Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. Today's episode is a little different than usual. It's a conversation between me and one of my podcasting gods, Malcolm Gladwell. Malcolm is the host of Revisionist History, which is produced by the same company that produces this show. About a year ago, Malcolm reported a story for Revisionist History about a constitutional law professor named Michael Stokes Paulsen who has this totally crazy theory the Texas has the right to break into five states if it wants all because the authors of the United States Constitution used a semicolon in a certain way. Here's a clip from that episode of Malcolm talking to Michael Paulson. I want to find the full thing. By the way you can find it in the Revisionist History feed. It's called Divide and Conquer. 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 I want to trigger it. 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 better real world. 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, the all that has to happen is for Texas to get its act together. It's up to Texas. So far, Texas has not done anything with Michael Paulson's theory, but it still seems to have had an impact. About a month ago, an article appeared in the Harvard Law Review. It's called a note because that's what short student writing is called, and one hundred percent confirmed this because everything in the Harvard Larvue is anonymous. But it seems pretty clear to me that this note was inspired by Malcolm Gladwell's story about Michael Paulson. The note is called pack the Union, a Proposal to admit new States for the purpose of ensuring equal representation, and in it, the author argues that since Washington, DC is not a state and is therefore overseen by Congress, Congress has the authority to pass legislation that would break Washington DC into one hundred and twenty seven states. Yes, you heard me right, break Washington DC into one hundred and twenty seven states. Malcolm seem pretty into this idea. So we had a conversation in which I tried my best to suggest that practically speaking, it doesn't make any sense as a non constitutional scholar. Walk me through how this new ideas outlined in the Harvard Larvue works. Well, the magic of the idea goes back to your comma conversation and your whole analysis in that episode of the question of whether states have to consent to being broken up into lots of new states. So the person who came up with this idea are so far anonymous author thought about it and said, well, it's true that under the constitutional reading, the most rigorous one states would have to agree to be broken up. But the District of Columbia is not a state. It's not one of the fifty states. It's just a district controlled by Congress. Therefore, it should be up to Congress under the Constitution to decide if it wants to turn some parts of District of Columbia into a state. Now, you might say, but wait, the Constitution mentions DC and says that it can't be a state, and so the person says, no problem. Preserve a few blocks around the White House and the Capitol, call those the District of Columbia, treat that as not a state, and then take the rest of the district and break it up into one hundred and twenty seven than states, which is how many it would take to assure on this view the constitutionality of future changes. The idea is to actually get a situation where those voters could control essentially two thirds of the Senate for all major future determinations and decisions. And the whole claim of the article is you could pull this off within the text of the Constitution. You'd need Congress to do it, but a majority on they in this theory, a majority of Congress with a signature by the President could in fact do it. So you would have you create all these new states. Each of these states gets two senators. The Senate becomes a body with two hundredodd senators, and most of them are are residents of the former District of Columbia. Presumably the area is hand picked for their democraticness. You wouldn't have to do much handpicking in Washington, DC, even at that micro level. Not that many Republicans in the district yet. But this obviously is open to the criticism that the other idea avoids, which this is a massive violation of democratic norms, right, exactly, exactly, you know, I think you're completely right. And that's why this article, you know, shifts from creative to humorous to a too absurd because it would it would violate the core idea of you know, of the way the framers imagine the Constitution. Now there's pushback. I mean, again, to put words in the mouth of the anonymous author, we could say, well, the Senate itself is a gross violation of democratic norms. And that's actually true. You know, Madison thought that Madison hated the idea that each state would get two senators, the big states like his state, Virginia, where the little mini states like Delaware and Rhode Island. He detested the very idea of it, and he lost in the Constitutional Convention, you know, famously he said no, you know, we're not going to do it that way, and the small states staged a walk out and they shut down the convention, and they basically said, we're not coming back unless you agree, and he had no choice, and he actually walked away from the convention feeling that his greatest failure there was the failure to get a democratic, small, d democratically structured Senate. He thought this was a violation of basic principles. You can't say one man, one vote, because they didn't treat African Americans as full citizens or citizens at all, and they had a three fifth compromise, and they didn't let women vote. But he thought that among white men there should at least be proportionality, and this obviously meant there wasn't. But what if someone did a more modest version of this and just said it will, let's create a state out of one state out of DC using this exact same