Carlton Larson
Description: Carlton Larson is a Martin Luther King Jr. Professor of Law at UC Davis School of Law. His work focuses on American legal history and constitutional law, with a focus on the law of treason. In this episode we talk about a range of topics in constitutional law, from the state’s role in naming your children to the historical evolution of the Second Amendment. Professor Larson details the strict constitutional definition of treason and the challenges of applying treason to events like the January 6th Capitol Riot.
Website:
Publications:
Social Science Research Network Page
The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem
Naming Baby: The Constitutional Dimensions of Parental Naming Rights
Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit
Books:
The Trials of Allegiance: Treason, Juries, and the American Revolution
Articles:
Why ‘Treason’ Usually Isn’t Treason
Show Notes:
[0:03] Introduction to Professor Larson
[1:47] The Journey into Law
[7:03] Defining Treason
[12:45] Rarity of Treason Convictions
[17:00] Treason and Espionage
[17:07] Historical Context of Treason
[26:18] Political Implications of Treason
[43:27] The Second Amendment Overview
[47:51] Modern Weaponry and Regulation
[54:25] Critique of the Electoral College
[1:03:40] Proposals for Electoral Reform
[1:06:25] Engaging the Younger Generation
Unedited AI Generated Transcript:
Brent:
[0:00] Welcome, Professor Carlton Larson. Thank you for coming on today.
Carlton:
[0:04] Happy to be here.
Keller:
[0:05] We'd love to start off by hearing a little bit more about what got you interested in law, and I ended up at E.C. Davis.
Carlton:
[0:10] So, I suppose like many people of my generation, I read Perry Mason novels about a criminal defense lawyer, and it seemed very exciting and interesting and a fun kind of life. And as I got a little bit older, I started reading more about the Constitution and American history. That all seemed really interesting to me. And so law just seemed like an area where there was a lot of exciting things happening and a lot of interesting issues to work on. And so as I got into college, I was thinking about law school, but also looking at history. And so I majored in history and thought about becoming a history professor, getting a Ph.D.
Carlton:
[0:51] But the academic market in history is very, very weak. Uh, it's, it's, it's tough. And most people who get PhDs that don't ultimately end up as history professors. So it's a, uh, uh, a very dangerous track in some ways. And I wasn't ready to make that, uh, commitment. And so I thought if I go to law school, uh, I could probably become a law professor maybe, but if not worst case scenario, become a lawyer and that's fine too. That's, that's a good job. So that's what I ended up doing. And then, uh, after working for a judge and working at a law firm, I started looking around for academic jobs. I was at the time, I was at a law firm in Washington, D.C., and then got the interview here in Davis. At the time, to be honest, I didn't even know where Davis was. I knew it was somewhere in California, but I wasn't sure exactly where. I came out here and loved the town, loved the people, loved the community here at the law school, and it seemed like a really good fit, and that was over 20
Carlton:
[1:45] years ago, and I've been here ever since.
Brent:
[1:47] Do you think doing your undergraduate in history gave you a unique perspective when you went into practicing? Yeah.
Carlton:
[1:58] Um, it gave me, uh, certainly, uh, an advantage in terms of reading and writing. And a big part of what you do in law is, uh, is, is reading and writing. And so as a history major, you had to read, uh, you know, probably hundreds of pages a week, uh, and constantly writing papers. And so, um, just that skill of reading texts, understanding them writing responding is very much something that you do every day in the practice of law and so i i think history is a really good preparation for people who want to be lawyers.
Keller:
[2:31] And when you were working for that law firm is there anything about the way that you were practicing law in that aspect that you were able to carry over into academia.
Carlton:
[2:40] Surprisingly little. Most of what I was doing was insurance coverage litigation, where we were representing corporations who were being denied insurance by their carriers for various claims. And the one thing I did learn is that insurance carriers are very fair in the sense that they will screw you over no matter who you are. If you're just a little person with your homeowner or your car policy, they will deny your claim. If you're General Motors, they will deny your claim. And so a lot of what we did was, you know, try to build up a more pro-policy holder body of law. So by the time I left the law firm, I was very good at reading insurance contracts and figuring out arguments for coverage. But I came here to teach constitutional law and legal history. So actually very little of that is carried over directly. Every once in a while, I think I should get back into an insurance law and then take a look at it like, nope.
Brent:
[3:34] What made you choose constitutional law?
Carlton:
[3:37] Well, I thought it was the most sort of interesting area of law. It had the most connections with history. And so it was something I felt I understood and had read a lot about. And so I felt I knew it pretty well. That said, there's a lot of interesting areas in law. And so there were things in law school I got really excited about that I wasn't expecting. Like contracts, for example, turned out to be a really exciting and interesting class.
Keller:
[4:03] Awesome before we dive further into your work we'd like to give you a little more of a fun question okay do we have the right to name our children anything we want.
Carlton:
[4:13] So this was something i looked into about it a dozen years ago like sort of just had one of those weird thoughts i was like well, hey, wait, could I name my kid anything I want? And so I started, and I didn't have a kid at the time. It was just purely academic interest. And so I started looking it up and it turns out there's lots of things that you can't do. And it varies state by state. Each state has their own law on this. So some states will say the name can't be too long. And that can be a problem. For example, I have two middle names. And so sometimes that's a problem filling out forms. Some states will say you can't use a numeral in the name. So you can't use, say, the figure eight, but you can write it out. E-I-G-H-T is okay.
Carlton:
[4:55] I don't, you know, that's one of the rules. Some of them will not allow you to use an expletive. You can't name your kid a dirty word. And some of them will not allow you to use diacritical marks. So for example, you might be allowed to use, make the name O'Connor with an apostrophe after the O, but you wouldn't be allowed to use, say, an umlaut over the O if it was a German name or the tilde over the N if it was a Spanish name. That's actually the rule here in California, that you can't have any of those diacritical marks on a birth certificate, so you can't technically legally name your child a Spanish name in California, which is very odd because we actually have a lot of Spanish names in here. If you just look at the names of our cities, you look at the names of some of our state parks, actually have the diacritical marks on them because that's how you do it correctly in Spanish. And there was an effort in the legislature to fix this. I went over there and testified. They ultimately concluded it was too expensive because our computers couldn't handle it. We'd have to totally redo all our systems. And maybe that's true, but somehow Spanish-speaking countries all around the world managed to run their computers just fine. So I don't quite know why this was such a problem.
Brent:
[6:09] Was there any like reasoning behind why they originally did this? Outlaw or like banned diacritical marks.
Carlton:
[6:17] You know that's a good question i don't know, for sure what i was told at one point was that it was too hard to do on a typewriter and then it was hard to do on a computer well that's very strange too because that meant back in the day when we hand wrote birth certificates there's no problem because you just, you know, write it in. And so it appears that the technology has actually made it harder to do some things than it was back when we didn't have that technology.
