Josh Hammer is a constitutionalist and lawyer who doesn t mince words. He graduated from Duke University with a degree in economics and a law degree from the University of Chicago. He has written for Red State, The Resurgent, and The Daily Wire, and is currently the Editor-at-large of a good friend of mine's place called The DailyWire. Josh is a lawyer at First Liberty Institute specializing in cases involving religious liberty and the First Amendment.
00:04:36.760They've got to find somebody that can not look as extreme, even though, strangely, communism, communism has gone up in the polling eight points in the last 12 months with millennials.
00:04:58.580Yeah, my generation just needs to go straight to Gitmo.
00:05:02.740I mean, that's literally, that is literally the only solution here.
00:05:07.240Take your freaking avocado toast and your pumpkin spice and just get out of the country.
00:05:10.820I mean, literally, socialism is one thing, okay?
00:05:14.140Everyone kind of flirts with their little socialist phase in college, you know, like they smoke their dope and like utopianism, kumbaya, whatever.
00:05:20.940Communism is literally what resulted in 100 million deaths over the last century.
00:05:58.020In the 1850s, there was a great awakening.
00:06:04.060And the argument at the time was, where was the real birth of America?
00:06:10.920Was it in Plymouth or was it in Jamestown?
00:06:14.060And luckily, we decided that it was Plymouth, but there was a strong argument that, no, it's Jamestown.
00:06:24.880If you look at that, that argument is the argument that we're having right now.
00:06:30.280Are we a covenant people who believe in God, who believe in being good and decent to one another, living side by side with people who are vastly different, but coming to an understanding where we can work together and be a covenant people that says, we are going to try our very best to do the right thing and serve God.
00:06:57.080Or are we going to make our God gold, like in Jamestown, and we'll try every trick, we'll try socialism, which in their case ended up in cannibalism, all of this stuff.
00:07:25.780If we don't pick Plymouth again, we don't survive.
00:07:32.540I'm convinced of it, that we are now at a place only God can save us.
00:07:40.060Yeah, I think that's absolutely right.
00:07:42.700I mean, if you go back to founding era political theory, James Madison in Federalist 45 kind of encapsulates the theory of federalism pretty well.
00:07:50.760He says, the powers delegated to the federal government are few and far between.
00:07:55.660Those reserved for the states are numerous and indefinite.
00:07:58.760But that premise, the federalist premise, the system of dual sovereignty by which the states would have largely plenary power to govern as they like, and then you could vote with your feet in a live and let live type mentality.
00:08:11.180All of this was premised, as John Adams famously tells us, that the Constitution was intended for a religious people.
00:08:17.660It is wholly inadequate for anyone else.
00:08:19.600And the reason that it's inadequate for anyone else is exactly what you're saying.
00:08:22.540It's this concept of covenant, of agreeing that we are one people.
00:08:25.880We the people, as the Constitution's preamble quite eloquently speaks.
00:09:00.160No matter where you came from, you came here for a reason.
00:09:04.940And that reason was our unum, E pluribus unum.
00:09:10.180And that unum was all men are created equal, endowed by their creator, and they can go their own way, and they can do their own thing, and they can become successful.
00:09:33.540So, you know, you talk about we have to be more civil to each other.
00:09:38.220How can we possibly come back together when we have some people saying, you should pay a penalty, you should maybe even have jail time or a fine if you're wearing an offensive Halloween costume?
00:09:56.260We have people who, I can't find any common ground with someone who believes that the state, large S, should control everything.
00:10:28.240We need to be able to vote with our feet and live as self-governing peoples as we choose according to the dictates of our own consciences, as our own local elected officials are going to dictate policy for us.
00:10:46.560I mean, like this is the thing I just don't understand how so many in your generation can be so far ahead on the cutting edge and grow up in a world that I never even imagined there could be.
00:11:55.220I know you don't either, but I think what's going on that is making all this so much worse is not just that we're disagreeing with one another.
00:12:02.440It's the sheer level of vitriol, of ad hominem attacks.
00:12:06.460I mean, I spend more time on Twitter than I would care for.
00:12:39.940We would see our neighbors who we disagree with politically at church on Sundays.
00:12:43.700We would have a way to communicate and to empathize with one another.
00:12:46.320But nowadays, you know, Ben Sasse, I think, wrote a book on, like, the loneliness epidemic recently.
00:12:51.260This loneliness epidemic is dramatically exacerbated, I think, by social media, big tech, and just the nature of living and working behind our machines all day.
