3 Whisky Happy Hour

President Trump's executive orders Thursday afternoon attempting to re-ground his opposition to birthright citizenship prompted an emergency livestream with me and Lucretia on Substack. We wanted to get ahead of the certain hysteria of the blue-faced crazies on BlueSky (and the media, but I repeat myself) that Trump is "undermining the Constitution" and "defying the Supreme Court."

To the contrary, Trump is defending the Constitution from the mistaken assumption that the judiciary—and only the judiciary—has the last word on these matters. We break down the main issues in this 30-minute, ad-free mini-episode.

Our regular episode, featuring special guest host Phil Munoz of Notre Dame, and a cameo appearance from "Henry Kissinger," will be out Saturday morning as usual, where I'll explain our new voice over for the intro you hear today.

The hiatus for the rebooted 3WHH is over! We got the band back together, and to further paraphrase the political philosophy of the Ellwood brothers, it's 70 minutes to the end of this podcast, we've got a full glass of whisky, half a pack of cigarettes, it's dark, and we're wearing sunglasses. Just like Anthony Fauci in his glam cover shot for In Style magazine back in 2021.

Most of our changes are cosmetic, and it it still a work-in-progress, but the two main new features on display this week is a short "cameo" appearance from a slate of contributors we're signing up, and responding to the best reader/listener question. This week's cameo is from Alex Priou of the University of Austin, who has some definite opinions about The Odyssey. 

Two main topics are on our mind this week: the mendacious Dr. Fauci, and what pathways for legal redress might still be open despite President Biden's pardon. Second, we spend some time discussing the "republican guarantee clause" of Article IV of the Constitution, which is usually overlooked, and thought to be non-justiciable, if not in fact a nullity, similar to the 9th Amendment. We take up this question because of Glenn Reynolds' mischievous suggestion on his Substack that President Trump might be able to invoke the clause to justify sending federal authorities into states with high potential for vote fraud. Here's the key passage from Glenn's article:

"So if President Trump announces that we have uncovered massive electoral fraud — as he almost certainly will — and that he is dispatching huge numbers of federal election watchers to oversee voting and counting in areas where fraud has occurred, he would be acting directly under a power that the Constitution has vested in him. For a state to have a “republican form of government,” it must have meaningful elections, and elections that are rigged are not meaningful. Stopping them from being rigged would be protecting a republican form of government.  Congress has passed other election laws, mostly for reasons of combating race discrimination, but those aren’t strictly applicable to these circumstances. . ."

Could make for some fun times!

Lots of people didn't get the memo that the 3WHH is on hiatus for the month of July as we revamp the show's format and lineup, but since I don't want loyal listeners to go into painful withdrawals, I am offering this emergency stopgap edition, with just me and a frequently-requested guest, John Eastman.

If you go only by the mainstream media coverage of the Supreme Court, you might think that the 6 - 3 decision against President Trump's executive order that attempted to curtail birthright citizenship under the emanations and penumbras of 14th Amendment was a serious setback. But discerning readers recognize that on the core constitutional question of whether birthright citizenship is anchored in the 14th Amendment, the vote was actually 5 to 4, since Justice Kavanaugh agreed with the other three dissenters that the 14th Amendment does not establish birthright citizenship, and he voted to strike down Trump's executive order because he thought it failed on statutory grounds.

Statutes, of course, can be changed. And 5 - 4 Supreme Court decisions indicate that the matter is not decisively settled. Keep in mind that Roe v. Wade was a 7 - 2 decision, but the shoddiness of the reasoning in Roe became so apparent over time that it was indeed overturned.  Likewise this may occur on birthright citizenship. It is most definitely not over. Consider that even as recently a decade ago no one thought a constitutional challenge to birthright citizenship could make it to the Supreme Court, let along get four votes. Many commentators thought Trump might lose this case 8 - 1, or perhaps unanimously. 