Keller:
[6:51] That's super interesting. Yeah. And then pivoting in towards your work on treason, could you start off by just giving us a legal definition of what treason is?
Carlton:
[7:03] Sure. So as a general matter, sort of every country around the world has some law against treason, which at a very general level is sort of crimes against the states, attempts to, you know, sort of very broad levels or overthrow the government or, you know, side with the country's enemies, something along those lines. But the substance of the law is going to be very different in each particular country. So the law in the U.S. is going to be different than it is in France or in Turkey or India, for example. So here in the United States, we have a definition of treason actually written into our Constitution, which is unusual. Most countries don't define treason as a matter of constitutional law. But Article 3, Section 3 says treason is limited to levying war against the United States or adhering to their enemies, giving them aid and comfort. And so that is drawn from an English statute written in 1351 called the Statute of Treason. And it takes some of that English statute, but not all of it. So the English statute included things like trying to kill the king, sleeping with the king's wife.
Carlton:
[8:16] Counterfeiting things like that none of that is treason in the united states so the only thing that's treason is adhering to our enemies which means essentially aiding a foreign nation with whom we're in a state of open war or living war against the united states or sort of generally you know leading a you know sort of a military uprising to try to overthrow the government.
Brent:
[8:36] And then how might that be different than espionage or sedition, and why aren't those treasonous?
Carlton:
[8:42] Yeah, so espionage is generally spying for a foreign country, but it doesn't have to be an enemy. It could be a friendly country. So, for example, we've had people who've been convicted of spying for Israel. Israel is an ally. It's not an enemy in any sense, but there were convictions in those cases. So the crime of espionage is much broader. It could apply to really any country in the world for whom you spied. And then sedition is sort of a vague term. It pops up in different terms. There's no federal crime that's just sedition as such. There is a crime of seditious conspiracy, which is basically conspiring to do various acts that would potentially undermine the government. But that's, again, distinct from the crime of treason because it's about an agreement. It's a conspiracy itself, not the actual act of trying to overthrow the government.
Brent:
[9:45] Okay. And then I wanted to highlight, too, when we say enemies, they have to be clearly defined as people we are at war with, correct?
Carlton:
[9:52] Yeah, exactly. So it's someone with whom we're in a state of open war. So it doesn't have to be a declared war.
Brent:
[9:57] Right?
Carlton:
[9:58] So we can be at war with somebody even though there's no actual declared war. So Vietnam War was a war.
Brent:
[10:04] Right?
Carlton:
[10:04] We never formally declared war against anybody, but clearly our soldiers are fighting the other side and the other side is the enemy. And so I think generally as a shorthand, you could say, if our military sees the other side's military, do we shoot them? If we see the ship on the ocean, do we try to sink it? We're probably in a state of war.
Brent:
[10:27] Right?
Carlton:
[10:28] Have we pulled our ambassadors from that country? Are we, in all respects, treating them as if they were an enemy? Now, that means that there's a lot of countries that we're hostile with, or maybe not super friendly with, but they're not enemies. So China's not an enemy. Russia is not an enemy. Iran is not an enemy. These are many kind of countries that often do a lot of bad things. but they're not enemies under treason law.
Brent:
[11:01] Is North Korea still technically an enemy?
Carlton:
[11:04] Yeah, I omitted North Korea precisely for that reason because there's an argument one could make that because the Korean War never ended with a peace agreement that arguably the, united states forces are are still at war with north korea in the way that south korea is arguably you know technically still at war with with north korea but i think as a practical matter that's just not true um we're not invading north korea we're not shooting at north korea i mean president trump even met with um the north korean leader which is not the sort of thing you do, with a nation for whom you are actually at war so i think one could make a technical argument about north korea but it wouldn't be a very good one.
Keller:
[11:47] No so as current things currently stand there is no country in which we would make the claim of active war based on.
Carlton:
[11:53] That's right i don't think right now there's any country we could say we're in a state of war with i think we could say that we're still in a state of war with al-qaeda to the extent that it remnants of it still exist, potentially isis because there we we had significant military action against those groups and the enemy doesn't have to be a country right so it could be it could be a foreign group So I think it's perfectly legitimate to say that aiding al-Qaeda is a form of treason. And a man from California was indicted in the 2000s for treason for serving as an al-Qaeda spokesperson.
Keller:
[12:31] And how frequent is treason convictions in the U.S.? I don't know if there's a particular time frame to set that in, but given the context,
Keller:
[12:41] it has to be open war. Or how many times have people been convicted?
Carlton:
[12:45] So it's really quite rare. If you look in the 20th century, there was a handful of cases in World War II, maybe a dozen or so during World War II, a couple in the early 1950s, and there's been one indictment since. And that was the person who hated al-Qaeda in the 2000s. That one never went to trial because he was killed by a drone attack. And then you go into the 19th century, there's a handful of levying war cases. 18th century, you get a number of cases coming out of the American Revolution. But the total number of cases is very, very low. Now, that's not to say that people didn't commit treason. I mean, the Civil War itself was a massive act of treason. And in theory, any person who served in the Confederate Army could have been charged for treason at the end of the war. But we didn't do that for obvious reasons. We're trying to bring the country together. The last thing you want to do is try to prosecute all the soldiers on the losing side. So, it's not something that comes up very often.
Brent:
[13:57] Okay. So like, would sending aid to the Taliban, or like helping them fund the government, which we're currently doing, does that count as acts of treason?
Carlton:
[14:08] I'm not sure. I mean, I think the Taliban probably were an enemy in 2001, 2002, when we were fighting them. We had the authorization of use of military force against them, which said those who perpetrated the September 11th attacks and those who harbored them, which clearly was the Taliban. So I think, and we fought them for a very long time. Now the Taliban has retaken Afghanistan, but partly that was with our consent. I mean, we withdrew from Afghanistan, knowing full well that the Taliban would reemerge there. Um so maybe you could make a technical argument that the taliban still is an enemy but again functionally it doesn't really seem like that's the case like we just are not fighting them now i don't think we have any diplomatic recognition of them uh as uh as the leaders um and you have to be careful because certainly people a lot of people bringing aid into afghanistan are trying not to help the taliban but they're trying to help the suffering people yes uh of that country And you wouldn't want those people potentially charged with treason for doing something that's fairly innocent.
Brent:
[15:16] And then enemies can't be defined even through proxy wars, correct? Right.
