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Take your business further at T-Mobile.com slash now. 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 and 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 lawyerly jokes are made, and the really outrageous arguments are slipped in just for the benefit of the reader who wants to wait and denote 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?
My name is Malcolm Gladwell. Welcome to Season 3 of Revisionist History, my podcast about things overlooked and misunderstood. The definition of a 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.
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 piece 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 them. Wait, am I 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, people are inclined to view it as a wacky idea.
Right? You're taking a legal concept of something that's 170 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. Or that it can't be taken seriously. So, Malcolm, you've got to get people to take it seriously. 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 U.S. 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, a 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 I was going to say, we could do a... None of us are Jewish, but we could do, what do they call it, a midrash. Is that what they call a midrash? Gotcha. Yeah. Let's do a little bit of a midrash on... Let's start with Article 4, Section 3. And go through... So I guess we're trying to answer the question of
Paulson carries a small copy of the U.S. Constitution in his jacket pocket.
This is what he's reading from. This first clause: "New states may be admitted, you know, it's the power to admit new states." "But no new state 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 states concerned, as well as of the Congress. Wait, you left out some commas. I left out, I didn't read all the commas. Yeah. Okay, let me do it again. This is outrageous for you, having written so much about the grammar to leave out a comma. Okay. New states may be admitted by the Congress into this union, semi-colon. But no new state shall be formed or erected within the jurisdiction of any other state, second semi-colon.
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 states concerned, 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. ♪
Right across 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. It's not just a law review paper.
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. 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 in a 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, well, what are we going to do? So we can bust a quorum. There are 150 legislators in the Texas Assembly.
Quorum is 100. 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. 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, the
then, you know, it doesn't have jurisdiction. Oh, I see. That's why you had to go to Oklahoma. Yeah, I actually have my arrest warrant on my wall. It's pretty cool. It says, you were directed to go arrest and detain Jim Dunham and bring him to the Texas house.
When did you guys leave? Left on Mother's Day, Sunday. And, you know, about Thursday, when I figured out we're going to actually get enough people to pull this off, I was like, good Lord, where are we going to 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 I'm serious, you know. And so my wife's family is from Ardmore, Oklahoma. And God love Ardmore, but there is nothing to do in Ardmore. Dunham hires buses, gets everyone to meet at a hotel in Austin, does a head count, 50 plus himself, doesn'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 could.
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 re-gerrymander, in violation of every state norm, leading to a full-scale state constitutional crisis, causing the state's 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 minibars. 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 Kaysavan, 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.
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. So much so that immediately after I visited Paulson at Princeton, I realized that I needed an emergency session with Mary Norris.
I wonder... Lucky I have a fresh eraser here. 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, encourage, soothe, let you go on and on. The bad cops are 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.
The second, Carol, who reminded me of the proper West Indian ladies I grew up with, who could silence you with a disapproving glance. The third was Mary. If Mr. and Mrs. Santa Claus had an irrepressible youngest daughter, it would be Mary. I have written down here three sentences 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. I hand her 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 shall. So, yeah, there should be... Comma. That's the third comma, right? Yes. Yes. The other two commas, though, you're fine with? Well, no, they don't make sense either, because with the two commas, the sentence...
In its essence, it would read, well-regulated militia, the right of the people to keep and 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. Comma. The right of the people to 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 to the United States Constitution.
It's a terrible sentence. Oh, it's terrible, yeah. So what, if you rewrite that sentence for me. Mary has her pencil out. She's marking up the piece of paper like a New Yorker galley, covering the page with graceful number two pencil lines. The right of citizens. Ha ha.
who are 18 years of age or older, to vote. That's it. You should just say the right of United States citizens who are 18 years of age or older to vote. No comma. No comma. Because by having no commas, 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, built in 1978, 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. Am I right? This 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 had 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 18. 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. I'm not volunteering, though. Why not? You would be the perfect person to be the grammarian-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. Michael Paulson 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. The question Paulson had for his students was, was that constitutional? Can a new state be formed from a piece of an existing state? It's not a 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.
Now, there is this language
But no new state shall be formed or erected within the jurisdiction of any other state. 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 out, 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. So West Virginia would not be 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 more like a comma? After that semicolon, it goes on to talk about
Well, let me read it again. 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 Kaysavan 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. If that semicolon from 1787 is meant as a full stop, then someone has to go down to the statehouse in Charleston and break the news to everyone there that the party's over.
Paulson and Casevan 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. Everyone involved needs to sign off on this. That's their concern. Right. So once you, so in other words, that makes it quite clear that the last clause was
Forgive me if I'm going on and on about this, but everything depends on this interpretation of Article IV, 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 but. To the but. The Constitution says...
I've read many, many, many commentaries on this. You're the first person to talk about this but nor being significant. Well, you don't have a nor unless you're referring to something before it. You know, a neither nor. One of the things that copy editors look for is,
There, in Mary's apartment, I had a flashback.
But you're saying if I have a bot-nor construction,
If I say I like all kinds of animals, but I don't like horses, and nor do I like dogs because they smell. Is it because they smell modifying horses and dogs? I think so, yes. I think the norm connects them. Yeah. Ah, that's crucial. Mary, 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's 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 four 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. Texas 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. That's a whole other story. What matters is that, according to Caissevon and Paulson's exhaustive constitutional analysis, the offer still stands.
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. That's as many as five states where there is now only one. Ten U.S. senators where Texas now has only two.
Texans in control of American politics for the next century. We don't usually draw states, but you've made me czar, so 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 Paulson-Cazaban 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 that stretched, that included Houston and then stretched 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, 5 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 way Lee 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 Cazavan 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 state, and I think that the state would be more Latino than New Mexico, and it would elect not only Democrats, but probably Latino Democrats to the Senate.
It's a whole new ballgame. 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 lock for the Democrats and three are up for grabs. Would that be a fair... I think so. Yeah. Yeah. Yeah.
Which is a pretty big shift from 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? Meaning, like, it's what holds, like, you know, the Republicans in power. It's the wall against, you know, this, like, liberalism from places like New York and California, right?
I've always thought that was sort of a funny analogy because everyone died at the Alamos. But, you know, that's the one that they use. An inadvertently telling analogy. Texas Democrats have been thinking way too small. Imagine a governor of Texas reads your law review.
article and said well that's a funny enough premise as it is and says okay i want to 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 it's a
All we know is that 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, all that has to happen is for Texas to get its act together. It's up to Texas. 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. So if Texas wants to do this, they need to do it in secret. They gotta get their... Well, they just gotta 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.
Revisionist History is a Panoply production. The senior producer is Mia LaBelle with Jacob Smith and Camille Baptista. 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. You don't have any bad memories of copyediting A Peace of Mind, do you? No, no, none at all.
In fact, I use you as the example of somebody who the pencil kind of bounces off. You do a very nice job. My mother will be very pleased to hear that I do a nice job.
I'm Malcolm Gladwell, and I'd like to take a moment to talk about an amazing new podcast I'm hosting called Medal of Honor. It's a moving podcast series celebrating the untold stories of those who protect our country. And it's brought to you by LifeLock, the leader in identity theft protection. Your personal info is in a lot of places that can accidentally expose you to identity theft.
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