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Dr.SHIVA Ayyadurai 00:19Good evening, everyone, or good afternoon or good morning, wherever you are. This is Dr.Shiva Ayyadurai. Today I have a very special guests with me again, Paul Clark. And Paul will be joining us shortly.
Paul is a professor of law and also legal scholar. But what we’re going to be talking about is this is a continuation of the discussion, Paul and I started a couple of weeks ago about the nature of why I can become president, and why it’s unconstitutional in order to if anyone gets in the way of me trying to become President talking about Article Two section one because the Constitution has changed, and it constantly does keep changing. So Paul, and I, a couple of weeks ago, we gave a Paul gave an excellent description of about how the Constitution has gone through this process.
But one of the important discussions that came up some of the people on the internet and social media are saying, hey, you know, the Constitution never changes. And according to, you know, Article two, section one, Dr. Shiva can never be president.
So obviously, this is going to be an educational process we’re doing and we’re very, very fortunate to have Paul Clark here. Paul Clark is an eminent scholar. And he’s a one of the legal scholars who’s really written some wonderful, wonderful thesis on this clearly demonstrating that the Fifth Amendment and the 14th amendment makes it unconstitutional, to not allow me to become president.
So we discussed that earlier. But today, what Paul and I are going to really get into is the next part of this education, really, to educate people about how the Constitution has constantly changed, right? And the various ways it changes. And Paul is going to walk us through some very important discussion on how the Supreme Court and the courts have been involved in supporting the evolution of the Constitution.
That’s what we’re going to talk about today. And in a follow up discussion, we’re going to talk about some very important cases that really went through the court process and clearly stated that you cannot make a naturalized citizen or naturalized citizen cannot be treated differently than a native born citizen further supporting this argument why a naturalized citizen can in fact, become president. But that’ll be for follow up discussion.
But today, Paul, and I are really going to go out and educate all of you how the Constitution changes, okay? To those of you on Facebook, YouTube, Twitter, Twitch, as many of you know that these platforms are still very, very still a practicing shadow banning and big tech censorship. So this first part of it is, we’ve given a little bit of an overview. Paul, you may just want to say hello to everyone.
Paul, are you there? Hi, Doc. Chu,Paul Clark 03:08good to have you. Yeah,Dr.
SHIVA Ayyadurai 03:09great to have you. So to everyone listening, John, our producer will switches over. So please go to VA shiva.
com. And you can see this continuing to run over there. Okay.
And we’ll just start there. So all of you on Facebook, YouTube, Twitter, we encourage you to go to VA shiva.com.
There’s a link that’s in somewhere above or below in the description. That’ll take you over to va shiva.com.
So you can continue watching this discussion, as John has just put up, click the link to continue or go to VA shiva.com To watch the full, uncensored video. So we’ll count 54321 And we’re over on va shiva.
com. So thank you, everyone on Facebook. We’ll see you there, YouTube, Twitch, and Twitter.
We’ll see you over there. So look forward to seeing you there to have this wonderful discussion on how the Constitution changes. So Paul, how are you doing? Well, good.
Good to have you, Paul. So Paul, maybe do we just want to summarize in like, two or three minutes. So we don’t repeat on the key salient points from why it’s unconstitutional to discriminate against a naturalized citizen to become president, just the key points, and then we’ll go to this how the Constitution changes?Paul Clark 04:29Sure.
So just in 60 seconds, of course, as we all know, article, one of the unamended constitution says that only a natural born citizen is eligible to be president. Now, that raises already all kinds of issues, what does it mean to be a natural born citizen and so forth anyway? But, of course, the Constitution has been amended. And it wasn’t long after the Constitution was first adopted.
The Fifth Amendment was passed, among others of the so called Bill of Rights, and the Fifth Amendment. Again, to make a long story short, the Fifth Amendment prohibits discrimination based upon status as a naturalized citizen. And this has been settled law for decades.
In other words, it’s not even it’s not even controversial anymore. The Fifth Amendment does not allow the federal government to discriminate between natural born citizens and naturalized citizens, they must be treated the same as as a fundamental part of due process. So obviously, if you have an amendment to the Constitution, which changes something, then the amendment prevail.
So again, there’s there’s a longer story to it, but the 62nd summary, that’s why a someone who was born abroad, and as a citizen now can still become president. And we can even get into the question of what is a natural born citizen? Because that’s our even that is a complicated question of how do you define natural born citizen?Dr.SHIVA Ayyadurai 06:00Yeah.
And I know, Paul, I was reading another legal brief. And it was basically saying this whole concept of natural born, they did some interesting analysis showing that it’s such a hazy, confusing term, it only appears once that term in the entire constitution. And they were going and looking at British law, where the founders may have come up with that term.
And there’s so many variations on it. At best, it’s confusing that term.Paul Clark 06:27Yeah.
Well, yeah, I mean, it’s interesting, there was actually a case back in the around 1800, where, of course, the Marquis de Lafayette, as you all, as we all know, what fought in the American Revolution. And he was one of the commanders and he was given status as a quote unquote, natural born citizens, he wasn’t just made a citizen, he was waiting for a natural born citizen. So it was so suggest that, you know, even by statute, Congress could make anybody they want a quote, unquote, natural born citizen.
So again, it’s very strange what because natural born doesn’t necessarily mean what we think it means. So that’s, again, one of the interpretive problems, you know, that we can get into more. But obviously, the point we want to talk more about today is how do we interpret constitutional texts? And how do those understandings of the Constitution evolve over time? How do they become settled? Again, the term settled law is something that’s come up with fixed meaning.
In other words, it’s something were over decades past, and everybody comes to accept it. And again, this idea of a fifth amendment is settled law, now to actual born citizen is not settled, because it’s, again, it’s kind of an odd term. But again, I think that’s what we’re gonna get into today, we’re going to talk aboutDr.
SHIVA Ayyadurai 07:38the natural born I was doing a little bit of research says that even in British common law, they had this concept of just solely and just saying weenus, right, natural born could be what did you come from the soil? Or was it through blood? And what you’re saying is when they gave the Marquis de Lafayette and natural born, that’s a whole nother world, whichPaul Clark 07:56they just declared, by the way, you’re now a natural born citizen. Right? So it suggests that the term natural born is not as it all that fixed, doesn’t necessarily absolutely mean, you were born, you know, in the territorial United States. And even then, again, there’s there’s Congress has said that if you’re born somewhere else, but you’re a a descendant, or you know, your parents are citizens, then you’re considered a quote, unquote, natural born citizen, even though you weren’t born in United States.
So again, if the term itself is, is somewhat problematic, and not always entirely clear, and seems to be open to, you know, interpretation, and also maybe change it to some extent by Congress, because, again, if Congress can declare anybody they want to be a natural born citizen, and you know, what does it mean?Dr.SHIVA Ayyadurai 08:45Well, what I find fascinating is that law, you know, as a biologist, the law itself is an organism. It’s changing, and it’s evolving, and it’s going through various stages, like any organism does.
So it has its own structures, which are changing, the interconnections are changing. But what I want to sort of focus on and when we spoke earlier was, you know, I announced my run last week, right, a couple of weeks ago that we’re running for president. And it’s pretty historic, because I think it’s the first time a naturalized citizen, and correct me if I’m wrong, has actually declared their run for US president openly saying, I’m a naturalized citizen, running for US President.
So I think our run is historic. But when we put it out there, most of the people were very, very excited. But there were a few people who said, Oh, you can’t run Dr.