00:13:01.300Well, I think social media has brought out the things that we always thought we were alone on.
00:13:10.680And now we're in a club, but it's still a pretty small club, but it doesn't feel like one anymore.
00:13:20.000Because you can gather all your friends and social media, and you can – you know, there's always a crazy guy that lives on everybody's street.
00:14:16.220And, you know, just to get back to what we were talking about a few minutes ago, we just need to rediscover – hold God aside for a second.
00:14:21.100And I increasingly think that federalism – and Eric Erickson has been writing this for years now – federalism is one means, rediscovering local sovereignty.
00:14:29.580We should be able to vote with our feet in this country.
00:18:00.360Well, it's happening in Europe, right?
00:18:01.420I mean, when Greece and Italy almost went under, you know, seven, eight years ago, it's the Germans and the Belgians and the Dutch who are bailing out the peripheral, you know, Spanish, Italians, Greeks who are grossly profligate.
00:18:13.120I mean, this is what happens, as you were getting earlier, when you don't have both a fiscal and a monetary union.
00:18:18.040If you can just pass whatever crazy spending policies you want, but you're not controlling the currency.
00:18:23.000And, you know, this kind of gets to monetary policy, which is a very dorky slight interest of mine going back all the way to college.
00:18:28.240I mean, I'm personally – and the Fed guy, in my heart of hearts – I want competing private currencies.
00:18:33.220That theoretically could solve a lot of our problems if we want to rediscover this federalist dual sovereignty structure.
00:18:39.040But as it stands currently with the Federal Reserve, the government having a monopoly on the currency, yeah, it's incongruence.
00:18:45.680It's just not going to work the way that they want it to work in terms of passing these crazy spending policies but not controlling the coin.
00:18:51.600I don't understand – I don't understand – I really don't understand how people don't see that competition makes things better and stronger.
00:19:04.180If the government knew that their currency could be taken out by a better, stronger currency, they'd be more responsible.
00:19:36.040I mean, competition, the marketplace just solves so many of our problems.
00:19:39.840I mean, the marketplace of ideas that the left is increasingly intolerant to, in theory, to once again beat this hammer hard of federalism, the competition of states.
00:19:49.260I mean, you know, look, I mean, I am not particularly a big fan of drugs, but look at what's happening in Colorado.
00:19:54.860And, yeah, I think there have been some bad effects of marijuana legalization there.
00:19:57.800The homeless problem in Denver has actually gotten a lot worse, honestly.
00:20:01.440But if they want to try that, go for it.
00:21:14.880I mean, that's why communism happens over and over and over again and all the bodies pile up because everybody's like, well, they screwed it up, but I got it right.
00:21:31.740And it is foreordained that it will never work because the people – it is inherent in the human soul, in the human fiber, a rudimentary willingness to control our own destiny that communist ideology precludes.
00:21:47.040Okay, so how do you fix a country that its history has been stolen from it, doesn't understand its history, doesn't understand its place in the world, doesn't appreciate what it even has, you know, just wants more and more and more.
00:22:57.000I mean, ending the public sector's de facto monopoly on education, incentivizing competing private schools, many of which will be religious, many of which will be secular, but perhaps a strongly secular, perhaps a Hillsdale College-esque emphasis on the great books.
00:23:12.760I'm going back to Aristotle and all the Greeks and the Romans.
00:23:15.360I mean, this is what it has to look like.
00:25:00.040It wasn't a complete overturning of the so-called lemon test, which is the controlling legal test.
00:25:04.840So it was a narrow victory, but, you know, from the law firm's perspective, from our perspective, it would be a victory nonetheless.
00:25:10.580But, you know, I like what happened yesterday at Senate Judiciary Committee confirmation hearing for Lawrence Van Dyke,
00:25:15.320this Ninth Circuit nominee who, former Solicitor General of both Nevada and Montana, Harvard Law Review, brilliant, brilliant attorney.
00:25:21.960Who broke down in tears during his confirmation hearing because the American Bar Association had erroneously and maliciously fabricated this outright lie that he was hostile to the LGBT community.
00:36:57.920Because both sides are just increasingly embracing this authoritarianism, kind of stamp out the other side mindset.
00:37:04.440The left has been there for a very, very, very long time.
00:37:07.600I think one of the arguments against those of us who I think were in the Ted Cruz camp in 2016 was that the putatively conservative party would go down a very similar mirror image of what's been happening on the left if we elected the guy that we ended up electing.
00:37:22.220And, you know, I've been pleasantly surprised by a lot of the policies that have been enacted.