Carlton:
[15:22] That's actually quite hard. So, I mean, the best example now is Ukraine, right? Obviously, we are bringing tons of weapons into Ukraine for the purpose of attacking Russia. And so, are we at war with Russia? I think technically, again, the answer is no, but we clearly are funding a war against them. And if russia were to decide that that made us an enemy they might well be within their rights to do that in the same way i mean if so say mexico was at war with the united states and russia was dumping tons and tons of munitions into mexico to fund their attacks on us we wouldn't be very happy about that um and we certainly be inclined to treat them uh as an enemy but so far i think everybody's the purpose in this is not to have this go into a wider war because if it gets declared that or decided that america is at war with russia that means all of nato is at war with russia and that triggers a massive global conflict and so it seems like the sense is and putin seems to say i can live with this here are a few things maybe i if you go further i will treat that as if it were um an act of war um but um it's that's one of those situations where on based on the fact you could make an argument for there being a state of war, but it doesn't seem like that's the way that the two countries, the U.S. and Russia, are treating it.
Keller:
[16:51] Have you seen any other countries that, like, interpret treason differently in their legal standing to where proxy wars, like, could be used?
Carlton:
[17:00] Yeah, it's a good question. I don't know for sure.
Brent:
[17:03] Okay. I think that gives us a pretty good, like, contemporary understanding of treason.
Brent:
[17:07] Looking back at the American Revolution, How did that impact our understanding of treason?
Carlton:
[17:15] So the American Revolution was really fascinating because you had 13 colonies that had been loyal to the British king for their entire existence. And then decided to no longer be loyal to the king. And so for if you were none of an american living in 1776 for your entire life you've been told that living war against the king is treason that's a crime capital crime you're gonna be put to death, and then you're told no that's not the case in fact adherence to the king is now a new crime it's treason against the american states and the people who were loyalists they kept they stayed loyal to the British king, they're now potentially guilty of treason against the United States. And so this meant essentially everybody had to pick a side. And if you didn't pick a side, you said, oh, I'm going to stay neutral. I want to stand out of this. Well, a lot of people said, you can't do that. Because if you're not for us, you're against us. And there's no option of being neutral. So this put a.
Carlton:
[18:23] Sort of massive almost psychological strain you might say on on people and we talk about the civil war in the 1860s the american religion was a civil war it's really our first civil war, because you had lots of people who sided with the british and this ripped families apart, and it wasn't geographic the way it was in in the in the civil war where it was mostly north versus south here it was right up the continent and so think about benjamin franklin his son william Franklin is a loyalist, right? And sides with the enemy, basically. And you have lots of families, you know, fathers against sons, brothers against brothers. And so this makes it a really difficult, divisive moment. And so my book about this, the title of it is The Trials of Allegiance. And it's not just about treason trials, but about this sort of larger sense that allegiance is a really difficult thing. It's a trial. You have to sort of figure out what side you're going to be on and you don't know who's going to win right because this revolution drags on for you know from 1775 1781 and that's six years that's a long time where you don't know what's going to happen and like philadelphia our capital city gets seized by the british and then is reconquered and so you had people living there who basically cooperated with the british while they were there and then um they um british left now the americans come back what do you do with all those people?
Carlton:
[19:50] This is a big problem. So one of the things I looked at in my book is how did the law of treason apply?
Carlton:
[19:56] What happened to the people who sided with the British? What did Americans do with them? And one of the things I found was that for the most part, they were not executed. Many of them were tried, but juries acquitted them. And so I think what you saw was a big sense through the war that treason was not as serious a crime in people's minds, as the law books would tell you. If you open up any law book, it would say treason is the worst crime. It's worse than murder because it's about basically killing your entire society. But ordinary people didn't treat it that way. And so they would look at someone who sided with the British and say, yeah, yeah, you made a mistake. So what? You know, you probably suffered enough. We're not going to hang you for doing that. And you know, why would, why would juries do that? Well, I think the answer is precisely the Civil War aspect thing I mentioned, which is, everybody knew someone on the other side. You could look at that and say, oh, there but for the grace of God go I. Or, you know, that person reminds me of my brother or my son, or that person reminds me of my uncle or whoever, who made the other choice. And so you didn't see them as some incorrigible criminal, some horrible, deranged, devilish person, but just an ordinary person who screwed up, who made a political mistake, and then, you know, didn't deserve as a result of making that mistake to die.
Keller:
[21:23] And were many people being tried at that time to be found as loyalists? Were they all getting tried, or was it even then still rare to put them on a trial?
Carlton:
[21:33] So we don't know the exact numbers for the American Revolution. So my book, I focused on Pennsylvania, and I found about 40 or so trials where people were charged directly with high trees. And now there were a lot of other instances where people were labeled as traitors by the state and had their property seized. These are mostly people who had already fled to the British. And then there were, you know, instances of sort of trials before independence where there were people charged before committees of safety. So it's not always easy to know the exact numbers of how many they were because the part of the independence is what you choose to count.
Brent:
[22:12] And then for the Civil War later, were people who fought for the South similarly to the loyalists in the revolution.
Carlton:
[22:21] So there there was a much more I think sort of hatred you might say by the north. They really viewed the southerners as traitors and they wanted some type of justice to be done after the war. Now that's not going to be, hanging every Confederate soldier, you know, a hundred thousands of people, you're not going to do that. Um, so what about the top person, right? So the top person would be Jefferson Davis, president of the Confederacy. So he actually is indicted for treason. Um, at the end of the Civil War, he sits in prison for about two years. Uh, and then ultimately he's pardoned by a president Andrew Johnson. Uh, so nobody is ever convicted of treason, um, as a result of the Civil War. And, you know, people still debate whether that was right. Was the right move to essentially try to bring the nation together, try to prevent him being a martyr, which would have certainly been the case if he had been hanged for treason? Or should the country have made some sort of serious statement that this behavior is unacceptable, and at least the very highest level people responsible for it should suffer some type of justice i mean that was a debate then and i think you know people still debate whether that was the right course.
Brent:
[23:44] Legally speaking could it have been very much justified for a lot of the top officials.
Carlton:
[23:50] I think so. I mean, clearly they were levying war against the United States. Now, they had a couple arguments. One argument was that, you know, that secession was legal, that they had legally seceded from the United States, therefore they owed no more allegiance to the United States. But the United States courts were not going to accept that argument, because that would mean the whole theory of the North fighting the Civil War was wrong. They could argue that they had effectively been treated as a foreign country for purposes of the war in the sense that the United States, you know, held Southern soldiers as prisoners of war, right? We didn't just stick them in jail and charge them with treason, but we, you know, basically acted as if a state of war existed between the two sides. And if there is a state of war, arguably you don't punish the other side as traitors. And then there was the argument that Davis, that may have helped Davis the most, which was there's a provision in the 14th Amendment, the one that came up with respect to Trump's eligibility for president, which says, if you've engaged in rebellion against the United States, you're not eligible for federal office. And so the argument was, well, that's the sole punishment.
