Yeah, the math's off there.

For this to happen...

We have to believe that after he shot the first shot that the police gets called, for some unknown reason, he opens up his revolver, removes a spent shell casing, throws it away, closes the revolver, and then the second shot happens.

That made no sense.

So I was tasked with working up this file.

And I took it home.

And my dad, who was very sharp and who would make a better lawyer than I ever made.

You've got

[laughing]

-about the Declaration.

Um, I, I'm taking this ta- uh, task extremely literally, um, and, uh, will be presenting something new about the Declaration.

But let me begin in a Cincinnati courtroom in 1838 with a young woman named Matilda.

Matilda was a light-skinned... was light-skinned and the daughter of her enslaver, who brought her on a long trip through free territory while presenting her as his white daughter.

On that trip, she tasted freedom.

She pleaded with her father for a certificate of emancipation.

True.

And yet she folded in with Roberts.

Well, she didn't write, so we can't be exactly sure what her thinking is as to why she joined the majority.

So that's speculation.

Look, I should have, in preparing for this call, I should have put Eric Erickson's tweet on when he lists all the decisions that she's made.

Yes, I've got that.

That are critical, including in five to four cases, to the conservative political agenda, and I think to restoring the original meaning of the Constitution.

She's been a terrific pick.

I mean, in his in his dissent with with not wanting to make a declaration about whether this was a constitutional right to give Congress more latitude as well.

Well, I should let him ask it himself.

Well, here they say that, I, I take it you're using this because I was going to ask you.

You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could at some point lead to tomato children that will eventually, uh, affect Boston.

You know, we can, oil that's never, in fact, being used, but we want an inventory of it federally.

You know, I can multiply the examples.

No idea.

It's, it's one of my favorite lines from all of, uh, oral argument questions.

O'Connor's dissent worked within the court's existing doctrine, and Barnett told me it tracked the plaintiff's own theory of the case almost exactly.

He pointed me to 18th century newspapers.

commerce was basically the equivalent of trade and exchange of goods, et cetera.

But I do think commerce is slightly broader than that.

I think it's about the movement of things from one place to another, as opposed to their manufacturing or creation.

One thing that epitomizes commerce was illustrated in a political cartoon in the Pennsylvania Gazette, which characterized commerce as the god Mercury.

And if you think about Mercury, the messenger god, That sort of symbolizes kind of what commerce is about, movement.

When I did an empirical study of the Pennsylvania Gazette for 85 years, that 100 of the 1,500 entries under the word commerce were ships by the name commerce that appeared in the newspapers.

O'Connor's dissent worked within the court's existing doctrine, and Barnett told me it tracked the plaintiff's own theory of the case almost exactly.

Let's

talk a little bit about this narrative of slavery, which is all we can talk about these days.

And so therefore, I spent a lot of time talking about it.

At the time the country was founded, slavery was the historic norm.

The United States was on the cutting edge of the movement against slavery, on the cutting edge of anti-slavery.

When the Declaration of Independence was adopted officially and declared that all men are created equal, Every state in the Union at that point had slavery.

By the time the Constitution was enacted 11 years later, a mere 11 years later, six states had abolished slavery and two more states, New Jersey and New York, were on their way to abolishing slavery.

And I think if people just understood these basic civics facts, I think there'd be a lot less frustration and anger in American society.

You knew that and you just had to deal with it.

Well, we found it out.

How did you do that? We found that out in the middle of the hearing.

We didn't know that until until it was revealed to us now.

But you knew it from that point forward.

We knew it from that point forward.

We knew we knew by reputation that there were, you know, who was the corrupt judges and who weren't the corrupt judges.

With that kind of visceralness, how did that affect the way that you then tried cases when you made it up to felony court?

So, Professor, after the Articles of Confederation, what specific problem were the founders trying to solve within the federal state balance?

Well, what we have is sort of an accident of history because we start with 13 independent or semi-independent colonies slash states.

They're up and running for about 11 years.

They all have their own identity.

They all have their own political culture.

They all have their own politicians.

But there's a consensus in the country, even by those who oppose the Constitution, that things are not going very well, that the Articles of Confederation that are governing the 13 states are not very effective.

still have a federal system in any meaningful constitutional sense, or is it more of a nationally directed system with some state-level administration?

Yeah,

there's turns out there are two conceptions of popular sovereignty.

When I, for a long time, only believe there is one.

The one that everybody knows about is the one popular sovereignty, which is ruled by the people, ruled by the people.

And if it's ruled by the people, the will of the people.

It has to be the majority of the people, because it certainly can't be everybody.

But there turns out to be an alternative form of popular sovereignty, and that is popular sovereignty based on we the people as individuals.

As Professor Barnett says about the backlash to Chisholm,

Can you speak to that? Can you speak to sort of the like the different forms of corruption, not just the system corruption like payola, but even like the personal ethical corruption that you're dealing with when you're in these messy cases and you're trying to, there's different opportunities to try to say, well, do the ends justify the means here?

Well, I talk about that specifically in felony review, personal corruption, what that consists of.

It's a very interesting topic.

It's a very interesting question.

Thanks for asking that question and asking it the way you just did.

It opens up a couple of different issues.

Number one, the mindset of defense attorneys.

So you wouldn't need to

How so?

Well, this is completely speculative and, and I'm just making a commentary as, as a, as an American observer of our s- our political system.

But I was very active in the Tea Party movement building up to the decision in the Obamacare case.

I worked with the Virginia Tea Party people.

I, I, I did a Tea Party br- uh, podcast or they didn't have podcasts then, they were like video shows, uh, before YouTube did this stuff.