If there is one person above all who deserves credit for bringing this moment about, it is John Eastman. You may have heard of him. He's been in the news a bit the last few years. (Full disclosure, as the saying goes—Eastman and I were classmates, and for a time housemates—in graduate school back in the 1980s.)

About 30 years ago, Eastman began writing a series of law review and other academic articles attacking the supposedly secure foundations of birthright citizenship. His argument seemed exotic at the time, and was summarily dismissed. And yet in recent years more and more eminent constitutional scholars began to come around and endorse his critique of the accepted view, which as I say now commands four votes on the Supreme Court.

In our conversation here we review the course of this unfolding rethinking that has brought us to this moment, and we also take up what might be next, as Eastman has his eye on a sweeping revision of another important and highly consequential constitutional provision that nearly everyone ignores. If he can repeat the story arc of the birthright citizenship issue, it might lead to one of the most significant reforms of American government in decades.

To find out that this sequel is, though, you'll just have to listen.

Two guesses about the topic of this special bonus edition for today's semiquincentennial, and neither of them count. That's right: we take up the Declaration of Independence and revisit some of the lingering issues that have arisen during this season of renewed debate about America's "birth certificate," as well as a few that haven't seen much discussion.

For example, John noted in National Review Online that contrary to popular impression, the Declaration does not reject energetic executive power, while Steve recall for The Daily Wire (alas, paywalled) the contrast between how the left handled the bicentennial in 1976 and how they are approaching it today, calling it "The Patriotism Crisis That Could Tear America Apart."

Sample:

"Patriotism among a growing number of Democrats seems conditional about whether they are in power or not. And a conditional patriotism is a weak patriotism. The last time so many Democrats were conditional about their attachment to the country and their fellow citizens ended in a civil war. “Patriotism is civic friendship,” the political philosopher Harry Jaffa once wrote. “Patriotism is the link between justice and friendship in its purest or transpolitical form. Those who see each other as utterly alien cannot be fellow citizens.”

Note: The 3WHH will be going on hiatus for the rest of July, as we retool the show for a new season. Stay tuned for announcements on our group Substack, Political Questions, for updates.

Well, that was quite a finish for this year's Supreme Court term, which, as usual, released the most controversial and consequential cases on the very last day of its sitting. This wrap-up episode—the first of a double-episode package for Jul4 4 since we missed last week's regular episode—dwells a lot on the birthright citizenship case, with sharp disagreements among the 3WHH bartenders, but from there we move on to ponder the ambiguity of the "Humphrey's Straddle," and the significance of the ruling striking down one of the key pillars of government regulation of campaign financing—the so-called "coordination" rule. 

We close out this first of our double-header with a celebration of America's new heroine, Sophie Cunningham, who is making is forget all about Sydney Sweeney.

This epicly (is "epicly" a real word?) gonzo episode finds Steve still somewhere in the middle of the storm-tossed north Pacific Ocean, while John and Lucretia hold down the fort from various locales back on dry land. 

But who else can knit together the return of McDonald's hot applie pies with Elon Musk's hot SpaceX IPO, hot Apple i- devices and their security issues, hot section 702 renewal, hot rulings from the Supreme Court, and the need to take all of these in sections.

Speaking of taking things in sections, we do our best to break down the Trump-Iran MOU, though our thoughts may be obsolete by the time these pixels reach your screen, since news overnight suggests the interim terms of the MOU are already being violated, turning the whole scene into chaos.

But our collective judgment is that the critics are being a bit premature, and that there are good reasons for taking a wait-and-see attitude. As someone likes to say, we'll just have to see what happens, as it is far from clear that the MOU is Obama-lite.

Meanwhile, since today is Juneteenth, don't miss Lucretia's modest proposal for how the liberation of slaves in 1865 should be commemorated, over at Civitas Outlook. 

(Since Steve is producing and posting this episode from the middle of the ocean, we're making it an ad-free edition, since the geography-based auto-ad placement might post up some truly bizarre ads. Enjoy!)