methodology, will conserve the crucial areas, call it DC, and we'll take all of you know, the balance of the city and create a new state of Columbia. Does that make this idea plausible, Well, it does make it plausible. It just runs into the political problem that has always accompanied the idea of the introduction of new states, where it's pretty easy to guess what political party their senators and congressmen will be from and the centers are the ones that matter, because DC is small enough that it wouldn't have that many representatives. And that is just how do you get the other party to agree. And that's why so many states of the Union have been introduced in pairs. You know, this was obviously true before the Civil War. In fact, the big problem before the Civil War was that if you didn't admit states in pairs slave and free slave and free slave and free, they were going to throw off the balance in the Senate. And people were worried that would lead to a civil war, and it kind of did, and then afterwards people said, Okay, let's be really cautious about this. Even though no one thinks we're on the brink of civil war. The other party never wants to allow it in and usually uses what he can to block it. But sure the people who call for statehood in DC, and there are lots of people like that are thinking in those terms. Puerto Rico is another really good example. A lot of Puerto Ricans want Puerto Rico to become a state, but they just need to get the politics of it right. Either. They need to make it look like it'll be half democratic and half republican, or alternatively, they need to if it's going to be mostly democratic, they need to get a republican state to come in at the same time. Following all along, these two ideas in combination might work. What if the trade was in the short term, creating new states out of the existing Texas sounds like it's a pro republican idea. I mean, the augument about Texas is in the long term, Texas is drifting democratic. But in the short term would if a deal was created which said we will if you let us create a side state out of DC, will let you add another state to Texas. I think in principle you could get this. But here's the circularity. I think you know, the minute that you're having a democratic state added and then a republican state added, effectively, nobody is winning, right, So the deal would then become pointless. I mean, I think this goes to my second not pointless, because you're increasing the democratic structure of the Senate by you're solving two problems. When is you're making Senate more representative by breaking out Texas, and two you are long last giving some formal representation to the citizens of DC's that strikes me as being that initial step strikes me as being very easy to justify. Well that I agree with. I mean, I think you wouldn't be solving the unrepresentative in this problem, because you'd still have New York and California and lots and lots of other states, and you still have this huge disparity. But I agree you'd be moving it slowly in the right direction. I think the question is, you know, it takes so much power, so much force to overcome the inertia of something like the arrangement of the States, that probably you're only going to see it happening if both parties think they're going to benefit from it in the long run, And since everybody involved is pretty sophisticated, it's hard to get them to think that the other side is going to con them. You know, I always think of this as similar the problem in Israel, where they don't have a constitution at all, and every so often I get a call saying, will you join this commission. We're gonna have a Blue ribon commission. We're gonna talk about creating a constitution for Israel. And I always say the same thing. The right wing doesn't want to do it because they think that it will impose individual rights that they won't like. The left doesn't really necessarily want to do it because they think the right wing will use it to push a more right wing vision of what the country should be like. So the only way it can happen is if each side is convinced that the other side is making a mistake. If each side thinks the other side or suckers, then the deal will happen. And so I, you know, I worry a little bit about that in this political context. And that actually brings me to this. Why do you think it's so fascinating for everybody to imagine magical technical fixes to deep structural problems in something like the Constitution? Well, I just to think, Aha, we figured it out. One professor figured it out. It's in his notes there. It is, we can fix this problem. Well, I would actually state this somewhat differently, which is the reason, as an object of such fascination among Americans, is there's something weird about the American political system as opposed to other democracies, which is in other democracies. This is my impression as a Canadian, for example, and as someone who knows a lot about the English system as well, that there's way more flexibility in those systems. So you want to dump your prime minister, you dump your prime minister. If Canada decided I didn't want tudo tomorrow both of no confidence, he's gone call an election. You want an election, We're gon an election next week. You know, you call election. It happens within whatever it is, a month or whatever. It's consistent with the notion of democracy in many Western countries is the idea that you can start over, you can rewrite the rules. Canada, in my lifetime gave itself a constitution and did all kinds of you know, only in America is this notion, Like you literally have people in Supreme Court who are wedded to the interpretations of the constitution network in place in the middle of the eighteenth century. I mean, it's bananas. So no wonder, yeah, yeah, well, no wonder where Americas are in love with these ideas of technical fixes because we are alone among sophisticated