Podcast: What's Wrong with the Democrats?

Note: Due to a technical mishap, the Three Whisky Happy Hour podcast will appear a day late this week. But there’s still Ricochet. . .

• This week over at Ricochet, Charles, James, and I got to host Evan Barker, a former fundraiser who worked within the Democratic Party’s progressive insurgent wing. Having left the party in disgust in 2024, she penned the just-released New York Times bestseller, Nothing Left: Confessions of a Democratic Operative. We also discuss JD Vance’s take on how to sway the youngins from socialism; the Trump admin’s new childhood vaccination policy; and the new Reagan biopic about the 1986 Reykjavik Summit with Gorby that I wrote about previously right here (though I think I may have been wrong about the film—stay tuned). And we have our usual fun and games over culture and other things.

• The debate John Yoo and “Lucretia” conducted with their usual vigor on the 3WHH podcast a few weeks back has continued in print in a four-part debate over at Civitas Outlook. Here’s a highlight reel with some short excerpts, but with links to the full articles in order of appearance, which everyone should read:

. . . In other words, citizenship in the newly created sovereign confederation of states was based not upon jus soli, but upon consent. Citizenship was not a function of having been born on American soil; rather, it was a function of allegiance to the appropriate and rightful sovereign. The treatment of Loyalists during this period illustrates the revolutionary transformation from British subjecthood (tied to the Crown) to American citizenship (tied to consent, oaths, and support for independence).

What the Court fails to acknowledge is that the American Founding rejected perpetual feudal allegiance. The Declaration of Independence absolved “Allegiance to the British Crown” and dissolved political connections, grounding government in the “consent of the governed.” Citizenship derived from choice, deliberation, and social compact—not accident of birth. As James Madison affirmed, “all power in just & free Govt is derived from compact.” The historical record—Roberts’ faulty and selective historical narrative to the contrary notwithstanding—clearly demonstrates that the founding generation based citizenship on this consent-based framework, not some irrelevant application of English common law governing subjects.

. . . I believe the fatal flaw in Professor Denno’s argument is that she would elevate political philosophy above the original understanding of the constitutional text. She argues, in brief, that our nation is built on a social compact formed by the consent of individuals with inherent natural rights. She claims that Americans rejected the British theory of the relationship between the sovereign and the subject, which Professor Denno dubs “perpetual feudal allegiance” created by simple birth on the sovereign’s territory. She writes:

Where the Court is badly and profoundly mistaken is in its ahistorical and wholly inaccurate assertion that such subjectship was the basis for citizenship once the United States declared their independence from Great Britain. The former colonists stated unequivocally that their ‘separate and equal station’ entitled to them by ‘the laws of nature and nature’s God’ absolved them ‘from all Allegiance to the British Crown.’

Denno believes that the Declaration of Independence’s citation of natural rights and natural law means that citizenship must be consistent with natural rights theory. She does not clearly explain whether this natural rights theory is that of the philosophers of that time (Thomas Hobbes and John Locke) or of today (John Finnis, Harry Jaffa), or even whether there is any disagreement between the two. It appears that she believes natural rights theory demands that citizenship must arise from the consent of both the state and the wanna-be citizen. She writes, “[c]itizenship derived from choice, deliberation, and social compact—not accident of birth.” She appears to conclude, therefore, that the child of illegal aliens cannot be a citizen because of the parents’ violation of immigration law – this appears to be tantamount to society refusing its consent to the child joining the American polity.

. . . The heart of Professor Yoo’s disagreement with me is that I attempt to impose my own idiosyncratic “natural rights theory” derived from the Declaration of Independence. He asserts that I quote “the famous passage about the right to ‘Life, Liberty, and the Pursuit of Happiness’ and then claim that natural rights theory must supply the answer to every question left open by the constitutional text.” This is, of course, a complete misunderstanding of my stated position. What I do believe, along with every framer of our Constitution (the writings of historians Bernard Bailyn and Gordon Wood to the contrary notwithstanding), is that the American Founding constitutes a singular event in political history: the first deliberate attempt by a people to constitute a political community on the basis of a universal principle—the natural equality of all human beings and its corollary that all legitimate government derives from the consent of the governed. Adherence to these principles articulated in the Declaration of Independence is what formed the “one people” who declared themselves a free, independent, and sovereign state. . .

Professor Yoo rightly notes that my position goes further even than Justice Clarence Thomas’ dissent. Whether Justice Thomas would agree with my position I cannot say, but he certainly does not need me to elucidate his 91-page opinion. He also takes exception to my inclusion of the policy implications of Trump v. Barbara. However, what he does not acknowledge, because of his aversion to theory, is that the adverse policy implications of the decision are not limited to the continued damage from illegal entry, rewarding birth tourism, and the real potential of endangering our national security. As Justice Thomas rightly notes, the Court’s decision “devalues” American citizenship. Moreover, it undermines the foundations of the American political community. A nation is not merely the land it occupies or the people born on its soil; it is a distinct political community defined by shared history, culture, a common commitment to its own sovereignty and survival, and, in the American case, dedicated to the proposition that legitimate government is based upon consent.

. . . Professor Denno’s argument would replace this unobjectionable, even normal disagreement over the original understanding with a radical theory rooted in philosophy, not history. She believes that a natural rights republic requires that the people and a new member both agree to citizenship – this is the very meaning of government by consent at the heart of social contract theory. But there is no evidence that the antebellum states adopted this social contract theory of citizenship for children born on U.S. territory. . .

After reading Professor Denno’s rejoinder, it has become clear to me that the fundamental problem with political theorists interpreting the Constitution is that they are not interpreting it. Instead, they are using the Constitution to advance a political theory. Whether a reader agrees with Professor Denno will depend, in part, on whether one agrees with her theory, not with the Constitution. One could also hold my view, that agrees with parts of her natural rights theory, but acknowledges that we advance it through the democratic process of elections and legislation, not courts and constitutional interpretation. The question becomes whether Americans want their fundamental constitutional questions settled by lawyers such as Chief Justice Roberts or Justice Thomas or even Presidents like Donald Trump, who, despite their differences in outcomes, operate within a shared framework of original constitutional meaning. Or do Americans want to be governed by philosophers like Harry Jaffa or Leo Strauss (or even their friendly disciples)? I expect most Americans today, and at the time of the Framing, would vote for the former. Professor Denno and her fellow Claremont-inspired philosophers would choose the latter. And maybe some of her philosopher friends would also secretly pick the former, if they wanted to respect constitutional text, history, and practice over abstract theory.