Shiva, you can run for president. And the funny thing is this, one woman said, The constitution has not changed. Don’t you know, the Constitution has not changed.
And I sort of tweeted back and I said, Are you sure you want to me to quote you on that the Constitution has not changed. And I found some references and I said, Here are 20 plus times A constitution has changed. So we want to focus on that, Paul, because we want to, I think get people to understand And perhaps the first part of this discussion is the, I think the three ways, at least three ways how the Constitution can change.
And then perhaps you can walk us through all the two or three case laws we’ve discussed, specific to this whole concept of how, in fact, the Constitution gets interpreted one way and another way, and then how it does change based on court rulings. Right. So perhaps, Paul, you can start us with sort of the three ways how the constitution doesPaul Clark 10:29change.
Sure. And one thing I just before I get to that might suggest it might sound better to people just and this is rhetorical difference, frankly, but to talk about constitutional law, changing your constitutional understanding changes, and I don’t mean No, I don’t think ultimately there’s a difference. And if you’re saying the same thing, but that might strike people’s ears as just sounding better.
I mean, constitutional law changes, I say, right, so you can say Miss Walker? Sure, I can understand that constitutional law evolves so I can understand it. Constitutional understanding changes, again, that might just sound better to school. I don’t think there’s a difference.
So you’re saying the same thing at the end of the day, but but maybe more more palatable to somebody, but in any event, so. So again, obviously, the Constitution does change, and has changed the first way, of course, was the amendments, the so called Bill of Rights. Right.
So the, you know, very soon after effect, even before the Constitution was adopted, James Madison and other Federalists promised that they would amend it, because, again, there’s were concerns about how the what the Constitution meant, and concerns about other limitations. So the Constitution, one way that it changes is simply by amendment. And that’s happened.
So Paul, justDr.SHIVA Ayyadurai 11:50timeline wise, you had these articles? Right. And then that was it.
And then you had the amendments, right. Give us a timeline of when the articles came in, and when the first set of amendments came in?Paul Clark 12:03Okay. Yeah, so So the Constitutional Convention, is in 1787, in Philadelphia, and it’s chaired by George Washington, who was revered by, you know, all the Americans, but in and it’s widely acknowledged that that was illegal, because they had no authority to have a constitutional convention, just like imagine a bunch of people got together today and had a constitutional convention set, by the way, we have a new government.
But regardless, putting that aside, George Washington and his followers, who described themselves as Federalists, they, they put together a constitution. And in the Constitution, they again, this new constitutions proposed Constitution, they provided a couple of important provisions. So one was it said that the new government would come into effect if it were approved by nine states.
And so, and again, they didn’t really have authority to do this. But the point was the states actually by ratifying it, essentially seceded from the Articles of Confederation and entered the new constitutional it’s called the same country, United States of America. But anyway, but in so in the Constitution itself, the new constitution, it provides a couple of different methods of amending the Constitution itself.
So the first way in the way that’s always been followed so far, is Congress can recommend constitutional amendments and send them to the state. So again, only the states can amend the Constitution, Congress can’t change anything, because Congress can only pass laws, they can’t make laws have to follow the Constitution. But Congress can pass recommendations and send them to the states for ratification.
And again, under the terms of the Constitution, three fourths of the states must approve any constitutional change. And that’s what happened when the Bill of Rights James Madison writes a list of 12 amendments, sends them to the States 10 of which will ultimately approval 11 Eventually, because the 28th amendment was actually the first amendment originally been even but not getting too long thing. But the point is, Congress can make recommendations and send it to the States.
That’s the first way that the Constitution also provides for a Convention of States. So the states themselves can cut Congress out and just meeting convention and they can they can amendDr.SHIVA Ayyadurai 14:23how many how many states again, the three quarters,Paul Clark 14:25you need the three quarters, right.
Dr.SHIVA Ayyadurai 14:27So so three quarters, so what’s three quarters of 50? Roughly? Well, 37, basically, so 37 states today meet they can amend the Constitution right now. Right.
Okay. Under the Constitution, again, that’s happened that but but that’s one of the ways it’s permitted under the Constitution or the other ways Congress sends its recommendations to the states and then still three quarters, okay, and what’s the third way?Paul Clark 14:54Well, the third way that is how things normally happen is the constitution. You is essentially the understanding of it evolves over time.
And this, again, is the most common way and the normal way that again, if you want to call it the Constitution and constitutional law is constantly evolving. And again, this is something that goes all the way back to the first days, in fact, even before the Constitution was approved. And again, to get into sort of, I think this is what we want to focus on today.
If you go all the way back to 1787, oh, by the way, I didn’t give you the full time it’s given again,Dr.SHIVA Ayyadurai 15:30so that you had the Articles of Confederation 1787, they have this quote, unquote, illegal meeting some sense, and then they not approved or not approved the meeting, and improved meeting and then they say, now we have this thing called the Constitution, right.Paul Clark 15:43So so in the summer of 1787, George Washington and about I think it’s about 60 or 70.
Guys get together. They they say we have a constitution for you. They send it out to the states.
And by 1788, nine states had approvedDr.SHIVA Ayyadurai 16:02the kind of what did that initial constitution uphold all the articles and the and the first, the Bill of Rights? No, no, no, noPaul Clark 16:08bill of rights at this point. This is just the first seven articles.
So the Constitution has seven articles. Okay, got it that article? One is the presidency. Article Two is Article One is that is the Congress, Article Two is the presidency.
Article Three is abuse, the courts and so forth. All right. It is anDr.
SHIVA Ayyadurai 16:26article twos where they talk about this natural born in section one,Paul Clark 16:30correct. It gives it gives the qualifications to be president. Yeah.
So any case, so So but yeah, just to give the quick timeline, so 1718 Nine, the Constitution is officially approved. Now in the Virginia ratifying convention. Now George Washington was from Virginia, everybody wanted George Washington to be the first president, he probably could have been king if he’d wanted to be.
I mean, that’s how popular he was. But anyway, everyone wanted George Washington to be president. So a Virginia did not ratify the Constitution.
That was not going to happen. So Virginia was crucial. And it was the biggest state the most populous state, and it was a state with George Washington.
And so it was very close call in Virginia. It didn’t look like Virginia was going to ratify. Oh, wow.
Very, very close. But what happened? What turns the tide? Is the Federalists in Virginia, led by Madison and some others.Dr.
SHIVA Ayyadurai 17:26Now the federal assistant let everyone know are the people want a strong central station?Paul Clark 17:30The Federalist want the new constitution, the anti Federalists just want to stick to the articles,Dr.SHIVA Ayyadurai 17:35right? They just want the federal by and large ones, this strong sort of central government, the anti Federalists want power in the States?Paul Clark 17:42Well, yes and no. But again, strong central government is relative, because nothing like what we have today is even remotely close.
Yeah, seven to eight years, many days. But the point is the so so James Madison and his fellow Federalists in order to salvage Virginia, which looks like they’re gonna lose, it looks like the Constitution is gonna go down to the feet. In Virginia, they promise they say, Okay, we will immediately enact a Bill of Rights, having the some of these issues that you anti Federalists are concerned about, and The Virginia convention actually attaches to this.
They have a bill that says we approve the Constitution, but we want to see the following changes or amendments. And that was that was attached to the Virginia ratifying convention approval. And Madison kept his word and the very first congress, Madison drafted a series of amendments.
Again, there were ultimately 12. And then they were sent out to the to the states for ratification. 10 of them were ratified, and they became law in 1791.
