Divide and Conquer | Revisionist History | Malcolm Gladwell

foreign not long ago I had a dinner party at my house my friend Michael Ryan came he's a lawyer and I was talking to him about my love of law review articles which is genuine by the way here's a profession trained to find meaning in the particular in the arcane to make the implausible plausible to defend the indefensible I mean how are those not the perfect ingredients for a good read plus law review articles have epic footnotes scores are settled subtle loyally jokes are made and the Really outrageous arguments are slipped in just for the benefit of the reader who wants to wait into note 136 on page 87. I go on like this until Michael Ryan kind of rolls his eyes because that's what lawyers do I never know whether it's modesty or self-hatred but as you can imagine I persist and finally Michael says well you're right there are moments of Genius in law review articles let me send you two of my favorites the next morning in my inbox is an email from Michael Ryan with two attachments I read the first and I think that's pretty cool and then I read the second and my jaw drops and I say out loud what [Applause] [Music] my name is Malcolm Gladwell welcome to season three of revisionist History my podcast about things overlooked and misunderstood Shaggy Dog story is an extremely long-winded anecdote characterized by extensive narration of irrelevant incidents and terminated by a pointless punchline halfway into this episode you're going to think that this is a Shaggy Dog story it's not this dog is not Shaggy [Music] you wrote this paper how many years ago 15 years ago yeah what is it published 2004 2004 yeah this is Professor Michael Stokes Paulson co-author of the law review article in question within days of reading his essay I was in his office at Princeton University took the train down because it seemed urgent in the email where he gave me directions Paulson wrote I'm always grateful to have anyone read my obscure idiosyncratic law review articles exclamation point idiosyncratic sure at least half of his peace dwelt on the meaning and interpretation of semicolons but obscure this is something with the potential to turn American politics upside down no way could this article be obscure so what was the reaction to it at the time thundering silence as far as I know I mean I haven't been trolling the internet for it but I've never seen anything to suggest that anybody is remotely interested in this maybe you can convince the first journalist to call you and interview you about this yes I'm trying to remember if anybody did back in 2004 or 2005. no it's people are inclined to view it as a wacky idea right you're taking a legal concept of something that's a hundred and seventy years old and you're saying it's still operative if you think about it logically it is still operative but people's intuitions are that that can't be right and so or that it can't be taken seriously so Malcolm you've got to get people to take it seriously if you if if I take it seriously I don't think this is wacky at all I read this and I'm thinking this is dead serious Paulson is fair-haired glasses composed an intellectual author of serious books on the US Constitution when we met he was a visiting scholar at Princeton University holed up in one of those gorgeous old mansions on the outskirts of Campus but don't get the wrong impression there's also something subversive about the man certain look in his eye he's someone who likes to make Mischief like on page 1618 of the journal containing his law review article when he briefly addresses the question of why he has just spent tens of thousands of words descending down this particular rabbit hole and his answer because it's there I don't know about you that makes me nervous there was a part of me that just wanted to walk out of his office and not say another word to anyone let sleeping dogs lie I'm running a podcast here not starting a revolution you're not Jewish are you no because they say we could do a uh none of us are Jewish we can do what they call a midrash is something they call a middle gotcha yeah that's right yeah let's do a little bit of a midrash on let's start with with article 4 section three so I guess we're trying to answer the question of of why it is the case that uh that this article on its face section three on its face does not prohibit subdivision that's right that's the issue at hand right right so let's I'll have you if you could read it and then just break it down grammatically let's do the I'll do a dramatic reading new States may be admitted by the Congress into this Union semicolon Paulson carries a small copy of the U.S Constitution in his jacket pocket this is what he's reading from that's first Clause new States may be admitted you know some power to meet new States but no news state may shall be formed or erected within the jurisdiction of any other state semicolon the second semicolon pay special attention nor any state be formed by the junction of two or more States or parts of states without the consent of the legislatures of the state's concerned as well as of the Congress well you left out