How to Live the Constitution: AJ Jacobs' Ultimate Guide to America's Founding Document

[00:00:07] The Year of Living Constitutionally.

[00:00:09] Well, I told you this episode would happen when we did the episode with AJ last week,

[00:00:15] but this is a book by AJ Jacobs, The Year of Living Constitutionally, where he not only

[00:00:20] researched and wrote about the Constitution, and I learned so many things I had no idea

[00:00:24] about, but he lived life for a year as if he was in 1790 living the life, word for

[00:00:34] word, literally, of the U.S. Constitution.

[00:00:37] And he carried a musket around, he applied to be a pirate in Congress because if you

[00:00:42] did not know, in Article I of the U.S. Constitution, it gives Congress the power to make pirates,

[00:00:48] and so many other things.

[00:00:50] There's so many facts, debates, information, what sort of new powers the Supreme Court

[00:00:56] took, Congress took, the President took, what's the pros and cons of states' rights versus

[00:01:01] federal rights, what's the reason for this amendment, that amendment, and there's so

[00:01:05] many things I didn't know about, and of course the debates about the Electoral College.

[00:01:09] So here's, and AJ not only researched it, like I said, he lived it.

[00:01:13] I did a podcast last week about the AJ method, a very unique method of living the story,

[00:01:20] so that you could, and it turns out to be a great formula to make bestsellers, and now

[00:01:24] he applies his humor, his talent, his information to the U.S. Constitution, the year of living

[00:01:33] constitutionally, one man's humble quest to follow the Constitution's original meaning,

[00:01:38] and here's my good friend AJ Jacobs.

[00:01:41] This isn't your average business podcast, and he's not your average host.

[00:01:50] This is the James Altucher Show.

[00:02:03] First off, I do have to ask, how are things going?

[00:02:05] All good?

[00:02:07] Overall, pretty good.

[00:02:08] Overall, you know, I'd say 51% positive, which is all that I can ask for.

[00:02:13] What's negative?

[00:02:14] Oh, you know, my parents are old, and my kids are applying to college, which I know you

[00:02:21] say they shouldn't do, so that would solve things.

[00:02:25] That would be happy.

[00:02:26] How about you?

[00:02:27] How are you overall?

[00:02:28] 51?

[00:02:29] Good.

[00:02:30] Yeah, everything's good.

[00:02:31] I actually want to ask your advice on something, but I'll do it another time.

[00:02:35] I'll ask a writing question of all time.

[00:02:37] Oh, I would love to answer.

[00:02:38] Well, I can do it later this afternoon or tomorrow.

[00:02:41] We should do a Zoom lunch sometime.

[00:02:45] I'm ready.

[00:02:46] Yeah, all right.

[00:02:47] I'll reach out next week, and we'll schedule something.

[00:02:49] Perfect.

[00:02:50] We got to get your book out.

[00:02:52] We got to get your book released first.

[00:02:54] God bless you.

[00:02:55] So, AJ, the year of living constitutionally from the man who wrote The Year of Living

[00:03:02] Biblically and many other...

[00:03:05] I love...

[00:03:06] We've talked about this before, but I love your whole style of experiencing things rather

[00:03:10] than just researching things.

[00:03:12] Well, thank you.

[00:03:13] I do.

[00:03:14] I love to...

[00:03:15] I'm sort of a method writer.

[00:03:16] I like to immerse myself and live the topic.

[00:03:19] Yeah, like when you wrote The Year of Living Biblically, which is like your classic example

[00:03:23] of this, and then you have My Year Eating Healthy.

[00:03:27] I forget the exact title.

[00:03:28] Right.

[00:03:29] So, The Year of Living Biblically, you described some of the things you did.

[00:03:34] Yeah.

[00:03:35] No, I went hardcore.

[00:03:36] I decided to follow every rule in the Bible as literally as possible.

[00:03:40] So I did the famous ones like the Ten Commandments, but there are hundreds of other more obscure

[00:03:46] ones.

[00:03:47] So I couldn't wear clothes made of two different kinds of fabrics.

[00:03:51] That's forbidden according to the Old Testament.

[00:03:53] Why is that forbidden according to the Old Testament?

[00:03:56] There's usually some reason.

[00:03:58] Well, no one really knows.

[00:03:59] I mean, there are all these theories like maybe the people who did the shepherding hated

[00:04:06] the people who were farmers, so they didn't want to mix.

[00:04:10] No one really knows.

[00:04:11] So that's true of a lot of these laws.

[00:04:14] But I was like, I'm following them.

[00:04:16] I don't care.

[00:04:17] And stoning adulterers.

[00:04:18] I did stone adulterers with a very small stone.

[00:04:22] You refused to sit on the same chairs as your wife while she was menstruating.

[00:04:29] Exactly.

[00:04:30] That's in there too.

[00:04:31] It became impure.

[00:04:33] And the idea was follow everything without picking and choosing, sort of become the ultimate

[00:04:38] fundamentalist literalist to see what works and what doesn't.

[00:04:42] To see at the end what I thought of religion, what I thought of the Bible, what I could take

[00:04:48] with me to make my life better, which it did have like gratitude and various other things

[00:04:54] that did improve my life.

[00:04:56] So I thought, I'm like, you know what?

[00:04:59] I need to do a sequel because the Constitution I knew very little about and yet every day

[00:05:09] for the last five years, it's in the headlines.

[00:05:12] This 230 year old document has a huge impact on my life, on millions of other lives, on

[00:05:18] how we live, who we marry.

[00:05:21] And I thought, okay, I'm going to do the same thing.

[00:05:23] I am going to try to understand the Constitution by following the original meaning from 1789.

[00:05:30] So I did.

[00:05:31] I bore a musket, an 18th century musket around New York City.