So in 1791, the Bill of Rights comes into effect. And again, one of the provisions that the most important for our discussion is the Fifth Amendment. Fifth Amendment says that the federal government may not deprive any person of due process, or take away property without just compensation.
So if we begin to say it’s that fifth amendment, and it’s due process, understanding, that was crucial for our purposes here, but again, that’s the basic thing. And then the Constitution is amended again, a few years later, the 11th Amendment is added in. I think it’s approved in 1794, just a few years later, and then the 12th.
Dr.SHIVA Ayyadurai 19:27The 11th amendment will come again, but the 11th Amendment basically says you cannot sue a state government and federal court, right, correct. Yeah, very important.
Okay. Right. AndPaul Clark 19:37there’s a whole background for that we can we can try that.
But that’s the basic thing. So then, of course, again, we have lots of different amendments over the years, the 14th Amendment is adopted in 1781. And that’s an important understanding as well, but in any event, but that’s kind of the basic time it’s 1791.
Right? Not 81. So what did about what I say it’s at 1871 18 said anyone say something?Dr.SHIVA Ayyadurai 20:02Agency 18 71/14 amendment?Paul Clark 20:04Yep.
It’s adopted. Yeah. Which is also good disputed whether that was legal because there’s a whole thing about how many states approved it.
And it’s a mess. The 14th amendmentDr.SHIVA Ayyadurai 20:15is fundamentally about equal protection.
Right. At the 14th. Amendment.
Yes. There’sPaul Clark 20:19also about equal protection and due process. Right.
Okay.Dr.SHIVA Ayyadurai 20:23So, so that’s sort of the broad, broad strokes history.
Right. Right. Now, let’s talk about Paul, about this point that this person had brought up saying, constitutional law, eg Constitution has never changed.
Paul Clark 20:39Right. So let’s, let’s, let’s go all the way back to 1788. Right, yeah.
Or equal 1787, even, but 1787 to 1788. We have this proposed Constitution. Now, there has never been a law or a document in the history of mankind, which is without ambiguity, it’s impossible.
There’s, there’s there’s no way to do it. So there were enormous disputes and debates about what the new constitution meant. And this was, again, a dispute between Federalists and anti Federalists.
Dr.SHIVA Ayyadurai 21:14These these articles, right, the the proposedPaul Clark 21:18Constitution, right. So again, one of just to give you one example, Article Three talks about the powers of the courts.
So in fact, you might I don’t know if you want to do this stuff, because if you want to even share for I might be easier for your yes, people to follow. We could even put it up and we could follow through it might be easier for people if that’s something you want me to bring up Article Three of the Constitution, you want to you want to share that and we can we can talk about it? Yes, I can. I have to keep talking while you while you work on it.
So again, the point was, the new Constitution itself seems to have some ambiguities. Now we’re gonna be the anti Federalists want to preserve state sovereignty, they were very happy with the loose confederation of states, and they didn’t want the federal government meddling a whole lot. In, in the, in the pairs of the state article free up? Well, I don’t know if it’s okay.
So one of the issues that came about so by the way, if you scroll down to section two, section two is actually more the point at one here, right. I want to get to Yeah. This is section one, section two of section two.
Section two, lists the jurisdiction of the federal courts. And again, if you can pull that up, butDr.SHIVA Ayyadurai 22:41Article Three, section, Section two, this is all one.
Okay. Section two right here, right? Yeah. Article Three, sectionPaul Clark 22:48two.
Yeah,Dr.SHIVA Ayyadurai 22:49right here. The judicial power shall extend this one.
Paul Clark 22:52Well, that’s Yes, exactly. Okay, so that’s section two. Right.
So So, so let me take a step back. So as I said, every law every Constitution has ambiguities, right. So one of the issues is, who resolves ambiguities, when there is an ambiguity and say constitution.
Now, in some constitutions, this is spelled out explicitly. So for instance, in the Netherlands, and in, in some other countries like Switzerland, it’s explicitly stated that the courts are not allowed to declare an act of the legislature unconstitutional. The constitutionality is by the Constitution explicitly entrusted to the legislative branch.
Right. And then there are other other countries, like in Germany, where they have constitutional courts, only the Constitutional Court can can ultimately interpret the Constitution. Right, lower courts just have to do what the legislature tells them to do.
Right. So there are times when that spelled out. It’s not spelled out in the United States Constitution.
So all we’re saying is,Dr.SHIVA Ayyadurai 24:05so if there’s an ambiguity in the Constitution, various other constitutions explicitly say how that how that ambiguity should be adjudicated in some sense. Thanks.
But in the United States Constitution, there is no due process for how you adjudicate Well, it’s,Paul Clark 24:24it’s just left. It’s left open. Uh huh.
So again, we could have a provision that says any ambiguity is entrusted to the president, the president shall declare the final meaning of the Constitution.Dr.SHIVA Ayyadurai 24:35I say so here, what does it say? It says, cases or controversies Right.
Right.Paul Clark 24:41Which is itself ambiguous ambiguous because there’s a case or controversy is has been debated, but any case, but so that but the point is so in 1787 1788, the Federalists and the anti Federalists are already debating this and indeed one of the big issues that they debate heated over was the power of the courts. The anti Federalists thought that this Constitution gave the courts too much power.
And they were concerned that federal courts might interfere in the workings of the states. And again, this comes back to do you have on screen this article too, right. So this says the judicial power shall extend to all cases arising under constitution laws or trees, to cases affecting Ambassadors, other public ministers and council, Admiralty maritime, so forth, too controversial United States is a party to controversies between two or more states.
And then this is one of the crucial points between a state and citizens of another state. Now, the anti Federalists said, Well wait a minute, that seems to allow a citizen of say, Massachusetts to sue the state of Georgia, and get the federal government federal courts intervene and tell the state of Georgia how they’re going to behave. And that seems like that’s given an awful lot of power to federal courts.
Now, the Federalist said, no, no, no, no, that’s not what this means. So in the Federalist Papers, I think it’s a Federalist 84. Hamilton says, No, wait a minute, you anti Federalists misunderstand this, when the case is extended to states between a state and citizens of another state.
That means Massachusetts can sue a citizen of, of Georgia, but a citizen of Georgia cannot sue Massachusetts. So again, the point is, states are sovereign and Madison, Hamilton Hamilton says this in the Federalist Papers, states are sovereign individuals can’t sue states. That’s that’s a given.
And so when we say in this constitution, that the federal courts will have jurisdiction suits between a state and citizens of another state, we mean, states can sue citizens, but citizens cannot sue states, not cannot happen will not happen, never will happen. I kind of state to another state. Yes, that’s another thing here.
Again, it says, between, let’s see, where’s the provision controversies between between two or more states or more state, right? So that’s explicitly states can sue other states because they both sovereign, right. But the thought was, that’s not gonna happen very often in Massachusetts consumed New York or whatever.Dr.
SHIVA Ayyadurai 27:28So so a state can sue a citizen of another state, but a citizen of another state cannot sue a state.Paul Clark 27:34That’s what Matt is assuming what Hamilton said. He said, When this says cases between a state and citizens and other state, that means the states who’s a citizen, but not vice versa, a citizen can never sue a state, because states are sovereign.
So again, there were other things, but this is one example of some thing where there seems to be an ambiguity here. Right? Not entirely clear, although, again,Dr.SHIVA Ayyadurai 28:00particularly with this, it doesn’t seem whether it’s reciprocal or not, right?Paul Clark 28:05That it does state first, you can say, well, it’s between the state and citizens of another state.