some comments I left out I didn't read all the comments yeah okay let me let me do it again he's outrageous for you the I agree so much about the grammar to leave it a comma okay new States may be admitted by the Congress into this Union semicolon but no new state shall be formed or erected within the jurisdiction of any other state second semicolon nor any state be formed by the junction of two or more States comma or parts of States comma without the consent of the legislatures of the state's concern as well as of the Congress period so that's the whole provision so question one as I understand it from Reading you is what is the sense of the second semicolon right this is about to get very serious I promise thank you the Texas border in Ardmore Oklahoma there is a Quality Inn on West Broadway Street two stories Courtyard big pool it used to be a Holiday Inn until a few years ago just to be clear the Ardmore holiday slash Quality Inn has nothing to do with Michael Paulson's law review paper not directly anyway it's context you have to know about Ardmore if you want to understand where Paulson's argument Begins the very first line of his article in fact which is and I'm quoting Texas Republicans have been thinking way too small that's way with five A's um it's the early 2000s results from the national census are in which means State legislatures around the country are redrawing the boundaries of congressional districts based on the new population numbers it's a ritual power struggle that happens in America every 10 years in Texas the legislature is controlled by Republicans they want to redraw the Congressional map so Democrats get fewer seats but it doesn't work even with the new borders the Democrats hold on to their seats so in 2003 the Texas Republicans introduced a bill to draw the boundaries all over again and the Democrats are Furious if you can keep redrawing the boundaries of electoral districts over and over until you put your opponent out of business then you're not really into democracy are you the organizer of the Revolt was Jim Dunham he's now a lawyer in Waco Back in 2003 he was chairman of the State House Democratic caucus I had members coming up to me and say you know Jim you got to do something right and I was like what are we going to do so we can bust a quorum there are 150 legislators in the Texas assembly Quorum is a hundred if Dunham can get 51 Democrats not to show up the vote can't happen well the bill was coming up on a Monday and I think it was the preceding Wednesday that I had the first meeting and I'll tell you I thought I was totally wasting my time I told everybody this is foolish nobody's going to do this it's because you had to go across state lines because the speaker of the house has the authority to issue arrest warrants and if you're in Texas they can grab you now if you're outside of Texas that then uh you know it doesn't have jurisdiction oh I see that's why you had to go to Oklahoma yeah actually you have my arrest warrant on my wall it's it's pretty cool it says go you're directed to go arrest and detain Jim Dunham and bring him to the Texas house so foreign do you guys leave left on Mother's Day uh Sunday and uh you know about Thursday when I figured out we're gonna actually get enough people to pull this off I was like good Lord where are we gonna go you know and I'll tell you I had some members say well let's go to Lake Charles Louisiana or Shreveport Louisiana and I said well we're not going to go there because there are casinos there and no way we'll keep the Democrats out of the casinos if we're in Shreveport and uh and I'm Syria you know and so my wife's family is Ardmore Oklahoma and uh God love Ardmore but there is nothing to do in Ardmore denim hires buses and gets everyone to meet at a hotel in Austin does a head count 50 plus himself didn't tell anyone where they're headed or when they're coming back need to know basis only it's an undercover operation Monday comes and when the Republicans are ready for their triumphant vote they suddenly realize they don't have a quorum they launch a Manhunt for the missing Democrats Texas Congressman Tom DeLay gets involved he's the House Majority Leader in Washington at the time one of the members showed up in a plane And Delay evidently called Homeland Security and reported the tail number was missing and in an effort to figure out where that plane had gone and it was I don't know what to say but Homeland Security couldn't find us but the Dallas Morning News good to recap the Texas Republicans want to increase their numbers and influence in Washington so they try a gerrymander then when it fails do a read gerrymander in violation of every state Norm leading to a full-scale state constitutional crisis causing the states Democratic caucus to flee in buses to a Holiday Inn in Oklahoma leading to a Statewide Manhunt convincing the House Majority Leader to call in homeland security triggering an international media Frenzy what is the situation like in Ardmore for the Texas Democrats right now John here at the Holiday Inn I've been witness to a courageous scene of defiance Texas democratic legislators hunkered down