democracies in having this weird resistance to any kind of innovation, even at the fringches. Does that make sense? It does? I mostly agree with that. I mean, on your first point. It's true that any presidential system, not just the American but any presidential system doesn't have the vote of no confidence remove the person function. So that's parliamentary democracies do have that, but lots of other constitutional democracies that our presidential systems don't. You can't get rid of the president of France quite that easily, can get rid of the president of Brazil that easily. That's why they actually have impeached the president of Brazil recently. That feature is not as unique to the United States. But I think you're right that the idea that we would still use a constitution that's, you know, two hundred and thirty years old, and that also have totally failed once. I mean most countries after your constitution fails. Our Civil War was a failure of our constitution. I mean, that's what it is for a constitution to fail. But after it failed, we didn't admit that it failed. We just said, well, we're going to add these amendments that provide for the end of slavery and equal protection and due process of the law, and allow African Americans to vote, and we're not going to change anything else, which is totally Absurdain and that also led to the situation right now, and I think where you say that's bananas, you're right. Nobody else does it our way, and I guess that leads to this idea that maybe, just maybe there's some tricky technical way to repair our problems. And that's where you know, the concerts lawyer in me wants to say, well, that would be great, but that's up to the politicians and they have to have the will to do it, And if they really had the will to do it, they wouldn't need something tricky. We could actually have a constitutional convention or we could start again or something like that. Yeah, let me ask you something else, a related line of questioning, and it's this, So, if the academics of America had any money, which they don't, or we're organized, which they aren't, and they wanted to put together an award for person in the country, maybe a person in the world, who's done the most for them, the most to popularize their ideas, make them seem relevant. You would be the first recipient of that award. In fact that you're probably name it for you because again and again in your career you found fascinating, quirky opinions by scholars, and you've put them into public debate, and then people argue about them, and then if you change your mind, you quote the scholars from the other side. You're scrupulously fair. Yet, and here's the Yet, when it comes to the institutions that a lot of these professors teaching, the ones that pay their salaries, like Fancy Ivy League universities, you seem to really hate the universities. You criticize them. You talked about their unfairness, their injustice. To tell me about that, first of all, am I getting you right? Yes, you're getting me correct. I don't hate all of them, I hate the elite ones. So yes to my allegiances are very clear. My allegiances are. I am a faculty brat myself, and so identify very strongly with faculty and identify with the students. But I remember come from Canada, where the goals of the educations were very clear. Access to higher education was in Canada is what the entire system is supposed to be oriented around. Sound, And you're willing to make all kinds of sacrifices in order to maximize the affordability and access to right. So there's two things I'm interested in systems that serve the faculty and systems that serve students in form of access. To my mind, the American higher ed system has betrayed both those things. I think academics are grossly undervalued and underpaid, which is weird because the cost of a university education has skyrocketed, which is one of those strange puzzles. Whatever I hear, like, what's someone teaching like eight classes at a state university? What they're making I'm appalled. This is one of the central functions of a civilized society is the education of its intellectual class. And you know, we're paying these people embarrassing wages A but B. And at the same time, we're escalating the cost of education to the point where people are spending their first ten years is post college or more paying off their loans. That's also crazy, and I think, what's it? You know, there are many things to blame of this, but one of them is the example. There's a handful of institutions that are at the very top of the food chain that are setting an extraordinarily bad example, and they are the schools of the Ivy League. My favorite whipping hearts at the moment is Princeton. You know, Princeton, Princeton and Harvard both should be ten times the size. I mean ten times maybe too much, but I don't know. When you when you realize that the University of Toronto is seventy five thousand students, it becomes really, really really hard to justify Princeton, which has resources that are probably ten x University of Toronto. Why Princeton is a tenth a size that's sentent a size. Everything you're saying is true, and I but I want to let me just raise a couple of possible count arguments and just hear your thoughts about them. So first I hear you. You know, some of this is you're seeing it from a Canadian perspective, and like a good Canadian, you look at the United States. We have a crazy constitution and we have a crazy higher educational system. That's fair enough, and I think it's true. It does raise, first off, the question of whether the putting a lot of resources into a handful of institutions actually produces better conditions for the faculty there. So you mentioned the terrible under payment of professors who teach at state universities, and that's absolutely right. But that's not the elite institutions. The elite institutions do much better in terms of compensation, and