WEBVTT
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The Bogosity Podcast,
early and ad-free!
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Become a subscriber at Patreon,
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Use the links at donate.bogosity.tv.
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Welcome to the Bogosity Podcast
for the week of April 5 2026,
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the podcast that takes
its eyes off of you.
00:00:37.920 --> 00:00:43.658
This is your host, Shane Killian.
Let's laicize the News of the Bogus.
00:00:43.660 --> 00:00:50.140
So we're already seeing the consequences of the
Supreme Court's amazing ruling in Cox v. Sony.
00:00:50.140 --> 00:00:55.100
In this case, it's the battle X Corp has
been having to fight against the RIAA,
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through their members such as Universal
Music Group, Sony Music, EMI, and others,
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accusing X of "breeding" mass infringement and
charging them with contributory infringement.
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But the Supreme Court just said that mere
knowledge of infringement isn't enough;
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you have to actively
encourage or participate in it.
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The case seems to track Cox perfectly:
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they had sent X over 300,000
notices of infringement,
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and X didn't immediately jump and
ban the users they had accused.
00:01:27.580 --> 00:01:33.260
Quote: "Twitter routinely ignores known
repeat infringers and known infringements,
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refusing to take simple steps
that are available to Twitter
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to stop these specific instances of
infringement of which it is aware."
00:01:42.780 --> 00:01:48.700
Two years ago, X won a victory when the court dismissed
the claims of direct and vicarious infringement,
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and partially dismissed the
contributory infringement.
00:01:51.900 --> 00:01:57.420
They can't be held liable for piracy just
because they made their site easy to use,
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which was basically what
the music cartel argued.
00:02:00.780 --> 00:02:05.580
Now, the count that survives is that
X turned a blind eye to infringers,
00:02:05.580 --> 00:02:08.220
especially ones with
a blue checkmark.
00:02:08.220 --> 00:02:12.460
X has now informed the Middle District
of Tennessee about the Cox ruling,
00:02:12.460 --> 00:02:16.375
arguing that the case
fails the new Cox test. Quote:
00:02:16.375 --> 00:02:23.340
"Cox even expressed contempt for copyright law,
writing emails with comments like 'F— the DMCA.'
00:02:23.340 --> 00:02:26.619
Despite these facts, the
Supreme Court had no trouble
00:02:26.620 --> 00:02:29.900
reversing the jury's
contributory-infringement verdict,
00:02:29.900 --> 00:02:33.620
because such facts were not
'evidence of express promotion,
00:02:33.621 --> 00:02:37.340
marketing, and intent to
promote infringement."
00:02:37.340 --> 00:02:44.860
Elon Musk is in a similar situation, having once
described the DMCA as a "plague on humanity."
00:02:44.860 --> 00:02:51.100
As we pointed out at the time, acting on this
basis would be a blatant First Amendment violation.
00:02:51.100 --> 00:02:53.820
They requested a status
conference and said,
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"If the Court would prefer to address these issues
at summary judgment, X is prepared to do so.
00:02:59.180 --> 00:03:06.095
But both sides are now poised to spend millions of
dollars in fees and expert expenses in the coming months
00:03:06.095 --> 00:03:10.060
on issues that Cox makes
irrelevant as a matter of law."
00:03:10.060 --> 00:03:16.860
The music labels are standing firm, though, so it seems
they're content to ignore the law and the Supreme Court.
00:03:16.860 --> 00:03:21.180
Hopefully this is another case that
just goes away, because it should.
00:03:21.180 --> 00:03:26.140
The big content cartels wield too
much unconstitutional power.
00:03:26.140 --> 00:03:29.695
It's long since time they
were cut off at the knees.
00:03:33.980 --> 00:03:37.980
Presenting: the greatest
game this side of Yuggoth!
00:03:37.980 --> 00:03:43.660
You are H.P.
Lovecraft's cat, and your name is Ni***
00:03:43.660 --> 00:03:46.380
...Right.
We can't say that on a podcast.
00:03:46.380 --> 00:03:49.580
Anyway, that's the
point: Your name is a joke.
00:03:49.580 --> 00:03:56.540
So now, you are out for revenge.
You become...the NecronomiCat!
00:03:56.540 --> 00:04:00.780
Using the Necronomicon,
you come to the present day to buy a gat.
00:04:00.780 --> 00:04:02.940
That's a gun. For a cat.
00:04:02.940 --> 00:04:04.620
It's a phat cat gat.
00:04:04.620 --> 00:04:09.580
But the Necronomicon is treacherous,
and it let in Lovecraft's monsters.
00:04:09.580 --> 00:04:13.260
Now, in a crumbling world,
you must fight!
00:04:13.260 --> 00:04:15.740
Build your team, buy guns and armor,
00:04:15.740 --> 00:04:20.300
buy items of dubious legality,
defeat the bosses of each level.
00:04:20.300 --> 00:04:23.660
Then take Lovecraft down!
00:04:23.660 --> 00:04:29.504
Play NecronomiCat!
The link is at cat.bogosity.tv.
00:04:29.504 --> 00:04:34.460
Yeah, we're doing cat.bogosity.tv,
not...that other one.
00:04:34.460 --> 00:04:37.437
What, you want me to get kicked
off the Internet or something?
00:04:42.140 --> 00:04:43.980
And speaking of the First Amendment,
00:04:43.980 --> 00:04:48.300
right-wing religious nutbars have
had to be smacked down yet again
00:04:48.300 --> 00:04:52.651
because they just can't get the idea that
they're not supposed to use the government
00:04:52.652 --> 00:04:55.180
to push their Bronze Age mythology!
00:04:55.180 --> 00:04:57.452
The Satanic Temple just won a fight
00:04:57.453 --> 00:05:02.460
to have the Ten Commandments monument
at the Arkansas State Capitol removed.