trying to conduct the people's business while subsisting only on the contents of their mini bars Homeland Security officials attempting to find some missing state legislators who hung out at the Holiday Inn for a couple of days you know we got a lot of deserters down there guys that are afraid to stand and fight like our armed services do the legislative process was so broken that they had to leave for Ardmore thank God we didn't have those Democrats at the Alamo God bless you I'll tell you probably most of the time was dealing with the 10 or 11 Satellite News trucks that showed up after a day or two and who's watching all of this Michael Paulson and vassan casavan authors of the law review article that found its way to my inbox they're working on their article as the drama unfolds in Ardmore and they look at everything that's happening Norm violation constitutional crisis Ardmore Holiday Inn Homeland Security media frenzy and their conclusion is Texas Republicans have been thinking way too small [Music] Michael Stokes Paulson's argument is about Texas but it's also more significantly about grammar his law review article spends far more time on grammar in fact than on anything else specifically the grammar of the U.S Constitution [Music] so that immediately after I visited Paulson at Princeton I realized that I needed an emergency session with Mary Norris author of the brilliant book between you and me Confessions of a comma Queen I wonder [Music] we're in Mary's Manhattan apartment books everywhere creaky hardwood floors I've known Mary for years we worked together at the New Yorker the New Yorker is a good cop bad cop operation the good cops are the editors they coddle courage soothe let you go on and on the bad cops of the copy Department for most of my time there the copy Department was a murderer's row of three women first was Anne who was a national caliber marathoner who gave the impression that in any disagreement she would simply Outlast you second Carol who reminded me of the proper West Indian ladies I grew up with who could silence you the disapproving glance the third was Mary if Mr and Mrs Santa Claus had an irrepressible youngest daughter it would be Mary [Music] I have written down here three sentences from the from the Constitution I just want to introduce listeners to the proposition that first of all that punctuation in particular really matters on a document like the Constitution and two they were a little bit sloppy with their commas and semicolons at times we're sitting at Mary's kitchen table a hand or a sheet of paper with my constitutional selections on it she takes out a black number two pencil sharp we start with a sentence that has driven grammarians crazy for 250 years the Second Amendment 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 a well-regulated militia comma being necessary to the security of a free state comma the right of the people to keep and bear arms comma shall not be infringed well first of all that comma is wrong before shell so yeah there should be that's the that's the that's the third comma right you you want yes the other two comments that you're fine with well no they don't make sense either because with the two commas the sentence in its Essence would read well-regulated militia the right of the people to keep in bear arms shall not be infringed which doesn't make any sense it's like they loaded a shotgun with commas and fired it at the Second Amendment it's a mess so a well regulated militia being necessary to the security of a free state comma keep and bear arms shall not be infringed that I would lose two of those commas Mary had covered up the two other sentences on my list with a legal pad she moved the legal pad down just enough to expose sentence number two the right of citizens of the United States who are 18 years of age or older to vote shall not be denied or Abridged by the United States or by any state on account of age 26th amendment United States Constitution it's a terrible sense no it's terrible yeah so what if you rewrite that sentence for me Barry has her pencil out she's marking up a piece of paper like a New Yorker Galley covering the page with graceful number two pencil lines the right of citizens we're 18 years of age or older to vote that's it you should just say they're right of United States citizens who are 18 years of age because by having no commas what you what it turns into is a defining Clause that's right by putting commas around it it becomes a descriptive Clause that's right a defining clause in grammatical terms is a clause necessary for the meaning of a sentence the house where I live is on fire you don't put commas around the phrase where I live because the fact that it's my house is essential for understanding what I'm trying to say the house where I live is on fire but in the sentence the house comma built in 1978 comma is on fire we put commas around the phrase built in 1978 to mark it as descriptive it's not necessary for the meaning of the sentence but it helps us understand more about the house so the 26th amendment has commas around the Clause who are 18 years of age or older big mistake when was