00:37:25.720I think he has largely governed in pretty traditionally conservative fashion, actually.
00:38:16.820But the problem is just rhetorically, just in the broader realm of public discourse, the ideas that are kind of percolating in the interstices of society, just are embracing this kind of authoritarian ideal.
00:38:31.580The momentum on both sides, on both sides, seems to be in the same ultimate direction of funneling towards greater state power, oftentimes of anti-federalism, of pro-national government, anti-state power.
00:38:44.100No one on the right talks about federalism anymore.
00:39:57.440And I'm concerned that because the world is going towards more fascistic or autocratic sort of rule, that if we as conservatives are not very clear in this next election, where is that list?
00:40:24.960So, the list does need to be updated, to be clear.
00:40:27.540They have not updated that list in a couple of years.
00:40:29.460And there have been some truly, truly terrific people who have gone on to the federal courts, including my former boss, since then, I would say.
00:40:35.980I think on the state and federal level of his appointments outside of the Supreme Court, I think it's been great.
00:40:49.840So, yeah, I mean, look, Justice Gorsuch is, he's generally very solid.
00:40:54.960I actually do have some finer points to pick with him.
00:40:57.440I think he kind of misunderstands some doctrines.
00:41:00.240He had this weird concurrence in a case called Sessions v. De Maia a year and a half ago.
00:41:05.120It was kind of an immigration criminal case where, for the first time in the history of the United States government, the court read an immigration statute as unconstitutionally void for vagueness.
00:41:14.520And Gorsuch writes like a 15 to 20 page, very flowery concurrence, talking about Blackstone and the Federalist Papers, really kind of anchoring it or at least masquerading as originalist thought.
00:41:25.000But I think kind of fundamentally misunderstanding whether a statute can be constitutionally void for vagueness in the first place.
00:42:20.100You know, I won't reveal names here, but I have it on good authority.
00:42:24.440Suffice to say, from people who are friends of mine in D.C. who have literally had breakfast or lunch personally with Brett Kavanaugh since he joined the court.
00:42:32.980He actively follows what people say about him.
00:42:36.100Like he actually seems to follow what various commentators, pundits, politicians, etc. write and talk about him.
00:47:20.500So, we don't agree on a whole lot politically.
00:47:22.960But we were saying how we are risking going down the road of not just consuming our own media, but literally, as you're saying, shopping and living in our own universes, living in our own political universes.
00:48:07.380It is a dangerous path that we are going down.
00:48:10.160But I mean, you know, let's not pretend that this is happening equally on both sides.
00:48:14.960I mean, it is the left that is politicizing a lot of this a much more, much more than, than, than the right is.
00:48:19.860I mean, Nike being a great example, obviously with Kaepernick and the freaking Betsy Ross sneaker.
00:48:24.320You know, I mean, to the extent the right has reacted, I look at like Black Rifle Coffee Company, a veteran founded company.
00:48:30.040I'm not even sure that if that counts as being on the right, honestly.
00:48:32.460But I mean, it's the closest thing I can imagine.
00:48:34.180This is increasingly happening on the left.
00:48:36.360And people like Taylor Swift, who once conscientiously avoided politics, Taylor Swift used to like never, ever, ever get involved with this.
00:48:43.380It's only over the past three years that she has become a pretty overt partisan Democrat.
00:48:48.360And I suspect it's because she's just gotten so much pressure to conform or to essentially be, you know, proverbially excommunicated from the space of what it means to be a good musician.
00:49:00.920Which gives you so much respect for people like Dave Chappelle and Kanye West.
00:49:06.700I mean, I was never a fan of Kanye West.
00:49:09.340I'm a fan of Kanye West, you know, I think that guy is, I don't know if he's a, I don't know him, I don't follow him, I don't listen to his music, so I don't know.
00:50:16.300But, yeah, no, these, but it's crazy that we need to, we as a society feel compelled to say, like, good job, brave, bravery for free thought, for thinking according to yourself.
00:50:53.900I mean, I'm only 30 years old, but I feel like I've heard dozens, maybe hundreds of times the question, how can the Republican Party reach out better to the black community?
00:51:03.120And I always kind of wince when I hear that question because there is no black community.
00:51:09.660The same way that there are Asian individuals, Jewish individuals, et cetera.
00:51:13.720We are, there are no monolithic groups.
00:51:16.100I hate the idea that these, these parties reach out to groups and, and the reason why I think Republicans are so bad at some things is because they believe in the individual, you know, and I'm not talking about the progressive Republicans, but, but the constitutionalist, they believe in the power of the individual.
