Speaker 1: Pushkin. Not long ago, I had a dinner party at
Speaker 1: my house. My friend Michael Ryan came. He's a lawyer,
Speaker 1: and I was talking to him about my love of
Speaker 1: law review articles, which is genuine. By the way. Here's
Speaker 1: a profession trained to find meaning in the particular, in
Speaker 1: the arcane, to make the implausible plausible, to defend the indefensible.
Speaker 1: I mean, how are those not the perfect ingredients for
Speaker 1: a good read. Plus, law review articles have epic footnotes,
Speaker 1: scores are settled, subtle loyally, jokes are made, and the
Speaker 1: really outrageous arguments are slipped in just for the benefit
Speaker 1: of the reader who wants to wait. In Denote one
Speaker 1: thirty six on page eighty seven. I go on like
Speaker 1: this until Michael Ryan kind of rolls his eyes, because
Speaker 1: that's what lawyers do. I never know whether it's modesty
Speaker 1: or self hatred, but as you can imagine, I persist,
Speaker 1: and finally Michael says, well, you're right, there are moments
Speaker 1: of genius in law review articles. Let me send you
Speaker 1: two of my favorites. The next morning, in my inbox
Speaker 1: is an email from Michael Ryan with two attachments. I
Speaker 1: read the first, and I think that's pretty cool. And
Speaker 1: then I read the second and my jaw drops, and
Speaker 1: I say out loud, what my name is? Malcolm Gladwell.
Speaker 1: Welcome to season three of Revisionist History, my podcast about
Speaker 1: things overlooked and misunderstood. The definition of a shaggy dog
Speaker 1: story is an extremely long winded anecdote characterized by extensive
Speaker 1: narration of irrelevant incidents and terminated by a pointless punchline.
Speaker 1: Halfway into this episode, you're going to think that this
Speaker 1: is a shaggy dog star. It's not. This dog is
Speaker 1: not shaggy. You wrote this paper how many years ago?
Speaker 1: Fifteen years ago? Yeah? What is it? Published? Two thousand
Speaker 1: and four thousand four? Yeah? This is Professor Michael Stokes Paulson,
Speaker 1: co author of the Law Review article in question. Within
Speaker 1: days of reading his essay, I was in his office
Speaker 1: at Princeton University. Took the train down because it seemed urgent.
Speaker 1: In an email where he gave me directions, Paulson wrote,
Speaker 1: I'm always grateful to have anyone read my obscure, idiosyncratic
Speaker 1: Law Review articles exclamation point idiosyncratic. Sure, at least half
Speaker 1: of his piece dwelt on the meaning and interpretation of
Speaker 1: semi Collins, but obscure. This is something with the potential
Speaker 1: to turn American politics upside down. Way could this article
Speaker 1: be obscure? So what was the reaction to it at
Speaker 1: the time? Thundering silence as far as I know. I mean,
Speaker 1: I haven't been trolling the internet for it, but I've
Speaker 1: never seen anything to suggest that anybody is remotely interested
Speaker 1: in this. Maybe you can convince them. Wait, am I
Speaker 1: the first journalist to call you an interview about this? Yes,
Speaker 1: I'm trying to remember if anybody did back in two
Speaker 1: thousand and four, two thousand and five. No, people are
Speaker 1: inclined to view it as a wacky idea. Right, You're
Speaker 1: taking a legal concept of something that's one hundred and
Speaker 1: seventy years old, and you're saying it's still operative if
Speaker 1: you think about it, logically, it is still operative. But
Speaker 1: people's intuitions or that that can't be right and so,
Speaker 1: or that it can't be taken seriously. So, Malcolm, you've
Speaker 1: got to get people to take it seriously. If an
Speaker 1: answer is that I don't think this is whacky, is
Speaker 1: at all? I read this and I'm thinking this is
Speaker 1: dead serious. Paulson, his fair haired glasses composed an intellectual
Speaker 1: author of serious books on the US Constitution. When we met,
Speaker 1: he was a visiting scholar at Princeton University hold up
Speaker 1: in one of those gorgeous old mansions on the outskirts
Speaker 1: of campus. But don't get the wrong impression. There's also
Speaker 1: something subversive about the man, a certain look in his eye.