this one written well it was passed in modern times yeah that's what I thought but am I right it reads as if all the citizens of the United States are 18 years of age or older American citizens are people either born here or who have been granted citizenship and what the 26th amendment means to say is that a subset of that group those who are over the age of 18 have the right to vote but the authors of the 26th amendment used commas interpreted grammatically the 26th Amendment says that a citizen of the United States is anyone over a teen anyone Canadians who cross the border into Detroit to buy gas are citizens so long as they're over 18 Russians who go apartment shopping in Miami with duffel bags full of cash are citizens so long as they're over 18. good Lord Clarity is of the utmost importance in a legal document right I don't think lawyers have special rules about semicolons I also don't know if there's such a thing as a legal grammarian but there probably should be you know a U.S grammarian to take care of these things you should not volunteer why not you would be the perfect person to be the American in Chief only if I could wear one of those wigs and now we turn to the Constitutional sentence at the bottom of the page the one I really care about the one that explains why Texans have been thinking way too small the big one new States may be admitted by the Congress into this Union semicolon but no new state shall be formed or erected within the jurisdiction of any other state nor any state to be formed by the junction of two or more States or parts of State without the consent of the legislatures of the states concerned as well as of the Congress well that seems clear to me you can't form any new states without everybody agreeing that the new States can be formed I repeat not a Shaggy Dog story foreign first became drawn to article 4 section 3 of the U.S Constitution when he was teaching a class at the University of Minnesota law school on the Civil War the question of West Virginia came up as you may remember Virginia was a confederate State during the Civil War but a number of counties in one corner of Virginia were anti-slavery so they broke away and formed West Virginia which was admitted into the Union in 1863. question Paulson had for his students was was that constitutional can a new state be formed from a piece of an existing state trivial question and article 4 section 3 is the part of the Constitution that addresses this issue it was written in 1787 as with the Second Amendment and the 26th amendment however it is grammatically ambiguous and as a result it's precisely the kind of matter that appeals to the Baroque legal tastes of Michael Stokes Paulson he gets together with the son kesavan they happily disappeared down the article 4 section 3 rabbit hole for God knows how long and they emerge with an exhaustive analysis of the question published in volume 90 issue 2 of the California law review Pages 291-400 this is not the law review article that landed in my inbox and blew my mind it's the precursor the compulsory figures if you will before the free skate now there is this language but no new state shall be formed or erected within the jurisdiction of any other state semicolon you could read that if it were just that as a flat prohibition on carving out a new state from within an existing state if it stops there if it stopped there and there was nothing that came up we have no arguments here no new state shall be formed or erected within the jurisdiction of any other state no ambiguity there right it would say you can't do it you can't so whether it would not be right legitimate but then it goes on after the semicolon and this real question is is that semicolon more like a period that ends one prohibition and then another prohibition picks up or is it more like a pause is it a more like a comma after that semicolon it goes on to talk about well let me read read it again nor any state be formed by the junction of two or more States or parts of states without the consent of the legislatures of the state's concerned as well as of the Congress article 4 section 3 would be Crystal Clear if the founders had used a period in the middle of it a period would mean you can't subdivide a state ever on the other hand if you want to combine two states you can so long as everyone consents and it would be equally clear if they had used a comma a comma would mean that the consent provision applies to everything both subdividing and combining are legal so long as Congress signs off on it but they don't use a period or a comma they make a punctuation decision guaranteed to tie generations of constitutional scholars in knots they choose a semicolon when it says without the consent of the legislatures of the states concerned as well as of the Congress does the consent qualification apply also to carving a small state out of an existing new state and it all turns on whether the semicolon is read as a full stop separate prohibition or is just one in a series of things to which consent can be given does the Constitution say you cannot break off a piece of an existing state ever or does it say you can so