So it’s because state comes first, it’s maybe it means state versus citizen, but not again, not vice versa. But again, there is an ambiguity here. So there was a legitimate ambiguity in the Constitution.
Right? We’re where if you just looked at this text, reasonable people could disagree. So again, Hamilton assures the people don’t keep this up, Paul, or no? Well, there’s another provision we can mention. Again, go down to the next clause, if you can, can you go down to section three, or clause two? Plus two? Section? Two clause? Yeah.
Very good. Okay, so so this is the jurisdiction of the Supreme Court, and this is going to be important as well. So again, I’ll mention this while I have it up.
This tells us what the jurisdiction of the Supreme Court will be. Right? So it says in all cases affecting Ambassadors, other public ministers or council, and then those will just state shall be a party Supreme Court shall have original jurisdiction and all other cases Supreme Court as appellate jurisdiction. Now, again, Hamilton says explicitly, when we’re talking about sovereigns, right, so states and foreign governments, these are sovereignties.
You can’t just have an individual who was sovereign. But even when there’s a case involving a state to in an individual, that case is going to go right to the Supreme Court, because again, sovereignty is and protecting sovereignty is so important. The Supreme Court is going to have original and exclusive jurisdiction over all cases involving foreign governments and state governments.
And again, Hamilton tells us explicit So Paul, if a stateDr.SHIVA Ayyadurai 29:57government Susan individual that goes under Supreme Court is that you’re saying right for the Supreme Court, right? Or for state suit of a foreign government? Who’s another statePaul Clark 30:07or states who’s a foreign government, right. Or foreign governments who’s an American citizen, right to Supreme Court.
Dr.SHIVA Ayyadurai 30:12Right. Okay.
So it doesn’t go to a lower court. It’s gotta go to the Supreme Court.Paul Clark 30:16Gotta go to the Supreme Court.
Okay, soDr.SHIVA Ayyadurai 30:18state two’s state of Massachusetts sues you and Alaska goes, according to this, it goes to the Supreme CourtPaul Clark 30:24goes the Supreme Court. Okay.
Now, again, this seems to be pretty clear. Now, the first example I gave there does seem to be legitimate ambiguity. It says students between states and citizens of other states, may the you can interpret that to be reciprocal, or maybe you can be interpreted one way.
Clause two seems to be pretty clear. Those seem a lot of ambiguity there. When sovereigns are priorities to the suit Supreme Court has original jurisdiction.
In other cases, it’s appellate jurisdiction. In other words, appellate means it starts in lower court, and then you can appeal it to the Supreme Court, but you can’t go directly to the Supreme Court. Okay.
So again, like I said, I think that’s an example of both one where there’s a pretty clear rule in in in the jurisdictional clause, and then a fairly ambiguous rule in terms of the jurisdiction between citizens of states suing states. Okay, so again, I’m going to talk more about those two examples. But again, the point is the the the first case Madison said, assuming Hamilton said, you can never sue a state and federal court, don’t worry about it.
Now, they didn’t really even argue over the next one, because they were so clear, nobody thought there was any ambiguity there. So we don’t needDr.SHIVA Ayyadurai 31:44to state between a state suing a citizen.
No, no, no.Paul Clark 31:48I mean, in terms of the original jurisdiction. Oh, yeah.
SoDr.SHIVA Ayyadurai 31:51the first first thing is, it was clear that that state could never be sued in federal court. Right.
So thatPaul Clark 31:58wasn’t entirely clear that a state couldn’t sue us that assume a citizen couldn’t sue a state. But even Hamilton says, No, that’s never gonna happen. Don’t worry about it.
That’s not what we need.Dr.SHIVA Ayyadurai 32:08Right.
So that reciprocity going the other way, so that’ll never happen. That’ll never happen. When it comes to jurisdiction, it was just very clear.
Yeah, that wasPaul Clark 32:17that wasn’t Evan, seriously. Even the anti Federalists didn’t say, Well, come on. Now.
This is okay. That’s pretty clear. We know.
But he’s inventions. Hamilton says, yeah, by the way, he explains why it’s there. He says, Yeah, because it’s so sovereigns are so important, right.
Don’t want a sovereign to be in court in any lesser tribunal when they were talking aboutDr.SHIVA Ayyadurai 32:39what you’re trying to bring up. Article Three, there’s something that’s very clear, and something that could be potentially ambiguous.
Exactly. And it was in there in the Constitution, and this is the nature of any document, it will always have ambiguities. Right.
Yeah. The United States Constitution, however, didn’t have a way to resolve ambiguities, unlike other constitutions, okay, so that’s the key.Paul Clark 32:59not explicitly, but it’s in so let’s go through the history a little bit.
So again, of these two clauses. So we’re going to talk about these two specific clauses from Article Three. So the first case that comes up, you don’t have me you can keep it up if you want.
But but the cases. So the first really important case that comes up is Chisholm versus Georgia. So Chisholm is a citizen, I think of North Carolina, South Carolina anyway, it doesn’t matter, but he’s not a citizen of Georgia.
Chisholm claims that Georgia owes him money. He claims he gave them supplies during the Revolutionary War. And he claims they owe him whatever $10,000 or something, right.
So he he wants to file suit against Georgia. And he filed suit originally, in Federal Circuit Court. Now, today, the trial courts are called district courts back then.
They were called circuit courts.Dr.SHIVA Ayyadurai 33:52And where does he find Paul Chisholm? is a citizen of GeorgiaPaul Clark 33:55keep No, no, he’s a citizen, I think of I think he’s a citizen of North Carolina.
But he’s not a citizen. Devon, not a citizen of Georgia. I couldDr.
SHIVA Ayyadurai 34:01be where does he file in Georgia Federal CourtPaul Clark 34:03fires in Federal Circuit Court in Georgia.Dr.SHIVA Ayyadurai 34:07So he’s in North Carolina, and he goes to Georgia to file against Georgia?Paul Clark 34:14Yes.
Federal Court in Georgia. Got it. Okay.
Okay. So the trial court dismisses his suit. They say we don’t have jurisdiction.
Now, they don’t rule on the merits. So what one of the most important factors is if a court does not have jurisdiction, it cannot address the merits and it must dismiss what’s called without prejudice. That means we have an adjudicated your suit.
This court doesn’t have jurisdiction, maybe there’s some court somewhere else that does. Now, I recently had a case by there’s a little bit of an aside, but I recently had a case where a gentleman came to me, he had been pro Sayed representing himself and he had filed a case and in New Jersey, and the court in that case said we don’t have jurisdiction and we’re going to dismiss with prejudice, you can ever bring it anywhere. And I said, Well, that’s crazy.
And I actually the guy came in and we had to refile and get this overturned and pointed out to this judge who who knew better, but I think was just being decided, admittedly, dishonor I think she was really being dishonest. She didn’t like this guy. Just want to give this case anyway.
But again, the point is, when you file and in a court that doesn’t have jurisdiction, you have you dismissed with with without prejudice and making sure there’s another court where you can you can where you can file suit. Go ahead. God bless you.
It’s up to you anyway. So it’s dismissed in the Federal Circuit Court, because the Federal Circuit Court rules, we don’t have jurisdiction. Why? Well, we just saw Article Three says, in any state and any suit involving states, it has to be brought in the Supreme Court.