Speaker 1: He's someone who likes to make mischief, like on page one,
Speaker 1: six hundred and eighteen of the journal containing his law
Speaker 1: review article, when he briefly addresses the question of why
Speaker 1: he has just spent tens of thousands of words descending
Speaker 1: down this particular rabbit hole, and his answer, because it's there,
Speaker 1: I don't know about you. That makes me nervous. There
Speaker 1: was a part of me that just wanted to walk
Speaker 1: out of his office and not say another word to
Speaker 1: anyone one. Let's sleeping dogs, lie, I'm running a podcast here,
Speaker 1: not starting a revolution. You're not Jewish, are you? Because
Speaker 1: I say we could do a h none of us
Speaker 1: are Jewish. What we can do what they call a midrash?
Speaker 1: Is that what they call a middle Yeah right, yeah,
Speaker 1: let's do a little bit of a midrash on Let's
Speaker 1: start with it with article four, Section three and go
Speaker 1: so I guess we're trying to answer the question of
Speaker 1: of why it is the case that that this article
Speaker 1: on its face, section sweet on its face does not
Speaker 1: prohibit subdivision. That's right, that's the issue at hand, right right,
Speaker 1: So let's I'll have you if you read it, and
Speaker 1: let's break it down grammatically. Let's do the I'll do
Speaker 1: in dramatic reading. New states may be admitted by the
Speaker 1: Congress into this Union semia. Colman Paulson carries a small
Speaker 1: copy of the US Constitution in his jacket pocket. This
Speaker 1: is what he's reading from. Let's first clause, new states
Speaker 1: maybe admitted. You know, some power dimit new states. But
Speaker 1: no new state shall be formed or erected within the
Speaker 1: jurisdiction of any other state semi colon. The second semi colon,
Speaker 1: pay special attention. Nor any state be formed by the
Speaker 1: junction of two or more states or parts of states,
Speaker 1: without the consent of the legislatures of the states concerned,
Speaker 1: as well as of the Congress. Were you left at
Speaker 1: some commas? I left out? I didn't read all the commas. Yeah, okay,
Speaker 1: let me let me do it again. Outrageous for you.
Speaker 1: I've read so much about the grammar Okay, new states
Speaker 1: may be admitted by the Congress into this Union semi colon,
Speaker 1: but no new states shall be formed or erected within
Speaker 1: the jurisdiction of any other state second Semichael, nor any
Speaker 1: state be formed by the junction of two or more
Speaker 1: states COMMA or parts of states COMMA, without the consent
Speaker 1: of the legislatures of the state's concerned, as well as
Speaker 1: of the Congress period. So that's the whole partestion. So
Speaker 1: question one, as I understand it from reading you, is
Speaker 1: what is the sense of the second semicon? Right? This
Speaker 1: is about to get very serious, I promise. Right across
Speaker 1: the Texas border in Ardmore, Oklahoma, there is a Quality
Speaker 1: Inn on West Broadway Street, two stories, courtyard, big Pool.
Speaker 1: It used to be a holiday inn until a few
Speaker 1: years ago. Just to be clear, the Ardmore Holiday slash
Speaker 1: Quality Inn has nothing to do with Michael Paulson's law
Speaker 1: review paper, not directly anyway. It's context. You have to
Speaker 1: know about Ardmore if you want to understand where Paulson's
Speaker 1: argument begins. The very first line of his article, in fact,
Speaker 1: which is, and I'm quoting, Texas Republicans have been thinking
Speaker 1: way too small. It's way with five a's. It's the
Speaker 1: early two thousands. Results from the national census are in,
Speaker 1: which means state legislatures around the country are redrawing the
Speaker 1: boundaries of congressional districts based on the new population numbers.
Speaker 1: It's a ritual power struggle that happens in America every
Speaker 1: ten years. In Texas, the legislature is controlled by Republicans.
Speaker 1: They want to redraw the congressional map so Democrats get
Speaker 1: fewer seats, but it doesn't work. Even with the new borders,
Speaker 1: the Democrats hold on to their seats. So in two
Speaker 1: thousand and three, the Texas Republicans introduce a bill to
Speaker 1: draw the boundaries all over again, and the Democrats are furious.
