« Revisionist History

Divide and Conquer

2018-05-17

The complete, unabridged history of the world’s most controversial semicolon. 

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
Not long ago I had a dinner party at my house. My friend, Michael Ryan, came he's a lawyer, and I was talking to him about my love of law review articles. He's genuine by the way. Here's a profession and find meaning in the particular in the arcane to make the implausible plausible to defend the indefensible. I mean. How are those not the perfect, ingredients for a good Red plus Lara view. Articles have epic footnotes scores, are settled subtle, loyally, jokes, her maid and the really outrageous arguments are slipped in just for the benefit of the reader. Who wants to wait into no one? Thirty, six on page eighty seven I go on like this until Michael Ryan Kind of roles, his eyes, because that's what lawyers do I never know. Its modesty herself hatred, but you can imagine I persist. And finally,
Michael says: well you're right. There are moments of genius in the review articles. Let me send you two of my favorites the next morning in my inbox, is an email from Michael Ryan, with two attachments. I read the first and I think that's pretty cool and then the second and my jaw drops, and I say out loud what My name is Malcolm Gladwell. Well to season three of revision is history, my podcast about things overlooked and misunderstood. The definition of a shaggy jug story is
extremely long winded anecdote characterized by extensive narration of irrelevant incidents in terminated by a pointless punchline. Halfway into this episode, you're going to think that this is a shaggy dog story, it's not the stone, do you. This paper. How, many years ago, fifteen years ago, yeah The published two thousand for doesnt for this is Professor Michael Stokes, Paulsen. Co author of the law review article in question, within days of reading, as I say, I was in his office at Princeton University took the train down because it seemed urgent in the email where he gave me directions Paulson wrote. I am always grateful to her Anyone read my obscure, idiosyncratic law, review articles, exclamation, point, idiosyncratic sure at least half of his.
These dwelt on the meaning and interpretation of Semi Collins but obscure. This is something with the potential to turn american politics upside down. No way could article b obscure. So what was the reaction to the tunnel thundering silence. As far as I know me, I haven't been trolling the internet for it, but it Never seen anything to suggested anybody is remotely interested in this matter. You- can convince the weight of the first Germans to call you in interviewing about this Yes, I'm trying to remember if anybody did back in two thousand and four, two thousand five Knows people inclined to view it as a wacky idea right, you're too being a legal concept of something that's a hundred seventy years old in you're, saying it still out. If you think about it. Logically, it is still operative, but peoples,
intuitions. Are that can't be right, and so the oil, or that it can't be taken so. Madam you ve gotta get people will take it seriously if you dance is that I don't think so. This work is at all. I read this thinking. This is dead. MRS, is fair, haired, glasses, composed and intellectual author of serious books on the Eu S constitution, When we met he was a visiting scholar. Princeton University holed up in one of those gorgeous old, mentions on the outskirts of campus, but don't get the wrong. There is also something subversive about the man, a certain look in his eye. He someone who likes to make mischief like on page one thousand. Six hundred and eighteen of the journal containing his Lord. When he briefly address, is the question
why he is just spent tens of thousands of words descending down this particular rabbit hole in his answer because it stay. I dont know about you that makes me nervous. There was a part of me the just wanted to walk out of his office and not sing another word to anyone. Let sleeping dogs lie, I'm running a pod guest here, not starting a revolution. You not jewish. I now cause as they would live. We could railway do not have a situation. We can do what they call a mid rush, something continent, cash, yeah, yeah, that's been rush on the star with it with article four section- three, Yes, I guess we're trying to answer the question. Of why it is the case that are that this article on its face section three on its face, does not prohibit subdivision. That's right! That's the issue at hand right right.