00:51:59.320No, no, I, I completely agree with that.
00:52:02.000I think collectivization or collectivism is fundamentally at odds with the American way of life.
00:52:09.320Our constitutional structure is not secured.
00:52:13.840It is not in place to tell the citizenry what to do for a living, how to treat their neighbors, how to treat their family, or how to basically engage in the fundamental day-to-day acts that a person goes through.
00:52:27.040We are supposed to arrive at these conclusions on our own.
00:52:29.520And that's why, to go back to the communist statistic, like 8% more communist my generation over the past decade or the time frame was, not only is that scary in terms of physical safety because 100 million people, again, have died from communism, but just to tie this all together, nothing could be more fundamentally at odds with what America is itself.
00:52:50.100Nothing is more indicative of the fact that we have lost any semblance of what this country stands for, of civics, of the Declaration of Independence, of any of this, than totalitarianism being bipartisanly on the rise.
00:53:24.980I want to, I want to, I specifically wanted to talk to you about one thing, but I think I want to, well, let's just, let's just start with tech and then we'll go back.
00:53:41.460I think the only time that I agree with people who say the founders never saw this, they didn't see machine guns, they didn't see airplanes, they didn't see going to the moon.
00:53:58.440But they have, they had enough vision to boil it down to the principles that cover all of those things, right?
00:54:08.400What is it in the principles that covers corporations becoming bigger, more powerful, and more frightening than the federal government?
00:54:23.740Our constitution is made for the government.
00:54:26.660Conservatives, we all say, I don't want to regulate that company.
00:55:04.440I'm not sure there's anything in the constitutional fabric itself that directly addresses this.
00:55:09.520And this is no doubt a huge, huge, huge challenge.
00:55:12.800I was at Yoram Hazoni's National Concertism Conference in D.C. this summer when Tucker Carlson went on stage and said that these private corporations are now a bigger threat to your liberty than the government.
00:55:37.180There are an assortment of legal tools.
00:55:38.620I am not a big proponent of antitrust in particular.
00:55:42.040I do not look fondly upon the days of Teddy Roosevelt trust-busting.
00:55:45.580I think some Republicans do, but that's not me.
00:55:49.960What I am more sympathetic to is some kind of more statutory kind of nibbling around the edges.
00:55:55.020So, for example, controversial figure, but Senator Josh Hawley, the freshman senator from Missouri, had this bill earlier this year to take away the legal immunity from Section 230 of the Communications Decency Act from these big tech companies and essentially allow the common law of defamation to become the legal operating standard again.
00:56:15.460That, to me, makes a lot of sense, okay?
00:56:17.900I think there are ways to nibble around the edges here to try and tow these companies in line.
00:56:22.580But I'm pretty averse to Teddy Roosevelt trust-busting.
00:56:28.720For instance, why has nobody proposed or have they and they just went nowhere?
00:56:34.340Why can't we say my information belongs to me and if I want to sell it to Facebook, okay, but you can't collect it on me unless I say, okay, and you're going to pay me for that.
00:56:53.100You know, when products are free, you're the product.
00:56:57.240And we've exchanged this, but now when we start to see, oh, wait a minute, hang on, that information is extraordinarily valuable and I'm not comfortable with them having it.
00:57:12.680How can we claw back our personal rights and information because that stops a lot of the things that are concerning?
00:57:21.600Yeah, so I was a little too young to experience this, but I think in the early days of kind of the cell phone era, there was a mass consumer protection group, and correct me if I'm wrong on this, that essentially reached an agreement with cell phone providers such that you could transport your cell phone number if you switch providers.
00:57:40.000I think that is the exact blueprint for what we should be doing with these tech companies.
00:57:43.460We should have some sort of mechanism to personalize our own data, and much like a health savings account, you can take that from one health insurance provider or et cetera, it stays with you.
00:57:55.800That should be the paradigm, the example for going on in the technology space.
00:57:59.960Our data, we can contract it, we can farm it out to Facebook if we want to interact with our friends on Facebook or whatever social medium you choose to engage in.
00:58:07.360But there has to be a way, and I think the cell phone blueprint is the best legal example that I've seen, to be able to take this in somewhat concrete fashion and then just take it to platform to platform no matter what sprouts up.
00:58:21.520Holly might have had a bill on this, it might have been where I saw it, or maybe I just read it somewhere, but the cell phone number example is the best thing that I've seen to possibly analogize to I think what you're getting at.