Speaker 1: If you can keep redrawing the boundaries of electoral districts
Speaker 1: over and over until you put your opponent out of business,
Speaker 1: then you're not willing in a democracy, are you. The
Speaker 1: organizer of the revolt was Jim Dunham. He's now a
Speaker 1: lawyer in Waco. Back in two thousand and three, he
Speaker 1: was chairman of the state House Democratic Caucus. I had
Speaker 1: members coming up to me and say, you know, Jim,
Speaker 1: you got to do something right, And I was like, well,
Speaker 1: what are we gonna do? So I will can bust
Speaker 1: a quorum. There are one hundred and fifty legislators in
Speaker 1: the Texas Assembly. Quorum is a hundred. If Dunham can
Speaker 1: get fifty one Democrats not to show up, the vote
Speaker 1: can't happen. Well, the bill was coming up on a Monday,
Speaker 1: and I think it was the preceding Wednesday that I
Speaker 1: had the first meeting. And I'll tell you, I thought
Speaker 1: I was totally wasting my time. I told everybody, this
Speaker 1: is foolish. Nobody's going to do this. It's because you
Speaker 1: had to go across state lines because the Speaker of
Speaker 1: the House has the authority to issue arrest warrants and
Speaker 1: if you're in Texas, they can grab you. Now, if
Speaker 1: you're outside of Texas, then you know it doesn't have jurisdiction. Ohays, see,
Speaker 1: that's why you had to go to Oklahoma. Yeah. Actually,
Speaker 1: you have arrestaurrant on my walls. It's pretty cool. It says,
Speaker 1: go you're directed to go arrest and detain Jim Dunham
Speaker 1: and bring him to the Texas House. So when did
Speaker 1: you guys leave? We left on Mother's Day Sunday, and
Speaker 1: you know about Thursday, when I figured out we're gonna
Speaker 1: actually get enough people to pull this off, I was like,
Speaker 1: good Lord, where we're gonna go, you know? And I
Speaker 1: will tell you. I had some members say, well, let's
Speaker 1: go to like Charles Louisiana or Shreeport, Louisiana. And I said, well,
Speaker 1: we're not going to go there because the casinos there,
Speaker 1: And I no way we'll keep the Democrats out of
Speaker 1: the casinos if we're in a Shreeport. And and I'm serious,
Speaker 1: you know. And so my wife's family is Mardmore, Oklahoma,
Speaker 1: and God love Ardmore, but there is nothing to do
Speaker 1: in Hardmore. Dunham hires buses, gets everyone to meet at
Speaker 1: a hotel in Austin, does a head count fifty plus himself,
Speaker 1: doesn't tell anyone where they're headed or when they're coming back.
Speaker 1: Need to know basis only it's an undercover operation. They
Speaker 1: comes and when the Republicans are ready for their triumphant vote,
Speaker 1: they suddenly realize that they don't have a quorum. They
Speaker 1: launch a manhunt for the missing Democrats. Texas Congressman Tom
Speaker 1: Delay gets involved. He's the House majority leader in Washington
Speaker 1: at the time. One of the members showed up in
Speaker 1: a plane and delay evidently called Homeland Security and reported
Speaker 1: the tale number was missing, and in an effort to
Speaker 1: figure out where that plane had gone, and it was
Speaker 1: I don't know what to say, but Homeland Security couldn't
Speaker 1: find us. But the Dallas Morning News good to recap.
Speaker 1: The Texas Republicans want to increase their numbers and influence
Speaker 1: in Washington, so they try a jerrymander, then when it fails,
Speaker 1: do a read jerrymander in violation of every state norm,
Speaker 1: leading to a full scale state constitutional crisis, causing the
Speaker 1: States Democratic Caucus to flee in busses to a holiday
Speaker 1: and in Oklahoma, leading to a statewide manhunt, convincing the
Speaker 1: House majority leader to call in Homeland Security, triggering an
Speaker 1: international media frenzy. What is the situation like in Ardmore
Speaker 1: for the Texas Democrats right now? John, Here at the
Speaker 1: holiday Inn, I've been witnessed to a courageous scene of defiance.
Speaker 1: Texas Democratic legislators hunkered down, trying to conduct the people's
Speaker 1: business while subsisting only on the contents of their mini bars.
Speaker 1: Homeland Security officials attempting to find some missing state legislators
Speaker 1: who hung out at the Holiday Inn for a couple
Speaker 1: of days. You know, we got a lot of deserters
Speaker 1: down there, the guys that are afraid to stand and
Speaker 1: fight like our armed services due the legislative process was
Speaker 1: so broken that they had to leave for Ardmore. Thank
Speaker 1: God we didn't have those Democrats at the Alamo. God left.
Speaker 1: I'll tell you, probably most of the time was dealing
Speaker 1: with the General eleven satellite news trucks that showed up
Speaker 1: after a day or two. And who's watching all of this?
Speaker 1: Michael Paulson and Vasan Casavan, authors of the Law Review
Speaker 1: article that found its way to my inbox. They're working
Speaker 1: on their article as the drama unfolds in Ardmore, and
Speaker 1: they look at everything that's happening, norm violation, constitutional crisis, Ardmore, Holiday,
Speaker 1: in homeland security, media frenzy, and their conclusion is Texas
Speaker 1: Republicans have been thinking way too small. Michael Stokes. Paulson's
Speaker 1: argument is about Texas, but it's also more significantly about grammar.