Now again, the judge who ruled on this was actually also a Justice Justice Rendell, because he can’t back then the Supreme Court justices road circuit, they would actually go out and do trials. by name. I don’t do that anymore.
But again, this is something that actually same way. But it was interesting that there was a Supreme Court Justice Justice, a rebel riding circuit is in Georgia. And here’s the case, guy comes before the court.
Justice Randall says I’m dismissing this case, we don’t have jurisdiction because Article Three is very clear. Any state in which any case in which the state should be a party must be brought in the first incident Supreme Court. So he says, Yeah, I guess you’re right.
It’s okay. I mean, that’s pretty clear. Okay, so So what does he do? He says, Fine.
He picks up his his his bag, and he goes to Washington, DC. What was it that was in Washington, DC? It was still I think, in New York at that time, because remember, first of all, Philadelphia, that was Newark. Capital was New York.
But anyway, wherever it was, he goes to the Supreme Court, and he filed suit again. And he says, yeah, why does he go? Why does Oh, why did we follow suit in the Supreme Court? Now, the Supreme Court, okay, because you had to file suit in the Supreme Court, because that was where the only jurisdiction was for us to stay.Dr.
SHIVA Ayyadurai 37:02But again, there’s this ambiguity, because it was typically a state against a citizen here, a citizen is going againstPaul Clark 37:08a state. Well, this is 1793. This is very early in the process.
Right? This is happening very early on. This is one of the very, very first cases the Supreme Court has. So anyway, he so he goes to wash, again, is going to watch it and he goes New York, he goes to the Capitol, put it that way.
I keep wanting to think Washington’s can he goes to the Capitol, and he filed suit as original matter in the Supreme Court. Now, Georgia, of course says, Wait a minute, we have sovereign immunity. We can’t Hamilton told us.
You’re a citizen can’t sue a state in federal court. So we refused. They refused even argue the merits.
They said, Look, you don’t have jurisdiction, I’m going to argue the merits of the case because frankly, it shouldn’t be. Now, a majority of the court though, rules that when Article Three, section two says the courts can hear suits between citizens of a state and another state. They say, Well, we think that allows this kind of suit.
We know that Hamilton said it doesn’t. But okay, but we disagree. We think that Chisholm, as a citizen of North Carolina, can sue Georgia, in federal court.
Dr.SHIVA Ayyadurai 38:25Right. So they take this so they they interpreted clause, one which had between a state and a citizen where we’re at Madison has said no, definitely a state can go after a citizen, not a citizen after state.
That’s right. They they using this clause to they say yes, you can put it into the Supreme Court. That’s what you’re saying.
Paul Clark 38:42Well, everyone agreed it had to be in the Supreme Court. Right. Like Georgia didn’t say we shouldn’t be in Supreme Court.
Right. If I didn’t say baby argued that lower court again, we I don’t I don’t think we have a full transcript of what happened in the lower court when it was dismissed. And probably Georgia said, what do you do and we can’t beat you can’t sue you.
This circuit court has no jurisdiction here. Right. Anyway.
But again, so it was dismissed. But the um, the lower court so but again, in that in those days, there were six justices on the Supreme Court, and by a five to one vote, just as a red L being the dissenter, five out of the six justices interpreted article to be a saying Yes. Should we think that a citizen of North Carolina can sue a citizen of, of Georgia.
Dr.SHIVA Ayyadurai 39:24So to be specific? So to be specific, Paul, they, unlike what Madison had asserted, they basically sort of went against Madison, and they said, This means between a state and a citizen or citizen of another state and a state. It wasPaul Clark 39:37both ways.
It’sDr.SHIVA Ayyadurai 39:38got it. Okay.
That’s, yeah. SoPaul Clark 39:42So of course, what happens is,Dr.SHIVA Ayyadurai 39:46you know, people are doing stuff.
So Paul, that’s pretty fascinating. So your Madison had clearly asserted, well, Hamilton, Hamilton at the time, said the same thing. But but at the time of writing the Constitution, this only means a state can sue right? a private citizen and but there’s no way we never meant it to mean a citizen can go the other way.
And here over five to one ruling, the Supreme Court says no, it can go both ways.Paul Clark 40:10Right. So everybody thought that was clear.
Hamilton and Madison and others had to clarify remarkable. Yeah. And yet, five out of six justices disagree.
They pay but the only five people in the country disagree.Dr.SHIVA Ayyadurai 40:25Got it? Why did? Why did they go the other way? Paul, what was your thinking?Paul Clark 40:29They said, We just read it literally.
It says between states and citizens and other state and we’re just going to read that letter. We don’t care what happened. There means both ways.
They that’s how they interpreted right. Okay. They said, We just gonna literally read the wording.
There’s nothing here in in in the wording that explicitly says it only goes one way. So we’re just going to interpret it as going both ways. And we don’t care what Hamilton said.
We’re that’s, that’s pretty wild. Yeah. It’s pretty cool.
Right? So again, that was the common understanding was rejected. Now, what’s interesting getting the next step, it gets even more interesting. So so first of all, Georgia says, well, we’re not paying it.
Good luck and forcing your your judgment, Supreme Court. And at this point, time, Washington was present. Washington was not about to, to invade Georgia and tell them to pay a debt.
So we’re never gonna be paid, right. But anyway, they went more than that. So there was there was actually outrage in Georgia.
Well, not just in Georgia around the country. Everyone was saying, wait a minute, who are these five guys? Well, I mean, we just approved this constitution a couple of years ago. And we the people approved it, because we were told we were assured by the leaders of the Federalists.
This wouldn’t happen. And the ink is barely dry on the Constitution. And it’s happened already.
Right. So there was really there was aDr.SHIVA Ayyadurai 41:56lot of outrage, although they thought these five people, five individuals were completely intervening with this broader understanding what they thought that the states have rights and states can’t be pulled into another state and etc.
Yeah, they thoughtPaul Clark 42:10this was a bait and switch got promised one thing and give them something. Right. Right.
Right. So almost immediate. I think within about a week.
The Senate recommends an amendment which became the 11th amendment. Right. me it was almost it was almost unanimous.
I remember the exact vote was something like, again, back then they were they were like, I think there were 28 senators or something. It was like, you know, 24 to four or something. It was overwhelming, like, you know, so So the Senate almost immediately approved the recommendation, the house comes along.
Also, again, my overwhelming vote, I think it was something like, you know, 150 to three years. I mean, it may be overwhelming. There was always something quite unanimous, but almost.
Yeah, and here’s a letter. They approve this and they send it to the states ratification and it’s immediately approved. Everyone wants this.
There’s all the states like yeah, so anyway, so you have the text, right? So it says, The judicial power, the United States shall not be construed to extend to any suit in law, equity commenced to prosecute against why the United States by citizens of another state. Now notice they’re not they don’t even admit that the Chisholm case was right. They didn’t say it’s wrong.
It’s always been wrong. And they so that’s why they say the judicial power should not be construed. They’re not saying they’re changing the constitution.
They’re saying, This is what the Constitution has always meant. And we’re telling you Supreme Court, you got it wrong. And in the future, you will not construe Article Three to allow suits by individuals against states.
So again, this this this, this happens veryDr.SHIVA Ayyadurai 43:47quickly. Right.
Right. So it says a judicial power of the United States shall not be construed to extend to any suit in law or equity concern or prosecute against one of the United States by the citizens of another state, or the citizens or subjects of any of any foreign state. So basically, no one can sue a state that no one can sue a state and federal court or when they say a foreign state, that doesn’t mean a foreign government, right? Or another state, a state can’t sue usPaul Clark 44:18citizens or subjects of a foreign state.