This week's episode, which finds Steve over in Japan but still with a hoarse voice, ranges widely from exonerating John Yoo from being implicated in a major whiskey heist, to what the prodigious drinking habits of the Founding Fathers has to say about constitutional law today. Justice Neil Gorsuch reminds us that “John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn’t much of a user of alcohol—he only had three or four glasses of wine a night.” 

Ah, the great ones.

Speaking of the Founders, we make a nod to the tragic passing of Gordon Wood, and naturally manage to get into an argument about history and historians.

But the central topic of today is considering John's foray into grand strategy in his Civitas Outlook article this week on "America Doesn't Need to Fear a 'Thucydides Trap'," , and while Admiral Ackbar needed to fear a trap, John doesn't think so. But what was Chinese premier Xi trying to do in bringing up the subject in a public session at the recent summit with Trump? One doesn't imagine Trump being a reader of Thucydides, though one can easily see him liking the outcome of the Melian debate. In fact, maybe that's what he's up to with Iran? Who can tell.

So your three bartenders are back from overseas, but still a bit jet lagged and struggling to keep up with the news. Was it a good week? The firing of Scott Pelley is certainly good news, as are the initial results of the California primary, where the energy and enthusiasm is clearly on the side of the outsider insurgent candidates. (Knock on wood: let's see how the "vote counting" goes over the next several weeks in the "incompetent" Golden State.) 

Not such a good week for John Bolton, nor for aesthetic sensibility, if the Obama library is any indication. Why does the left prefer brutalist ugliness? We have our suspicions. . .

We do our longer dive this week into some meta-narratives about the Supreme Court, inspired by Paul Moreno's terrific Law & Liberty article, "Save the Last Branch for Me." It's a new day indeed.

We also get in our licks at woke British policing, Star Trek, and the 1979 Book of Common Prayer, which has some rather uncommon Eucharistic forms. Oh, also McDonalds news, just to keep John Happy and well fed.

The end of this week finds the 3WHH crew in situ in Enna, up in the highlands of Sicily, visiting the University of Kore for a conference on, well, everything, though it is hard to tell since half the speakers are speaking in Italian and the rest of us arenspeaking in English. John Yoo's incoming plane was delayed—again—but it gave us the prompt we needed to have in John place R.J. Pestritto, the Dean of graduate education at Hillsdale College, but above all one of the most treachant critics of the Progressive revolution of the early 20th century, and the insidious administrative state it birthed. If ever you want to throw down on Woodrow Wilson—and what sensible person doesn't?—R.J. is your man.

For this episode we consider R.J.'s recent short monograph for the Claremont Institute's "Provocations" series, Government by the Unelected: How It Happened, and How It Might Be Tamed. Settle in with your favorite chianti for this one, as "D.J.—R.J" as I like to call him when he gets rolling on this subject, really gets rolling on this subject with us.

For this episode, recorded in a hotel lobby with some visitors wandering by our "field recording studio (which included Michael McConnell listening in for some of it), we decided to keep the "authentic feel" of the background noise, in case you get to wondering.

We could have called this the jeg lag from hell episode, as John Yoo managed to spend 11 hours on a airplane yesterday that didn't fly anywhere, while Steve, already planted as an advance guard in Palermo ahead of next week's conference in Sicily where the 3WHH crew will be together in person at the University of Enna, is batting both jet lag and a airplane-acquired bug that left his voice raspy.

So Lucretia hosts this week, and wonders whether both parties are a hot mess at the moment, what to make of the scene from the cashiering of Messy Massie to Der Platner of Maine to Ken Paxton in Texas, but landing on the breath of fresh air that is Spencer Pratt.

In the middle of taping the news broke of the resignation of Tulsi Gabbard, so we pivoted to an impromptu discussion of the wider scene of dysfunction in the "intelligence community." Steve made a case for bringing back James Jesus Angleton from the dead, drawing the predictable guffaws from John. 

All just a warm up for our on-location episodes next week.