[00:05:35] Now, did you need a special permit for that?

[00:05:38] So you carried a musket around with you.

[00:05:42] Now, guns are like open carry guns.

[00:05:44] I don't even know if that's considered an open carry gun, but is that legal in New York City?

[00:05:48] Well, I found a little loophole on that one because it is considered an antique.

[00:05:54] Until it's loaded, then it becomes a weapon.

[00:05:56] So I had an unloaded musket.

[00:05:59] So if anyone tried to mug me, it would not have done much good.

[00:06:03] But I did eventually go and shoot it at a shooting range with some reenactors.

[00:06:08] But that was just one part.

[00:06:10] I also gave up social media and instead wrote pamphlets with a quill pen and handed them

[00:06:17] out on the street.

[00:06:20] And I applied to Congress to become a legal pirate, as is my constitutional right.

[00:06:26] So all of these things.

[00:06:28] And the whole idea was at the end, hopefully I would be more empowered.

[00:06:33] I would know and understand when people brought up the Constitution what the real truth was.

[00:06:41] And I do believe that I feel much better.

[00:06:46] And I also wanted to know, should I be optimistic about democracy?

[00:06:49] Are we really in trouble?

[00:06:51] Is this the end?

[00:06:53] And so that's the point.

[00:06:54] I hope readers, when they read it, that they will feel empowered and hopefully optimistic.

[00:06:59] Not to do a spoiler, but I am more optimistic about democracy than I was.

[00:07:08] Well when reading your book, there's two things I noticed.

[00:07:11] One is, well actually first I want to ask you, so in Article 1 of the Constitution,

[00:07:16] so the first article which describes how Congress is made and how it works and what powers they

[00:07:22] have, I think it's Article 1 or Article 2, I don't know.

[00:07:26] It talks about Congress can appoint people to privateer, to basically be a pirate.

[00:07:34] I did not know this about the Constitution.

[00:07:36] Yeah, it's not very well known.

[00:07:38] I mean most people have not read the Constitution.

[00:07:41] That's according to polls.

[00:07:43] And so I first had to sit down and read it.

[00:07:46] And there were these parts that were super inspiring, like about equal protection and

[00:07:51] the common good.

[00:07:52] But then there are parts that are like, what?

[00:07:55] It was written in the 18th century.

[00:07:58] And then privateers, which are legal pirates, were a huge deal because in the Revolution,

[00:08:06] the America had no Navy, very little Navy, so they outsourced it.

[00:08:11] They said if you're a fisherman, a private citizen and want to put a cannon on your boat

[00:08:17] and go chase down British ships and keep all of the merchandise, the booty, then you can

[00:08:24] do that and we will grant you permission.

[00:08:26] And it's still in the Constitution.

[00:08:29] It has not, there's not been a legal pirate since 1815.

[00:08:32] They haven't granted, but I'm like, this is my job.

[00:08:35] You know, I am trying to follow the literal Constitution and it's still in there.

[00:08:40] So I actually met with a congressman, Ro Khanna, and I presented him with my application.

[00:08:47] The official term is letter of mark and reprisal.

[00:08:50] And I had on my tricorn hat and I had the whole deal.

[00:08:54] He was at first interested, he was psyched because he's like, let's make this happen.

[00:08:59] Then when I explained to him exactly, like I would be going out on my friend's water

[00:09:04] ski boat to like attack ships in the Taiwan Straits or whatever, he was like, okay, let's

[00:09:12] slow down, let's slow down.

[00:09:14] Maybe this is not.

[00:09:16] So I'm still waiting for it to be approved.

[00:09:19] But the point was to try to show there are all these parts of the Constitution we don't

[00:09:24] know about.

[00:09:25] Everyone says they know what the Constitution says, but we really don't or I certainly didn't.

[00:09:30] And most people haven't even read it.

[00:09:32] Well, look at all the confusion in 2020.

[00:09:34] Like what happens if a president and vice president or if their electors are not, you

[00:09:41] know, ratified in time of the inauguration?

[00:09:44] Nobody really knew the answer.

[00:09:46] No.

[00:09:47] Well, the Constitution is only four pages long.

[00:09:50] I mean, they're big pages with small writing, but it only takes 20 minutes to read.

[00:09:57] And so you cannot fit into four pages all of the thousands, millions of scenarios that

[00:10:04] are going to come up.

[00:10:06] So that is why there are always going to be these debates.

[00:10:11] And the question is who decides it?

[00:10:12] Is it the Supreme Court?

[00:10:15] Which is what we have now, these nine unelected people.

[00:10:19] As you can tell from the way I phrased that, I'm not a huge fan of the fact that nine unelected

[00:10:24] people can tell us what is in the Constitution and what is not.

[00:10:28] I think that, and I think the founders did not intend for that to happen either.

[00:10:34] Are you sure?

[00:10:35] Because look, at least the Federalists were a little bit nervous about democracy, right?

[00:10:44] They didn't want everybody with a farm or whatever to decide the future of the world.

[00:10:52] They wanted themselves and people like themselves to decide the future of the world, hence the

[00:10:57] Electoral College, hence the Senate.

[00:11:00] So I think the interesting thing about the Constitution, and a lot of it which I read

[00:11:04] in the book was A, how amorphous the document was.

[00:11:08] That four pages basically defined a system of making laws that has lasted and survived

[00:11:15] and flourished for the past, you know, whatever, 250, how many years is it now?

[00:11:20] I don't even know.

[00:11:21] 230 plus, yeah.

[00:11:22] Yeah, 230 years.

[00:11:24] So with all the problems, it's survived and it's worked.

[00:11:28] But the other thing is, is how many things I didn't know were actually debated.

[00:11:35] I didn't know it was debated.

[00:11:36] Hey, let's get rid of all states, for instance.