long as Congress says okay Paulson and kasavan spend 90 pages on this question in their California law review Article 90 pages and it's riveting reading because the whole time you're thinking good Lord West Virginia is hanging in the balance [Music] my colon from 1787 is meant as a full stop then someone has to go down to the state house in Charleston and break the news to everyone there the party's over Paulson and K7 comb through earlier drafts of that Clause the legislative history of the Constitution the records of the framers and they conclude West Virginia is constitutional foreign that's their concern right so once you so in other words that makes it quite clear that the last clause modifies everything everything yes and but once it's clear that the last Clause modifies everything then the semicolon cannot be functioning as a period it cannot be [Music] forgive me if I'm going on and on about this but everything depends on this interpretation of article 4 section 3. for years people have been dismissing the implications of that sentence because they've assumed that it's ambiguous it is not ambiguous and here's what clinched it for me Mary Norris the comma Queen agrees okay well I think that hinges on this nor in spite of the semicolon the nor connects this to the bot to the butt the Constitution says but no new state shall be formed or erected within the jurisdiction of any other state semicolon nor any state be formed dot dot I've read many many many commentaries on this you're the first person to talk about this button or being significant well you don't have a nor unless you're referring to something before it you know neither nor one of the things that copy editors look for is um a nor standing alone it doesn't make any sense we try not to let sentences begin with nor we try not to have a nor where there's not a neither [Music] so that nor has to connect to something I think it connects to the butt so I think they're related there in Mary's apartment I had a flashback to the final round of editing at the New Yorker something I've done many times you're sitting in a room you you're good cop editor and Carol Ann or Mary going through your piece line by line peeling away everything Superfluous and confusing truly formidable intellect devoted to making words mean what they're supposed to mean if you've never had someone do that for your words you haven't written but you're saying if I have a button or Construction if I say I like all kinds of animals but I don't like horses and nor do I like dogs [Music] because they smell is it because they smell modifying horses and dogs [Music] yes Ah that's crucial Mary you are the you have entered into a hugely significant constitutional debate which brings us to the second case of on Paulson paper that's the one my friend sent me Texas law review volume 82 the necessary and far more consequential companion to their constitutional exoneration of West Virginia the article is called let's Mess with Texas it begins with a quotation from the Congressional resolution under which Texas was admitted to the Union in 1845. the relevant passage goes like this new states of convenient size not exceeding for in number in addition to said state of Texas and having sufficient population May Hereafter by the consent of said State be formed out of the territory thereof Congress gave Texas permission to form another four states within its borders which makes sense was an independent country at the time it joined the union and a very big country at that there were complicated political considerations in 1845 about the balance between slave states and free states it's a whole lot of story what matters is that according to K Savon and Paulson's exhaustive constitutional analysis the offer still stands new states of convenience size may be formed that's why their interpretation of article 4 section 3 with its confusing semicolon and crucial nor is so important it means that all that has to happen is for the Texas legislature to sign off on Division and it's a done deal when Congress passed that statute saying you could do this that's consent they consented in advance they consented on these terms and the consent has not been taken away [Music] five states where there is now only one ten U.S senators where Texas now is only two Texans in control of American politics for the next century we don't usually draw stage but um you've made me Czar so I will I will I will do that if you ask around about who knows the most about the political demographics of Texas one name comes up a lot Michael Lee studious guy somber suit glasses loyally haircut grew up in Houston went to the University of Texas now works at the Brennan Center for Justice at New York University it occurred to me that I'm potentially complicit in all of this I'm the one publicizing the pulse in case of on Manifesto for a complete makeover of American politics so I needed to find out what I'm getting everyone into I would create a district that or a district a state um that that stretch that included Houston in the stretch to the border with Louisiana Michael Lee and I met in a big conference room near Wall Street he