Speaker 1: His Law Review article spends far more time on grammar,
Speaker 1: in fact, than on anything else, specifically the grammar of
Speaker 1: the US Constitution, so much so that immediately after I
Speaker 1: visited Paulson at Princeton. I realized that I needed an
Speaker 1: emergency session with Mary Norris, author of the brilliant book
Speaker 1: Between You and Me, Confessions of a Comic Queen. I wonder,
Speaker 1: lookye i am a fresher racer. Here We're in Mary's
Speaker 1: Manhattan apartment. Books everywhere, creaky hardwood floors. I've known Mary
Speaker 1: for years. We worked together at The New Yorker. The
Speaker 1: New Yorker is a good cop bad cop operation. The
Speaker 1: good cops of the editors, they coddle, courage, soothe, let
Speaker 1: you go on and on, the bad cops of the
Speaker 1: copy department. For most of my time there, the copy
Speaker 1: department was a murderer's row of three women. First was Anne,
Speaker 1: who was a national caliber marathoner who gave the impression
Speaker 1: that in any disagreement she would simply outlast you. The
Speaker 1: second Carol, who reminded me of the proper West Indian
Speaker 1: ladies I grew up, who could silence you with a
Speaker 1: disapproving glance. The third was married. If mister and Missus
Speaker 1: Santa Claus had an irrepressible youngest daughter, it would be married.
Speaker 1: I have written down here three sentences from the Constitution.
Speaker 1: I just want to induce listeners to the proposition that
Speaker 1: first of all, that punctuation in particular really matters on
Speaker 1: a document like the Constitution. And two, they were a
Speaker 1: little bit sloppy with their commas and semi colons at times.
Speaker 1: We're sitting at Mary's kitchen table. I hand her a
Speaker 1: sheet of paper with my constitutional selections on it. She
Speaker 1: takes out a black number two pencil sharp. We start
Speaker 1: with the sentence that has driven Grammarian's crazy for two
Speaker 1: hundred and fifty years, the second Amendment, A well regulated
Speaker 1: militia being necessary to the security of a free state,
Speaker 1: The right of the people to keep and bear arms
Speaker 1: shall not be infringed. A well regulated militia comma being
Speaker 1: necessary to the security of a free state. Comma the
Speaker 1: right of the people to keep in bear arms comma
Speaker 1: shall not be infringed. Well, first of all, that comma
Speaker 1: is wrong before shall So, yeah, there should be that's
Speaker 1: the that's the that's the third comma, right, Yes, the
Speaker 1: other two commas are you're fine with? Well, no, they
Speaker 1: don't make sense either, because with the two commas, the
Speaker 1: sentence in its essence would read well regulated militia, the
Speaker 1: right of the people to keep in bear arms shall
Speaker 1: not be infringed, which doesn't make any sense. It's like
Speaker 1: they loaded a shotgun with commas and fired it at
Speaker 1: the Second Amendment. It's a mess. So a well regulated
Speaker 1: militia being necessary to the security of a free state,
Speaker 1: comma comma, the right of the people to keep and
Speaker 1: bear arms shall not be infringe that I would lose
Speaker 1: two of those comments. Mary had covered up the two
Speaker 1: other sentences on my list with a legal pad. She
Speaker 1: moved the legal pad down just enough to expose sentence
Speaker 1: number two. The right of Citizens of the United States
Speaker 1: who are eighteen years of age or older to vote
Speaker 1: shall not be denied or abridged by the United States
Speaker 1: or by any State on account of age. Twenty sixth Amendment,
Speaker 1: United States Constitution. It's a terrible sentence. Oh terrible. Yeah,
Speaker 1: so what if you rewrite that sentence from me? Mary
Speaker 1: has her pencil out. She's marking up the piece of
Speaker 1: paper like a New Yorker galley, covering the page with
Speaker 1: graceful number two pencil lines. The right of citizens who
Speaker 1: are eighteen years of age or older to vote. That's it.
Speaker 1: You should just say they're right of United States citizens
Speaker 1: who are eighteen years of age to vote because by
Speaker 1: having no commas, which you what it turns into is
Speaker 1: a defining clause. By putting commas around it, it becomes
Speaker 1: a descriptive clause. That's right. A defining clause in grammatical
Speaker 1: terms is a clause necessary for the meaning of a sentence.