00:05:02.460 --> 00:05:08.060
Yes, they put up the Ten Commandments
on yet another government building.
00:05:08.060 --> 00:05:14.060
Personally, I'd put up a monument labelled "The Ten
Commandments," but they'd be the Bill of Rights.
00:05:14.060 --> 00:05:18.193
So the Satanic Temple offered to
have their own monument displayed:
00:05:18.193 --> 00:05:21.820
a 7½-foot-tall bronze
statue of Baphomet,
00:05:21.820 --> 00:05:25.900
with head and horns like a
bull and a chest like Iggy Pop.
00:05:25.900 --> 00:05:28.887
They brought the statue
to the Capitol on a forklift
00:05:28.888 --> 00:05:31.820
in protest of the Ten
Commandments display.
00:05:31.820 --> 00:05:37.740
An organizer said: "If you're going to have one
religious monument up then it should be open to others,
00:05:37.740 --> 00:05:42.700
and if you don't agree with that
then let's just not have any at all."
00:05:42.700 --> 00:05:45.660
The state rejected the offer
of the Baphomet statue,
00:05:45.660 --> 00:05:51.740
so they joined with the ACLU, the Freedom from
Religion Foundation, the American Humanist Association,
00:05:51.740 --> 00:05:55.900
and the Arkansas Society of Freethinkers
in a lawsuit against the state.
00:05:55.900 --> 00:05:59.732
The court ruled in their favor,
saying that the monument, quote:
00:05:59.732 --> 00:06:02.940
"conveys a message that
the Christian religion is favored,
00:06:02.940 --> 00:06:08.220
and the Display Act is coercive in
violation of the Establishment Clause."
00:06:08.220 --> 00:06:12.700
And the fact that the Satanic Temple was
prohibited from displaying their own monument
00:06:12.700 --> 00:06:17.340
was a violation of the Equal Protection
Clause of the 14th Amendment.
00:06:17.340 --> 00:06:20.860
The whole point of the Satanic
Temple is to make points like this,
00:06:20.860 --> 00:06:24.540
such as when they held a "pink
mass" where same-sex couples
00:06:24.540 --> 00:06:28.620
kissed over the grave of the mother of
Westboro Baptist leader Fred Phelps,
00:06:28.620 --> 00:06:32.380
a ritual which they said would
turn her gay in the afterlife.
00:06:32.380 --> 00:06:35.500
Chronicler Penny Lane (yes,
that's her real name)
00:06:35.500 --> 00:06:38.766
has said that this is basically
their mission. Quote:
00:06:38.766 --> 00:06:40.380
"They're not going to stop.
00:06:40.380 --> 00:06:45.260
I think most politicians are just kind of
like, 'If we wait this out, they'll go away.'
00:06:45.260 --> 00:06:48.921
And I'm telling you,
they're not going away. "
00:06:54.700 --> 00:06:58.780
I'm Brother Ezekiel,
and I know how naughty thou hast been!
00:06:58.780 --> 00:07:01.660
So naughty, thou needst a VPN!
00:07:01.660 --> 00:07:08.220
Hide thy iniquity from prying eyes, and make
sure the liturgical authorities remain ignorant.
00:07:08.220 --> 00:07:13.980
Take thy browser to
vpn.bogosity.tv to get BoxPN.
00:07:13.980 --> 00:07:18.540
At $6.36 a month,
a price only the most penurious would balk at,
00:07:18.540 --> 00:07:23.340
thou shalt have unlimited high-speed
connections to servers all over the globe.
00:07:23.340 --> 00:07:27.500
And they don't log connections.
Thy privacy is assured.
00:07:27.500 --> 00:07:29.100
That should please you sinners!
00:07:29.100 --> 00:07:31.740
Just remember: the Lord sees all!
00:07:31.740 --> 00:07:35.020
When travelling,
make it look like thou art still home.
00:07:35.020 --> 00:07:39.100
At home,
ensure the elders at your ISP don't take out their
00:07:39.100 --> 00:07:43.180
judgement with traffic-shaping
and DMCA notices!
00:07:43.180 --> 00:07:49.100
Up to 5 devices can connect at once,
almost one for every deadly sin!
00:07:49.100 --> 00:07:54.744
Keep thy sins private.
Go to vpn.bogosity.tv.
00:08:00.620 --> 00:08:06.780
So the Supreme Court heard oral arguments in Trump
v. Barbara, the birthright citizenship case,
00:08:06.780 --> 00:08:10.940
and it seems like it's far from a slam
dunk for the Trump Administration.
00:08:10.940 --> 00:08:15.500
In fact, what's the opposite of a slam dunk?
Not a sports guy.
00:08:15.500 --> 00:08:21.642
But even the conservative judges were very skeptical
of the Administration's reading of the 14th Amendment.
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Fair warning: this segment
is much longer than normal,
00:08:25.660 --> 00:08:29.740
so skip to the next timecode if you're
not very interested in this issue.
00:08:29.740 --> 00:08:36.717
The Constitution says you're a citizen if you're born
in the U.S. "and subject to the jurisdiction thereof."
00:08:36.717 --> 00:08:39.828
Trump is saying that illegals
don't count as citizens
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since they aren't subject to the
jurisdiction of the United States.
00:08:43.900 --> 00:08:47.100
Then, how can they be
arrested and deported?
00:08:47.100 --> 00:08:49.580
Sounds like a surefire loss to me.
00:08:49.580 --> 00:08:54.788
But let's hear the Supremes themselves, as
they question Trump's counsel D. John Sauer:
00:08:54.788 --> 00:08:58.620
ROBERTS: You obviously put a lot of weight
on "subject to the jurisdiction thereof,"
00:08:58.620 --> 00:09:02.860
but the examples you give to
support that strike me as very quirky,
00:09:02.860 --> 00:09:09.820
you know, children of ambassadors, children of enemies
during a hostile invasion, children on warships,
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and then you expand it to a whole class of
illegal aliens are—are here in the country.
