Ilya Shapiro is a senior fellow and Director of Constitutional Studies at the Manhattan Institute, a leading free-market think tank. He discusses his background and the present state of free speech, the Constitution, and the Supreme Court.
The following has been edited for context and clarity.
Federal Newswire:
There was a recent piece in Politico called 'The Best Way To Save The Constitution From Donald Trump Is To Rewrite It'. There are a lot of folks both on the left and the right who are talking about rewriting the Constitution. What are your thoughts?
Ilya Shapiro:
It's kind of ironic that the people that most complain about the breaking of norms in the Trump era and protecting the Constitution from Trump are the ones who are undermining our institutions, whether it's the Supreme Court or the Senate or anything else. I mean, look, societal distrust is at an all time low. Political polarization is high. We're not in kind of a high trust society anymore. There are a lot of structural issues with our kind of sociopolitical situation, shall we say. But I don't think rewriting the so-called parchment barrier is going to do anything, in Jefferson's terms. That is, if people don't want to observe the words on the page, whether they're from the left on the right, tweaking those words isn't going to do much.
And, actually, it's a fortuitous that you raise this issue, because just this morning I have a piece up at the Washington Examiner called Can We Ever Have a New Constitutional Amendment? For the last few years I've been part of the National Constitution Center's Constitution Drafting Project where they've had three teams of scholars. I was captain of team libertarian. There's conservatives and progressives.
We looked at, do we need to start over with the Constitution? Make amendments, what have you. Our conceit was that we had the easiest job. All we needed to do was add "and we mean it" to every provision and there you go. But you can read about that on the National Constitution Center's website.
But the second stage of that project was getting the teams together and to see if there was any overlap, any ability to reach consensus or at least agreement on particular amendments. And now obviously, we weren't able to hold hands and sing Kumbaya and come to agreement given disparate differences in values and political theory. But, we did come together and propose five constitutional amendments, not on anything of deep ideological salience, obviously, but things like adding term limits to the Supreme Court while fixing it at nine. This, I don't think fixes. We can talk about the Supreme Court in the future. Smoothing out the process for impeachment. Removing the requirement to be a natural born citizen to be president. Making the whole amendment procedure somewhat easier. So very technocratic sort of things.
So anyway, that's my piece at the Examiner. That's a project at the National Constitution Center. I don't think we're going to have broad scale agreement to do what I think is ultimately the solution to a lot of what ails us, and that's to have a lot more federalism and separation of power, so you don't centralized decision making in such a large pluralistic society.
Federal Newswire:
The 17th Amendment calls for the direct election of senators. What are your thoughts on the role that the 17th Amendment and the changing of the way that we elect senators or select senators, how has that changed federalism? How has it changed the balance of government?
Ilya Shapiro:
Well, in our proposed team liberty Constitution, we did send it back to the states to decide how they want to appoint senators. But that plus some of these other measures have more to commend themselves in the sense that they would increase public confidence in the system rather than changing anything on the ground. I agree with Todd's full analysis that the 17th Amendment was a mistake, as most progressive error reforms were. But I don't think at this point it would change that much in practice. I don't think there would be many, if any states, that would go back to having their legislatures pick senators. There'd be an outcry, "How can you be so anti-Democratic and take it out of the hands of the voters?" and things like this.
But the Senate has become, not just because of the direct election, but other developments, open primaries, decline of party power, all these different things. The Senate has become much more populist and akin to the House. I mean, there's very few differences between the Senate and the House these days. The filibuster is one, longer terms is another, but that's about it. And so, yeah, sure. Repeal the 17th Amendment, sure. In theory that's a good thing, but for practical purpose, I don't think it would change much.
Federal Newswire:
Right. It's like everything else, right? I don't like using the phrase silver bullet anymore. There are no panaceas. There are no fix-alls. There are no cure-alls here. And there are always unintended consequences. We certainly saw that with the 17th Amendment.
Let's talk about your journey to the Manhattan Institute. Talk about these circumstances of being appointed to head this Constitutional Center at Georgetown, but then immediately being beset by folks who have challenged your legitimacy to be there.
Ilya Shapiro:
Yeah. I was appointed Executive Director and Senior Lecturer in the Georgetown Center for the Constitution. As I learned, that that's very necessary, because the rest of the law school is basically the center against the Constitution.