00:59:05.580So just to tie it all together, Glenn, our constitution is the most enduring political charter in the history of Western civilization.
00:59:16.680Now, federalism was a very, very, very unique American addition to Western politics, okay?
00:59:25.560Separation of powers was basically directly borrowed from Montesquieu, the French thing, but federalism was very unique.
00:59:30.460But the totality of all this, the notion of enduring a physical constitution in contradistinction to England, which was just and remains a non-written oral constitution, to physically codify this and write this down.
00:59:43.080And then to have the foresight, to have we the people, of which the constitution's preamble speaks, be the ultimate sovereigns, to have we the people be the sovereigns, and then to allow us to form our own destinies within our own federalist dual sovereignty structures, according to dictates of our own whims, our own conscience, our own local accountable elected officials.
01:00:04.640This is a beautiful, beautiful, beautiful political system.
01:00:08.200There's been no greater political system that's ever been devised.
01:00:11.820And we are ungrateful is what we currently are.
01:00:15.560We have lost any sense of appreciation or gratitude and kind of an Edmund Burke, Burkeian sense for what has come before us.
01:00:22.340And I think the best path forward, and conservatives have been being this drum for decades because it's true, the best path forward is to just be grateful again, to appreciate this wonderful, vibrant, rich, political, legal tradition that's been bequeathed us by our forebears.
01:00:39.960And I would just encourage people, if I'm sitting on a mountaintop, yelling across the country, take out your pocket constitution, go online, access it, whoever you were, just read the damn thing.
01:00:51.820It takes literally 30 minutes to read.
01:00:53.880It is a short document, but there is so much wisdom embodied in that short document.
01:00:59.380And we are just sticking our proverbial middle fingers to the founding generation, but they knew so much more that we just fundamentally do not know.
01:01:05.820Constitution better than the Declaration of Independence?
01:01:08.100No. No. Abraham Lincoln famously, I think the way he formulated it, right, was that the Constitution was the frame of silver around the apple of gold.
01:01:22.300Right. Well, progressive, you know, Woodrow Wilson, back to him, he hated the Declaration, said it was, there was nothing to it that had anything to do with our day.
01:01:32.700It was a document stuck in the past, and I look at it as our mission statement, and there's no greater.
01:01:41.620When we hit that, all right, then go, let's go look for another mission statement, grander.
01:01:48.060But there is no grander mission statement than that.
01:01:50.860I can't think of anything that if I got together with a group of people and said, we're going to start a movement, and we're going to change the world.
01:01:59.400And we want the world to be a happy, healthy, loving place that guarantees everybody can do whatever they want, but we still have parameters and guardrails, but you're free.
01:02:16.640I would present the Declaration of Independence.
01:02:22.600Yeah, you know, I did a recent online course through the Tikva Fund, a Jewish kind of intellectual right of center group, and it was taught by Mayor Soloveitchik, who's a pretty prominent Orthodox rabbi in New York City, a politically conservative guy, brilliant PhD, etc.
01:02:39.660The way he formulates it is that the Constitution is a contract, but then to tie it back to what you were saying at the beginning of our conversation, the Declaration is a covenant.
01:02:48.920The Declaration is what embodies the covenantal relationship of the entire American people.
01:02:54.280And Lincoln, who was a pious figure, completely understood this.
01:02:58.520He completely understood that the way that the country was currently being run, including the abhorrent Dred Scott case, of course, of 1857, Roger Taney's worst ever decision as chief justice.
01:03:09.300It was fundamentally at odds with the incipient covenantal nature of America.
01:03:15.480And he fought a very bloody war, a very, very bloody and tragic war.
01:03:19.880But in so doing, he redeemed the promises of the Declaration of Independence.
01:03:24.560He ensured the longevity, and I would hope, perhaps permanent, if we can keep it, of our covenant.
01:03:32.340And what's interesting, though, is that it actually, even after the war, or during and after the war, I should say, it took constitutional amendments, the 13, 14, and 15 amendments, to actually do it.
01:03:42.180So, you know, I was talking to a law school earlier this week, and this leftist law professor was commenting after my talk saying,
01:03:48.200oh, the framers were like these old white slaveholders, like garbage arguments.
01:03:51.980My basic response to these people is, it literally took the Article 5 amendment process that the framers had the intellectual humility and the foresight to include in our governing charter to ultimately eradicate all the things that you're complaining about.
01:04:06.960They literally used the amendment process to pass the 13th, 14th, and 15th amendments.