00:09:17.180 --> 00:09:23.580
I'm not quite sure how you can get to that big group
from such tiny and sort of idiosyncratic examples.
00:09:23.580 --> 00:09:27.420
SAUER: No, but, of course, we're—we're in a
new world now, as Justice Alito pointed out to,
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where 8 billion people are one plane ride away
from having a—a child who's a U.S. citizen.
00:09:31.980 --> 00:09:34.375
ROBERTS: Well, it's a new world.
It's the same Constitution.
00:09:34.375 --> 00:09:36.620
KILLIAN: Ohh! Good answer, Roberts!
00:09:36.620 --> 00:09:39.740
SAUER: What I do is invite the
Court to look at the intervening step,
00:09:39.740 --> 00:09:43.100
which is the enactment of
the Civil Rights Act of 1866.
00:09:43.100 --> 00:09:45.819
And, there, they didn't say "subject
to the jurisdiction thereof."
00:09:45.819 --> 00:09:48.500
There, it says "not subject to any foreign power."
00:09:48.500 --> 00:09:53.397
KILLIAN: So? All that means is that they
knew the language they needed to use
00:09:53.397 --> 00:09:57.180
to limit it to freed slaves if
that's what they really meant.
00:09:57.180 --> 00:10:04.380
At any rate, the language of the Constitution
overturns the language of any law made before or after.
00:10:04.380 --> 00:10:08.513
Of course, one wrinkle is that there
was no such thing as illegal immigrants
00:10:08.514 --> 00:10:10.940
back when the 14th
Amendment was passed.
00:10:10.940 --> 00:10:14.780
Anyone could just come here and live,
and nothing else mattered.
00:10:14.780 --> 00:10:17.700
That makes things a little
thorny, according to Alito:
00:10:17.700 --> 00:10:25.020
ALITO: When particular problems pop up,
lawmakers may enact a general rule.
00:10:25.020 --> 00:10:29.833
When they do that, is the
application of that general rule
00:10:29.833 --> 00:10:37.500
limited only to the situations that they had in mind
when they adopted the general rule,
00:10:37.500 --> 00:10:46.860
or do we say, they adopted a general rule, they meant for
that to apply to later applications that might come up?
00:10:46.860 --> 00:10:51.180
Justice Scalia had an example
that dealt with this situation.
00:10:51.180 --> 00:10:58.940
He imagined an old theft statute that was enacted
well before anybody conceived of a microwave oven,
00:10:58.940 --> 00:11:03.740
and then afterwards someone is charged
with a crime of stealing a microwave oven.
00:11:03.740 --> 00:11:08.220
And this fellow says: "Well, I can't be convicted
under this because a microwave oven
00:11:08.220 --> 00:11:11.580
didn't exist at that time."
And he dismissed that.
00:11:11.580 --> 00:11:15.900
There's a general rule there, and
you apply it to future applications.
00:11:15.900 --> 00:11:20.656
And what we're dealing with here is
something that was basically unknown
00:11:20.657 --> 00:11:24.180
at the time when the Fourteenth Amendment
was adopted, which is illegal immigration.
00:11:24.180 --> 00:11:25.782
KILLIAN: And from Kagan:
00:11:25.782 --> 00:11:29.740
KAGAN: And your whole theory
of the case is built on that group.
00:11:29.740 --> 00:11:36.060
You don't get to talking about undocumented
persons until quite later and at much lesser,
00:11:36.060 --> 00:11:39.740
you know, I think it's like ten pages
to three pages or something like that.
00:11:39.740 --> 00:11:43.180
So you can't really be going
with Justice Alito's theory.
00:11:43.180 --> 00:11:49.260
You must be saying that there is a principle that
was there at the time of the Fourteenth Amendment.
00:11:49.260 --> 00:11:53.860
KILLIAN: And even Gorsuch, arguably
the most conservative justice of them all:
00:11:53.860 --> 00:12:00.940
GORSUCH: Today, you can point to laws against immigration
that are much more restrictive than they were in 1868—
00:12:00.940 --> 00:12:05.660
we really didn't have laws like that,
that we do today, until maybe 1880.
00:12:05.660 --> 00:12:10.700
So, if somebody showed up here
in 1868 and established domicile,
00:12:10.700 --> 00:12:15.900
that was perfectly fine without respect to
anything, any immigration laws. There they were.
00:12:15.900 --> 00:12:19.820
And so why wouldn't we,
even if we were to apply your own test,
00:12:19.820 --> 00:12:24.664
come to the conclusion that the fact that
someone might be illegal is immaterial?
00:12:24.664 --> 00:12:27.842
KILLIAN: And Sauer didn't
really have any answer.
00:12:27.842 --> 00:12:34.300
I won't try to play it, because he just rambles on,
talking around the issue and even engaging in word salad.
00:12:34.300 --> 00:12:38.060
The name of his pain is Wong Kim Ark.
00:12:38.060 --> 00:12:43.100
He was born in San Francisco in
1873 to Chinese immigrant parents,
00:12:43.100 --> 00:12:49.660
and the government argued he wasn't a citizen
because of the Chinese Exclusion Act of 1882.
00:12:49.660 --> 00:12:55.260
The court ruled 6-2 that he was a
citizen, based on three concepts:
00:12:55.261 --> 00:13:02.940
The English common law concept of jus soli (or, right
of soil) as the foundation for American citizenship law;
00:13:02.940 --> 00:13:09.820
"Subject to the jurisdiction thereof" meant U.S.
laws, not owing political allegiance to the U.S.;
00:13:09.820 --> 00:13:17.180
and that the 14th Amendment codified this principle,
which applies to almost everyone born on U.S. soil,
00:13:17.180 --> 00:13:21.420
with a few very extreme exceptions
such as children of diplomats.