So if you’re a subject like an English subject, you can’t sue the state of Georgia or any other state. Right. So again, it’s individuals if a sovereign can sue another sovereign, but an individual cannot sue a sovereign.
Dr.SHIVA Ayyadurai 44:32That’s right. So they were being they’re being very explicit about that ambiguity here.
Right? There’s they’rePaul Clark 44:37saying we resolved any ambiguity. If you think there’s any ambiguity Article Three, we’re telling you how you must interpret that ambiguity,Dr.SHIVA Ayyadurai 44:45right.
So So an individual cannot sue another state and federal court or an individual of another foreign government, like someone in India can’t come and sue a state and federal court either, correct, exactly. Right. But a state can sue another state and federal court.
Paul Clark 45:00Yeah, states can sue other states, right? Foreign countries can sue other states. And again, it would have to be in the in Supreme Court would right in the lower courts, because we saw that also. Right.
So So again, the the point is we have an ambiguity, the ambiguity is resolved. And and and now going forward, we think, Okay, we’ve settled that issue. Right.
Well, we’ll get back to the story becauseDr.SHIVA Ayyadurai 45:22there was an ambiguity. And then it goes to court, the court resolved, quote, unquote, resolve the ambiguity, right? And then Congress gets involved andPaul Clark 45:32the whole country says, no, no, no court, you got it wrong.
Right. SoDr.SHIVA Ayyadurai 45:35then then then the state’s resolve the ambiguity, suppose and we’ll see what happens.
Yeah. Right. SoPaul Clark 45:42come back to that.
So let’s get let’s just let’s go sort of chronological order because I want it because we’ll come back to that. But the next most famous case, probably the most famous case in history, is a case called Marbury vs. Madison, it’s probably all your listeners at least heard the name, although maybe they don’t know what it stands for.
But But again, 1793 is Chisholm versus Georgia. But 10 years later, less than 10 years later, Marbury vs. Madison comes along.
And again, let me let me set the background for this tell people what happened. So of course, Washington serves two terms. Adams comes in Adams is president for four years.
In the final days of the Adams administration. Adams appoints a bunch of people to the government of the District of Columbia. Now, Adams is a Federalist, right.
So and Washington was a Federalist as well. Now Madison had been a Federalist Madison parted ways during the Adams administration. There were there were some differences that we can talk about, which is interesting, but not relevant to today’s conversation.
Hamilton parted ways with Adams some of the some of the policies that Adams had, he didn’t like it. So Adams, and Madison part ways Madison joins Jefferson, and Madison and Jefferson. Team up.
And they agree because it gives him Madison’s very, very influential Madison’s a little younger than Jefferson. And Madison says Jefferson, listen, I’ll support you, if you agree, I’m going to be your successor. So so so they had this deal, where Madison is gonna become Secretary of State to Jefferson.
And then when Jefferson retires, after a couple of terms, Madison is going to become president, that’s what actually would happen. So so they have this, this this deal set up same way. So in the final days of the Adams administration, he wants to appoint a bunch of Federalists, his party to positions of power.
So Adams appoints a bunch of officials to the District of Columbia. Now, again, this point in time, we’d actually created the District of Columbia since moving the capital to the District of Columbia. And they’re creating local government so and Adams wants to fill the positions with his cronies with his with his, you know, Federalist people.
So he appoints this guy, Marbury. I think it’s William Marbury as a magistrate judge or district of A. What do you call it a? Well, it’s a magistrate judge, basically, he handles really minor minor minor matters in the District of Columbia.
Right. So anyway, not the only one, but it began, Adams appoints a bunch of people. And as soon as the final days, they they, Adam signs the, the the warrant, I guess it was appointing Marbury to this position as a magistrate judge.
And he sends his appointment letter over to the Department of State where they kept the official seal. And those days there was like an official seal and all the official documents, you had to stamp that paperwork with the official seal. So it’s done.
They did the second then Secretary of State I forget who it was. But anyway, he stamps the paper, and he basically puts it in an envelope, and they’re ready to send it to Mr. Marbury to inform him of the fact that he’s been appointed as this magistrate judge.
And he’s not the only one. There’s several different people that were appointed. Well, Jefferson is it now becomes president and Hamilton is the Secretary of State.
Hamilton walks into the Secretary of State’s office and he finds these papers laying on his desk ready to go out in the mail appointing Marguerite and other guys to be to beat these local magistrate judges. Madison says to Jefferson, what do I do with this stuff? He says tear him up. I don’t want it let’s appoint our own guys.
See, that makes sense. Sure. People in it, yeah.
Okay. So now, again, it’s almost like imagine if you were offered a job or sort of offered a job so you go to a job interview right? And the company decides to hire you and they even sign the letter and they have it in an envelope ready to go out but before the envelope is mailed the president the corporation changes his mind. I want to hire somebody else.
So basically what happened, the president United States is I want to hire somebody else. Get rid of those things. It was signed, it was sealed, but it was never delivered.
But somehow Marguerite gets wind of this. Apparently somebody had some friends and says, By the way, Marguerite, you were supposed to have that job they gave to somebody else, it says really says, yeah, it was signed by President Adams. It was sealed with silly United States.
And Mr. Berry says, Well, I want this job. So he decides to bring suit, he’s going to sue the United States, to get them to give him the job.
Notice the name, he names James Madison, who’s the Secretary of State now in those days, in fact, for for longest time, you could not sue the president, the president could never be named as a defendant, and that’s changed with Donald Trump, all of a sudden, you could sue the President now, because Donald Trump is an exception. But until Donald Trump, you couldn’t sue the president. So Marbury couldn’t sue the president, he sues James Madison, Secretary of State, because again, Madison was the guy who found the papers and said, Well, whatever.
So anyway, so again, the long story short is Marbury bring suit in the Supreme Court as a matter of original jurisdiction. Now, why did he do that? Well, there’s two things. So first of all, did Judiciary Act of 1789 had purported to allowDr.
SHIVA Ayyadurai 51:21while one second, just one. So at that point, Marguerite did that just to give the audience’s a quickPaul Clark 51:271801 Marguerite, you know, whenDr.SHIVA Ayyadurai 51:30but the 11th Amendment already passed? Yeah.
An individual cannot sue a government, state government or government in federal court. Right. It’s already passed.
Right now, that’sPaul Clark 51:42a stake of this is the federal government. Right, right. SoDr.
SHIVA Ayyadurai 51:44this is a new test. He’s suing the federal government in federal court right. Now,Paul Clark 51:49right.
Now, the other thing, of course, you an individual cannot sue the federal government without its consent, because it’s sovereign, but Congress had consented to suit it right. So Congress said we will allow people to sue us in federal court, because we’re so gracious, we’re gonna allow that make it so they permit they could have said no, they could Congress could have said, No suits against federal government by individuals, not allowed. They could have said that, but they didn’t.
They passed Judiciary Act of 1789. And they said, We’re gonna allow individuals to sue us in federal court, but they said, you know, what, we should be like the states go right to the Supreme Court. We don’t want individual judges mucking around with the federal government.
Again, the principle wasDr.SHIVA Ayyadurai 52:34basically to say, based on that act, Marbury rightfully uses that act, and he goes, and Sue’s them in the Supreme Court, he says, Okay, got it.Paul Clark 52:42So So what happens, though, is the Supreme Court says, Wait a minute, we don’t have jurisdiction as an original matter.