[00:11:38] Oh yeah, that was interesting.

[00:11:40] Alexander Hamilton at one point in the Constitutional Convention said, maybe these states are a

[00:11:46] bad idea.

[00:11:47] It's confusing.

[00:11:49] Why should we have two different governments?

[00:11:52] And he later said he was sort of just kidding.

[00:11:54] He was misunderstood.

[00:11:56] But just to go back to a couple of your points really quickly.

[00:12:00] One, you're absolutely right.

[00:12:02] They were afraid back then of what they called the mob, which is pure democracy.

[00:12:10] So they built in these sort of counter majoritarian systems like the electoral college.

[00:12:18] But at the same time, they did not want the Supreme Court to be as powerful as it was.

[00:12:27] Congress was the number one.

[00:12:29] Congress was first among equals.

[00:12:33] Congress had all the power.

[00:12:34] And the president was much weaker and the Supreme Court was much weaker.

[00:12:38] So if they came back now, they would be like, what?

[00:12:42] The Supreme Court has final say and the president is doing hundreds of executive orders every

[00:12:49] year.

[00:12:50] So we do not live in a very originalist America.

[00:12:53] We live it's for better or worse.

[00:12:56] And I think in some ways it's better.

[00:12:59] In some ways it's worse.

[00:13:01] This is a very different system than the one the founders envisioned.

[00:13:05] But who would, like let's say a law was passed and it was unconstitutional as has often happened.

[00:13:11] Who would decide?

[00:13:13] It doesn't seem specified who would decide that something was unconstitutional.

[00:13:17] It makes sense that the court would decide it.

[00:13:19] Well, you're right.

[00:13:20] It doesn't say.

[00:13:21] And in the beginning, and this is a lot from a great professor named Jonathan Gnapp at Stanford.

[00:13:27] It was much more the all three branches would weigh in, but it was never assumed that and

[00:13:34] Supreme Court had judicial review.

[00:13:37] So they would weigh in, but it was never assumed that they were the end all be all, that they

[00:13:41] had the final say.

[00:13:44] And so, yeah, the founders would be quite shocked by what is happening today.

[00:13:51] But I could see how it could be extrapolated out that look, the Constitution is a legal

[00:13:55] document that specifies laws.

[00:13:58] For instance, you're breaking the law if you don't allow someone to do have freedom of

[00:14:03] speech, you're breaking the law according to the Constitution.

[00:14:06] And since the Supreme Court is the supreme arbiter of the law, it makes sense that they

[00:14:12] are the final say in terms of interpreting the Constitution.

[00:14:15] Well, it makes sense to us now, but it is not the way that it was originally.

[00:14:22] And there was the case, John Marshall is known as a guy who kind of very early on,

[00:14:28] he was a chief justice.

[00:14:30] And he was one of the ones who said, the Supreme Court has the power to say what's constitutional.

[00:14:36] But he only overturned one law from Congress, whereas, and there were none overturned for

[00:14:44] decades.

[00:14:45] Now, the Supreme Court regularly overturns laws.

[00:14:49] So it is quite a shocking difference.

[00:14:52] Take a quick break.

[00:14:56] If you like this episode, I'd really, really appreciate it.

[00:14:59] It means so much to me.

[00:15:01] Please share it with your friends and subscribe to the podcast.

[00:15:04] Email me at Alcatrazgmail.com and tell me why you subscribed.

[00:15:08] Thanks.

[00:15:18] Not to dive into the weeds of history, but like take the Alien and Sedition Acts that

[00:15:23] John Adams passed.

[00:15:24] Basically said, you weren't allowed to criticize government or you can go to jail.

[00:15:28] And he'd use that to put like journalists in jail.

[00:15:31] That's clearly unconstitutional.

[00:15:34] It's against the first amendment, freedom of speech or freedom of the press.

[00:15:38] Who would then decide that he was unconstitutional?

[00:15:44] Well that was never overturned by the Supreme Court.

[00:15:46] It lapsed.

[00:15:48] But let me tell you, this is interesting because I love free speech.

[00:15:54] I am a huge fan of free speech, as you know, as you are.

[00:15:58] We do not love the original conception of free speech.

[00:16:02] We love 20th century free speech.

[00:16:05] We love the free speech at the beginning of our country was very much constricted and it

[00:16:13] was wasn't quite Stalinist Russia, but it was nothing like we have today.

[00:16:18] Like what was different?

[00:16:19] You mentioned in the book about blasphemy, but tell me what's different.

[00:16:23] Well that's a huge one.

[00:16:24] I mean the blasphemy state laws against blasphemy were considered constitutional because the

[00:16:30] idea was you had a right to free speech, but the government also had a right to punish you

[00:16:36] if your speech was dangerous to the republic.

[00:16:41] So they had a much less absolute view of rights.

[00:16:45] And this is also this is from Judd Campbell, a great professor also at Stanford.

[00:16:50] So you could be, I had I instituted it in my house because I was trying to get back

[00:16:57] to the original.

[00:16:58] So I have teenage kids and I'm like, if you curse or blaspheme, I'm going to fine you

[00:17:04] 37 and a half cents, which is what it cost in 1789 in New York State.

[00:17:12] And they would curse and I'd say put in 37 and a half cents into the jar.

[00:17:16] And they would curse, they say, oh, I don't have 30, I don't have a half cent.

[00:17:20] And then they would curse again and I say, all right, now put in 75.

[00:17:25] Then they would curse on purpose just to get back to the half cent.

[00:17:29] So that didn't work out.

[00:17:31] But the idea is blasphemy was laws against blasphemy by states were considered constitutional.

[00:17:40] And John Adams, like you said, sedition his party, the Federalists thought it was constitutional.

[00:17:47] We see it as incredibly unconstitutional now.