They are having fewer media break it down dramatically, understood it I'll. Do it dramatically new states may be admitted by the Congress into this union. Semi Colon Paulson carries a small copy of the. U S constitution in his jacket pocket. This is what is reading from This first class new states, maybe, admittedly Pino superpower, to meet new state. But no new state make shall be formed or erected within the jurisdiction of any other state. Some cool. The second semicolon pay special attention. Any state be formed by the junction of two or more states or parts of states without the can scent of the legislature of the states concerned, as well as of the conference where you left I left out? I didn't read all the come here: ok Let me let me a by rages for you re so much about the grammar diabolical. Ok,
states may be admitted by the Congress into this union summit, but no news. State shall be formed or erected within the jurisdiction of any other state second side, nor any state B, formed by the junction of two or more states, comma or parts of states, comma without the, sent them the legislatures of the states concerned. Well as of the Congress period, Civil protection. So question, one as I understand it from eating. You is what is the sense of the second semi go right. This is about to get very serious. I promise right across the Texas border in art, more Oklahoma, there is equality, unless probably stream to stories courtyard big, used to be a holiday in until a few years ago. Just to be clear
the art, more holiday, slash quality and has nothing to do with Michael Parsons, lower view paper directly anyway. Context. You have to know about our more. If you want to understand where pulses argument begins, the first line of his article, in fact, which is- and I am quoting Texas Republicans. I've been thinking way too small. That's way with five days it's the early two thousands results from the national census are in, which means state legislatures around country are redrawn the boundaries of congressional districts based on the new population numbers, so ritual power struggle that happens in America every ten years in Texas. The legislature is controlled by publicans. They wonder redraw the congressional map, so Democrats get fewer seats, but it doesnt work. Even with the new borders the Democrats hold onto their seats. So in two thousand and three, the Texas Republicans introducing
I wish to draw the boundaries all over again and the democratic furious. If you can t redrawn, the boundaries of electoral districts Over and over until you put your opponent at a business, then you know democracy. Are you the When I, the revolt, was Jim Dunham. He's now a lawyer and Waco back in two thousand and three he was chairman of the State House Democratic, caucus. I had members coming up to him, so you know Jimmy gotta do something right and What are we gonna do so I can bust a com. There are a hundred and fifty legislators in the Texas Assembly Quorum is a hundred if Dunham can get fifty one Democrats not to show up the vote can happen. I was coming up on a Monday and I think it was the preceding Wednesday that I had the first meaning and I'll. Tell ya thought I was totally wasting my time. I told everybody. This is foolish. Nobody's gonna do this: it is you had across state lines because the speaker
the house has the authority to issue arrest warrants and if you're in Texas, they can grab you now, if you're outside of Texas, that then you don't have jurisdiction. Oh, I see that's, why he had to go to Oklahoma. Actually have an arrest warrant wants its pretty cool, go your direct The girl, arrest and detention Donovan bring into the Texas Hauser. When you guys leave a farmer Thursday Sunday, and you know about Thursday, when I figured out we're going to actually get enough people to pull this off. I was I didn't. Where will you go? You know, yeah some members. I will list, go like Charles Louisiana or Shreveport So when we're not going to go there casinos there and I'm no way, we keep the Democrats out of casinos if we're in Shreveport, and and I'm sorry! I you know, and so my wife
Spammers more morals and God, low, are, but there is nothing to do and ardour Denham hires buses. Get everyone to meet at a hotel in Austin. Does a headcount fifty plus himself doesn't tell anyone whether headed or when they're coming back need to know basis. Only it's an undercover operation, Monday comes! The Republicans are ready for their triumphant vote. They suddenly realized they don't have a quorum, not a man hunt for the missing Democrats, Texas, COM, spend time delay gets involved, he's the house mature. The leader in Washington at the time One of the members showed up in applying and delay evidently called homeland security in what'd. I tell number was missing, in an effort to figure out where that plane had gone, and it was
I would say, but homeland security couldn't find is but the Dallas morning NEWS good. To recap, the Texas Republicans increasing numbers and influence in Washington, so they try a gerrymander then when it fails, do arise, Gerrymander in violation of every state norm, leading to a full scale, state constitutional crisis, causing the states democratic August stiffly and buses to a holiday in Oklahoma, leading Statewide manhood It's in the House Majority leader to call in homeland security, triggering international media friends what The situation like in ard more for that as Democrats right now, John? the holiday and I've been witness to a courageous scene of defiance, Texas, democratic legislators, hunkered down trying to conduct the people's business while subsisting only on that contents of their many bars homeland security officials attempting to
ban some missing state legislators who hung out at the holiday Inn for a couple of days? You know we got a lotta deserters down their gas they're afraid to stand and fight like our own services. Do legislative process was so broken that they had to leave for ard, more. Thank God. We didn't have those Democrats at the Alamo got out You probably most the time, was dealing with the ten or eleven satellite news drugs that showed up after a day or two and whose watching all of this mica Paulsen and besides case of, author is that the law review article D found its way to my inbox working on their article as the drama unfolds in Ard, more and they Look at having its happening norm: violation: constitutional crisis, Ard, more holiday in homeland Security, media friends,.