brought with him a map of Texas so large it covered the entire end of the table Lee started by drawing the borders of the new state of Houston five million people and then on the western side I would probably cut it off somewhere in between Houston and Austin which is in Central Texas the Whaley talked he made it sound natural as if Texas actually makes a lot of sense divided up five ways he saw a third state in Central Texas centered around booming Austin already the 11th largest city in the United States the fourth state would be West Texas Lubbock Midland Odessa flat and Dusty oil country the fifth state would run along the Mexican border beginning with San Antonio in the East and running all the way to El Paso when Paulson and casavan published their law review paper back in 2004. the Assumption was that if Texas subdivided this would be a net win for Republicans Texas hasn't sent a Democrat to the U.S Senate since the early 1990s it's the Republican Heartland that's why they wrote that Texas Republicans were thinking way too small why not quintuple their influence in Washington but in the years since then the state's demographics have been in upheaval West Texas oil country would remain solid for the Republicans two senators but the new states of Houston and Dallas and Central Texas those are purple they could go either way as for the State running along the Mexican border the one with its capital in San Antonio this is a heavily democratic stayed and I think that the state would be more likely know than New Mexico and it would elect not only Democrats but probably Latino Democrats to the Senate it's a whole new ball game Michael Lee and I did the math for the 10 new Texas Senate seats two are a lock for the Republicans and they can probably count on another from one of the toss-up States so three in total yeah three yeah I think and it sounds like four are a lot for the Democrats and three are up for grabs is that would that be a fair I think so yeah yeah yeah which is a pretty big shift in the way things are now right right that's now but if Texas continues to grow and change the three toss-up States Dallas Houston and Austin get even more democratic especially the state of Houston so we'll say it's at the moment it's 50 50 but long-term if I said to you 10 years from now you would not be surprised if it elected two Democrats that's right that's right in a generation could the five states of Texas send eight Democratic senators to Washington against two Republicans it's amazing how many times you'll hear Republicans in Texas say like Texas is the Alamo of the United States right it's meaning like it's it's what holds like you know the Republic is on power it's the wall against you know this like liberalism from places like New York and California um I've always thought that was sort of a funny analogy because everyone guided the Alamos I you know I I but you know that's the one that they use um and so in inadvertently telling analogy Texas Democrats have been thinking way too small [Music] imagine a governor of Texas reads your law review article and says well that's a funny enough premise as it is and says Okay I want it well you I want to trigger it okay okay so walk me through how triggering might work in the real world well imagining a real world where people take law review articles seriously it's a it's a good it's a better Real World um all we know is Congress has granted its consent for the sovereign state of Texas to do what it needs to do but the significant fact here is that given that Congress has already granted its permission the all that has to happen is for Texas to get its act together it's up to Texas [Music] let's say that as Texas is putting together this plan Congress is getting really alarmed and they don't want it to happen can they revoke the permission that was granted before Texas acts I don't see why not I think they can oh I see it so if Texas wants to do this they need to do it they got to get there they go well you just got to do it Texas has to get its act together quicker than Congress can get its act together to say no for the love of God Texas just do it [Music] revisionist history is a panoply production the senior producer is Mia LaBelle with Jacob Smith and Camille baptisten our editor is Julia Barton flan Williams is our engineer fact checking by Beth Johnson original music by Luis Guerra special thanks to Andy Bowers and Jacob Weisberg I'm Malcolm Gladwell [Music] you don't have any any um any bad memories of copy editing a peace of mind to you no no not at all in fact I use you as the example of somebody who the pencil kind of bounces off you you do a very nice job my mother would be very pleased to hear that did I do a nice job

Channel: Malcolm Gladwell

Views: 31,617

Keywords: Malcolm Gladwell, Podcast, Malcolm Gladwell Podcast, Revisionist History, Revisionist History Podcast, Pushkin Industries, Social Psychology, Semicolons, Congressional Districts, History Podcast, Texas, Texas Congressional Districts, Texas Republicans, Texas Democrats, Michael Paulsen, US Constitution

Id: evnIOXNUlsg

Length: 38min 15sec (2295 seconds)

Published: Mon May 08 2023