So I'd been a Cato for almost 15 years. I wasn't necessarily looking to leave, but I'd become vice president. I'd written a well acclaimed book, which now is updated with a new paperback edition that just came out in July - I should say to all your listeners, updated through the last two Supreme Court nomination battles. You can also get it in still cheap hardcover, the CDs, Audible, all the rest of it. But I got this opportunity from Randy Barnett, who's a leading Constitutional scholar at Georgetown who founded this center to join him and to run his center and to have more of a public face for originalism. Exciting opportunity, new type of challenge, new type of impact, sort of thing that appealed to me at this stage in my career.
A few days before I was set to join Georgetown, it was February 1 was supposed to be my start date, was when News of Justice Breyer's retirement leaked. I was commenting to the media about this. This is obviously within my bailiwick. And late that night I was traveling, I was in Austin, Texas, in my hotel room, and I was getting upset. I was doom scrolling on Twitter. Not a best practice I should say. And getting upset about the comments and President's Biden's position that he would be limiting his search by race and sex. He famously said on the campaign trail and now reiterated that would be a black woman. And I thought, "Look, if I was a progressive Democratic president, who would I pick?" And I thought, "Oh, Sri Srinivasan," who was on Obama's shortlist for the pick that ended up going to Garland. He's the chief judge of the DC circuit. Very well regarded, very sharp, just already influential. But he's Indian American and he's a man, he's not a black woman, so he's automatically disqualified. I posted my comments to that regard on Twitter in sharp language. I said by operation, "By operation of logic, since the entire universe of people who are not black women are automatically disqualified, in my estimation of Judge Sri Srinivasan is the best, then everyone else is second best, less qualified." And I phrased that as we would end up with a "lesser black woman." And really it's the focus on those two words that the manufactured outrage mob on Twitter descended on me as I slept. I tweeted this out and then went to bed. Woke up, everything had exploded, and away we went. I documented this on my Substack. There was four days of hell. The Dean of Georgetown ultimately suspended me with pay. I was put on paid leave while they "investigated" my tweet.
Federal Newswire:
Can you talk about the investigation.
Ilya Shapiro:
Yeah. I've detailed this in various writings, including on my Substack, Shapiro's Gavel, which you can subscribe to for free or paid. It's all described what you get for all these various levels. It's typically the sort of stuff that I put there that I wouldn't necessarily publish in the Wall Street Journal. Although I did publish a bunch about, in fact, my resignation letter was in the Wall Street Journal. But anyway, or in normal media. You get the deep cuts from my psyche as it were. So it was four days of hell followed by four days of purgatory. I was treating this seriously. My friends at FIRE, the Foundation for Individual Rights, and it used to be Education; now it's Expression. They've expanded their remit. Wonderful, wonderful organization. Nonpartisan, not ideological. They just like free speech. But they helped me out with crisis management and PR strategy and providing a lawyer for me.
Three weeks later, the diversoccrats, the Office of Institutional Diversity, Equity, and Affirmative Action interviewed me. It was this kind of banal thing. "What did you mean with this tweet? Tell me more about the context." Et cetera. It was a little ridiculous. Had this interview, and then nothing for weeks and weeks and months and months. At this point my lawyer was like, "Look, don't criticize Georgetown publicly; but short of that, the blinders are off. Your hands are no longer tied. Go be an expert on the Supreme Court. Go talk about free speech, whatever."
And that's what I did. So for several months I went back into the arena and I said, "This is what I do. This is why you hired me, because I have this voice and this perspective and all of that." And ultimately it became apparent to everyone that this was a cynical delay to wait for the students to get off campus to then reinstate me on a technicality, which is what they did. It took them four months to figure out that I wasn't an employee when I tweeted. And so I couldn't have violated the policies on harassment and anti-discrimination. I celebrated that technical victory. But then when I got the report in my inbox several hours later, this diversity office was setting me up for a fall. And as I detailed in the journal and in my resignation letter, anytime I would say something that someone claimed offended them, that would create a hostile work environment subjecting me to discipline. So in consultation with my lawyer, with Randy, with my wife who's a better lawyer than all of us, I made the decision that I had to get out of there. I made what lawyers call a noisy departure, sending my resignation letter to the media, and announcing my move to the Manhattan Institute on Tucker Carlson's show as one does.
Federal Newswire:
Talk about this issue of speech and due process in context of today's societal climate.