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Michael stokes Parsons arguments about Texas, but it's also more significantly about grammar. His lower review article spends far more time on grammar, in fact than on anything else, specifically the grammar of the: U S constitution, so much so that, immediately after I visited Paulsen at Princeton, I realized that I needed an emergency session Mary nurse author of the brilliant book between you and me confessions of a comically Ricky. I appreciate reason when areas, Manhattan, department, books everywhere, creaky Harwood floors, I've known Mary? For years we worked together the new Yorker, the new Yorker is a good cop, bad cop operation,
the good cops, the editors, the coddle, courage, soothe You go on and on bad cops cup of partner For most of my time, their copy department was a murderers row of three women. First was an who is now not calibre marathon who gave the impact. And that in any disagreement she would simply of last year. The second carol reminded me of the proper West Indian Ladys. I grew up with kids. Islands, you with a disapproving glance. The third was married if MR and MRS Santa Claus had an irrepressible youngest daughter would be married I have written down here three sentences for look from the constitution. I just want to reduce business to the proposition that for spot tat, punctuation and take a really matters on a document like the prestige and two: they were a little bit sloppy with it.
I was in Semi Collins at times we're sitting at marries kitchen table. A hand or a sheet of paper, with my constitutional selections on it. She takes it a black number two pencil sharp. We start with the sentence that has driven grammarians crazy for two hundred and fifty years. The second amendment a well regulated militia being necessary to the security of a free state. The right of the people to keep and bear arms shall not be infringed. A well regulated militia, comma being necessary to the security of a free state? Comma, the right of the people to keep and bear arms comma shall not be infringed. First, before shell, so he ever should be tested. Does the third come right? You you want. You has yet, on the other, to come as your fine words.
Well, no, they don't make sense either because, with the two comments, the sentence In its essence, would read well regulated militia the right of the peoples. Even bare arm shall not be infringed which doesn't make any sense. They loaded a shotgun with commas and fired at the second amendment to mess so a well. Regulated militia being there. Sorry to the security of a free state. Come come the right of the people to keep looking and there I shall not be infringed that I would lose to those come Mary had covered up the two other sentences on my list with the legal base, she moved the legal pad down just enough to expose sentence number two The right of citizens of the United States were eighteen years of age where to vote shall not be denied or abridged by the United.
It's her by any state on account of age. Twenty sixth amendment has its constitution, the terrible some thought yeah. So what if you re right that satisfy me? Mary has her pencil out she's marking the piece of paper like a new Yorker galley, covering the page with graceful number two pence lines the right of citizens who, eighteen years of age or older, to vote, that's it. You should use in their right. Knighted states, citizens who are years. They know how to vote now, kanaka because by her No commas what you will turns into is a defining cause By putting comes around it becomes a descriptive, defining clause in grammatical terms, is a clause necessary for the meaning of a sentence. The house, where I
it is on fire? You don't but com is around the phrase where I live, because the fact that its my house is essential for understanding what I'm trying to The house where I live is on fire, but in the sentence the house built in one thousand nine hundred and seventy eight is on fire. We put commas around the phrase built in one thousand nine hundred and seventy eight tomorrow. Descriptive is not necessary for the meaning of the sentence, but it helps us to understand more about the house, so the twenty. Sixth amendment has commas around the clause who are Eighteen years of age or older, big mistake: when was this really well past in It's not necessary for the meaning of the sentence, but it helps us to understand more about the house. Arrest reads: if
The citizens of the United States are eighteen years of age or older. American citizens are people either born here or who have been granted citizenship and what the twenty sixth amendment means to say. Is it upset of that group. Those who are over the age of eighteen have the right to vote, but the authors of the twenty sixth amendment used commas interpreted grammatically. The twenty sixth amendment says that a citizen- either born here or who had been granted citizenship and what the twenty sixth amendment means to say. Is it a subset of that group? Those who are over the age of eighteen have the right to vote, but the authors of the twenty six amendments over eighteen good. Lord clarity is of the utmost importance and legal document right. I don't think aliens who cross the border into Detroit to buy gas our citizens so long as are operating.