[00:17:50] And I am very glad of that.

[00:17:52] But back then, the argument was that free speech was not totally free.

[00:17:59] And my favorite one they threw in jail was a guy who made an ass joke.

[00:18:03] That's all he did.

[00:18:04] He made an arse.

[00:18:06] It was literally an arse joke.

[00:18:08] John Adams came and there was a big celebration in Boston and they shot some cannons.

[00:18:14] And this guy was at a tavern and he said, I wish one of the cannonballs would go through

[00:18:18] John Adams arse.

[00:18:20] And someone overheard him, reported him to the police and he was thrown in jail.

[00:18:25] So the question is what, what would you be allowed?

[00:18:27] Like what right did it protect that would have been on the fence otherwise?

[00:18:32] The first amendment.

[00:18:33] Well, it depends again on, on who you're talking about.

[00:18:36] The Federalists like John Adams would want you to be able to write a, an editorial in

[00:18:43] the newspaper.

[00:18:45] But a polite one, nothing attacking, you know, the, the body shaming John Adams, which was

[00:18:51] big back then they called him his rotundity.

[00:18:55] But yes, a polite editorial and some, some vigorous discussion in the tavern that was

[00:19:00] allowed.

[00:19:01] Now there were others who were a little more pro free speech like Thomas Jefferson.

[00:19:05] He was okay with sort of more demonstrations.

[00:19:09] He might be okay with people marching in the streets.

[00:19:12] But I am very glad for weirdly the Jehovah's witnesses.

[00:19:18] I talk about this in the book.

[00:19:20] Thank you Jehovah's witnesses because they filed in the forties and fifties, dozens of

[00:19:27] suits against expanding our free speech.

[00:19:32] And they all went to the Supreme court and the court ruled in favor of the Jehovah's

[00:19:36] witnesses that they could do things like not say the pledge of allegiance.

[00:19:40] They could do things like say on the street corner, you know, that, that regular Christianity

[00:19:47] was terrible.

[00:19:49] And so thank you to Jehovah's witnesses for our freedom of speech.

[00:19:54] So if a kid right now doesn't want to say the pledge of allegiance and the school punishes

[00:19:59] him, like let's say sends him to detention or suspends him or whatever.

[00:20:03] He can sue the school on his first amendment rights.

[00:20:07] I believe that's true.

[00:20:08] I am not a first amendment lawyer.

[00:20:11] So don't don't hire me for that.

[00:20:14] But I'm pretty sure that's true.

[00:20:15] You don't have to say the first amendment anymore.

[00:20:17] I mean the pledge of allegiance anymore.

[00:20:19] Thank you.

[00:20:20] If a state has blasphemy laws, but then there's the first amendment who protects me first?

[00:20:26] Do I follow the state laws or does the first amendment override that?

[00:20:33] Well now it does, but back then it didn't.

[00:20:36] So in the beginning of our country, states were much more powerful.

[00:20:42] And in fact, it was more like at the very beginning, it was more like the European union.

[00:20:48] You were more likely to think of yourself as a New Yorker or a Georgian now than you

[00:20:54] were as an American.

[00:20:56] And the whole point of the constitution was trying to bind people together more.

[00:21:00] But even back until much later, it was much weaker.

[00:21:05] And the Bill of Rights only applied to the federal government, not to states.

[00:21:10] So the federal government couldn't throw you in jail for saying that John Adams is fat,

[00:21:18] but the state governments could.

[00:21:23] So you couldn't say no, my first amendment.

[00:21:25] And this is where the constitution, I mean, this is where the Supreme Court came along

[00:21:27] and said, no, no, no, no.

[00:21:29] Constitution overrides all that.

[00:21:30] Exactly.

[00:21:31] That is right.

[00:21:32] Thanks to the 14th amendment.

[00:21:34] But you know, it's interesting how, well, why the 14th amendment?

[00:21:40] Well not to get too much into the weeds, but 14th amendment came after the Civil War.

[00:21:47] And it says, it's all about equal protection and due process and all of these things.

[00:21:54] And it has the famous one about the clause that says that if you engage in insurrection,

[00:22:02] you cannot be an officer.

[00:22:05] And that was what the whole Trump trial was about.

[00:22:07] So the 14th amendment's got a lot going on.

[00:22:10] But one of the most famous parts is that equal protection and the, and that was interpreted

[00:22:17] to mean both the state and the federal government had to respect your rights.

[00:22:22] At the very beginning of our country, individual rights were not as big.

[00:22:26] It was more about state rights.

[00:22:29] Interesting.

[00:22:30] So, and this is also related to the, this constitutional case recently between the Biden

[00:22:35] administration and Greg Abbott's administration in Texas, the governor of Texas.

[00:22:41] And the Supreme Court ruled, hey, federal overrides state.

[00:22:45] Right.

[00:22:46] And I said, thank God.

[00:22:47] I agree.

[00:22:48] I am in favor of that, but, but that is a big deal.

[00:22:50] And in the beginning of our country, it might've been more of a, a fight.

[00:22:55] Now the presidency has changed quite a bit.

[00:22:58] Like if you look at the constitution, the president has very few powers.

[00:23:02] Oh yeah.

[00:23:03] He can't make laws.

[00:23:05] He can just suggest laws and he can also negotiate peace treaties, but they're not useful until

[00:23:11] Congress passes the peace treaty.

[00:23:13] And he can go, he can throw state parties and go to funerals, but that's basically it.

[00:23:19] And he can, he's commander of the army, which is important too.

[00:23:22] So I shouldn't leave that, but those are like his only rights in the constitution.

[00:23:26] It was a much weaker presidency at the beginning.

[00:23:30] And one of the, as you know, in my book, The Year of Living Constitutionally, I tried to

[00:23:36] express all my rights.