Ilya Shapiro:
This is the big difference now versus when I was in college 25 years ago, or law school 20 years ago. It's not the decades old complaint about liberal professors or what have you. I don't think the ideological mix has shifted all that much, if at all, either among faculty or students. What's changed is the illiberal quotient or mob has been placated by administrators as we've seen an explosion of bureaucracy, especially these DEI (Diversity, Equity, Inclusion) offices. Which ironically prevent intellectual diversity, stop equal opportunity, and exclude those who deviate from a rigid orthodoxy. The administrators, the deans, the presidents, the provost, the department chairs, it's not like they've become woke radicals all of a sudden. No; they are bureaucrats trying to keep their heads down and giving oil to the squeaky wheels, and they've turned out to be spineless cowards. I don't think Dean Treanor at Georgetown is some sort of revolutionary social justice warrior. No, but he is a spineless coward. And that's the problem, because whether we're talking about due process, whether we're talking about enforcing what in many places, including Georgetown, is a very well written policy on free speech and expression, which says that someone taking offense is not evidence of any sort of violation or something like that. But they put paid to that kind of liberal sentiment in favor of the illiberal sentiment that speech is violence, et cetera.
Federal Newswire:
FIRE just announced their power rankings of free speech on university campuses. How did institutions you have been affiliate with fare?
Ilya Shapiro:
Georgetown's the bottom five. The very worst is Columbia. The very best is University of Chicago, where I went to law school, by the way.
One more beat on the campus thing, or on cancel culture more broadly. The thing is, I was able to fight back. As I talk about it now, I wasn't canceled. I resisted cancellation. But that's because I have a platform. I have a name. I can get published in the Wall Street Journal. I have friends who came out of the woodwork and allies who came out of the woodwork to support me both publicly and in back channels to the dean and things like that. Most people don't have that. I'm not talking about celebrities who cares, they have F-you money, and it's a different situation. But so many people, if they donate to politically incorrect causes, say, get doxxed or fired or boycotted, or in Canada, frozen out of their bank accounts. This is a real problem.
Federal Newswire:
Congress is talking once again about the DISCLOSE Act, which is this idea of making sure that donors to causes that could heretofore be left anonymous, or you can give privately to an organization that you might support, they want to make those donations more public. Can you talk about this issue?
Ilya Shapiro:
I just filed a brief two days ago, or joined a brief with 52 other organizations pushing back on DOJ subpoenas in Alabama. I mean, it regarded some sort of transgender policy thing, but the underlying politics didn't matter. The principal was DOJ was going after these third party organizations that were advocating in various ways, and now they're getting these subpoenas. You're absolutely right. We have a history in this country of the freedom, not just of association, but of private association, going back to the famous case of NAACP v. Alabama.
Federal Newswire:
Why was NAACP v. Alabama so important?
Ilya Shapiro:
This was a case in the '50s where the state of Alabama wanted to know purely for 'administrative purposes to prevent charitable fraud,' you see, all of the donors to the NAACP in the '50s in Alabama. So think about that.
The Supreme Court said, "There is no good reason for you to do this. This is purely to facilitate harassment and worse." And said, "No, there's a tradition of private association. You don't have a good reason." Just a couple years ago the Supreme Court beat back a California statute that asked all charities soliciting funds in California, charities, not political action groups or lobbyists or policy groups, but all charities for a list of their donors. And the Supreme Court said, "You don't have a reason to do this." If you want to investigate fraud and you have good reason to suspect fraud, issue subpoenas after the fact and go about your investigation. But just at the outset, just a list of all donors, nothing good can come of that.
Federal Newswire:
Talk about the opportunity for abuse of that fraud investigative power.
Ilya Shapiro:
Well, sure. I mean, governments engage in pretextual actions all the time. We have seen an upswing of going after political opponents in this way. It's Nixonian, frankly. That's the parallel. It's not Stalin. People always reach to the Reductio ad Hitlerum or ad Stalin or something. But it's not that. Nobody's going to camps, but it is Nixonian... using the IRS and other investigatory agencies to go after your political opponents. Courts need to do a better job of policing that, as they have generally in this area, and CEI has been able to beat back, and other organizations and across different issue areas, eventually they get relief. But sometimes the investigation is the punishment itself.
Federal Newswire:
Turning to the shadow docket issue with the Supreme Court and the Yeshiva University case... Can you talk about what the shadow docket is, and talk about the Yeshiva University case?
Ilya Shapiro:
Well, what's been called the shadow docket is really the emergency docket.
In fact, the person who coined the term shadow docket, Will Baude, a professor at the University of Chicago Law School, has said that it was a cutesy thing, but it's really emergency, because the court is not doing things in the shadow without explanation, or in secret, classified.
Federal Newswire:
It's not like the FISA court.