Speaker 1: The house where I live is on fire. You don't
Speaker 1: put commas around the phrase where I live because the
Speaker 1: fact that it's my house is essential for understanding what
Speaker 1: I'm trying to say. The house where I live is
Speaker 1: on fire. But in the sentence the house comma built
Speaker 1: in nineteen seventy eight, comma is on fire. We put
Speaker 1: commas around the phrase built in nineteen seventy eight to
Speaker 1: market as descriptive. It's not necessary for the meaning of
Speaker 1: the sentence, but it helps us understand more about the house.
Speaker 1: So the twenty sixth Amendment has commas around the clause
Speaker 1: who are eighteen years of age or older? Big mistake?
Speaker 1: When was this one written? Well, it was past in
Speaker 1: modern times, Yeah, that's what I thought, but reads as
Speaker 1: if all the citizens of the United States are eighteen
Speaker 1: years of age or older. American citizens are people either
Speaker 1: born here or who had been granted citizenship, and what
Speaker 1: the twenty sixth Amendment means to say, is it a
Speaker 1: subset of that group. Those who are over the age
Speaker 1: of eighteen have the right to vote, But the authors
Speaker 1: of the twenty sixth Amendment used commas interpreted grammatically. The
Speaker 1: twenty sixth Amendment says that a citizen of the United
Speaker 1: States is anyone over eighteen. Anyone. Canadians who cross the
Speaker 1: border into Detroit to by gas our citizens, so long
Speaker 1: as they're over eighteen. Russians who go apartment shopping in
Speaker 1: Miami with Duffel bags full of cash are citizens so
Speaker 1: long as they're over eighteen. Good Lord, clarity is of
Speaker 1: the utmost importance in a legal document, right, don't think
Speaker 1: lawyers have special rules about semicolons. I also don't know
Speaker 1: if there's such a thing as a legal grammarian, but
Speaker 1: there probably should be, you know, a US grammarian to
Speaker 1: take care of these things. You should not volunteering. Why
Speaker 1: you would be the perfect person to be the gramarian
Speaker 1: in chief, only if I could wear one of those whigs.
Speaker 1: And now we turn to the constitutional sentence at the
Speaker 1: bottom of the page, the one I really care about,
Speaker 1: the one that explains why Texans have been thinking way
Speaker 1: too small the big one. New states may be admitted
Speaker 1: by the Congress into this Union semi colon, but no
Speaker 1: new state shall be formed or erected within the jurisdiction
Speaker 1: of any other state, nor any state to be formed
Speaker 1: by the junction of two or more states or parts
Speaker 1: of state, without the consent of the legislatures of the
Speaker 1: states concerned, as well as of the Congress. Well, that
Speaker 1: seems clear to me. You can't form any new states
Speaker 1: without everybody agreeing that the new states can be formed.
Speaker 1: I repeat, not a shaggy dog story. Michael Paulson first
Speaker 1: became drawn to Article four, Section three of the US
Speaker 1: Constitution when he was teaching a class at the University
Speaker 1: of Minnesota Law School on the Civil War. The question
Speaker 1: of West Virginia came up. As you may remember, Virginia
Speaker 1: was a Confederate state during the Civil War, but a
Speaker 1: number of counties in one corner of Virginia were anti slavery,
Speaker 1: so they broke away and formed West Virginia, which was
Speaker 1: admitted into the Union in eighteen sixty three. The question
Speaker 1: Paulson had for his students was that constitutional can a
Speaker 1: new state be formed from a piece of an existing state,
Speaker 1: not a trivial question. An Article four, section three is
Speaker 1: the part of the Constitution that addresses this issue. It
Speaker 1: was written in seventeen eighty seven. As with the Second
Speaker 1: Amendment and the twenty sixth Amendment. However, it is grammatically ambiguous,
Speaker 1: and as a result, it's precisely the kind of matter
Speaker 1: that appeals to the baroque legal tastes of Michael Stokes
Speaker 1: Pulsor he gets together with the San Casavan. They happily
Speaker 1: disappeared down the Article four section three rabbit hole for
Speaker 1: god knows how long, and they emerge with an exhaustive
Speaker 1: analysis of the question published in Volume ninety, issue two
Speaker 1: of the California Law Review, pages two ninety one to
Speaker 1: four hundred. This is not the Law Review article that
Speaker 1: landed in my inbox and blew my mind. It's the
Speaker 1: precursor the compulsory figures, if you will, before the free skate.
Speaker 1: Now there is this language, but no new state shall
Speaker 1: be formed or erected within the jurisdiction of any other state. Semichel.