00:13:21.420 --> 00:13:24.625
KAVANAUGH: General, how should we think
about the text of the Fourteenth Amendment
00:13:24.626 --> 00:13:31.580
"subject to the jurisdiction thereof" as distinct from
the different language of the Civil Rights Act of 1866,
00:13:31.580 --> 00:13:36.300
which refers, as you know, to persons
not subject to any foreign power?
00:13:36.300 --> 00:13:40.380
Those texts are on
their face different,
00:13:40.380 --> 00:13:44.540
and the history that Justice Kagan referred to
might have developed quite a bit differently
00:13:44.540 --> 00:13:50.380
if the Fourteenth Amendment's text had used
the phrase that was in the Civil Rights Act.
00:13:50.380 --> 00:13:54.780
SAUER: Again, I, I, it... [stammering] it appears
they preferred the sort of positive formulation,
00:13:54.780 --> 00:13:57.969
"subject to the jurisdiction thereof,"
as opposed to "not subject to any foreign power. "
00:13:57.969 --> 00:14:02.460
KAVANAUGH: Given Wong Kim Ark,
one might have expected Congress to use
00:14:02.460 --> 00:14:08.424
a different phrase if it wanted to
try to disagree with Wong Kim Ark
00:14:08.424 --> 00:14:15.580
on what the scope of birthright citizenship
or the scope of citizenship should be.
00:14:15.580 --> 00:14:21.180
And yet Congress repeats that same language,
knowing what the interpretation had been.
00:14:21.180 --> 00:14:22.900
So how are we to think about that?
00:14:22.900 --> 00:14:27.020
KILLIAN: And Sauer rambled on
without ever answering the question,
00:14:27.020 --> 00:14:29.900
which Kavanaugh kept
calling him out on.
00:14:29.900 --> 00:14:33.562
The opposing counsel had a
much easier time of things:
00:14:33.562 --> 00:14:38.140
CECILLIA D. WANG: Ask any American what
our citizenship rule is and they'll tell you:
00:14:38.140 --> 00:14:41.500
Everyone born here is a citizen alike.
00:14:41.500 --> 00:14:47.740
That rule was enshrined in the Fourteenth Amendment to put
it out of the reach of any government official to destroy.
00:14:47.740 --> 00:14:51.750
When the government tried to strip
Mr. Wong Kim Ark's citizenship
00:14:51.751 --> 00:14:56.060
on largely the same grounds they
raise today, this Court said no.
00:14:56.060 --> 00:14:58.060
Thirty years after ratification,
00:14:58.060 --> 00:15:02.860
this Court held that the Fourteenth Amendment
embodies the English common law rule.
00:15:02.860 --> 00:15:09.260
Virtually everyone born on U.S. soil is
subject to its jurisdiction and is a citizen.
00:15:09.260 --> 00:15:14.960
My friend has now clearly said that the government
is not asking you to overrule Wong Kim Ark.
00:15:14.961 --> 00:15:20.641
That is a fatal concession because Wong
Kim Ark's controlling rule of decision
00:15:20.642 --> 00:15:24.060
precludes their parental
domicile requirement.
00:15:24.060 --> 00:15:25.900
The dissent understood that,
00:15:25.900 --> 00:15:32.780
and the majority tells us six times in the opinion
that domicile is irrelevant under common law.
00:15:32.780 --> 00:15:35.241
The Executive Order
fails on all those counts.
00:15:35.241 --> 00:15:39.020
Swaths of American laws
would be rendered senseless,
00:15:39.020 --> 00:15:42.940
thousands of American babies will
immediately lose their citizenship,
00:15:42.940 --> 00:15:45.180
and if you credit the
government's theory,
00:15:45.180 --> 00:15:51.660
the citizenship of millions of Americans, past,
present, and future, could be called into question.
00:15:51.660 --> 00:15:54.220
All of this tells us the
government's theory is wrong.
00:15:54.220 --> 00:15:59.580
The only exceptions again at common law were
ambassadors, people born on foreign ships,
00:15:59.580 --> 00:16:03.180
and people who are born during
periods of foreign occupation.
00:16:03.180 --> 00:16:09.784
The purpose of the Fourteenth Amendment was to
embrace that universal rule of birthright citizenship
00:16:09.784 --> 00:16:13.673
to embrace and incorporate
the common law exceptions
00:16:13.674 --> 00:16:17.629
with the single additional exception
of the preexisting exception
00:16:17.630 --> 00:16:20.380
for tribal Indians that we
had in the United States,
00:16:20.380 --> 00:16:24.896
which is an analogous exception, and
that's the closed set of exceptions.
00:16:24.896 --> 00:16:29.740
KILLIAN: The other big case they
looked at is Elk v. Wilkins from 1884,
00:16:29.740 --> 00:16:33.260
which is a very uncomfortable
piece of U.S. history.
00:16:33.260 --> 00:16:37.580
John Elk was a Native American who
left his tribe and moved to Omaha.
00:16:37.580 --> 00:16:40.620
He tried to register to
vote and was denied.
00:16:40.620 --> 00:16:44.700
Elk sued, saying his rights
as a citizen were abridged.
00:16:44.700 --> 00:16:48.540
But this time, the court
ruled 7-2 the other way,
00:16:48.540 --> 00:16:52.060
because of the peculiar
nature of Indian tribes.
00:16:52.060 --> 00:16:58.060
Indian nations are separate authorities with their
own allegiance, a separate political community.
00:16:58.060 --> 00:17:04.220
So they weren't subject to the jurisdiction of the
United States in the sense meant by the 14th Amendment.
