Easy Listening (Gwen Moritz Editor's Note)

by Gwen Moritz  on Monday, Jun. 11, 2018 12:00 am   3 min read

For someone so late to the game, I have in the past year become a podcast fiend. In the months since I last used this space to recommend a few, a coworker introduced me to what may be the most educational one in all of cyberspace: “What Trump Can Teach Us About Con Law.”

TrumpConLaw — that’s actually the website, but it makes a handy shorthand for such a long title — is hosted by Roman Mars, who also hosts “99% Invisible,” a podcast about things you probably never thought about. Mars is clearly not a fan of President Trump, but TrumpConLaw is not an exercise in Trump-bashing.

Instead, Mars refers to himself as a “fellow student,” having enlisted a constitutional law professor to explain issues that have arisen during the Trump administration through the lens of constitutional language and Supreme Court precedents.

Elizabeth Joh, from the faculty of the University of California, Davis, School of Law, clearly knows how to teach. She takes complex subjects — travel bans, threats of libel suits, building a border wall, talk of nuclear war, NFL protests, etc. — and explains them clearly and dispassionately. Joh (“Joe”) does an amazing job of anticipating questions or confusion, a skill I admire because I’m still trying to master it as an editor.

I’m sure I was already as knowledgeable about the Constitution as the average non-lawyer, and I have learned a tremendous amount from TrumpConLaw. I already knew, as I mentioned last week, that the First Amendment protects us only from government action, not personal consequences. I knew President Trump might say, as he did in an interview that month, “You have to stand proudly for the national anthem,” but he can’t actually make you do it. He can say that football players who don’t stand for the anthem “maybe ... shouldn’t be in the country,” but he can’t actually expel them.

But before TrumpConLaw, I didn’t know that the U.S. Supreme Court had ruled that public schools — government agencies — could require students to say the Pledge of Allegiance. The 1940 decision in a case of two Jehovah’s Witnesses children in Pennsylvania, who refused to pledge the American flag just as Witnesses in Germany had refused to salute the Nazi flag, wasn’t even close — 8 to 1. Justice Felix Frankfurter (really) wrote for the majority that the goal of fostering “national unity” could take precedence over personal liberty — even religious freedom.

If that’s completely at odds with what you thought you knew, it’s because the Supreme Court reconsidered just three years later — three years in which Jehovah’s Witnesses were persecuted across our country for refusing to recite the pledge (which did not yet include the words “under God”). Three members of the original majority changed their votes and joined with the original dissenter and a couple of new justices for a 6-3 decision that overturned the first decision.

“If there is any fixed star in our constitutional constellation,” Justice Robert Jackson wrote for the new majority, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

TrumpConLaw treats President Trump’s quixotic quest for a massive wall on the southern border as a constitutional question of eminent domain, not a public policy debate. And the episode on attorney-client privilege starts with an event of special interest in Arkansas: the suicide of Vince Foster.

Another of my favorite podcasts, Malcolm Gladwell’s “Revisionist History,” is back for a third season. The first episode of the new season taught me something else I didn’t know: Texas, unique among states, has the legal right to divide into as many as five separate states.

If quintupling Texas’ two seats in the U.S. Senate sounds like a great idea to you, you might need to listen to the podcast.

I do need to make a correction to last week’s column. In it I said that judges in the United States can gag only lawyers, in contrast to British judges, who can actually limit what can be reported about a legal proceeding. I should have said that our judges can gag the parties to a case, including court staffers.

Email Gwen Moritz, editor of Arkansas Business, at GMoritz@ABPG.com and follow her on Twitter at @gwenmoritz.



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