If there is such a thing as a legal grammarians, but their provision be the? U S primary care. You're not volunteer, one would be the perfect person the chief only I could wear one of those wigs and now we turn to the constitutional sentence at the bottom of the page, the one I really care about the one that explains why Texans had been thinking way too small. New states may be admitted by the Congress into this union, seven core, but no new state. She'll be formed or erected within the jurisdiction of any other state nor any state to about. By the junction of two or more states or parts of state. Without the can and of the legislators of the states concerned, as well as of the Congress. Well, that seems clear to me. You can't
form any new states without Everybody agrees that the new states can before, I repeat, not a shaggy dogs, Michael Paulsen first became drawn to article four section, three of the: U S constitution when he was teaching a class at the University of Minnesota LAW School on the civil war. The question of West Virginia came up, as you may remember, Virginia was Confederate states during the civil war, but a number of. And he's in one corner of Virginia where anti slavery, so they broke away and formed West Virginia, which is admitted into the union it eighteen sixty three. The question Paulson had for students was was that institutional get a new state, be formed from
is of an existing state set of trivial question and article four section: three is the part of the constitution that addresses this issue. It was written in seventeen. Eighty seven, as with Second amendment and the twenty sixth amendment, however, it is dramatically ambiguous and, as a result, its precise to the kind of matter that appeals to the baroque legal texts of Michael Stokes Pulse, guess, together with this in case of on. They happily disappeared down the article four section: three rabbit hole for God knows how long and they emerge with an exhaustive analysis of the question. Published in volume. Ninety issue, too, of the California allow review pages to ninety one to four hundred. This Is not the law review article landed in my inbox and blew my mind. It's the precursor the compulsory figures, if you will, before the free state,
now there is a language, but no new. Date shall be formed erected within the jurisdiction of any other state Semites. You could read that if we're just that a flat prohibition, carving out a new state from within an existing state. If it stops here, if you stop there- and it was nothing came after that- we have no arguments here. No news: date shall be formed or erected within the jurisdiction of any other state. No ambiguity there right you'd say you can't do it, you get so where'd you get it. You would not be right legitimate, but then it goes on after the semi colon in this field. Question is that some Colin more like a period that ends one prohibition and then another prohibition picks up origin. We're like applause. Is it a more like a comma after that So my calling it goes on to talk about what we read
it again nor any state, be formed by the junction of two or more states or parts of states without the consent of the legislature of the states concerned, as well as of the Congress. Article four section three would be Crystal clear: if the founders had used a period in the middle of it, a period would mean you can't subdivide estate ever. On the other hand, if you want to combine two states, you can so long as everyone consents, and it would be equally clear if they had used a comma. A comma would mean that the consent provision applies to everything both subdivided combining illegal so long as Congress signs off on it, but they dont use a period or a comma. They make a punctuation decision, guarantee
to tie generations of constitutional scholars in knots. They choose a semi colon when it says without the consent of the legislature of the states concerned, as well as of the Congress. Does the consent qualification apply also to carving a small state out of an existing new state. All turns on whether the semi colon is read as a full, stop separate prohibition or is just one in a series of things to which consent can be? Does the constitution say you cannot break off a piece of an existing state ever or does it say you can so long as Congress says? Ok Paulson in case of an spend ninety pages on this question. Their California LAW Review article ninety pages at its riveting reading, because the whole time you're thinking good Lord West Virginia, is hanging