Ilya Shapiro:
Right. Exactly right. Exactly, that's a good comparison, which hides certain things because it deals with sensitive security issues and so forth; intelligence issues. But here the Supreme Court has had the normal cases that it takes up for oral argument with decisions coming by the end of June as we're used to, but then there's emergency appeals, stays, motions to stay executions that are last minute. Or, some lower court did something, and if the Supreme Court doesn't put in a stay immediately, well there's irreparable harm. Even if they ultimately prevail, the damage has been done.
We've seen the confluence in the last decade or so of various factors that have led to an increase of action, and especially high profile cases on this emergency docket, for various reasons. One is that lower courts have gotten more aggressive with nationwide injunctions. That is, a district court makes a ruling that affects the entire country. And so the Justice Department, the solicitor general, has to go to the Supreme Court to put a stop to this.
Another is COVID with pandemic emergencies and very unusual procedural postures for various type of cases that have gotten there. And in general, the solicitor general, the attorney general, both parties being more willing to go straight to the Supreme Court rather than waiting for the litigation to play itself out. Justice Alito last year gave a speech talking about this. "What are we supposed to do? We get these motions, we get these actions. We as judges have to have a duty to do this."
Now, they've started setting some more of these emergency docket cases on the argument calendar, trying to do it expedited, but still trying to get an argument in at least and more briefing. But that of course delays things. So there's the trade off. If it's truly an emergency, it's hard to sure act in that way. So I think it's not that much of an issue. It would be nicer if the court took more regular cases and decided more things. But with certain things, it's not the court that's driving these sorts of trains.
Federal Newswire:
We are now 160 days or so since the Supreme Court leaker leaked the draft of the Dobbs decision. Talk about where things are now in terms of the politicization of the high court versus when you wrote the first edition of Supreme Disorder: Judicial Nominations in the Politics of America's Highest Court.
Ilya Shapiro:
Sure, sure. I've been writing about the leak of the Dobbs draft. You can find that stuff on Manhattan Institute's website. It's unprecedented, not in the sense that we've never had leaks. We have. Roe v. Wade itself, the result was leaked to TIME Magazine a couple of days before the decision so TIME could design its cover the right way. But to have an unfinished draft, not the full opinion in full, leaked months before it's ready, that sort of thing. And let alone in a high profile case, probably the most significant case for the last 50 years, that really has put a chill on the court's operations.
Justices across the ideological spectrum have said as much, that there's a real tension, it was hard to work. There's mistrust, not perhaps as much between the Justices, but the Justices can't trust the other Justices' clerks. I don't know if they've put safeguards in chambers now where the clerks, I don't know, aren't allowed to print out drafts, or limiting the computer access to the internet. I have no idea what safeguards they put in place, but it certainly harms the operation of the court.
Now, just last week, several Justices said that they're expecting a report from the investigation by the marshal that the Chief Justice asked to conduct this is forthcoming. In two weeks, less than two weeks now, is the start of the new term of the court. I would expect there to be a report to come out around the same time. Now the report could say, "We didn't find out who it was."
There is certainly a potential way of doing this leak old school using burner phones and dead drops in public parks and things like this of hard copies. Not like emailing reporters from your Supreme Court email or anything like that. There is a way of doing it to make it essentially undiscoverable. But we'll see what happens with this, because it really is a serious violation of the court's operations.
Now it might not have so much to do with the court's legitimacy. These are related, but I don't think the same issue. Most people don't think the court is less legitimate because there was a leak. This issue of legitimacy is one mostly brought by elites when they're talking about, "Well, does this decision impair public confidence?" Most people in the public, they look at the court's decisions and say, "I like that. I don't like that." That's about as much as one thinks about these things. And there, the public confidence in the court is low now, but not historically low. The gap between Republicans and Democrats is certainly high, but it was high after the decision in Obergefell, the same-sex marriage case seven years ago.
So these things, I think that the debate over legitimacy is overblown. Fundamentally, and this is to tie it back to what I found in my book, which I wrote because I wanted to look at the role that politics has played in our confirmation battles. And surprise, surprise, it's been a political process from the very beginning when George Washington had a nominee rejected for political reasons. But what we have now, what's different now, is that you have divergent theories of interpretation that map onto partisan preference at a time when the parties are more ideologically sorted and polarized than they've been since at least the Civil War, if not ever. And so there's no way to reconcile. There's no way to compromise. When there's a vacancy in one of these precious seats, everything goes to DEFCON 1, and it can't help but be politically fraught.
Federal Newswire:
We're two weeks out from the start of the fall 2022 term. What's on tap? What are the big cases we ought to be looking for?
