    • #6
  7. Taras Coolidge
    Taras
    @Taras

    Miffed White Male (View Comment):

    Quickz (View Comment):

    Highly entertaining podcast from y’all as usual!

    Curious if any of the hosts would like to expand on their hesitancy in supporting a Convention of States for the purposes of proposing Amendments. The reasons given seemed thin and casually dismissive considering the breadth of the two hosts. I thought that any Amendment coming from this Convention of States would have to be voted on and passed by 3/4 of the States to become an Amendment – the same hurdle a Congressional-proposed Amendment would have to meet?

    Ok, while writing this I went to clip and post part of the Amendment and, much to my surprise (I’m with you Senik!) I seem to have misread my documents! I see this part here, and the “runaway” convention clause I have bolded:

    …amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress…

    Oh my. So after a Convention of States is called, and Amendments are proposed (how we do not know, that would all have to be debated, designed, and agreed to by some system of majoritarianism I assume), they DO NOT return said Amendments to the State Legislatures for approval but rather back to the Convention of States itself to approve!

    This would mean that yes, a Convention of States could be called and representatives from each of the States sent and then those representatives could propose and ratify what they deem appropriate – never having to return to the State Legislatures for approval! This is wild.

    I respectfully withdraw my questions and agree with the hosts that a Convention of States has the potential to be a “runaway” convention!

    That’s not the way I read that. Proposed amendments would be returned to the states for ratification in each state by either the legislature or a convention within the state. (How membership in that convention would be determined being a significant but unknown issue)
    A bigger objection is that a runaway convention could wipe the whole Constitution. Recall that the Constitution we have now was the result of a convention called to fix the articles of confederation – not to write a whole new document. And the new constitution contained its own rules for ratification.

    Obviously the plural “conventions in three fourths [‘of the several states’]” cannot be a reference to the singular “Convention of the States”, so the argument for a runaway convention falls.  

    Also, Congress gets to choose whether the ratifying bodies are the state legislatures or state conventions; which suggests that a Congressional majority could halt the process, runaway or not, by refusing to do so.

    • #7
  8. Norm McDonald Had A Farm Coolidge
    Norm McDonald Had A Farm
    @Pseudodionysius

    Miffed White Male (View Comment):

    Norm McDonald Had A Farm (View Comment):

    I’m disappointed none of my questions were answered. I’m also disappointed I didn’t listen to the podcast. I’m also disappointed I’m not the real Norm MacDonald. Ee Eye E Eye Oh.

    Its all just one big McFib.

    Given that the real Norm MacDonald died last week, are you REALLY disappointed?

    You’re killing me.

    • #8
  9. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Norm McDonald Had A Farm (View Comment):

    Miffed White Male (View Comment):

    Norm McDonald Had A Farm (View Comment):

    I’m disappointed none of my questions were answered. I’m also disappointed I didn’t listen to the podcast. I’m also disappointed I’m not the real Norm MacDonald. Ee Eye E Eye Oh.

    Its all just one big McFib.

    Given that the real Norm MacDonald died last week, are you REALLY disappointed?

    You’re killing me.

    I’m not cancer.

     

    • #9
  10. Norm McDonald Had A Farm Coolidge
    Norm McDonald Had A Farm
    @Pseudodionysius

    Miffed White Male (View Comment):

    Norm McDonald Had A Farm (View Comment):

    Miffed White Male (View Comment):

    Norm McDonald Had A Farm (View Comment):

    I’m disappointed none of my questions were answered. I’m also disappointed I didn’t listen to the podcast. I’m also disappointed I’m not the real Norm MacDonald. Ee Eye E Eye Oh.

    Its all just one big McFib.

    Given that the real Norm MacDonald died last week, are you REALLY disappointed?

    You’re killing me.

    I’m not cancer.

    I’ve never seen you two together in the room at the same time. Color me suspicious.

    • #10
  11. Taras Coolidge
    Taras
    @Taras

    The reason the guys oppose a Convention of the States, I suspect, is that they take for granted a Supreme Court dominated by Republican appointees, as has been the case for the last half century.

    Try to imagine what the Supreme Court might do if, down the road, it has a majority of progressives, people who hold the Constitution in contempt.

    However we get it done, to me the urgent thing is a Constitutional amendment setting the number of Supreme Court Justices to nine.

    • #11
  12. Nick Plosser Coolidge
    Nick Plosser
    @NickP

    Key takeaways from this episode: 
    -the existence of a Gomer Pyle musical (any word on a release date?)
    -Richard Epstein is the Dikembe Mutumbo of the legal profession. 
    -The Estonia Bar Association must be a very dubious group indeed. 

    • #12