00:17:04.220 --> 00:17:10.140
Being born on tribal land meant that him
moving to Omaha didn't give him citizenship,
00:17:10.140 --> 00:17:15.980
and more than that, he couldn't even go
through the normal process of naturalization!
00:17:15.980 --> 00:17:19.100
Congress would have to
extend citizenship to him.
00:17:19.100 --> 00:17:24.220
So ironically, even though he
was completely born on U.S. soil,
00:17:24.220 --> 00:17:29.100
he had fewer rights than someone
who moved here from another country!
00:17:29.100 --> 00:17:34.620
This was all changed, by the way,
by the Indian Citizenship Act of 1924.
00:17:34.620 --> 00:17:39.900
The problem with extending Elk to illegal
immigrants is that they aren't sovereign nations.
00:17:39.900 --> 00:17:45.420
They don't have diplomatic immunity and are
subject to the laws of the U.S. in every sense.
00:17:45.420 --> 00:17:48.940
WANG: The Court says there
are two ways to look at this:
00:17:48.940 --> 00:17:52.990
either you look at it as a tribal
member is like an ambassador
00:17:52.991 --> 00:17:59.568
or you can look at it like there's a territoriality
issue where people are born on tribal lands
00:17:59.568 --> 00:18:03.790
and, therefore, they are essentially, I think
he says, Justice Gray says at one point
00:18:03.790 --> 00:18:06.413
we might as well be talking about
someone who is born in Mexico.
00:18:06.413 --> 00:18:11.491
GORSUCH: Well, there's a lot in Elk, and some of it's
not terribly helpful for you, it seems to me, because
00:18:11.492 --> 00:18:19.660
Justice Gray again, strikes again, says that they may be
subject in some degree or respect to the United States.
00:18:19.660 --> 00:18:23.980
So there's some jurisdiction. He says they
are born with—in the geographic limits,
00:18:23.980 --> 00:18:27.580
they are in a geographical
sense born in the United States,
00:18:27.580 --> 00:18:32.669
but because they are not completely subject
to the jurisdiction of the United States
00:18:32.669 --> 00:18:37.980
and owe allegiance distinct from the United
States, that's what takes them outside.
00:18:37.980 --> 00:18:43.380
And that language sure sounds a lot like
the Solicitor General's presentation today.
00:18:43.380 --> 00:18:49.420
WANG: To the contrary, Justice Gorsuch.
I embrace that part of Elk v. Wilkins' holding.
00:18:49.420 --> 00:18:53.260
The government tries to make it seem as
though what sets the exceptions apart,
00:18:53.260 --> 00:18:59.100
what defines the exceptions is that the government
has some maximum theoretical power.
00:18:59.100 --> 00:19:03.980
But that's actually not true, because, remember,
there's always this background notion.
00:19:03.980 --> 00:19:08.802
Whatever the parameters of the relationship
between the United States Government
00:19:08.803 --> 00:19:12.380
and tribal nations at
that time of ratification,
00:19:12.380 --> 00:19:18.540
there was this constitutionally distinct
status of the tribes and tribal members,
00:19:18.540 --> 00:19:20.220
and that's not true
of foreign nationals.
00:19:20.220 --> 00:19:26.300
If the government were right that the question is
what's the maximum theoretical power the government has,
00:19:26.300 --> 00:19:28.300
there would be no ambassador
exception because,
00:19:28.300 --> 00:19:33.740
of course, the United States could decide in some
instance to go ahead and prosecute an ambassador.
00:19:33.740 --> 00:19:37.340
There would be inter-sovereign
comity considerations there.
00:19:37.340 --> 00:19:41.900
That's how you define the exceptions.
And as Wong Kim Ark says,
00:19:41.900 --> 00:19:45.740
Elk v. Wilkins has no bearing on
the question of foreign nationals.
00:19:45.740 --> 00:19:51.580
Congress was trying to do the same thing with
both the 1866 Act and with the 14th Amendment.
00:19:51.580 --> 00:19:55.900
They wanted to capture the common law
exceptions and the Indian tribal exception.
00:19:55.900 --> 00:20:02.700
They started out with the two separate phrases, not subject
to any foreign power, plus excluding Indians not taxed.
00:20:02.700 --> 00:20:06.220
And as Justice Gray described it in
his majority opinion in Wong Kim Ark,
00:20:06.220 --> 00:20:10.053
they decided to switch to the affirmative
phrase "subject to the jurisdiction" and—
00:20:10.053 --> 00:20:18.360
ALITO: Yeah, well, do they mean the same thing? And wouldn't
it be very odd if the citizenship test in the 14th Amendment
00:20:18.361 --> 00:20:23.900
were broader than the citizenship
test in the 1866 Civil Rights Act?
00:20:23.900 --> 00:20:27.140
WANG: Sure. The Framers were trying to
do the same thing with the language in both.
00:20:27.140 --> 00:20:33.164
ALITO: Okay, so, if those who framed
and adopted the Fourteenth Amendment
00:20:33.165 --> 00:20:40.298
had wanted to limit the citizenship
test to just those specific groups
00:20:40.299 --> 00:20:45.100
that you concede fall outside
the birthright citizenship rule,
00:20:45.100 --> 00:20:48.380
why didn't they refer
specifically to those groups?
00:20:48.380 --> 00:20:52.300
WANG: I would say the—Wong Kim
Ark tells us what the explanation is,
00:20:52.300 --> 00:20:57.340
that the Framers of the Fourteenth Amendment,
after overriding President Johnson's veto,
00:20:57.340 --> 00:21:01.660
wanted to adopt a universal rule
with a closed set of exceptions,
00:21:01.660 --> 00:21:06.300
and they believed that "subject to the
jurisdiction of the United States" did that.
00:21:06.300 --> 00:21:09.188
The Citizenship Clause of the
Fourteenth Amendment, again,
00:21:09.188 --> 00:21:13.820
has a universal rule with a closed
set of exceptions. It sets a floor.