Speaker 1: You could read that if it were just that, as
Speaker 1: a flat prohibition on carving out a new state from
Speaker 1: within an existing state if it stops there. If it
Speaker 1: stopped there and there was nothing that came after, we
Speaker 1: have no arguments here. No new state shall be formed
Speaker 1: or erected within the jurisdiction of any other state. No
Speaker 1: ambiguity there. Right, it would say you can't do it.
Speaker 1: You can't, so it would not be right legitimate. But
Speaker 1: then it goes on after the semi colon. And this
Speaker 1: real question is is that semi colon more like a
Speaker 1: period that ends one prohibition and then another prohibition picks up,
Speaker 1: or is it more like a pause, Is it a
Speaker 1: more like a comma. After that semi colon, it goes
Speaker 1: on to talk about well, let me read it again.
Speaker 1: Nor any state be formed by the junction of two
Speaker 1: or more states or parts of states without the consent
Speaker 1: of the legislatures of the states concerned, as well as
Speaker 1: of the Congress. Article four, Section three, would be crystal
Speaker 1: clear if the founders had used a period in the
Speaker 1: middle of it. A period would mean you can't subdivide
Speaker 1: a state. Ever, on the other hand, if you want
Speaker 1: to combine two states, you can, so long as everyone consents.
Speaker 1: And it would be equally clear if they had used
Speaker 1: a comma, a comma would mean that the consent provision
Speaker 1: applies to everything. Both subdividing and combining are legal so
Speaker 1: long as Congress signs off on it. But they don't
Speaker 1: use a period or a comma. They make a punctuation
Speaker 1: decision guaranteed to tie generations of constitutional scholars in knots.
Speaker 1: They choose a semicone when it says, without the consent
Speaker 1: of the legislatures of the states concerned as well as
Speaker 1: of the Congress, does the consent qualification apply also to
Speaker 1: carving a small state out of an existing new state?
Speaker 1: And it all turns on whether the semi colon is
Speaker 1: read as a full stop separate prohibition or is just
Speaker 1: one in a series of things to which consents can
Speaker 1: be given. Does the Constitution say you cannot break off
Speaker 1: a piece of an existing state ever, or does it
Speaker 1: say you can so long as Congress says okay. Paulson
Speaker 1: and Caseavon spend ninety pages on this question in their
Speaker 1: California Law Review article ninety pages and it's riveting reading
Speaker 1: because the whole time you're thinking, good Lord, West Virginia
Speaker 1: is hanging in the balance. If that semi colon from
Speaker 1: seventeen eighty seven is meant as a full stop. Then
Speaker 1: someone has to go down to the State House in
Speaker 1: Charleston and break the news to everyone there that the
Speaker 1: party's over. Paulson and Caseavon comb through earlier drafts of
Speaker 1: that clause, the legislative history of the Constitution, the records
Speaker 1: of the framers, and they conclude West Virginia is constitutional.
Speaker 1: Everyone involved in sign offices, that's their concern, right. So
Speaker 1: once you so, in other words, that makes it quite
Speaker 1: clear that the last clause modifies everything. Yes, But once
Speaker 1: it's clear that the last clause modifies everything, then the
Speaker 1: semi colon cannot be functioning as a period. It cannot be.
Speaker 1: Forgive me if I'm going on and on about this,
Speaker 1: but everything depends on this interpretation of Article four, Section three.
Speaker 1: For years, people have been dismissing the implications of that
Speaker 1: sentence because they've assumed that it's ambiguous. It is not ambiguous.
Speaker 1: And here's what clinched it for me. Mary Norris, the
Speaker 1: comic Queen, agrees, Okay, well, I think that hinges on
Speaker 1: this nor in spite of the semicolon, the nor connects
Speaker 1: this to the butt to the butt the Constitution says,
Speaker 1: But no, new state shall be formed or erected within
Speaker 1: the jurisdiction of any other state semi colon, nor any
Speaker 1: state be formed dot dot dot. I've read many, many,
Speaker 1: many commentaries on this. You're the first person to talk
Speaker 1: about this butt nor being significant. Well, you don't have
Speaker 1: a nor unless you're referring to something before it. You know,
Speaker 1: neither nor nor. One of the things that copy editors
Speaker 1: look for is a nor standing alone. It doesn't make
Speaker 1: any sense. We try not to let sentences begin with nor.