especially when you measure it in terms of how much teaching they're doing. So if you teach at Princeton, you actually have the chance to write and read, or if you're in a lab, do lab research, and that's where a huge amount of the scholarship is getting produced. I don't think anyone could say with a straight face the Princeton professors or underresourced or underpaid. To the contrary, they're well resourced, they're fairly paid, and they produce a ton of interesting ideas because that takes up a lot of time. Whereas the same exact people with the same degree of training and skill and creativity were put in a state institution where they had to teach four courses a semester, they would produce less in the way of creative and original ideas, a lot less. And I would just add, you know, we can talk about Inversity of Toronto in a second. That's an incredible institution. But you know, I have a one of my best students ever as a professor at University of Toronto in the law school, and that's a great great law school. It has some private funding for it, but her work requirements are substantially greater than they would be at a comparably ranked US law school. She just does a lot more work because, as you said, there are just so many students, and the law school as she isn't that huge. Yeah, No, I mean, the thing about under payment is a critique of the the ninetieth percentile on down. It's obviously not a critique. And my critique about the second critique, though, is a critique of the top. So one is Ones a mass critique and Ones an elite critique, but they're linked in a sense that one of the one of the things that makes it difficult for universities who are not elite to pay their fact properly and to preserve access is that they are trapped in an arms race as being driven by the leading institutions. The problem is that the whole system is in the middle of this amenity's arms race, which is all being fueled by the actions of you know, fifteen schools top which have access to disproportionate resources. If I'm a Hio state, i am on some level, i am competing for students with private elite colleges, and I have to play that game to attractive, I got to have a nicer dining hall. I gotta have better food. I got to have And what does that leave me? Less money left over to pay my faculty properly, and less money left over to subsidize the cost of providing an education, and more money going into things that have no real educational function. There's something a little bit screwy about the incentive structure of higher education. So I'm not I mean, I'm not saying anything that has not been said a found sometimes before. I I am just beginning to lose patience with the fetishization of private education in this country, right. I mean, look, the amenities arms race is completely insane. It's a product not just of competition, although that's a big part of it, but also of the commercialization of education, where the universities and the colleges think of the students as customers, and if they're customers, well, then the customer is always right, and you have to cultivate the customer, and you you're in the business of providing education services for the customer. Ironically, the elite institutions worry less about that than the middle level institutions, because at the elite institutions, we know that the students will come. And although we try to be nice about the amenities, because after all, we have the resources, why shouldn't we be we're not really doing amenities in order to get students to come here who might go somewhere else. What's difficult is if you're a middle ranked institution. You know, my brother teaches at Connecticut College, which is a fantastic liberal arts college in Connecticut, and they have to be very aware that they're competing with other small liberal arts colleges for the best students, and that if they fall behind, they could fall off the cliff. You know, if they go on to the second page of the US News and World Report, they've seen it happen to other colleges. So they have to compete on every ground that eighteen year olds care about. And I don't think that amenity's race is actually coming from the very top. I think it's coming from other colleges in their same you know, in their same range. They're competing with similar colleges. Yeah, yeah, you know, there's a if I might bring this conversation, try and bring it full circle. The reason why to go back to Michael Paulson for a moment. The thing that is so beautiful, if I might use that word about that article he wrote, was he uses a provocative, mischievous idea as a vessel for almost tricking you into thinking about some pretty weighty, serious subjects. Right. In other words, he's doing what a great teacher is supposed to do. I am not someone who would normally ever read something about constitutional law. He tricked me in the most beautiful, lovely way into like spending a month of my life thinking about constitutional law because he had this clever way in And to my mind, that thing that he did in that article is what a university is supposed to do. Is lure you into thinking about things that you would never have thought about, and at the end of the day leave you with a feeling of not just satisfaction but joy, like that the whole experience was fun. And when I look at what universities are doing now, I feel like they are doing everything but that they're trying to convince you that they're here. Are nine reasons to go to our university, But the idea that you might get some kind of intellectual pleasure out of toying with a radical idea seems to be not just way down the list, but also when they do in counter radical ideas, they run for the tall grass screening. It's not gutting there, you know. It's like it's such a kind of weird inversion, Like it should be enough. If I'm seventeen and I read an article, I should say, oh my god, I want to go and be taught a course by