[00:23:37] So I had the musket.

[00:23:38] I also wanted to express my right to petition and because that was a big deal back then.

[00:23:44] So I got, I did you sign it?

[00:23:46] I had a quill and I had, I did not unfortunately.

[00:23:50] Well, and then I brought it to Congress.

[00:23:53] I brought it to an actual senator and rolled it out in front of him.

[00:23:57] But the, but the point of the petition was that the president has become way too powerful.

[00:24:04] As you said, in the constitutional times, George Washington, he did eight executive

[00:24:11] orders in his eight years.

[00:24:14] Obama and Trump both did hundreds.

[00:24:18] And so it's not just Democrat or Republican and war powers.

[00:24:24] It used to be Congress declared war and then the president would execute the war.

[00:24:28] But now president drives the whole train.

[00:24:32] Same with trade law.

[00:24:34] I think this is a serious problem.

[00:24:37] And I think the founders would be like, what?

[00:24:39] The president is like, now this is what is fascinating to me.

[00:24:44] When the idea came up in the constitutional convention, they're like debating all these

[00:24:48] wacky ideas.

[00:24:50] Someone said, well, let's have a single president.

[00:24:56] They all wanted an executive branch, but how was it going to be organized?

[00:25:00] This one guy says, well, let's have a single president.

[00:25:02] While other delegates say, are you insane?

[00:25:06] We just fought a bloody war to get rid of a king and you want to replace him with an

[00:25:10] elected king with one person.

[00:25:13] That's terrible.

[00:25:14] So it was a big debate.

[00:25:16] Instead, they said, we'll have three presidents, three co-presidents.

[00:25:21] So imagine Biden, Trump and RFK Jr. all hanging out in the Oval Office.

[00:25:29] And Ben Franklin suggested 12 presidents.

[00:25:33] Can you imagine 12?

[00:25:34] Air Force 12.

[00:25:36] So it was overruled and we do have one president, which is probably good.

[00:25:43] But the problem is there are a few guardrails on the president's power and he's just taken

[00:25:49] more and more power over the years.

[00:25:53] And so this petition was, let's rethink the three presidents.

[00:25:58] Maybe we should have three presidents again.

[00:26:00] I don't honestly want three presidents, but I wanted to bring up the idea that when the

[00:26:06] idea of one president came up, one of the delegates said, that is the fetus of monarchy.

[00:26:12] That's like a baby monarch.

[00:26:15] We do not want that.

[00:26:16] And my point is that fetus is now like a tween or an adolescent.

[00:26:20] Like that is, it is scary.

[00:26:23] So that is like...

[00:26:25] The whole executive order is a law that wasn't passed by Congress.

[00:26:29] Right.

[00:26:30] And yeah, it is.

[00:26:34] It is.

[00:26:35] They call it the imperial presidency.

[00:26:37] And it's been a problem since the 70s.

[00:26:40] Arthur Schlesinger, a great writer.

[00:26:43] Since Roosevelt.

[00:26:44] I mean, Roosevelt created all these new parts of the executive branch that made laws.

[00:26:49] Yeah.

[00:26:50] Well, you know what?

[00:26:51] You are right.

[00:26:52] It does go back much farther.

[00:26:53] You know, Lincoln, some of my favorite presidents expanded presidential power in scary ways.

[00:26:59] Lincoln during the Civil War and FDR.

[00:27:01] Oh, but that's an interesting question.

[00:27:03] So Lincoln, it's not really clear about secession, right?

[00:27:07] In the Constitution.

[00:27:08] So it could be that the case, I've seen it argued that the Civil War, like maybe you're

[00:27:13] allowed to have states to secede instead of go to war with them.

[00:27:18] I think that was unclear.

[00:27:19] Yeah, maybe.

[00:27:20] I'm not an expert on that.

[00:27:22] So I don't want to encourage any secession in this day and age.

[00:27:26] I would say the Constitution said, don't secede.

[00:27:30] You can succeed.

[00:27:32] Don't secede.

[00:27:33] Right.

[00:27:34] So the Constitution says don't secede or whatever it says.

[00:27:37] But Lincoln technically went against that is what you were saying, right?

[00:27:41] Well, no, I was saying he went overreached in several ways, including, I believe that

[00:27:49] he suspended habeas corpus in some cases.

[00:27:53] And I believe he also, he was very severe on the press and censoring the press during

[00:28:01] wartime.

[00:28:02] So these are examples of, yeah, of some of my favorite presidents, but taking on sort

[00:28:07] of this semi-authoritarian power.

[00:28:10] The problem was when the Civil War was over, it's not like the Congress got back those

[00:28:15] powers.

[00:28:16] The president kept them.

[00:28:18] So now we have this, and the founders had ideas on how to stop this that maybe we should

[00:28:25] think about again.

[00:28:26] We have, there is a, they wanted a cabinet that was like a supercharged powerful cabinet

[00:28:34] that could veto the president basically.

[00:28:40] So imagine that if the president had to get permission from his cabinet.

[00:28:45] And it's a problem.

[00:28:46] They also proposed maybe a more parliamentary system.

[00:28:50] So we have a presidential system and the other big one is a parliamentary system where the

[00:28:57] president or head of state is elected by Congress.

[00:29:01] So it's not directly elected.

[00:29:03] People elect Congress, Congress elects the head of state or the head of government, and

[00:29:09] then they can kick him out.

[00:29:10] It's much easier to kick him out if the Congress is the one who elected him.

[00:29:15] Yeah.

[00:29:16] So they debated that, but why did they decide against it?

[00:29:20] That's a great question.

[00:29:21] There were people who said that it would do the opposite.

[00:29:25] That if it was the Congress elected the president, then the president could team with Congress

[00:29:31] and just take more and more power away from the states, for instance.