Speaker 1: We try not to have a nor where there's not
Speaker 1: a neither. So that nor has ton neck to something,
Speaker 1: and I think it connects to the butt, so I
Speaker 1: think they're related. There in Mary's apartment, I had a
Speaker 1: flashback to the final round of editing at The New Yorker,
Speaker 1: something I've done many times. You're sitting in a room
Speaker 1: you're good cop editor and Carol Anne or Mary going
Speaker 1: through your piece line by line, peeling away everything superfluous
Speaker 1: and confusing, truly formidable intellect devoted to making words mean
Speaker 1: what they're supposed to mean. If you've never had someone
Speaker 1: do that for your words, you haven't written. But you're saying,
Speaker 1: if I have a bot nor construction. If I say,
Speaker 1: I like all kinds of animals, but I don't like horses,
Speaker 1: and nor do I like dogs because they smell? Is
Speaker 1: there because they smell modifying horses and dogs? I think so? Yes,
Speaker 1: I think the North Conexa. Yes, that's crucial. Mary, you
Speaker 1: are you have entered into a hugely significant constitutional debate,
Speaker 1: which brings us to the second case of on pulse
Speaker 1: and paper. That's the one my friends sent me Texas
Speaker 1: Law Review Volume eighty two, the necessary and far more
Speaker 1: consequential companion to their constitutional exoneration of West Virginia. The
Speaker 1: articles called Let's mess with Texas. It begins with a
Speaker 1: quotation from the congressional resolution under which Texas was admitted
Speaker 1: to the Union in eighteen forty five. The relevant passage
Speaker 1: goes like this, new states of convenient size not exceeding
Speaker 1: four in number, in addition to said State of Texas,
Speaker 1: and having sufficient population, may hereafter, by the consent of
Speaker 1: said state, be formed out of the territory thereof. Congress
Speaker 1: gave Texas permission to form another four states within its borders,
Speaker 1: which makes sense. Texas was an independent country at the
Speaker 1: time it joined the Union, and a very big country.
Speaker 1: At that there were complicated political considerations in eighteen forty
Speaker 1: five about the balance between slave states and free states.
Speaker 1: It's a whole other story. What matters is that, according
Speaker 1: to Caseavon and Paulson's exhaustive constitutional analysis, the offer still stands.
Speaker 1: New states of convenience size may be formed. That's why
Speaker 1: their interpretation of Article four, Section three, with its confusing
Speaker 1: semi colon and crucial nor is so important. It means
Speaker 1: that all that has to happen is for the Texas
Speaker 1: legislature to sign off on division. And it's a done deal.
Speaker 1: When Congress passed that statue saying you could do this,
Speaker 1: that's consent. They consented in advance, they consented on these terms,
Speaker 1: and the consent has not been taken away. That's as
Speaker 1: many as five states where there is now only one
Speaker 1: ten U S Senators, where Texas now is only two
Speaker 1: Texans in control of American politics for the next century.
Speaker 1: You don't usually raw states, but you've made me zar,
Speaker 1: I will I will do that. If you ask around
Speaker 1: about who knows the most about the political demographics of Texas,
Speaker 1: one name comes up a lot. Michael Lee, studious guy,
Speaker 1: somber suit glasses, ployally haircut, grew up in Houston, went
Speaker 1: to the University of Texas, now works at the Brennan
Speaker 1: Center for Justice at New York University. It occurred to
Speaker 1: me that I'm potentially complicit in all of this. I'm
Speaker 1: the one publicizing the pulse in Casesvon manifesto for a
Speaker 1: complete makeover of American politics. So I needed to find
Speaker 1: out what I'm getting everyone into. I would create a
Speaker 1: district that or a district a state that stretch that
Speaker 1: included Houston and the stretch to the border with Louisiana.
Speaker 1: Michael Lee and I met in a big conference room
Speaker 1: near Wall Street. He brought with him a map of
Speaker 1: Texas so large it covered the entire end of the table.
Speaker 1: Lee started by drawing the borders of the new state
Speaker 1: of Houston five million people, and then on the western side,
Speaker 1: I would probably cut it off somewhere in between Houston
Speaker 1: and Austin, which is in Central Texas. The way Lee talked,
Speaker 1: he made it sound natural, as if Texas actually makes
Speaker 1: a lot of sense. Divided up five ways, he saw
Speaker 1: a third state in central Texas, set it around booming Austin,
Speaker 1: already the eleventh largest city United States. The fourth state
Speaker 1: would be West Texas, Lubbock, Midland, Odessa, Flat and Dusty Country.
Speaker 1: The fifth state would run along the Mexican border, beginning
Speaker 1: with San Antonio in the east and running all the
Speaker 1: way to El Paso. When Paulson and Casavan published their
Speaker 1: law review paper back in two thousand and four, the
Speaker 1: assumption was that if Texas subdivided, this would be a
Speaker 1: natwin for Republicans. Texas hasn't sent a Democrat to the
Speaker 1: US Senate since the early nineteen nineties. It's the Republican heartland.