Article Three, section two says explicitly, the Supreme Court shall have original jurisdiction, in cases involving Ambassadors, other public ministers and councils or when a state is a party, we the Supreme Court do not have jurisdiction as an original matter. In this case, because we only have again, original jurisdiction when it’sDr.SHIVA Ayyadurai 53:14using show Review Act says he has that right.
Right.Paul Clark 53:18So so this was the big controversy. Right.
The question was, could Congress authorize suits against the federal government in the Supreme Court,Dr.SHIVA Ayyadurai 53:32which is in violation of clause two? Article Three? Article Three.Paul Clark 53:37Exactly.
Right. And the Supreme Court ultimately said no, they said, Article Three, section two is very clear. Right, Supreme Court only has original jurisdiction involving foreign countries as ambassadors, public ministers and other councils and estate and neither one of them apply.
We understand why Congress might want suits against United States to go right to the Supreme Court. Because the same reason we don’t want individual but you can’t do it Supreme Court says because the Constitution doesn’t allow it. The Constitution does not permit us to hear this case.
In the first instance. Now there was a backup position where every head, which is just a curiosity, say, Well, wait a minute, I’m a minister. I’m a public minister.
Right. So I can it’s been quite a no, no, look, it says Ambassadors, other public ministers of Council, that means ministers of foreign governments not so he’s brought a strongerDr.SHIVA Ayyadurai 54:32legal footing was a judicial review act, not really thatPaul Clark 54:36the Judiciary Act of 1780.
That was his main argument, but when he lost that, he said, Well, wait a minute, maybe you can say I’m a minister and welcome outcome, right. That’s not That’s not how it works. But again, that but again, that’s another example of a potentially ambiguity, right? So again, Article Three says Ambassadors, other public ministers or consoles.
Right now there’s a an interpretive rule called Known by their associates, which means if there’s an ambiguity in a term, you look at the other terms surrounding it. And so here’s try. So I’m a public minister.
I’m a local minister. Right? And like no, but when it says Ambassadors, other public ministers and consuls, so the ministers there clearly means foreign ministers not not, you know, some some local minister. So again, they applied that standard rule interpretation known by its associates to a minister, and again, and was like, Yeah, okay, that’s pretty much soDr.
SHIVA Ayyadurai 55:29that’s fascinating, Paul. So in the Chisholm versus Georgia case, the Supreme Court ruled in favor of jism. Basically saying, Yes, he can sue the state and federal court, which, in many ways, went against what it sort of when it basically took the literal view of that clause one position, right? In Article Three, right? It basically said, We don’t care what HamiltonPaul Clark 56:02Article Three, section two, or section two clause one, right?Dr.
SHIVA Ayyadurai 56:07They said, We’re gonna say it goes both ways. Okay. And then in this case of courts come and they say, There’s no way we’re going to allow this guy to sue the government, in federal court, because in the Supreme Court, and the Supreme Court, because he’s not a minister, any of those things, and we don’t care about the Judiciary Act that Congress passed.
They just said, we’re gonna, we’re gonna enforce the Constitution. Right. ThePaul Clark 56:34bottom line was supreme court said we don’t have to follow the Judiciary Act,Dr.
SHIVA Ayyadurai 56:40right. We’re going to follow the Constitution, Congress saidPaul Clark 56:42told us it’s been booked, Congress tells us the Supreme Court, you must hear this suit.Dr.
SHIVA Ayyadurai 56:49Right.Paul Clark 56:50So we don’t know we don’t. The Constitution doesn’t allow it.
Right. Now, this is crucial for a number of reasons. So the reason this case is so famous Marbury vs.
Madison, is it’s often used, or it’s often called the case that established the principle of judicial review. Now, judicial review is the idea that judges get to review acts of the legislature. Now, as I said, many countries don’t have it.
I mentioned the Netherlands doesn’t have it. It’s explicitly prohibited. It’s explicitly prohibited by the constitution of Switzerland.
So you don’t have to have it. And this case didn’t actually say that No, Marbury vs. Madison did not claim that the Supreme Court could review any act of the legislature.
All they said was, we don’t have power to hear this. We have to follow our own our own guidelines. The Constitution says we don’t have jurisdiction here.
So we’re not going to hear the case. There’s nothing in Marbury vs. Madison that even suggests that Supreme Court can review any act of Congress.
This was a very specific act of Congress involving the courts own jurisdiction. But again, the crucial part of this is that they said it was unambiguous. It really nobody disputed this for 100 years, it was unambiguous in the Constitution.
The Supreme Court has original jurisdiction for foreign governments and states and regional jurisdiction, and it has appellate jurisdiction everywhere else got it. Marbury vs. Madison said, Congress cannot make the jurisdiction of this court appellate when it’s originally Constitution, nor can it make the jurisdiction of this court original where its appellate and the Constitution, original and appellate are mutually exclusive.
and never the twain shall meet. And if you want to amend the Constitution, you know, you can do like presumably what you did in Chisholm versus Georgia. You can change it maybe but until it’s changed, that’s the way it is.
For if you’d read Marbury vs. Madison, you figured well for all eternity, appellate and exclusive a mutually covered and and original are mutually exclusive. Never the twain shall meet.
And again, we’ll come back to it because we’re gonna chronological order. But to make a long story short, 100 years later, they decided you know what, Marbury vs. Madison was wrong.
The Congress can make the supreme court jurisdiction original and appellate and vice versa change any way they want.Dr.SHIVA Ayyadurai 59:25And that happened 100 years later, they switched it because arbitrarily the courts decided they were getting too many cases.
Right, Paul?Paul Clark 59:32That’s right. So we augment with what we have. I don’t know if we want to go there right now.
But again, the point so inDr.SHIVA Ayyadurai 59:40Oh, yeah. I mean, if we follow it all the way through, they went that way in one direction.
And then 100 years later, they’re gettingPaul Clark 59:46these when it became inconvenient for four judges for the Supreme Court. They changed their mind and they went to Congress so so again today, the Supreme Court only hears about Ed cases a year. And in the 1920s, there was there was another Judiciary Act that said that the Supreme Court only had to hear appellate cases that they chose to take.
And that’s called certiorari to make certain. So prior to the 1920s. Congress didn’t didn’t try and tamper with it because Marbury vs.
Madison said, Well, you can’t change it. That’s it, appellate versus versus original. And if it’s original, then that’s it.
So if a state wanted to sue you, if you know, they go right to the Supreme Court, if a if a foreign country wanted to sue you, or sue me, they go right to the Supreme Court. So the Supreme Court had a lot of regional jurisdiction cases. And they told Congress, wait a minute, we just this is too much work.
Let’s just change things pass a new law that says we’re gonna make the original jurisdiction appellate, and we won’t cause a stir, we’ll let it go through. And that’s what they did. So it became inconvenient, and they completely reversed themselves.
So again,Dr.SHIVA Ayyadurai 1:01:01they sent all the cases to the lower today, what we call the circuit courts, and then used to be the circuit court. Yeah, so they had the district courts, and then they created the circuit courts in between right later on the Federal Circuit Courts of Appeal Federal Circuit Courts, but basically, Congress when it was, I mean, the judges when it was inconvenient for them to listen to hundreds and hundreds of cases, they just went the other way, which was actually in the Constitution that it should start originally with them and then go down to the appellate courts,Paul Clark 1:01:30right.