[00:29:36] So that, so they decided in the end, no, we need more separation of power.

[00:29:42] So that was the key.

[00:29:43] You have three, it was sort of rock, paper, scissors.

[00:29:47] You have each area and they each can sort of balance against each other.

[00:29:52] So do you think that separation of power part is pretty important and that's what avoids

[00:29:57] a king in some sense?

[00:29:59] So perhaps, so we see examples of the Supreme Court taking more power.

[00:30:04] We saw example of the presidency taking more power.

[00:30:07] Maybe this was required to keep that separation of powers because Congress had so much power.

[00:30:13] That is a very interesting point.

[00:30:14] And just one side note on that, that's one of my favorite parts of this whole project

[00:30:19] is that the founders had huge flaws.

[00:30:24] I mean, they were racist, sexist, horrible hypocrites in many ways.

[00:30:30] But one virtue that I do think they had is they were more open-minded.

[00:30:35] They did change their minds more.

[00:30:38] In fact, James Madison, founder of the Constitution, his last words on his deathbed, he was on

[00:30:44] his deathbed, his niece sees him change, he makes a weird face and she says, uncle, what's

[00:30:49] wrong?

[00:30:50] And he said, oh, nothing.

[00:30:52] I just changed my mind.

[00:30:53] And then he died.

[00:30:55] So we don't know, did he change his mind about Congress or about the balance of powers or

[00:30:59] about the wallpaper?

[00:31:00] We'll never know.

[00:31:01] But the point is, he was changing his mind right up until his last moments.

[00:31:06] And a lot of the founders did that too.

[00:31:08] Ben Franklin was a big fan of changing his mind.

[00:31:12] And they were very big compromisers.

[00:31:16] Right.

[00:31:17] And which we wouldn't have a country without it.

[00:31:20] Now, compromise, I mean, it's a complicated one.

[00:31:23] And I don't know the answer to this because the most notorious compromise was the three-fifths

[00:31:29] compromise, which allowed slavery to continue and gave the slave states a lot more power.

[00:31:37] And the fear was that if they didn't do this, the southern states would just walk and we

[00:31:42] would not have a United States.

[00:31:45] Maybe that would have been better.

[00:31:46] Maybe it would have been better to split it up.

[00:31:48] I don't know the answer, but there were many times compromise was good.

[00:31:53] I do believe that there were ways that if they had been totally rigid, there was no

[00:31:59] way we were going to have a country at all.

[00:32:02] Let me ask you a question.

[00:32:19] Why have a country?

[00:32:20] So the Revolutionary War had ended, I don't know, 1783.

[00:32:24] I always thought when I was a kid it was 1776, but it lasted another six or seven years.

[00:32:30] And then George Washington is not elected president until, what, like 17...

[00:32:35] He doesn't become president until 1789.

[00:32:38] And what...

[00:32:40] There was still a country, it was like a confederation then.

[00:32:43] And what was wrong?

[00:32:47] I mean, I don't know anything about it actually.

[00:32:49] I love that question because that's the kind of thing we need to go back to the basics

[00:32:53] and say, why do we have it set up this way?

[00:32:56] And is there a better way to set it up?

[00:32:58] I actually think that a country is a good idea because what they had before, before

[00:33:04] the Constitution, they had the Articles of Confederation.

[00:33:08] And this was pretty much like we talked about.

[00:33:10] Every state was almost its own country.

[00:33:13] So they would have their own trade laws.

[00:33:15] They would have their own money.

[00:33:18] They had their own military.

[00:33:20] And the fear was if a European power tried to attack the United States, some of them

[00:33:29] would make a treaty with...

[00:33:31] They have their own treaty-making power.

[00:33:33] And some would make a treaty with that country and others wouldn't.

[00:33:37] And there's no unified front.

[00:33:38] There's no way.

[00:33:40] And also taxes, there was no way for the federal government to have taxes because the states

[00:33:45] were the ones who had taxes.

[00:33:47] So if you do believe, and I know some people don't, that it's good to have a federal government

[00:33:52] that can then make an interstate highway system, for instance, then that was never going to

[00:33:58] happen under the Articles of Confederation.

[00:34:01] And so the theory was it was like splitting up that this was just chaos and it was about

[00:34:07] to fall apart.

[00:34:09] I did talk to some scholars who said maybe it wouldn't have been bad to have 13 different

[00:34:13] countries or 50 different countries.

[00:34:16] Maybe that is a better system.

[00:34:18] I don't think there's a lot of evidence for that, but it's a great question.

[00:34:22] I mean, that was what I love, going into this with a beginner's mind and saying, why do

[00:34:26] we have what we have?

[00:34:28] And is it the best system?

[00:34:30] Clearly all the states did ultimately think to themselves, hey, we should all form a tighter

[00:34:36] bond and hence they all voted for the constitution ultimately.

[00:34:41] Ultimately but not.

[00:34:42] It was a big fight.

[00:34:43] I mean, some of them were very upset.

[00:34:47] It was called the anti-federalist movement.

[00:34:52] They were very against the idea of uniting because sometimes they would have trade wars

[00:34:59] like New York and New Jersey would have trade wars and they would try to tax the other one

[00:35:04] out of existence.

[00:35:05] So they were not friends.

[00:35:06] They were frenemies at best.

[00:35:09] So the idea, when these 55 delegates went to Philadelphia to hammer out a constitution,

[00:35:17] most of the states thought, oh, they're just going to tweak the articles.

[00:35:21] They're just going to tweak it a little, maybe give us a tiny bit more power.

[00:35:24] And they're like, no, we're throwing it away and starting again and creating a country.

[00:35:30] And when they got out, people were like, what?

[00:35:32] That is crazy.

[00:35:34] And it took a lot of campaigning on the part.