The balance, if that semi colon from seventeen eighty seven is meant as a full stop, then someone go down to the State House in Charleston and break the news to everyone there that the parties have Paulson in case of on comb through earlier drafts, so that clause the legislative history. Constitution, the records of the framers and they conclude West Virginia. Is constitutional, everyone involved even sign off. A drift nets are concerned, break so once you so in other words, that makes it quite clear that the last clause modifies everything everything. Yes, but once sheets clues, the last clause modifies everything, then The semi colon cannot be functioning as appeared. It cannot be
Forgive me! If I'm going on and on about this, but everything And on this interpretation of article four section three for you, as people had been dismissing the implications of that sense because assumed that its ambiguous. It is not ambiguous and here's what clinched it for me, Mary Norris. The comic queen Greece. Ok, I think that hinges on this, nor, in spite of the semi colon the nor connects this delivered to the boy the constitution says, but no new state shall be formed or erected within the EU. Section of any other state, semi colon nor any state, be formed, dot, dot, dot,
I've read many many many commentaries unless you the first person to talk about this, but nor being significant Oh, you don't have a nor unless referring to something before it neither nor no one in the thing copy. Copywriters. Look for is a north. Standing alone, it doesn't make any sense. Try not sentences begin with nor returned to have a nor where there's not a neither so that nor has to connect to something I think it connects to the book. I think, they're related they're in Marries apartment. I had a flash back to the final round of editing at the new Yorker, something I've done many times, we're sitting in a room you you're good competitor and Carol. And or Mary going through your piece. Line by line
peeling away, everything is superfluous and confusing formidable intellect devoted to making words mean but they're supposed to mean if you ve never had someone do that for your words, you haven't written Are you saying a final thought nor construction? If I say I like all kinds of animals Likewise, it and Nor do I like dogs, because smell Is it because they smell modifying horses and dogs? I think the nordic next year as crucial Mary, you are the even entered into eighty hugely significant constitutional, which brings us to the second case upon Paulsen paper? That's the one my friend send me Texas LAW
view volume, eighty to the necessary and far more consequential companion to their constitutional exoneration of West Virginia. The articles called let's mess the Texas. It begins with a quotation from the congressional resolution under which Texas was admitted to the union in eighteen, forty five, the relevant passage goes like this new state. Of convenience size not exceeding for in number. In addition to said state of Texas and having sufficient population may hereafter by the consent of said state be formed out of the territory thereof, Congress gave Texas permission to form another four states within its borders, which makes sense. Texas, was an independent country, the time and joined the union in a very big country, at that they were complicated
considerations in eighteen, forty, five, but the balance between sleigh states free states, it's a whole lot of story. What matters is that a court the case of on and persons exhaustive constitutional analysis? four still stands: new states of Vivian size, maybe form that why their interpretation of article four section three with its confusing semi colon and crucial, nor is so important. That all that has to happen is for the Texas legislature. Sign off on division and it's a done deal? Congress pass at statue saying you could Do this that's consent? they consented in advance, consented on these terms and the consensus not been taken away. That's as many as five stay where there is now only one tenuous senators. We're Texas now is only too
Texans in control of american politics for the next century,. You don't usually frost pages, but you ve made me tsars. I will I will do that if you ask around about who knows the most about the political demographics of Texas? One name comes up Alot Michael D,. The sky, somber suit glasses, slowly haircut group in Houston, went to the University of Texas. Now works at the Brennan Centre for Justice at New York University. It occurred to me that I'm potentially complicit in all this I'm the one publicizing the pulse in case of on manifesto for a complete make over of american politics, so I needed to find out what I'm getting everyone into. I would create a district that or a district a tea that that stretch, those included used it in the stretch to the border,