Ilya Shapiro:
Yeah, the Supreme Court is not resting on its laurels after this big controversial case. And let me be clear, last term really was the promised, expected, feared, conservative majority coalescing. After a lot of misfires and false starts and disappointments, going back to Nixon's campaign to turn over to reverse the Warren Court, or Dwight Eisenhower saying his only two mistakes were his two Supreme Court nominees, Warren and Brennan. Conservatives finally, you know, the dog that caught the cop car in a sense last year. And not just in the headline grabbing cases on abortion and guns and religion, statistically speaking, there are a lot more so-called ideological or politicization decisions, which I consider to be the most significant case of the term in terms of jurisprudence. So next term could be another such blockbuster, for example, affirmative action, the challenge to Harvard and UNC using race in admissions. This court is not reversing the civil rights gains of the '60s of the Warren Court. What it's doing is going back against the excesses, the gaudy legal wallpaper of the '70s, if you will, of the Burger Court. And so the Bakke case, which put in our modern affirmative action regime with diversity as the sole value in many of these places, that was based on one Justice's vote in a 1979 case. I think the court more likely than not, if they reversed Roe, are going to revisit that. But wait, there's more. You talked about West Virginia v. EPA and administrative law. There's a case this term called Sackett v. EPA about federal jurisdiction over puddles on your property when you try to develop it in various ways, navigable waters of the United States.
You remember Masterpiece Cakeshop, the baker who didn't want to make a cake for a same-sex wedding? Well this time there's a case involving a graphic designer who didn't want to make a website called 303 Creative v. Elenis. Also out of Colorado, also tangling with the Civil Rights Commission there. And here, there's no debate, over whether baking or there's another case involving a florist, whether that's First Amendment protected expressive activity. Here it's graphic design, website design. No question about that. So probably the court will finally rule four square against compelled speech in this case.
Another regulatory case, National Pork Producers. California tries to regulate the national market in so many industries, or in effect it does, because it's such a large state. And if you're an auto manufacturer, you're not going to create one set of cars for California, another set for the rest of the country. And so what emission standards it set become the national standard. This is a case about raising livestock of various kinds, and the pork producers specifically. This is an industry that only 0.2% of pork is raised in California in this country. This is a market where you can't tell exactly where it originates, the way that it's sure raised here, butchered in another place, packaged in another place, et cetera. And yet California has put in very strident standards in the interest of animal safety about how pigs are to be raised, which would put out of business a lot of pork producers or otherwise increase costs.
So thereby California is having an impact on purpose with interstate commerce, which then resonates with what lawyers call the negative or inverse or dormant commerce clause. That is, Congress has the power to regulate interstate commerce. What happens when states start regulating it? A very important issue, and one that cuts across ideological grounds. So for example, Justice Gorsuch and Justice Thomas are among the most skeptical about applying the dormant commerce clause unless a state puts on tariffs against imports from other states or something like that. So hard to predict how that goes, but a very important agricultural market and has ramifications for any state's regulations that have extraterritorial effect.
Federal Newswire:
Shifting gears to talk about your college years... You recently posted your college thesis at Princeton - Siberian Law, Patagonian Politics, following the death of Mikhail Gorbachev. Where did you develop your love of these issues?
Ilya Shapiro:
So part of this, I covered in a post called Living the American Dream, kind of autobiographical. I was born in the Soviet Union in Moscow. My parents got me out, and we immigrated to Canada. I like to joke, we took a wrong turn at the St. Lawrence Seaway, and the damn communism keeps following me around. But all my parents taught me was that communism was bad, and I sort of took it from there. I was fascinated by history books early on. I was fascinated by the development of the American Constitution. I remember reading the Constitution fairly early on and thought, "Well, this is clear, this is short, this makes sense." In high school I read John Locke and The Federalist Papers and things like that, as well as Ayn Rand and lots of other things. I thought these ideas of liberty, these structural protections, you have this powerful government, but how do you force it to check itself, to paraphrase Madison's Federalist 51? Separation of powers, federalism, all these great things. I was just fascinated by that.
I thought I wanted to go to law school as I eventually did, because I like studying legal and political institutions. Because for my personal family history of the Soviet Union, obviously violating people's rights and freedoms and in so many ways. I liked all things international, whether sports or food or culture or politics, and got my share of Princeton's endowment to travel to lots of different places and talk to people and learn about these things. I spoke Russian and I learned Spanish. That's where the comparative constitutionalism in my thesis comes from. It all built on itself. And I thought, "This is a fascinating thing, and I'd love to make my life's work." I still joke, "I don't know what I want to do when I grow up," but I'm making my life's work studying these issues and trying to promote the institutions that maximally allow people to promote their life, liberty, and pursuit of happiness.