[00:35:39] That's what the federalist papers are that where Hamilton and John Jay and Madison wrote

[00:35:44] these brilliant essays defending the constitution and why we needed it.

[00:35:49] But not everyone was convinced.

[00:35:51] It was Hamilton, John Jay and James Madison?

[00:35:54] Yeah, they wrote the federalist paper.

[00:35:56] And meanwhile, the anti-federalist was like Thomas Jefferson, right?

[00:36:01] No, he was in favor of the constitution, even though you're right, he wanted stronger states.

[00:36:08] He said when he was in France, when the constitution was written and he said in a letter, there

[00:36:15] are parts of this that I love and parts of this that I hate.

[00:36:19] But it was already done by the time he came back.

[00:36:22] So he didn't have much of a say.

[00:36:24] And he said, on the whole, I would rather have the constitution than not.

[00:36:30] I wonder if he felt like fear of missing out.

[00:36:33] Like he's like, oh my gosh, I wrote the Declaration of Independence and now they're writing the

[00:36:37] constitution without me?

[00:36:39] I totally think he had FOMO.

[00:36:41] I mean, he called the group who gathered in Philadelphia, he called them demigods.

[00:36:47] He must have been like, I'm a demigod too.

[00:36:50] I could have been there.

[00:36:51] I could have made it better.

[00:36:53] So yeah, it is fascinating who showed up and who didn't.

[00:36:57] You know, it's interesting.

[00:36:58] The last legally declared war was World War II.

[00:37:02] Like Congress did vote for that war and Roosevelt declared it, but Congress actually voted for

[00:37:08] it.

[00:37:09] Congress hasn't voted for a single war since, but somehow there's been the Korean War,

[00:37:12] the Vietnam War, all the conflicts we've had, you know, Iraq a bunch of times.

[00:37:18] Like there's been tons of wars since World War II, but that's because the presidency

[00:37:22] does it through these executive orders.

[00:37:24] Right.

[00:37:25] The president has gained war power and the Congress is occasionally trying to take it

[00:37:30] back with various war power acts.

[00:37:35] But still the president has a tremendous amount of power.

[00:37:39] And I talk about that.

[00:37:40] I have a section on war.

[00:37:43] I break the book up into different sects.

[00:37:45] So there's one on free speech and one on housing soldiers and one on war.

[00:37:52] And for that, I joined the 3rd New Jersey Regiment of Revolutionary War Reenactors and

[00:37:59] went out with my musket and fought in the Battle of Monmouth and died, by the way, I

[00:38:04] died for my fake country or fake died for my country.

[00:38:12] And that is where I get into this, how different war was at the start of our country.

[00:38:17] And you also mentioned in the book about all these new government, you know, executive

[00:38:21] branch agencies like the FDA, as an example, that weren't, you know, they weren't created

[00:38:26] by constitutional amendment and yet they seem to have the power to create laws like the

[00:38:30] FDA could decide what food you can eat.

[00:38:34] Right.

[00:38:35] And this is a huge deal in the Supreme Court because the conservatives or libertarians

[00:38:40] want to roll back these federal agencies and their power.

[00:38:45] And the more progressive side says, no, we need that.

[00:38:49] Otherwise our food would have lead in it.

[00:38:51] We'd all be dead.

[00:38:52] So it's whether you see red tape as strangling small business, which is sort of the libertarian

[00:38:59] Or is red tape like what's saving us from falling off into the canyon?

[00:39:05] So is it protective and good for society or is it bad for society?

[00:39:11] And that is a huge split.

[00:39:13] I mean, like with all these things, it's probably a little bit in the middle.

[00:39:16] Right.

[00:39:17] If you look at like, you know, you have to pay a fee to get, for instance, a license

[00:39:24] to polish nails for a living.

[00:39:29] So some people say that maybe this is like, this over-regulation is a tax on the poor

[00:39:35] because it affects, like for instance, over-licensing affects mostly people in poorer occupations.

[00:39:44] But then there's the flip argument, which is that, okay, but they use chemicals and

[00:39:47] nail polish and people should be regulated and the Congress has to take care of people

[00:39:50] or because they can't take care of themselves.

[00:39:52] And so there's that other argument.

[00:39:54] Yeah.

[00:39:55] It's a complicated one.

[00:39:57] I mean, and also that's what I love is that there's no easy answers and that you have

[00:40:04] to look at issues through multiple lenses.

[00:40:08] So you probably know the fox and the hedgehog, you know that whole, oh, it's a parable by

[00:40:14] the writer Isaiah Berlin.

[00:40:16] And he says there are two kinds of people in the world.

[00:40:18] There are the hedgehogs who see the world all through one lens.

[00:40:23] So whether that's Marxism or religion, everything is filtered through one lens.

[00:40:31] The fox has many lenses.

[00:40:33] So they look at it from one angle and then another, they look at it from a religious angle

[00:40:38] and an animal angle, an animal rights angle, it could be a capitalism angle, all these

[00:40:46] different ways.

[00:40:47] And then they're much more nuanced and gray thinkers instead of black and white.

[00:40:54] And I actually think both approaches are important, but I am much more of the fox.

[00:40:58] I believe you have to look at things differently because nothing is black and white.

[00:41:03] And I think that way about regulation.

[00:41:06] There are some areas where we are way overregulated and as reclined super progressive guy, like

[00:41:11] he's always railing about overregulation in the building sector.

[00:41:20] But on the other hand, just having no regulation, we would all die of lead poisoning.

[00:41:26] I think it would be terrible.

[00:41:29] We would not all die.

[00:41:30] That was a hedgehog thing to say.

[00:41:32] So a lot of people might die.

[00:41:34] But it's a good point.

[00:41:35] And I think this is what makes the Constitution so powerful is that it fits all of these perspectives

[00:41:41] so that it can become an argument.