Speaker 1: That's why they wrote that Texas Republicans were thinking way
Speaker 1: too small, why not quintupple their influence in Washington. But
Speaker 1: in the years since then, the states demographics have been
Speaker 1: in upheaval. West Texas Oil Country would remain solid for
Speaker 1: the Republicans two senators, but the new states of Houston
Speaker 1: and Dallas in Central Texas, those are purple. They could
Speaker 1: go either way. As for the state running along the
Speaker 1: Mexican border, the one with its capital in San Antonio,
Speaker 1: this is a heavily democratic state, and I think that
Speaker 1: the state would be more Latiner of than Ago, and
Speaker 1: it would elect not only Democrats but probably Latino Democrats
Speaker 1: to the Senate. It's a whole new ballgame. Michael Lee
Speaker 1: and I did the math for the ten new Texas
Speaker 1: Senate seats. Two are a lock for the Republicans and
Speaker 1: they can probably count on another from one of the
Speaker 1: toss up states. So three in total, Yeah, three, yeah,
Speaker 1: I think, and says like four are a lock for
Speaker 1: the Democrats and three are up for grabs. That would
Speaker 1: that be a fair I think, so yeah, yeah, yeah,
Speaker 1: which is a pretty big shift from the way things
Speaker 1: are now. Right, all right, that's now. But if Texas
Speaker 1: continues to grow and change, the three toss up states Dallas, Houston,
Speaker 1: and Austin get even more democratic, especially the state of Houston.
Speaker 1: So we'll say it's at the moment it's fifty fifty.
Speaker 1: But long term, if I said to you ten years
Speaker 1: from now, you would not be surprise if it elected
Speaker 1: two Democrats. That's right, that's right. In a generation, could
Speaker 1: the five states of Texas send eight Democratic senators to
Speaker 1: Washington against two Republicans. It's amazing how many times you'll
Speaker 1: hear Republicans in Texas say like, Texas is the Alimo
Speaker 1: of the United States. Right, It's meaning like it's it's
Speaker 1: what holds like, you know, the Republicans in power. It's
Speaker 1: the wall against you know, this like liberalism from places
Speaker 1: like New York and California. I've always thought that was
Speaker 1: sort of a funny analogy because everyone guided the alamos,
Speaker 1: you know, but you know that's the one that they use,
Speaker 1: um so inadvertently telling analogy. Texas Democrats have been thinking
Speaker 1: way too small. Imagine a governor of Texas reads your
Speaker 1: law review article and said, that's a funny enough premises
Speaker 1: it is, and says, okay, I want to well, I
Speaker 1: want to trigger it. Okay, okay, So walk me through
Speaker 1: how triggering might work in the real world. Well, imagining
Speaker 1: a real world where people take law review articles seriously,
Speaker 1: it's a it's a good it's a better real world,
Speaker 1: a better real world. All we know is that Congress
Speaker 1: has granted its consent for the sovereign state of Texas
Speaker 1: to do what it needs to do. But the significant
Speaker 1: fact here is that given that Congress has already granted
Speaker 1: its permission, the all that has to happen is for
Speaker 1: Texas to get its act together. It's up to Texas.
Speaker 1: Let's say that as Texas is putting together this plan.
Speaker 1: Congress is getting really alarmed and they don't want it
Speaker 1: to happen. Can they revoke the permission that was granted
Speaker 1: before Texas acts? I don't see why not. I think
Speaker 1: they can. Oh, I see it. So if Texas wants
Speaker 1: to do this, they need to do it. They got
Speaker 1: to get there, they get well, they just gotta do it.
Speaker 1: Texas has to get its act together quicker than Congress
Speaker 1: can get its act together to say no. For the
Speaker 1: love of God, Texas just do it. Revisionist History is
Speaker 1: a Panoply production. The senior producer is Meila Belle, with
Speaker 1: Jacob Smith and Camille Baptista. Our editor is Julia Barton.
Speaker 1: Flawn Williams is our engineer. Fact checking by Beth Johnson.
Speaker 1: Original music but Luis Guerra. Special thanks to Andy Bowers
Speaker 1: and Jacob Weisberg. I'm Malcolm glad you don't have any
Speaker 1: any any bad memories of copy editing a peace of mind.
Speaker 1: You No, no, not at all. In fact, I use
Speaker 1: you as the example of somebody who the pencil kind
Speaker 1: of bounces off you. You do a very nice job.
Speaker 1: My mother will be very pleased to hear that.