They, we just had an online video show.

So I was very active in the Tea Party, and one of the amendments that I proposed in a piece I had in Forbes.com, a bill of federalism, the Repeal Amendment, would've given all state, a major- a super majority of states the power to repeal any federal law or regulation.

Mm-hmm

Yes

... to, uh, examine so many defendants or people who were accused and get confessions.

The felony review unit is a specialized unit in Chicago that was set up as a result of an arrangement between the Chicago Police Department, which w- a unit of the municipality of the city of Chicago, and the Cook County State's Attorney's Office, who works for Cook County.

They have no corporate relationship with each other, but they enter an agreement that say that no felony charges could be brought by a Chicago police officer without approval of a Cook County state's attorney, and that meant you needed a full-time unit of state's attorneys available to go to district police stations, interview witnesses, talk to the cops, try to get statements or confessions from accused if possible.

Um, and we, and the felony review was set up to be this 24/7 unit.

I was on it for nine months.

Um, you work an eight, all-day shift for three days, and then you get three days off, and you work an all-night shift.

[laughs]

Yes

... to, uh, examine so many defendants or people who were accused and get confessions.

The felony review unit is a specialized unit in Chicago that was set up as a result of an arrangement between the Chicago Police Department, which w- a unit of the municipality of the city of Chicago, and the Cook County State's Attorney's Office, who works for Cook County.

They have no corporate relationship with each other, but they enter an agreement that say that no felony charges could be brought by a Chicago police officer without approval of a Cook County state's attorney, and that meant you needed a full-time unit of state's attorneys available to go to district police stations, interview witnesses, talk to the cops, try to get statements or confessions from accused if possible.

Um, and we, and the felony review was set up to be this 24/7 unit.

I was on it for nine months.

Um, you work an e- all day shift for three days, and then you get three days off, and you work an all night shift.

Uh-huh

Why does that

work? Well, we were on election patrol, and I thought election patrol was just a waste of time.

What was I ever going to do on election patrol? The only thing that we could do when we showed up at a polling place as state's attorneys was to stand behind the judges who were supposed to be Democratic and Republican judges, but they were all Democratic judges because there are no Republicans in Chicago.

And so and what and what they're supposed to do is you if somebody goes to fill out a card to vote, he signs the card.

It goes up to the desk and then he shows them the card and then they compare the signature in the card with the signature in the voter registration binder.

And if they match, they give them a ballot.

And I'm looking down watching the signature card.

What was it like working underneath and with them?

So you decided to write this, and, uh, uh, you know, we can't go through the whole book, but give us a few examples.

Well, the book opens up when I'm taking a, uh, confession from a, a, a, a guy, a gang member who p- participated in the stabbing murder of three young teens who came to d- Chicago to buy some marijuana and ended up in the wrong place at the wrong time, and they were murdered, and they were massacred.

And the book opens up with me being in the police station at, at 2:00 in the morning, uh, taking his confession as a member of the felony review unit.

Uh, the name is, the name of the book is Felony Review because we have a unit in Chicago where no Chicago police officer can bring charges against, bring felony charges against somebody without a Cook County state's attorney signing off.

So there has to be a 24/7 unit that's there to respond to crime scenes and respond to police stations in order to evaluate cases, interview witnesses, interview the cops, and if possible, get confessions.

And the book starts with a blood-chilling, a blood-curdling confession I took from this 19-year-old guy who participated in the massacre of these three young men.

What kind of attorney would you want?

Well, here's the problem with being innocent in our system.

Yeah.

But let me just say something more about felony review and what the, and what good we did.

It was like the original Innocence Project.

We were there to make sure there was evidence that before charges were brought of guilt.

We couldn't determine, you know, whether people are really guilty or really innocent.

Sometimes we had a gut feeling, but our guts are unreliable.

We were there to assess the evidence, and if the evidence wasn't there, our job was to say no.

[laughs] So how do you go from felony review to being a constitutional law professor? What's the path?

When did you write Felony Review, and when were you in the Cook County Prosecutor's Office?

Well, I was in the office from '77 to '81, and I wrote the book, uh, as a spinoff of my memoir.

I had a section in the memoir about being a prosecutor, but the book, my memoir got very long, as you know, Hugh.

Um, and I decided to take those chapters out because it was a bit of a d- diversion from my course of a, uh, my career that led me to being a constitutional law professor and a constitutional litigator.

Um, and then what I was able to do is blow them up into a separate book, and I re- I wrote that book over the last year and a half, uh, in which I was actually d- able to do some more background on the cases I worked.

I was able to do background on the people I worked with, um, and include more cases than I could have squeezed into the previous memoir, and it stood alone as a book that's probably the most entertaining read of any of the books that I've written 'cause it is a genuine, uh, story of true crime and corruption in Cook County, which was at its peak of corruption at the time I was there.

Um, and it is, involves a series of short vignettes so that you can read it a little piece at a time.

So why did you make that choice, and how am I gonna get out of this pickle?

Hmm.

But by and large, that's federal.

Um, they're the ones that have the resources to do the wiretapping and the surveillance, which it takes to build the cases against the, the movers and shakers.

I mean, we might handle, the k- state's attorney's office might handle a hit, where there's a hitman that's caught.

Uh, uh, and actually, the case that got fixed out from under me was a mob case, which then, was when I was assigned to auto theft preliminary hearing court, and so I was doing a, a, a preliminary hearing on an auto theft case.

Um, and it was a chop shop case.

Let me explain what that is.

Wow