[00:41:43] It's not just de facto decided by this one document that's 230 years old.

[00:41:48] This document allowed us to mold a government.

[00:41:53] We can say the president took more powers, the Supreme Court took more powers, the Congress

[00:41:56] took more.

[00:41:57] But the reality is it's evolved.

[00:41:59] There's been small changes here and there and all together has created this evolved

[00:42:04] set of mutations in government that so far, knock on wood, has worked out.

[00:42:10] Meaning, not that it's so great, but that we've survived and flourished as a country.

[00:42:15] I would say yes, we have survived.

[00:42:18] I would agree.

[00:42:19] The Constitution is an amazing document.

[00:42:22] And part of its power is that it had these vague phrases like equal protection and you

[00:42:28] had to argue about what that meant.

[00:42:30] But I still think there are so many reforms that we need to do to make democracy better

[00:42:37] and that some of these either that have evolved or that were built into the Constitution are

[00:42:44] actually bad for our democracy.

[00:42:46] For instance, we should have term limits on the Supreme Court.

[00:42:51] And most people on both sides of the aisle, you look at the polls, it's like, I don't

[00:42:57] know what it is, but it is...

[00:42:58] Yeah, why don't they have term limits?

[00:43:00] Because this way, it's not like they can get reappointed.

[00:43:06] It has to end.

[00:43:07] So there's no kind of political jockeying, which avoids the real problem.

[00:43:10] You don't want to always have an elected official because then there's political jockeying

[00:43:14] for whatever the latest trends are.

[00:43:17] So but term limits would solve a lot of the issues you have with the Supreme Court.

[00:43:20] Oh, yeah.

[00:43:21] And the founders wanted life tenure for the justices because they thought it would insulate

[00:43:26] them from politics and they could remain above and just look at the law.

[00:43:31] But that has not happened.

[00:43:33] And it is just a disaster.

[00:43:36] And we have people on...

[00:43:38] And now people live so much longer.

[00:43:39] We have people on for 40 years.

[00:43:41] It's not good.

[00:43:42] Like, to have an 88-year-old ruling on Internet technology, that's not a great thing.

[00:43:49] That is not something...

[00:43:51] If the founders understood what the Internet was, they would probably be like, that doesn't

[00:43:56] look good.

[00:43:57] I think freedom of speech is still a moving target too.

[00:43:59] Like you mentioned at first, there was the blasphemy issue.

[00:44:02] But now there's also, you know, what constitutes hate speech, I think is very unclear.

[00:44:06] And look, there's been congressional testimonies on that even recently.

[00:44:10] And then, of course, a big issue is the role of democracy.

[00:44:14] Like you have the Electoral College, it's kind of the biggest challenge to pure democracy

[00:44:18] that's in the Constitution.

[00:44:19] And that, you know, regardless of where you stand on that, that's a major issue that's

[00:44:23] kind of unresolved at the moment.

[00:44:25] Oh, yeah.

[00:44:26] No, I am not a fan of the Electoral College.

[00:44:29] The irony of the Electoral College is that part of the reason the founders did it is because

[00:44:37] they thought this group of electors, like actual people, several people from certain

[00:44:42] states, they were the ones who voted for president.

[00:44:45] So if the rabble, if the mob voted for a demagogue, some guy who is going to be a tyrant, then

[00:44:53] these intellectual, cool, reasoned electors could say, oh no, we're not going to have

[00:44:59] a demagogue in the office.

[00:45:02] And then they would vote for the rational person.

[00:45:05] And what's happened is arguably the opposite, because you have someone who might lean towards

[00:45:12] demagoguery and he is able to gain the presidency even though he has a minority of the vote,

[00:45:22] of the popular vote, because of this electoral system.

[00:45:27] So I am not a fan.

[00:45:29] I think that if the founders knew what would have happened to elect the Electoral College,

[00:45:35] they would have figured out a different way.

[00:45:37] Part of it was they didn't have the technology.

[00:45:40] They didn't know how are 13 states from all over the seaboard going to get together and

[00:45:46] have thousands of people vote?

[00:45:49] It was just a logistical problem.

[00:45:50] It was much easier to have these electors do it.

[00:45:54] So AJ, I know you're in a rush, so we're going to wrap this up.

[00:45:59] But we're going to do a part two where we're going to solve all the problems of the Constitution.

[00:46:03] We're going to brainstorm what your next book...

[00:46:05] Do you have a topic for your next book?

[00:46:07] No, I need some help.

[00:46:08] We're going to brainstorm the topic for your next book.

[00:46:11] And I'm going to have a very quick part two to this, which is to describe the AJ Jacobs

[00:46:17] method of writing a bestseller.

[00:46:19] It's how you combine experience with storytelling.

[00:46:23] You are the only person in the world who does it exactly the way you do it.

[00:46:26] It's very unique and it's a genre all of its own.

[00:46:29] And I always am a big admirer of your work.

[00:46:33] We'll talk more about the Constitution.

[00:46:34] We'll have a part three of this after the book comes out, which is next week.

[00:46:39] But The Year of Living Constitutionally, One Man's Humble Quest to Follow the Constitution's

[00:46:44] Original Meaning.

[00:46:45] AJ Jacobs, one of my favorite writers of all time.

[00:46:48] I've bookmarked the entire book.

[00:46:50] The stories are great.

[00:46:51] The knowledge is great.

[00:46:53] You're going to learn a huge amount.

[00:46:54] If you love this country and this Constitution, you got to read AJ Jacobs' book.

[00:46:58] AJ, thank you so much.

[00:47:00] Bless you, James.

[00:47:02] You are a great citizen and I love your writing as well.

[00:47:05] Huzzah!

[00:47:06] Thank you.