Louisiana locally and I met in a big conference room your Wall Street, he brought within the map of Texas, so large a covered. The entire end of the table least started by drawing the borders of the new state of Houston. Five million people and then on the western side. I would probably off somewhere in between Houston, and Austin witches in central taxes, the Whaley talked he made it sound natural, as if taxes actually makes a lot of sense, divided up five ways. He sought third state in Central Texas said it round booming Austin, already the eleventh largest city in United States, the fourth state would be West Texas, Lubbock Midland Odessa, flattened dusty oil, country the fifth state would run along the mexican border beginning with San Antonio eastern running all the way to El Paso when Paulsen. Case of on publish their law review paper back in two thousand and four
or the assumption was that if Texas subdivided, this would be a net win for Republicans. Texas hasn't sent a Democrat to the: U S Senate since the early ninetys nineties, it's the Republican Heartland, that's why they wrote the Texas Republicans were thinking way too small, why not Quinn topple their influence in Washington, but in the years since then, the states demographic had been an upheaval. Wes, Texas oil country would remain solid for the Republicans to senators, but the new states of Houston in Dallas and Central Texas. Those are purple. They could go either way. As for the state running along the mexican border, one with its capital in San Antonio. This is a heavily democratic state and I think that the state would be More latino them New Mexico and It would allow not only Democrats, but probably latino Democrats to the Senate it's a whole new ballgame Michael
I did the math for the ten New Texas Senate seats you are a lot for the Republicans and they can probably count on another from one of the top up states. So three in. Yeah see yeah ends, says for our law to the Democrats and three are up for grabs. Is that without the affair? I think so yeah yeah yeah which is a pretty big ship and the way things are now that's now. But if tax, This continues to grow and change the three toss up: States, Dallas, Houston and Aston- get even more democratic, bash devastated, Houston, so we'll say it's. The moment it's fifty fifty the long term, I said you ten years to now. You would not be surprised if it elected to Democrats, etc, etc. In a generation could defied state of Texas send eight democratic senators to Washington,
Against two Republicans: it's amazing how many times you ll hear Republicans in Texas sailor taxes the Alamo, the United States is meeting like it's it's. What homes like the republic is on power it it's a the wall against dislike liberalism from places like New York in California, I've always thought there were several funny analogy because everyone, I did the elements, but you know that's one that the use. In inadvertently, tell him analogy. Texas Democrats have been thinking way. Too small. Imagine a governor of Texas It's your and our view, article and said a funny enough premises as his ok one billion our trigger. Ok, ok,
so walk me through how triggering my work in the real world well. Imagining a real world where people take law review article seriously its debts. Good, that's a better real world, a better Europe All we know is Congress has granted its consent for the sovereign state of Texas to do what it needs to do with a significant fact here is that given the Congress has already granted its permission, the all that has happened for Texas to get its act together. It's up taxes. Let's say that text is putting together this planet Congress. It's getting really alarmed didn't want it to happen. Candy revoke the permission it was granted before Texas I don't see why not
I think they can always serve Texas was do this theory to do they gotta get their big we're just gonna. Do taxes has to get its act together quicker than Congress can get its act together to say now for the love of God, Texas. Just do it. Vigorous histories? Apparently production. The city producer is meal about with Jacob Smith and Camille Baptista. Our editor is Julia. Varden. Flood Williams is our engineer fact checking by best Johnson original Music but Luis Gara special thanks to any Bowers and Jacob Boys. I'm not. You have any any bad memories of copying,
mind, you know no not at all I use you as the example of somebody who the Pencil CUP I d bounces off, he do very nice job. My mother will be very pleased to hear. Mr on July tenth, twenty fifteen, a young woman named Sandra Bland, was stopped by a police officer on a highway in rural Texas. Then everything went wrong. I've written a book called talking to strangers. It starts with that encounter, but I didn't just right. For the page, I recorded an audio book as well. New kind of audio book that allows you to hear the voices of the people I talk to and come with me to the places I go because You shouldn't just listen to an audio book. You should experience it.
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Transcript generated on 2020-01-12.