that guy. That should be the reason I go to college. Right. Yeah, in a world where seventeen years where already reading large few articles, though we'd have no other problems, that would be a magic world where everything would already have been solved. Everyone would be a little Malcolm Godwell in the making. You know, no, no, but but Noah. Think about this. Imagine if I said, if I asked you to teach a course in an honors class of a public high school and senior honors pass in a public high school in the Boston area, and your text was that Michael Paulson article. Do you think you could hold their interest for a semester totally? For sure? Yeah, for sure. I don't know about a whole semester, but you could definitely get students engaged and interested, no doubt about it. The students. And again that's against the backdrop of having, as you say, an honors class at a public high school kids. But that's the feeding ground for what we're talking about. Yeah, those are the kids who are going to go to the schools and we're talking about there's a lot there are hundreds and hundreds of thousands of kids and honors classes in America who potentially could find that article really really fun and hilarious and exciting, you know, And that's what I that's just a little piece of it that seems to me to be absent. That's a super nice way of thinking about it. And I agree that in the long run, our objectives should be to get those teachers who are teaching those kids and who are for the most part, are doing a great job to you know, to have the opportunity to teach them stuff like that. I think that's a very Malcolm perspective and I think it's super helpful. Can I ask you just one one last question, and it's this, and it's relevant to also to you know, to your finding paulse and you're being able to get that interview with him, how do you find getting the interviews to work so well in a podcast? I mean, you're you're spectacular at it. Here, I am trying to have my own podcast, trying to and how to do it properly. Well, what's what's the secret sauce? I'm not talking now about the secret sauce of coming up with their ideas. That's unique, and you know there's no way to share that. You're you're Malcolm. But when it comes to doing the interviews, maybe there you've got some secret sauce you can share. Well. The lovely thing about if I'm interviewing you for a newspaper article. Having been a newspaper reporter for ten years of my life, people would often be nervous to talk to you because they're aware of how difficult. Not bias necessarily, though biases sometimes a problem, just inherently difficult the task is. So, I'm writing an article on Deadline that's going to be eight hundred words in which I'm tackling a very difficult topic. I'm going to talk to you for twenty minutes when the conversation should really be an hour and a half, and I'm going to extract two sentences that bear on the thing I'm writing about that it is almost certainly the case that those two sentences that I extract do a far less in adequate job of presenting your true position. It's just structurally, institutionally, that form is really hard for all parties. It's like fracking. You know, you're extracting something and that you don't really care what the costs are, and you're going to do it and you're going to leave them behind afterwards. Yes, under great pressure. Yes, the analogy is beautiful, and that's so that's like, that's the world I started in, and I was aware of its shortcomings. Then I go to the New Yorker, and now you have much more space and much more time, but you still have the problem that you are extracting the interview from its context. In a podcast interview, both parties are aware that it's about as safe an interview space as is possible, because now the person gets to say it in their own words, and so you all of the kind of tone of voice, irony, even things like you know, the constant thing in print journalism, if that quote was taken out a context, why because you left off the you know, the clause at the end of the sentence or the sentence that came immediately before, which clarified it much harder to do in an audio interview. So what happens in an audio interview is that people that you're interviewing are aware that they're getting a much more accurate representation of their ideas, and as a result, they relax. And if you can communicate that fact that, oh, I'm just going to let this run, you know, you wanted to just tell you what's on your mind. And you know, they're funnier because they have more time to be funny, and they're not as anxious about being misrepresented, and they'll say more interesting things because they have this time and space to qualify them appropriately. And you know, so that's just a it's just a safe space, a safer space for this kind of conversation. And I think that's why I like this format so much. Thank you for joining the safe space of deep background of Malcolm's the first time anyone has ever used the word safe space and the same sentence with me. But I'll take it, and I'm very happy to hear it. Thanks for coming. Okay, wonderful, take care. Thanks Now, the name of the Revisionist History episode again that Malcolm and I were discussing is Divide and Conquer. It's definitely worth a listen. And now it's time for our playback segment, where I choose a moment in the news and play it back to try to make some sense out of it. That was a soil Carday have a clipboard with a card on it and number has written down the right side of that clipboard. That sound of confusion is from the Iowa caucuses about ten days ago, and it was recorded by one of our producers, Eloise Linton. What's really crazy, of course, is that that was ten days ago and we still don't really know who won the Iowa caucuses, and it's looking like we never will. With all of the votes counted quote unquote counted. Pete Buddha Judge was announced by point one percent the