Carlton:
[25:00] For the Confederates. And the Chief Justice of the United States indicated his acceptance to that argument. He actually tipped off the defense and said, I think you should run with this, that that would be a good argument. And so at that point, that's when President Johnson just kind of threw in the towel. Now, the 14th Amendment argument I don't think is probably a very good one, but you never know. I mean, it's possible a court might have accepted it.
Keller:
[25:22] Looking at the decision of putting treason into the Constitution, do you think the Founding Fathers did that at that time to kind of limit the scope of its application because of how familial, I guess, the distinction between high treason and really just a family member was at that time?
Carlton:
[25:42] I think it was partly that. I think it was also that they, prior to the war breaking out, they had been called traitors by the British government for things like the Boston Tea Party. And so they kept saying, we're not traitors. We're sort of lawfully resisting unlawful acts of the British Parliament. And so they had become aware of some of the dangers of big, broad definitions of treason. And so I think they were concerned about that. And ultimately, just a sense that if this isn't kept under control, it becomes a political crime.
Carlton:
[26:18] Because then it's very easy to say and we unfortunately see it a lot in our political rhetoric today um that the other side just isn't the political opposition or somebody who disagrees with you over matters of policy but they're an enemy and so you don't want to end up in a situation where sort of ordinary politics disagreement arguments become seen as acts of treason as opposed to just the give and take of a democratic society.
Brent:
[26:46] And is that how you view what happened with Trump and like the argument, trying to use the 14th amendment after like January 6th and whether or not he should be able to run for office now?
Carlton:
[26:56] So I think the argument for, you know, disqualification under section C was, was, was fairly high. And I think, you know, the Colorado Supreme Court wrote, and I think a fairly persuasive opinion on that point. Now, the Supreme Court was concerned that, you know, allowing state-by-state determinations of this would be problematic. So they didn't squarely say that he was actually not covered by Section 3. They just said it's not up to the state of Colorado to decide this question. So in theory, that question is still out there as a potential issue. And some people say well this is you know obviously it's an old thing it was meant to apply just to the civil war it doesn't make any sense um to apply it now but you know that's you know it's in it's a provision in the constitution it doesn't by its own terms have a time limitation, uh and so you know there's a yeah i think it's sort of a non-trivial argument um that um, that Trump is disqualifying.
Keller:
[28:04] Yeah. I remember talking to someone that was all coming out, I was working at a law firm that was looking at that question. It was like, very much, I think the decision for the Supreme Court to avoid being the one that had to make the decision themselves on that in a way to keep kind of the country in some degree united, because I feel like, If they had decided on that then, that could have had much worse implications.
Carlton:
[28:27] Yeah, I mean, I think the court very, very clearly just did not want to make that decision. But they couldn't bring themselves to say that his actions were okay. And so, if they came up with this thing that basically they were all able to agree on, which is quite amazing, that the problem was Colorado itself doing it. And the reason why that's, I think, a little tricky is the courts seem very worried that, well, that might allow one state to decide the presidential election. Well, first of all, that's true in the Electoral College generally. But we have all kinds of different rules. Like RFK Jr. will be on the ballot in some states and not in others. That could totally change the election. So is that also problematic? I don't think they meant to say that all those things were a problem. Some states it's easier to get on the ballot for president than it is on others. I mean, that's just the way it works in a federal system.
Brent:
[29:21] Yeah. So, for the rest of the people involved in storming the Capitol on January 6th, were they committing treason?
Carlton:
[29:30] So, there's an argument that you could say under 18th century understandings of the term that they were. And the argument would be that they were levying war against the United States. And you say, well, what does that mean? Well, you can look at 18th century sources and they say, if you're using force, and that would essentially include, it doesn't have to be guns, but just sort of a big group of people getting together to interfere with the operations of the government, that's an act of loving war against the United States. And in some ways, an attack on the United States Capitol itself is sort of as close to as an attack on the United States as you could possibly get.
Carlton:
[30:11] So, yeah, I think you could make that argument. Now, the problem with that is when you get to some later 19th century cases, there's language that suggests that you have to have the intent to overthrow the United States government entirely. And that's far less clear i think in the january 6 situation because um arguably the people there were acting on behalf of the president united states and they thought they were representing, to some extent the government or one part of the government against another part of the government, and if that's true were you really trying to overthrow the united states as opposed to just trying to overthrow say congress or just interfere with the electoral uh count act so i think a treason prosecution would have been very, very difficult for any of the January 6th defendants. I would not, if I were in the Justice Department, have recommended bringing a treason charge for any of those individuals, and the Justice Department has not done so.
Keller:
[31:08] Is there anything that could be used as, I guess, like, what were they charged for then? If it wasn't for treason, is it just trespassing?
Carlton:
[31:15] So some of them were trespassing. Some of them were, I think, like, sort of, like, attacks on government buildings. Some of the most significant were got seditious conspiracy charges, which has, you know, a maximum of 20 years in prison. So it's quite a significant offense.
Brent:
[31:32] What's the definition of seditious conspiracy?
Carlton:
[32:02] Okay, so it's basically a conspiracy to... Overthrow, put down, or destroy by force the government of the United States, or to interfere with the operations of federal law.
Brent:
[32:15] Okay. So the major distinction there is there's nothing about war or helping enemies who we are currently at war with?
Carlton:
[32:24] Right.
Brent:
[32:25] Okay.
Keller:
[32:26] So was Snowden under seditious conspiracy?
Carlton:
[32:30] Snowden, I believe, had espionage charges. And so again, with Snowden, they couldn't really do treason because uh he had worked with the with russia um and as a sort of also a general release of information to the public unless it was sort of coordinated with an actual enemy, or maybe done with the purpose of aiding an actual enemy wouldn't be treason.
Brent:
[32:53] But with releasing like our own government's documents is that technically spying on our government or more just like, what would be like solid D or I guess illegally, I do classify it. It would still be.
Carlton:
[33:08] It would still be a, it would still be a violation of the espionage act.
Brent:
[33:11] Okay.
Carlton:
[33:12] Uh, so in some ways it's worse, right? I mean, if you reveal our secrets to the whole world, that's arguably more harmful than if you just handed those secrets over to Russia. Now the flip side of course is now it's public. Everybody knows you did it and the U S can respond and make sure that what you, what you leak doesn't do too much damage. But it would still be a violation of espionage laws.
Brent:
[33:34] And then if you leak classified data about the legal actions by the government, is that espionage?
Carlton:
[33:43] There's a lot of debate on that among courts and legal scholars. I think technically it is covered by the Espionage Act, but there are arguments people make as to why it shouldn't apply. Yeah.