00:21:13.820 --> 00:21:17.086
So the Congress has under
the Naturalization Clause
00:21:17.086 --> 00:21:21.620
the power to expand citizenship to other people
not covered by the Fourteenth Amendment
00:21:21.620 --> 00:21:26.940
and, obviously, they have in many ways, but they
can't go below that floor that the Constitution sets.
00:21:26.940 --> 00:21:30.860
KAVANAUGH: I think Mr. Sauer acknowledged that,
and you mentioned this in your opening,
00:21:30.860 --> 00:21:35.740
that if we agree with you on how to
read Wong Kim Ark, then you win.
00:21:35.740 --> 00:21:38.060
So that could be just
a short opinion, right?
00:21:38.060 --> 00:21:42.060
Why would we address the constitutional
issue given your argument on the statutory—
00:21:42.060 --> 00:21:48.940
our usual practice, as you're well aware, of course,
is to resolve things on statutory grounds and—
00:21:48.940 --> 00:21:51.780
and not to do a constitutional ground.
00:21:51.780 --> 00:21:57.020
WANG: Sure. You know, I think we obviously
have these two paths to a win here.
00:21:57.020 --> 00:21:59.420
We're happy to win on
either or both of them.
00:21:59.420 --> 00:22:05.557
I do think it would be prudent for the Court
to reaffirm its decision in Wong Kim Ark
00:22:05.557 --> 00:22:12.860
where it's a landmark decision about the
definition of national citizenship in this country.
00:22:12.860 --> 00:22:16.060
I just think it would be prudent for the
Court to go ahead and reaffirm that.
00:22:16.060 --> 00:22:18.646
But, of course,
we're happy to take a win on any ground.
00:22:18.646 --> 00:22:21.010
- KAVANAUGH: Thank you. [laughter]
- WANG: Thank you.
00:22:21.010 --> 00:22:23.580
KILLLIAN: Yeah, it seems
pretty straightforward to me.
00:22:23.580 --> 00:22:26.940
It didn't help that Sauer had to
keep referencing other countries
00:22:26.940 --> 00:22:29.740
that have nothing to do
with our jurisprudence,
00:22:29.740 --> 00:22:32.780
and the Justices didn't
seem happy with him there.
00:22:32.780 --> 00:22:37.580
If the conservative and institutionalist
justices did want to rule in favor of Trump,
00:22:37.580 --> 00:22:43.260
they'll have to pull some rabbit out of their hat
that wasn't argued here in oral arguments.
00:22:43.260 --> 00:22:49.180
But then, there are over 70 amicus
briefs by my count filed on the docket,
00:22:49.180 --> 00:22:53.260
so you can probably go through them and
find arguments for whatever you want.
00:22:53.262 --> 00:22:59.193
So we'll have to see, I guess. But it still seems
like Trump doesn't have a leg to stand on here.
00:23:06.060 --> 00:23:10.540
And now it's time to vesiculate this
week's Biggest Bogon Emitter.
00:23:10.540 --> 00:23:16.380
As of this podcast prep, gasoline prices
in the US are just over $4 a gallon.
00:23:16.380 --> 00:23:19.100
In my area, they're about $3.82.
00:23:19.100 --> 00:23:23.748
But in California, they're a whopping $5.
89 a gallon!
00:23:23.748 --> 00:23:27.980
Of course, now that I drive a Tesla,
I don't have to worry about that.
00:23:27.980 --> 00:23:34.860
I'm paying the equivalent of 67¢ a gallon.
Sorry-not-sorry, suckers!
00:23:34.860 --> 00:23:39.340
Anyway, Californians are naturally
upset at these high prices at the pump.
00:23:39.340 --> 00:23:41.900
Gavin Newsom, of course,
is blaming Trump.
00:23:41.900 --> 00:23:48.140
Quote: "Look at your cost at the pump the last few
days: That was an act of the Trump administration."
00:23:48.140 --> 00:23:51.820
Okay, so the war in Iran
certainly isn't helping matters,
00:23:51.820 --> 00:23:55.020
and will likely result in
inflation across the board,
00:23:55.020 --> 00:23:58.727
but that doesn't explain the
fact why California's prices
00:23:58.728 --> 00:24:03.260
are so bewilderingly high
compared to the rest of the nation!
00:24:03.260 --> 00:24:10.571
Aside from wasting well over $130 billion on a
high-speed rail that's no nearer to being completed,
00:24:10.572 --> 00:24:19.260
there's the 70.9¢/gallon gas tax. Combine
that with the 18.4¢/gallon federal gas tax,
00:24:19.260 --> 00:24:23.020
and that's almost 90¢
added on to the price!
00:24:23.020 --> 00:24:27.950
Still, that doesn't account for the $1.89
difference from the national average.
00:24:27.950 --> 00:24:31.980
Their state tax is only about 36.6¢ more
expensive than the rest of the country.
00:24:31.980 --> 00:24:37.500
California has been closing down refineries
all over the state, so it's really a supply issue.
00:24:37.500 --> 00:24:41.100
Newsom and his cronies want
to put an end to gasoline power
00:24:41.100 --> 00:24:43.980
and are working to limit
it as much as possible.
00:24:43.980 --> 00:24:47.340
Of course, that means making
it more expensive as well.
00:24:47.340 --> 00:24:49.980
So why doesn't he just
come out and admit it?
00:24:49.980 --> 00:24:52.135
I think we all know the answer to that:
00:24:52.135 --> 00:24:56.140
while everyone likes the idea of a
cleaner environment on its own,
00:24:56.140 --> 00:24:59.580
forcing higher gas prices on
people who can't afford EVs,
00:24:59.580 --> 00:25:02.540
and without a sufficient
charging infrastructure for them,
00:25:02.540 --> 00:25:04.700
is hideously unfair to them.