victor, and the Bernie Sanders campaign has not at all conceded that, and they also point out that if you count not ultimate allocation of delicates, but rather who walked into the room in the first instance and said they were going to vote for someone, that Bernie Sanders is actually clearly ahead in that number. All this makes me want to turn to a question that we're going to have to keep on asking about Iowa for a long time, and that question is what went wrong? Now, let may be clear, there are many ways that you could answer this question, and many of them would start with the app that failed and the failure of the Democratic Committee of Iowa to produce a process that worked. I'm not disputing those things. Instead, I want to focus on a specific innovation that the Democratic Party made this time and how it may have contributed to what went wrong. Specifically, for the first time ever, in the Democratic caucuses. Instead of just having each person who's running each caucus report one number, namely, what were the final allocation of delegates at the end of this night, instead the party asked to have three numbers reported, which began with the initial process of how people wanted to vote when they came in, then moved on to include the process of change, and then ended up with a final result at the end. Now, in principle, introducing this information was a really good idea. In fact, it was pushed forward by the Bernie Sanders campaign and the aftermath of the twenty sixteen Iowa caucuses because they felt that they had been robbed insofar as they had more votes from the people who walked in the first place than they did ultimately in the process, and that information had not been reported. In principle, it's always good that we know more information about an election. In theory, we always want to know more data. The reality is, however, that when you have a complex and ramshackle process that relies on individual humans who are not professionals recording information, asking them to submit three data points instead of one, open the door to a disaster that was in fact highly probable in retrospect. Namely, it created the distinct probability that some people would not do the math right and would report numbers that were internally inconsistent with each other. That's just why we only ask most of the time for a single number when it comes to counting votes, because the deeper you go into the details of data, the more possibility for contradiction and error inevitably arises. Remember the two thousand Bush v. Gore controversy. When Florida officials began a detailed recount of the entirety of what had happened there, they immediately discovered hanging chads, dimple chads, divergences in counting it turned out it was almost impossible to replicate the same outcome more than once on the same body of ballots. That's the way things actually are in the reality of elections. There's complexity, there's contradiction, and boy is there a lot of human error. Requiring the reporting of three pieces of data was almost certain to reveal the depth and extremity of that human error. Now you might say, well, if that's the way it was, then the results were never meaningful, and in that case it was good that we got that information. I would respond to that by saying that, in fact, the problem is that all elections, no matter where you will hold them, and no matter how you run them, have a significant amount of human error in them. Asking for more data is a guarantee that you will reveal that human error. And here's the punchline, that will also under the legitimacy of elections themselves. We tend to forget that elections because they're human are messy. Because humans are messy. We aspire to perfection, We aspire to cleanliness. We aspire to yes an app that has the capacity to do everything we think without trouble or mistakes. The reality proves to be otherwise, apps break down. Humans break down, math breaks down, the elections break down. That's why the simplest is always the best when it comes to the democratic process. By only announcing one number, the number of votes of who won and the number of votes of who lost, we mask the ugliness, and that masking turns out to in fact be necessary to producing democratic legitimacy. So you think the data is always good. You think information is always good. It isn't always good if it reveals the ugly human messiness and frailty at the base of our democratic system. We're better off with elections that just tell you who voted and for whom, and that may mean we're better off having elections and not having caucuses at all. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Gene Coott, with studio recording by Joseph Fridman and mastering by Jason Gambrell and Jason Roskowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis Gara. Special thanks to the Pushkin Brass Malcolm Gladwell, Jacob Weisberg and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R. Feldman. This is deep background

Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. Today's episode is a little different than usual. It's a conversation between me and one of my podcasting gods, Malcolm Gladwell. Malcolm is the host of Revisionist History, which is produced by the same company that produces this show. About a year ago, Malcolm reported a story for Revisionist History about a constitutional law professor named Michael Stokes Paulsen who has this totally crazy theory the Texas has the right to break into five states if it wants all because the authors of the United States Constitution used a semicolon in a certain way. Here's a clip from that episode of Malcolm talking to Michael Paulson. I want to find the full thing. By the way you can find it in the Revisionist History feed. It's called Divide and Conquer. 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 I want to trigger it. 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 better real world. 