Keller:
[33:59] And looking at one more kind of example of times of treason or treasonous rhetoric was used recently was the kidnapping of the Michigan governor. How does that kind of frame in to this argument? Because it isn't espionage, it isn't quite, it doesn't seem like sedition. You could argue you're making a direct attack on a government official, but it's not quite war. How did they frame that?
Carlton:
[34:24] So, that's an interesting question because historically in England, that would have been covered by sort of the compassing the death of the king argument. You're kind of depriving the king of his government by kidnapping and making him no longer effective. And that's not part of American treason law. And the other interesting twist with that is that that was a state governor. So, that wouldn't implicate federal treason law at all. So the issue would be, is there a crime of treason against Michigan?
Carlton:
[34:55] And it turns out there actually is a crime of treason against many of the states. Not all states define it, but a significant majority do. The crime of treason against their own state. And that's not limited by Article III of the Constitution, so that could potentially be broader. But most of them tend to track Article III, so it tends to be, you know, levying war against the state or adhering to their enemies. Now, states don't have enemies. the united states has enemies because we're a country um so you can't really say that the states are have enemies um but you can say is you know they you can levy war against them so let's say you try to overthrow the state government and you're not trying to overthrow the u.s government just the state government can you be prosecuted and charged and the answer is yes we've had a handful of cases like that um rhode island in the 1840s uh the john brown trial from john brown's right in 1859, when he stormed into Virginia. He was charged with treason against the state of Virginia and hanged. And then in the 1920s, there was essentially a war in West Virginia between miners and mining companies backed by the government. And the miners were charged with treason against the state of West Virginia for levying war against Virginia. So the argument in Michigan would be that.
Carlton:
[36:14] Kidnapping the governor is essentially a form of levying war against the state of Michigan by potentially seizing, violently seizing the executive branch of government and incapacitating it. Now, they didn't pursue that in Michigan because kidnapping works perfectly well as a charge without resorting to a sort of more obscure treason theory.
Brent:
[36:38] And then how much does like practicality play into the ability to charge people trees and like whether or not like you are actually able to like overthrow the government or like really truly start a war with it because of how large and like powerful our government or our military truly is now.
Carlton:
[36:58] So formally as a legal matter you know it doesn't matter okay you know if you try to do it you know um you assemble you assemble say a group of men and you try to um said to do it.
Carlton:
[37:10] Um that could be treason and there's some language in the case of saying even if it was doomed at the outset uh it could still be charged now as a practical matter a prosecutor might look at that and say well i'm not going to bring out sort of the big gun of treason for this thing uh and i will charge him with a bunch of other stuff. And the other sort of practical problem for many of these cases is there's a two-witness requirement under Article III of the Constitution, which says you have to have two witnesses to the same overt act, meaning two people had to see exactly what it is that you did. And under Supreme Court decisions, what that thing did had to in itself be treasonous. It had to be a pretty bad thing. Well, the problem with that is if you're committing treason usually doing kind of in secret right uh in the shadows right you don't go you're not doing it out on the street in high noon um and so finding two people who actually saw it um can be really really hard and that's particularly true now if say what most of what you did was sitting at your computer um you know you're edward snowden where are the two eyewitnesses who saw exactly what he did um if what he did was actually just download some stuff email it to somebody else you're never going to get two eyewitnesses uh to that type of offense and so that makes it very hard um to charge treason in in a number of cases.
Brent:
[38:29] And then since you brought up the sitting behind a computer how does cyber warfare play into like treason and all of this right now.
Carlton:
[38:37] Yeah so so um we use the term cyber warfare in some ways that can be very misleading to think that it's a real war somebody you know sends a phishing attempt to your computer and they take control of it and mess around and do various things. You might call that cyber warfare, but that's not really a war. Um, and the way to think about it essentially is what is the sort of real world analogy or the non-digital or analog analogy to, to the crime? And so, in that case, the analogy might be somebody just walking into your office, bashing your computer with a hammer or something like that, or rifling through your files or something like that. That's burglary, that's sort of property offenses, but that's not treason. And so, if you want to treat cyber warfare as treason, you'd have to say, is what you did equivalent to the actual analog warfare? And so there are circumstances to think that would be you break into the defense department, you use it to launch a missile at the US Capitol. That's probably an act of living war. Because if you hadn't, if you'd done it just by busting into the missile silo and hitting the button, it's functionally the same thing. The fact that you use the computer to do it shouldn't make any difference.
Brent:
[39:53] Yeah. And for beyond treason, is the non-digital analog the general route of argument for whether or not the crime carries over?
Carlton:
[40:03] Well, that's how I think it should be analyzed. No court has ever actually addressed it.
Brent:
[40:08] Really?
Carlton:
[40:09] I've written a few things on it. Hopefully, if it comes up, courts will take that approach.
Keller:
[40:15] So cyber warfare has never been used as a legal argument?
Carlton:
[40:19] Not in a treason case.
Keller:
[40:20] Okay.
Carlton:
[40:21] Yeah, because again, it's so new. Other than the Al-Qaeda spokesman, we haven't had a case since the 1950s, so cyber warfare wasn't a thing back then.
Brent:
[40:31] Has it been defined legally yet in a different setting?
Carlton:
[40:35] I don't think there is an actual legal definition. It's more of a colloquial term.
Brent:
[40:40] And then how common is that in law? These words get colloquially used so frequently that people might actually misinterpret meanings, especially if you're trying to convince a jury that are very used to hearing a word one way, but aren't as familiar with the technical definition.
Carlton:
[40:57] Yeah, so hopefully judges try to clean that up in jury instructions and make it very clear. But if you think about something like the war on drugs, or the war on poverty, we use those terms but nobody thinks that's an actual war i mean to some some of the war on drugs stuff does involve military action but the war on poverty clearly not at all um and we and we use those those terms but it's not meant to be a war in any meaningful legal sense.
Keller:
[41:22] And tying back to something you brought up earlier on the allegiances how does treason function in the country especially get the U.S. Becoming increasingly divided and where interpretations like say January 6th of what happened are completely different between what side you claim to be allegiant to. How do we kind of navigate that? And I guess are there examples, whether within the U.S. or outside, where because a country within itself has been so divided, the ability to use treason or argue treason as a political tool gets so mixed up.
Carlton:
[41:55] Well it certainly makes um you know life in the united states more difficult um when when we have those things and of course it's not just treason it's all kinds of things where people share fundamentally different views of facts and what's and what's going on uh the allegiance is ultimately of course to the united states of america right that's what the law says every every person has that allegiance and it's not to a political party, it's not to the president, it's not to a particular person, but to the country.