00:25:04.700 --> 00:25:07.535
Especially when the
ones who do have EVs
00:25:07.536 --> 00:25:11.580
are told not to charge them
because of electricity shortages,
00:25:11.580 --> 00:25:16.220
which happen because they shut down
most of the state's nuclear power plants!
00:25:16.220 --> 00:25:20.087
Things have gotten so bad
that Chevron as of 2024
00:25:20.088 --> 00:25:26.060
counts itself among the numerous companies that have
moved their headquarters from California to Texas,
00:25:26.060 --> 00:25:29.580
a mass exodus we've talked
about on this podcast before.
00:25:29.580 --> 00:25:33.740
Their president of downstream, midstream,
and chemicals Andy Walz said, quote:
00:25:33.740 --> 00:25:37.580
"California has had, I think,
very poor energy policy.
00:25:37.580 --> 00:25:42.060
They've put a climate agenda ahead
of reliable and affordable energy,
00:25:42.060 --> 00:25:48.540
and the consequences of that are that energy
in California— any form of it— is unaffordable."
00:25:48.540 --> 00:25:54.220
The state's Cap-and-Invest program, essentially
a carbon tax, only makes things worse.
00:25:54.220 --> 00:25:59.900
Companies must buy a yearly carbon
allowance, which the state lowers every year.
00:25:59.900 --> 00:26:03.260
They then funnel the money
to their green energy cronies,
00:26:03.260 --> 00:26:07.100
who do absolutely nothing
to help the situation.
00:26:07.100 --> 00:26:09.820
Great scam if you can get in on it.
00:26:09.820 --> 00:26:14.220
Chevron is now threatening to close
its remaining refineries in the state.
00:26:14.220 --> 00:26:19.420
The Trump Administration has tried to alleviate the
problem by drilling off the California shoreline,
00:26:19.420 --> 00:26:24.060
but Newsom has done everything he
can to block the oil coming in from it.
00:26:24.060 --> 00:26:30.540
So, yes, Newsom, the man bleating about
how Trump is to blame for high gas prices,
00:26:30.540 --> 00:26:37.340
is literally fighting him in court to stop him
increasing the supply and thus lowering the price.
00:26:37.340 --> 00:26:40.331
According to the Department
of Energy, quote:
00:26:40.331 --> 00:26:44.620
"California once supplied
nearly 40% of U.S. oil production,
00:26:44.620 --> 00:26:49.219
but decades of radical state policies
targeting reliable energy sources
00:26:49.219 --> 00:26:55.820
have driven a decline in domestic output while fuel
demand remains among the highest in the nation.
00:26:55.820 --> 00:27:01.500
Today, more than 60% of the oil refined
in California comes from overseas,
00:27:01.500 --> 00:27:04.940
with a significant share traveling
through the Strait of Hormuz—
00:27:04.940 --> 00:27:08.620
presenting serious
national security threats."
00:27:08.620 --> 00:27:11.264
As Michael Shellenberger
pointed out, quote:
00:27:11.264 --> 00:27:14.700
"California made
itself into an energy island,
00:27:14.700 --> 00:27:18.878
isolated from the continent's abundant
oil and natural gas resources
00:27:18.879 --> 00:27:23.020
by regulatory choice rather
than geographic necessity.
00:27:23.020 --> 00:27:27.420
Where California used to be one
of America's largest oil producers,
00:27:27.420 --> 00:27:30.620
most of the state's crude
now arrives by sea.
00:27:30.620 --> 00:27:33.776
California thus
resembles Asian nations
00:27:33.777 --> 00:27:39.260
that lack domestic hydrocarbons and depend
on seaborne imports through chokepoints,
00:27:39.260 --> 00:27:47.265
except that California sits atop a continent with the
world's largest combined oil and natural gas production."
00:27:47.265 --> 00:27:53.500
Screwing everything up and blaming others
might as well be the new California state motto!
00:27:53.500 --> 00:27:59.660
What would that be in Latin? Let's
see, res perturbare alios culpare.
00:27:59.660 --> 00:28:02.860
There you go, California!
Have that for free.
00:28:02.860 --> 00:28:06.820
So all of that makes Gavin Newsom
this week's Biggest Bogon Emitter.
00:28:13.260 --> 00:28:16.700
I want to tell you about the eyeglasses
I've been wearing for years.
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As people can see on my videos,
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which makes glasses more expensive,
especially when I need computer glasses,
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reading glasses,
prescription sunglasses,
00:28:26.540 --> 00:28:31.180
and most expensively,
progressive lenses for general everyday wear.
00:28:31.180 --> 00:28:35.580
To save money while still getting quality glasses,
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00:28:35.580 --> 00:28:39.660
In fact, I just got a pair of progressives
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00:28:39.660 --> 00:28:43.900
in a nice pair of frames my wife loves,
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00:28:43.900 --> 00:28:47.180
It would have been $500 to get
them through my eye doctor.
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Not only do they look good,
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00:29:08.380 --> 00:29:12.691
Once again,
that's firmoo.bogosity.tv.
00:29:21.260 --> 00:29:30.260
And now let's overmisinterpretationalisticalize
this week's Idiot Extraordinaire.
00:29:32.140 --> 00:29:34.300
And it's another one for Donald Trump,
00:29:34.300 --> 00:29:37.962
although I should probably thank
him for showing once again
00:29:37.963 --> 00:29:43.580
how war always results in the exact
opposite of what it's supposed to.
00:29:43.580 --> 00:29:48.300
In this case, it was supposed to prevent
Iran from developing a nuclear weapon.
00:29:48.300 --> 00:29:51.900
Iran's previous Supreme Leader,
Ayatollah Ali Khamenei,
00:29:51.900 --> 00:29:56.540
had issued a fatwa banning nuclear
weapons or even research into them.