I mean, it was it was explicitly in the Constitution, right?Dr.SHIVA Ayyadurai 1:01:34And so how would that ball so here and one in 100 years before theirPaul Clark 1:01:42100 years, 100 years of precedent, the most famous case all here like a US average guy on St. Robert versus Madison, you’ve heard of it? Of course, I’ve heard him Margaret.
Dr.SHIVA Ayyadurai 1:01:50years before that in 17, whatever 9182 And 80 know, 81 they’re jumping up and down, the courts are saying we’re definitely going to we defend that it’s going to be where to take it literally 100 years later, they’re basically going the other way and saying, Well, you know, now it’s inconvenient for us. They were 180Paul Clark 1:02:06degree turn.
Right.Dr.SHIVA Ayyadurai 1:02:09So let me just ask this.
So once the Supreme Court does that, Can’t someone you’re that’s it? Right. That’s the becomes a law of the land interpretation. Right?Paul Clark 1:02:21Well, then again, somebody somebody could I mean, again, there have been cases where people have challenged who have tried to go to the supreme court and file is original jurisdiction and whether the Constitution says this, and they just got kicked out.
They’re like now go to the District Court. So people have tried it, but they don’t the Supreme Court is not writing citing the Constitution. Mr.
SAHNI, Marbury vs. Madison.Dr.
SHIVA Ayyadurai 1:02:43Yeah. And what is the Supreme Court say?Paul Clark 1:02:45They say dismissed. And they don’t have to get that’s it dismissed.
They don’t try and explain it because again, what are you gonna do? You’re gonna say Marbury vs. Madison was wrong? Well, it was wrong, apparently. So the point is, we have a clear constitutional provision, again, in the original appellate jurisdiction Supreme Court.
It’s it’s adjudicated by the Supreme Court unanimously in 1803. Marbury vs. Madison in 1803, unanimous Supreme Court all six justices.
Yeah, this is clear, not even debatable. It’s settled off 100 years, even Congress’s. Okay, yeah, you got us.
We wanted to push it to the Supreme Court. But right. Yeah, I mean, you know,Dr.
SHIVA Ayyadurai 1:03:29and then the courts got the other way and essentially go against the Constitution. AndPaul Clark 1:03:34so it’s settled law for an entire century when it becomes inconvenient.Dr.
SHIVA Ayyadurai 1:03:38It’s a, we’ve been here for about an hour. So the big takeaway is what, what’s the big takeaway from this very nice analysis you just provided us? What’s the key takeaway?Paul Clark 1:03:49Well, I would say no matter how clear you think a provision of the Constitution is, no matter how long the issue settled, it’s subject to change.Dr.
SHIVA Ayyadurai 1:03:59Right. So now, let’s bring it back to the fact um, you know, my position and based on your, your analysis is that when you look at the fifth and 14th amendment, compared to Article two, section one, Article two, section one, I mean, it’s an interesting analogy here, right? Article two, section one explicitly, whatnot, is confusing and saying only a natural born person can become president. You’ve given us we have enough examples that we don’t know what natural born is.
And then you have the advancement of the Constitution, the fifth and the 14th amendments, which clearly reciprocate to each other on the question of due process and equal protection at the state and federal level. And there’s been many, many court cases since then, which we’ll talk about next time, we can act clearly showing that you cannot treat a naturalized citizen than a quote unquote, native born citizen. And based on what you just shared, the fact that things are changing and things have changed.
With the fifth and 14th amendment. It would be unkind institutional at this point to deny me the right to become president. That’sPaul Clark 1:05:05right.
Yeah. I mean, again, it comes back to the interpretation of fifth amendment we didn’t really get into tonight. Right.
But But again, the point is, if if Marbury vs. Madison can change something that’s as clear as the the original jurisdiction of the courts, then your argument is, is an easy one. Right? So you’re you’re saying, Well, wait a minute, we’re not we’re not we’re not trying to take 100 years of precedent and the most celebrated case and all American history and a clear constitutional provision.
You’re saying, Well, wait a minute. The Fifth Amendment says you can’t discriminate. So sure, Article One is an article two, as as an original matter had certain qualifications, which are themselves in the US, but again, put that aside, but Article Two was amended by the Fifth Amendment.
That’s what amendment means, right? An amendment says something in Article Two is contrary obviously, the amendment takes precedence. So if article if Article Two says one thing, and an amendment says something else, you follow the amendment. So if the Fifth Amendment says which again, the courts have said for for 60 years, the Fifth Amendment does not allow discrimination against citizens based upon their status and naturalized or natural born, you must treat the Fifth Amendment guarantees that all citizens will be treated equally, no distinctions? Well, if that’s what the Fifth Amendment says, then clearly Article Two is in contract is in conflict, and it can’t be enforced.
Right. And then the 14th, the more specifics, but that’s the basic idea. And the 14th Amendment says equal protection.
Dr.SHIVA Ayyadurai 1:06:38And that’s been used in many, many cases with the naturalized citizen issue and a native born citizen, right. And various precedent.
Yes, there you go. So, Paul, I think, I think that I think thank you very much. I think the key thing in this session that we’ve done with Paul Clark, Paul’s a professor of law, right, Paul,Paul Clark 1:06:57and you’re a professor of philosophy, technically flossing, your teeth, legal theory, butDr.
SHIVA Ayyadurai 1:07:02you have a law degree and you practice law. Yeah. Sorry.
Paul is a professor of law, but he’s a lawyer, and he does practice law. Right. And he does legal papers.
But I think the key thing, Paul, is you’ve just walked us through this very interesting example, starting with, you know, Article Three, section, section one clause one and two. Right.Paul Clark 1:07:25Right.
And again, there are many others, we could I mean, we could give a different lecture on the topic different times. There are many, many examples of where we have a clause in the Constitution, which looks pretty clear. Right? The court will say, Yeah, this is clear, this is what it means.
And then 50 years later, 100 years later, another court comes along, says, You know what, we were totally wrong about that. We got it. 180%.
Wrong.Dr.SHIVA Ayyadurai 1:07:46Right.
But in the case, but in the case of Article two, section one, when it comes to the qualification of the President, there’s actually been two amendments fifth, and the 14th, which clearly say you cannot discriminate between citizens period.Paul Clark 1:08:03The Supreme Court has never weighed in on this, right, like Marbury would Supreme Court actually unanimously said you can’t do something they change their mind. Right.
We’ve never even addressed this issue. Right. Right now, lower court, lower courts have fiddled around with it.
But there’s never been a Supreme Court precedent. Right. But here he isDr.
SHIVA Ayyadurai 1:08:20to actual amendments to the cotton to our to address this. Yes. So anyway, Paul, thank you.
I think this, this gives a particular to people out there who says the Constitution quote unquote, never changes. I hope, we’ll share this video broad and wide, Paul, to let everyone know, the Constitution does change and go, everyone should listen to this again and again. And again.
And and as you said, Paul, there’s many, many examples of this. Well, next time we meet, we’re going to really go through some of the very important case law, right? They came about on this issue with the naturalized citizen and native born, which again, refer to the fifth and the 14th amendments by the courts to say you can’t discriminate between citizens, and that I think people really enjoy that. I think it would just give her further support.
Why I can become President? Yes. All right. Well, thank you very much.
Hold on one second. I’ll be right back. I’m just going to stop this here before I go.
And then you and I’ll come back and just finish up. Hold on. All right, everyone.
Thank you. I hope you enjoyed this. Paul, thank you very much.
Thank you for your time, Paul.