Brent:
[42:26] Would that be the Constitution then?
Carlton:
[42:28] No, not even to the Constitution, but to the United States of America.
Brent:
[42:31] Okay.
Carlton:
[42:32] Would be your allegiance, then you would also have an allegiance to your state as well, so that you couldn't commit treason against your own state. Yeah. One of the things that I think makes Article 3 more important is precisely when we are in such a divided country and people seem to think that, you know, opposing the other, being on the other side makes you a traitor. Yeah. And we heard a lot of this and we heard a lot of it from Donald Trump where he said all his, his opponents were, were, were traitors. And that's clearly not right. Right. You know, you, uh, you're free to disagree. And it's, I think a good thing that article three limits treason so much. Um, so that doesn't become sort of a tool of political repression. And whichever side gets in power then turns out, you know, uses that law to try to suppress the other side.
Brent:
[43:27] Yeah. And then slightly pivoting now away from treason to some of your work around the Second Amendment, at a high level at first, like, how should people think about the Second Amendment, whether it's intentions, what it encompasses, and stuff like that?
Carlton:
[43:43] Yeah, sure. So the Second Amendment says a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. And until 2008, that was viewed as essentially guaranteeing the rights of states to keep their own militia. That had been a concern. You know, there's 18th century, there's a big concern about standing armies, a view that militias were sort of the best security for the country, and that the militia, essentially probably about every 15 to 60-year-old male, would keep a gun, have it well, you know, kept up, would drill regularly and be part of a, you know, well-regulated militia. I mean, not just a bunch of people running around with guns, but actually being drilled and being part of a kind of government organized operation. And so that view of the second amendment, that it was essentially about militias and not about individual rights prevailed again until 2008, when the Supreme Court said, no, it actually protects an individual right as well, partly because the language of it is the right of the people, not just the right of the militia. And people, as in the Fourth Amendment, is broader than the militia. So that you have, at minimum, sort of a right to possess a handgun in your own home for purposes of self-defense.
Carlton:
[45:11] Then in 2010, they extended that, so not just against the federal government, but against states as well. And then there's been a lot of subsequent litigation about whether it goes beyond just your home. And the Supreme Court has said, yes, it does go beyond just your home. Now, this has made, in some cases, various types of gun control laws more difficult. But I think it's important to remember that until 2008, there was no federal constitutional barrier to significant gun control laws in this country, and we didn't have them. And the reason we didn't have them was because they were politically unpopular. You know, we probably had 300 million guns in private hands, and none of that is really entirely due to the Second Amendment. Because for most of its history, it was not an enforceable limit on gun regulation. It was that we lived in a country which was willing to, in some cases, sort of celebrated private ownership of firearms. So Second Amendment litigation as a constitutional matter is a really recent thing. It's just the last 16 years that we've had disputes over what that means, sort of consuming the lower courts.
Keller:
[46:30] Mm-hmm and does that 2008 decision was that the heller.
Carlton:
[46:34] Heller right.
Keller:
[46:35] Yeah and so in that beyond just the individual right to for gun ownership making that clear how does it also distinguish between a government right to regulate what those arms are and what types of weapons you're allowed to carry.
Carlton:
[46:48] So this decision says that sort of unusual um uh and you know maybe particularly dangerous weapons uh could be restricted but there's a lot of problems with that i mean one of the reasons well you might say something's unusual because it's brand new um so does that mean that you have no chance to try to make it become uh a a usual thing um presumably you can't have a tank, you can't have a missile launcher. But it's not exactly clear why those are significantly different. Arms in the Second Amendment presumably includes things like knives and other weapons as not just firearms. So there's a lot of dispute over whether the Second Amendment even comes into play in the first place. Nunchucks, I mean, there's been litigation over that, you know,
Carlton:
[47:48] what counts as an arm in the first place.
Brent:
[47:51] Interesting.
Keller:
[47:56] So within the argument, too, with modern technology and modern weapons coming into play, what is the current protocol within that when you have things that are coming out increasingly frequently, whether it be full new weapons or additions to weapons that can have them change in terms of how they're viewed, whether it's significantly dangerous or not, those are just coming out so frequently and the access to those things is increasing.
Carlton:
[48:24] Yeah, and that's just really happening case by case by case with litigation in the lower courts. We've had a federal machine gun ban since the 1930s. I think now a lower court said that was not okay. I suspect the Supreme Court would reverse that. But then you get disputes as to what counts as a machine gun. There was a case, just this past term in the Supreme Court, dealing with this so-called bump stock issue, which can make an ordinary gun more like a machine gun. That turned partly on sort of administrative law issues more than Second Amendment issues. But it's the sort of thing that's going to keep coming up.
Brent:
[49:06] What was the ruling on the bump stock? Because functionally it is automatic.
Carlton:
[49:12] Yeah, it was that the federal administrative agency could not issue the ban on bump stocks. Because it was not, that wasn't sufficiently authorized by an act of Congress.
Brent:
[49:27] Okay. So like currently standing though, there's no reason the government can't regulate firearm ownership. Or like, they say certain things aren't legalists or in attachments or like modifications or there's like the governments have the right to do that.
Carlton:
[49:46] Well, they have some right to do it, but the scope of that is going to be certainly debated. Could you have a law say that all ammunition is prohibited? I suspect the answer to that is probably no, because you might say it's analogous to a ban on printers ink. That would sort of make the First Amendment rights of the press meaningless if you have a press, but you can't have ink. You can have a gun, but you can't have bullets. I suspect is what a court would probably say if confronted with that issue.
Keller:
[50:23] And then what are the four exemptions to the right to bear arms, right to own these weapons?
Carlton:
[50:28] So in the Hiller case, the court identified four, and there may well be more, but it said there's an exception for convicted felons, for people who are mentally ill, for sensitive places. It's like schools and government buildings, and then for commercial regulation of firearms. So they seem to suggest that if you're just sort of regulating the buying and selling, that that's going to be somewhat different than regulating private possession. Sensitive places, there's already a lot of dispute in the lower court of what counts as a sensitive place. How broad is it? Is it, say, here at UC Davis, could we prohibit all guns on campus or only in dorm rooms or only in classrooms?
Carlton:
[51:14] If you do have a right to, say, possess a gun in your home, why wouldn't a student have that right to have it in their dorm room, assuming the dorm room is their home, right? And there's lots of difficult questions about how on earth that sensitive place's doctrine is meant to apply. And then there's, you know, people who are mentally ill, there's a lot of litigation over that, how sort of bad you have to be. I think everybody would agree that people who are, you know, completely have no concept of reality, should not have a gun. But there's all kinds of mental illnesses out there. I mean, technically things like eating disorders are sometimes treated as mental illnesses, but that doesn't seem like a good reason for excluding someone for a gun. Or what do you do with someone who had a bout of depression 20 years ago? Could they be excluded? So there's a lot of litigation over that. And even the felon exception, there's litigation over that because people are arguing, well, certainly nonviolent felons don't pose any risk if they have a gun or at least know extra risk than anybody else. And so there are some courts that have tried to narrow the scope of that as well. All of these things will ultimately be percolating up to the U.S. Supreme Court to try to thrash out what exactly all of it means.