00:29:56.540 --> 00:30:01.802
As we covered over the years, the claims made
by everyone from Hillary Clinton to Barack Obama
00:30:01.802 --> 00:30:05.740
that Iran was developing
nukes just didn't hold water.
00:30:05.740 --> 00:30:09.020
Everything was consistent
with them building reactors,
00:30:09.020 --> 00:30:13.260
which should sound familiar: this
is exactly what they did with Iraq.
00:30:13.260 --> 00:30:17.660
And the thing is,
Muslims don't kid around when it comes to fatwas.
00:30:17.660 --> 00:30:19.980
That's not a political game with them.
00:30:19.980 --> 00:30:25.100
That's serious business, with major
penalties for anyone who violates them.
00:30:25.100 --> 00:30:29.527
But know, Khamenei's dead
and Iran has got to be thinking
00:30:29.528 --> 00:30:34.540
that some way to protect themselves from
an insane superpower wouldn't come amiss.
00:30:34.540 --> 00:30:39.873
In fact, Trita Parsi of the Quincy Institute
for Responsible Statecraft said, quote:
00:30:39.874 --> 00:30:46.700
"The nuclear fatwa is dead. Elite opinion as well
as public opinion has shifted dramatically on this,
00:30:46.700 --> 00:30:52.230
which shouldn't be surprising since Iran has
been bombed twice in the midst of negotiations
00:30:52.231 --> 00:30:55.020
by two nuclear-equipped states."
00:30:55.020 --> 00:30:59.100
So yes, the call to develop nuclear
weapons has grown louder.
00:30:59.100 --> 00:31:05.580
When Israel, a nuclear power, ran a military operation
that killed several of the country's leaders,
00:31:05.580 --> 00:31:08.700
public perceptions about
nukes began to shift.
00:31:08.700 --> 00:31:16.060
Then, Trump used his bunker-buster to completely
eliminate any possibility of Iran developing a nuke...
00:31:16.060 --> 00:31:23.820
and then less than a year later started waging war against
them because they were going to get a nuke any time now.
00:31:23.820 --> 00:31:28.540
Iran has stockpiles of HALEU, or
High-Assay Low Enrichment Uranium,
00:31:28.540 --> 00:31:32.860
which the news stories keep wrongly
calling "highly enriched uranium."
00:31:32.860 --> 00:31:37.420
But while HALEU is used in modern nuclear
power plants as well as medical reactors,
00:31:37.420 --> 00:31:40.527
it could be enriched further
into weapons-grade uranium
00:31:40.528 --> 00:31:45.260
if the new Supreme Leader, Mojtaba
Khamenei, reverses the fatwa.
00:31:45.260 --> 00:31:49.980
Mojtaba has vowed to avenge the death
of his father and others killed in the war,
00:31:49.980 --> 00:31:52.700
although he hasn't yet
spoken of anything nuclear.
00:31:52.700 --> 00:31:56.460
But domestically,
public pressure seems to be rising.
00:31:56.460 --> 00:31:59.215
Commentator Nasser
Torabi said, quote:
00:31:59.215 --> 00:32:05.420
"We have entered a new phase. After this war,
Iran will be recognized as a global superpower.
00:32:05.420 --> 00:32:09.740
We must take measures to produce
or possess nuclear weapons."
00:32:09.740 --> 00:32:14.540
Opposition to nuclear weapons on
religious grounds and by fear of reprisals
00:32:14.541 --> 00:32:18.940
have a tendency to evaporate
once the reprisals come anyway.
00:32:18.940 --> 00:32:23.820
And there have to be a lot of other countries
looking at Iran and wondering if they're next,
00:32:23.820 --> 00:32:27.020
and if they should get a
nuclear bomb as a deterrent.
00:32:27.020 --> 00:32:32.651
In fact, in 2018, Saudi Crown Prince
Mohammed bin Salman said, quote:
00:32:32.651 --> 00:32:39.020
"Without a doubt, if Iran developed a nuclear
bomb, we would follow suit as soon as possible."
00:32:39.020 --> 00:32:43.500
Maybe we have to reprise the old Tom Lehrer song,
"Who's Next?"
00:32:43.500 --> 00:32:45.917
Or just revive the old Archer meme:
00:32:45.917 --> 00:32:50.300
You want more nukes?
Because this is how you get more nukes.
00:32:50.300 --> 00:32:56.300
But then, anyone who paid any attention
at all to recent history understood that.
00:32:56.300 --> 00:33:02.255
So all of that gives Trump yet
another Idiot Extraordinaire.
00:33:09.900 --> 00:33:14.860
Well, that wraps up this "Pray to J I did the
same-o same-o" edition of the Bogosity Podcast.
00:33:14.860 --> 00:33:19.500
I hope you enjoyed it; if you did, please go to
donate.bogosity.tv for several ways to support,
00:33:19.500 --> 00:33:22.860
and discord.bogosity.tv
to join the discussion.
00:33:22.860 --> 00:33:27.820
Subscribe at the Discord, Patreon, or
SubscribeStar and you can listen early and ad-free.
00:33:27.820 --> 00:33:31.642
Thank you for listening. Until next time,
here's a quote from Smedley Butler:
00:33:31.642 --> 00:33:35.820
"At all these conferences, lurking
in the background but all-powerful,
00:33:35.820 --> 00:33:40.700
just the same, are the sinister
agents of those who profit by war.
00:33:40.700 --> 00:33:46.780
They see to it that these conferences do
not disarm or seriously limit armaments."
00:33:46.780 --> 00:33:51.260
The Bogosity Podcast is licensed under a Creative
Commons Attribution-NonCommercial-NoDerivatives
00:33:51.260 --> 00:33:53.575
4.0 International license.