Brent:
[52:29] And as a decision like the ones you mentioned are working their way up the courts, How is the person like, if it's a lower court decides and then it goes up, is like the person that was like, maybe who owned a firearm that the lower court said they couldn't, are they breaking the law as it's like continually going up until the decision's like finalized by the Supreme Court?
Carlton:
[52:53] Well, it would depend how the court's treated. I mean, if there's, say, an injunction or something, or a ruling in your favor, whether or not it goes into effect will depend on various technicalities of the appellate procedure, but you always will know sort of what you can and can't do.
Keller:
[53:13] You said it was percolating up these decisions. Do you see this as something that we'll have, not obviously a full resolution on, but will be more clear in the coming decade?
Carlton:
[53:23] Yeah, so typically what happens is, I mean, the Supreme Court will step in and resolve issues if there's a lot of disagreement in the lower courts. And so if the lower courts all come out the same way on an issue, then they usually don't bother to intervene. But if it often happens, you have a strong disagreement among, say, the courts of appeal. Some of them think the Second Amendment means one thing. Some of them think it means something else. Well, then you have the Constitution meaning one thing in one part of the country and something else in another part of the country. And so that's the sort of case where the Supreme Court really wants to step in and provide a clear rule so everybody knows what the rule is. And I think these Second Amendment cases are going to generate that type of disagreement, partly because they are somewhat ideologically charged. And so if you have circuits that have more Republican nominees, they're going to be more friendly to the Second Amendment. If you have circuits with more Democratic nominees, they're going to be more hostile to the Second Amendment. And so you'll inevitably get splits and disagreements on these issues.
Brent:
[54:24] Yeah.
Brent:
[54:26] And then, given the timing of this recording, with the election coming up, we talked about, when we first met, about going over the Electoral College and what are some arguments against it.
Carlton:
[54:36] Yeah, so the Electoral College is a complete relic of the late 18th century, where it made probably some sense, but it makes absolutely no sense now. Many of the arguments in favor of it, which was that people wouldn't really understand who the characters were outside of their own state. Well, is essentially no longer true, given mass communication. I mean, I suspect most people probably could tell you a lot more about Trump and Harris than they could about, say, the governor candidates in their home state. I mean, these things have been nationalized in a very, very big way by mass media. So we're left with a system where to become president, you have to win 270 electoral votes, and each side starts out with about 200 of those being completely safe.
Carlton:
[55:27] Meaning the candidates will never go there except to raise money. California is one of those states. California probably has more Trump voters than almost any other state in the country other than maybe Texas, but it's viewed as a blue state. It will certainly vote for Kamala Harris. And so there's no campaign here other than Trump and Harris will fly in here, have host big fundraisers in the big cities, but will they ever hold a rally? No, it's not because it's not, it's not a good use of time. because it's a safe state. So that means we have the presidential elections happening in essentially six or seven weeks. They get all the attention. They get all the voters in those states are courted. They get the flyers. They get, you know, if you want to go see a candidate, you can. You know, we can't do that here in California. Go see a presidential candidate. So those states then become the focus of the entire election. And within those states, because they're so closely divided, the undecided voters in those states are the most critical. And undecided voters, if you're still undecided at this point, generally it's because you're completely disengaged from politics. You know very, very little.
Carlton:
[56:33] And so the election turns out on who can persuade a tiny group of, frankly, not very bright people in a handful of states. And that doesn't even mean a very good way to run an election. People say, well, it protects the small states. Well, it doesn't protect the small states because these swing states are, for the most part, are big states. Nevada might be the one that's the smallest. But the rest of them, you know, Arizona, Michigan, Wisconsin, North Carolina, Georgia, these are big states. And people say, well, it protects rural areas. Well, again, not really. I mean, the biggest chunks of votes are in Atlanta and Detroit and Philadelphia, Phoenix. You know, that's where a lot of the campaign is going to be. And I think one way to think about it, and of course, having said the point that obviously you can win the electoral college and lose the popular vote. In some ways, that can be a little misleading because we don't know what the popular vote election would be if you actually had an election election.
Carlton:
[57:35] Designed to increase the population, because it would look totally different. It would not look anything like what we see right now. You would have Trump in California getting as many, trying to get as many votes as he could. You'd have Harris in Texas trying to get as many votes as she could. It would be a completely different thing. So we don't really know what a popular vote election would look like. But we would know that everybody's vote would matter. And you wouldn't say, oh, well, I'm here in California, it doesn't matter whether I vote for Harris or Trump, the way it does in Pennsylvania. Like your vote actually may really matter in Pennsylvania. But a national election, your vote really would be the same as anybody else's. California would be just as valuable as a Pennsylvania, just as valuable as an Arizonan. And it seems to me that if you're electing a leader of the nation, that having that type of broad national support is what you ought to have. And then finally, I think you just say, if this was a great way of picking our leader, why does no state pick their governor this way? Why does no other country in the world, as far as I know, pick their leader this way? They don't do it because it's dumb. There's a lot of things we might admire in the Constitution, say people have looked at this and said, yeah, that's a good idea. Well, we can do the market test here. How has the market responded to the Electoral College as a sort of marketplace of ideas? And the answer is it's absolutely tanked in that marketplace. Nobody looks at this and says, yeah, let's do that here. It'd be great.
Keller:
[58:59] And are there examples of other voting systems you think would do well in the u.s or do you think a full popular vote would be the way to go if magic wand be able to change it.
Carlton:
[59:11] So i mean one reform some people talk about is you know you make it by congressional districts so nebraska for example does it that way and in maine that works not really well because if districts are heavily gerrymandered as they are, and then it becomes tied to presidential politics. The incentive to gerrymander them even more is very high. So I don't think that works.
Carlton:
[59:39] Another option people say is, well, you make it proportional. And so let's say a state has 18 electoral votes and it splits 50-50, each candidate gets nine.
Carlton:
[59:50] That has some surface appeal, but I don't think it actually works very well because it means that tipping it from, say, a 9-9 to a 10-8 is going to turn on a really tiny number of votes in that state. And so it's going to be really arbitrary, where essentially one or two votes tip it over into a way. So you can't, given the small number of electoral votes, it's very hard to make it really do anything. What may end up happening is that at most every swing state just deadlocks. And so it's either half and half or at most maybe the 10-8 situation, in which case you don't really, there's not much to compete over. And so you end up with a bunch of deadlock swing states. How does that really improve anything? It probably doesn't. So I think the cleanest thing is just a straight up national popular vote. Now there's, that's to say there's problems with that. There are. You would, first of all, you have to amend the US Constitution. So that's, you know, probably not ever going to happen. But the other problem with it is you'd have some states would say, okay, let's lower our voting age to 16.
Carlton:
[1:00:56] Let's say California says, hey, look at all these young people in California. I think they're lean Democrats. So let's lower our voting age to 16, and they can all then vote in the national popular vote. And then maybe some other state does the same, and then someone else would say, well, let's go to 15, or who knows. So you could imagine lots of problems. So you probably need some type of uniform national standard for who counts as a voter just to prevent states from gaming it in that particular way.
Brent:
[1:01:29] And then for areas that really aren't like densely populated, how would they get their issues like attended to in a national and popular election? Yeah.
Carlton:
[1:01:42] Well, they're certainly not still unrepresented. They still have a member of Congress. They would still have a U.S. senator. And I would say that right now, they're not having their issues attended to in the current system. At most, people in swing states have their issues attended to. Say, nobody in California or Texas has any of their issues being attended to in the current presidential system.
Keller:
[1:02:06] And then is the ability to change the voting system, is that something that's been explored beyond theory? Because I think I've heard some of these arguments before, but to my knowledge, I haven't really looked into it in depth. I haven't seen any kind of push movement to change the system in any kind of actual institution. What has been done on that or has anything been done?
Carlton:
[1:02:29] Very little has been done. So the problem is if you're trying to do it through constitutional amendment, you would need two thirds vote in both houses of Congress. And then you need three quarters of the states to ratify. That's only going to happen if you have a massive bipartisan consensus to change this. And right now we don't have a bipartisan consensus because the perception is that the current system benefits the Republicans. Because they've won two elections, 2000 and 2016, by winning the actual college and losing the popular vote. So it was possible in 2000 one not unlikely outcome was that actually Gore could have won the electoral college and lost the popular vote.
Carlton:
[1:03:09] And I think for there ever to be a significant reform you'd have to have something change where Republicans lost the electoral college but won the popular vote, and then both sides are sort of getting um, um, seeing the short end of this system, um, then maybe you would have kind of a bipartisan consensus to, uh, to change this. Um, but as long as one side thinks that this benefits them, there's no reason to change.
Carlton:
[1:03:40] Now, one possible reform is called the National Popular Vote Act. And this is, um, based on the idea that each state appoints the, the electors to the Electoral college. And so the agreement is each state would say, we will cast our votes for the winner of the national popular vote, no matter who wins our state. And if you get enough states equaling 270 electoral votes to sign onto that, then in theory, you could have a national popular vote election without amending the constitution, because you'd still be using the old constitutional forms.
Carlton:
[1:04:14] I think well over 200 electoral votes at least have been signed up by states on that system. It's not up to 270 yet maybe at some point it will, but even then there's a possible objection, there's a requirement in the Constitution that says agreements among the states have to be approved by an act of Congress and so it's possible that could be deemed invalid unless Congress approves, and I don't know if Congress would approve or not if it required overcoming a Senate filibuster, again it would need 60 votes in the Senate which, you're probably not going to have Yeah.
Brent:
[1:04:50] Isn't that act like very problematic if not everyone agrees to it? Because you talked about earlier, like the demographics would shift pretty dramatically if people campaigned and acted as if we were in a truly popular vote. So then with half of them, call it half, I don't know what it really is, are pledging to give their electoral votes to the populist winner. And all the, let's say a bunch of conservatives in California aren't voting because they feel like their vote won't matter. It's like now the people in the states that gave up their electoral votes to the populist winner are, that could completely go against the votes of the people in that state. How would that, isn't that like way worse to have it like kind of split in the middle somewhere?
Carlton:
[1:05:39] So, I mean, so hopefully if it actually happened, the Republic of California would be better off because their vote would actually count because it would be in now included in a international popular vote. But you're right to note that the temptation to potentially say, you know, back out of this would be very high. Um so let's say um you know say arizona joined this thing um and then arizona went for, um say the republican candidate there was a democratic legislature and they thought well, hey let's just repeal this thing and then and then we can have it and go back to the the winner of our state so how do you make sure that every state actually adheres to it and doesn't change the rules you know right up close to an election you know that's that's,
Carlton:
[1:06:23] a legitimate concern then.
Keller:
[1:06:25] As we wrap up here you know we mentioned the disengagement a little bit earlier of of younger generations do you have any advice to students that are in college now or maybe even younger on things in the law to to look to to kind of get engaged readings or just broad advice on how to navigate what seems to be a very very complicated mess.
Carlton:
[1:06:45] Well, I would say the first thing is put down the social media. You're getting a lot of bad information from that.
Carlton:
[1:06:58] Reading good books by credible historians, credible legal scholars, credible political scientists, all this can be helpful in terms of sort of thinking carefully about what's happening. Going on. Um, and I would also say, I mean, don't, don't be discouraged. Um, you know, the, uh, we've had lots of divisive political times, uh, in our past and we've always muddled through it somehow. Um, and we will, you know, muddle through, uh, things now. Um, but, you know, realize that it does matter, you know, uh, the, uh, you know, the world you live in, um, is the world shaped by, in many cases, decisions made by political actors. And you can either be a part of that, or you cannot.
Carlton:
[1:07:56] Do you want a seat at, you know, if you don't have a seat at the table, you're on the table, right? You know, if young people voted at the same rate as older people, this country would be very different, right? I mean, why was it that we got Medicare for elderly people in 1965 um and you know medical care for younger people took much longer because older people vote you know um and um young people uh should should do the same.
Brent:
[1:08:29] And then are there any people that you like to like follow on social media to get decent information just probably a more accessible resources to some people because I know people.
Carlton:
[1:08:41] Sometimes will hesitate to sit.
Brent:
[1:08:42] Down with a full legal book.
Carlton:
[1:08:45] Yeah, well, I don't necessarily recommend any particular things to follow. But I would say if you are going to follow things on social media, follow as broad a range of people as possible. You can follow established journalists, but you also don't want to get yourself into an echo chamber where you're only hearing people who agree with you. So, you know, go follow some of the people on the other side, see what they're thinking, see what is motivating, seeing what you might be able to do to speak with them or possibly to find common ground.
Brent:
[1:09:22] Yeah.
Keller:
[1:09:22] Thank you so much for your time.
Carlton:
[1:09:24] Yeah, sure.
Brent:
[1:09:24] Thank you.