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, the all that has to happen is for Texas to get its act together. It's up to Texas. So far, Texas has not done anything with Michael Paulson's theory, but it still seems to have had an impact. About a month ago, an article appeared in the Harvard Law Review. It's called a note because that's what short student writing is called, and one hundred percent confirmed this because everything in the Harvard Larvue is anonymous. But it seems pretty clear to me that this note was inspired by Malcolm Gladwell's story about Michael Paulson. The note is called pack the Union, a Proposal to admit new States for the purpose of ensuring equal representation, and in it, the author argues that since Washington, DC is not a state and is therefore overseen by Congress, Congress has the authority to pass legislation that would break Washington DC into one hundred and twenty seven states. Yes, you heard me right, break Washington DC into one hundred and twenty seven states. Malcolm seem pretty into this idea. So we had a conversation in which I tried my best to suggest that practically speaking, it doesn't make any sense as a non constitutional scholar. Walk me through how this new ideas outlined in the Harvard Larvue works. Well, the magic of the idea goes back to your comma conversation and your whole analysis in that episode of the question of whether states have to consent to being broken up into lots of new states. So the person who came up with this idea are so far anonymous author thought about it and said, well, it's true that under the constitutional reading, the most rigorous one states would have to agree to be broken up. But the District of Columbia is not a state. It's not one of the fifty states. It's just a district controlled by Congress. Therefore, it should be up to Congress under the Constitution to decide if it wants to turn some parts of District of Columbia into a state. Now, you might say, but wait, the Constitution mentions DC and says that it can't be a state, and so the person says, no problem. Preserve a few blocks around the White House and the Capitol, call those the District of Columbia, treat that as not a state, and then take the rest of the district and break it up into one hundred and twenty seven than states, which is how many it would take to assure on this view the constitutionality of future changes. The idea is to actually get a situation where those voters could control essentially two thirds of the Senate for all major future determinations and decisions. And the whole claim of the article is you could pull this off within the text of the Constitution. You'd need Congress to do it, but a majority on they in this theory, a majority of Congress with a signature by the President could in fact do it. So you would have you create all these new states. Each of these states gets two senators. The Senate becomes a body with two hundredodd senators, and most of them are are residents of the former District of Columbia. Presumably the area is hand picked for their democraticness. You wouldn't have to do much handpicking in Washington, DC, even at that micro level. Not that many Republicans in the district yet. But this obviously is open to the criticism that the other idea avoids, which this is a massive violation of democratic norms, right, exactly, exactly, you know, I think you're completely right. And that's why this article, you know, shifts from creative to humorous to a too absurd because it would it would violate the core idea of you know, of the way the framers imagine the Constitution. Now there's pushback. I mean, again, to put words in the mouth of the anonymous author, we could say, well, the Senate itself is a gross violation of democratic norms. And that's actually true. You know, Madison thought that Madison hated the idea that each state would get two senators, the big states like his state, Virginia, where the little mini states like Delaware and Rhode Island. He detested the very idea of it, and he lost in the Constitutional Convention, you know, famously he said no, you know, we're not going to do it that way, and the small states staged a walk out and they shut down the convention, and they basically said, we're not coming back unless you agree, and he had no choice, and he actually walked away from the convention feeling that his greatest failure there was the failure to get a democratic, small, d democratically structured Senate. He thought this was a violation of basic principles. You can't say one man, one vote, because they didn't treat African Americans as full citizens or citizens at all, and they had a three fifth compromise, and they didn't let women vote. But he thought that among white men there should at least be proportionality, and this obviously meant there wasn't. But what if someone did a more modest version of this and just said it will, let's create a state out of one state out of DC using this exact same methodology, will conserve the crucial areas, call it DC, and we'll take all of you know, the balance of the city and create a new state of Columbia. Does that make this idea plausible, Well, it does make it plausible. It just runs into the political problem that has always accompanied the idea of the introduction of new states, where it's pretty easy to guess what political party their senators and congressmen will be from and the centers are the ones that matter, because DC is small enough that it wouldn't have that many representatives. And that is just how do you get the other party to agree. And that's why so many states of the Union have been introduced in pairs. You know, this was obviously true before the Civil War. In fact, the big problem before the Civil War was that if you didn't admit states in pairs slave and free slave and free slave and free, they were going to throw off the balance in the Senate. And people were worried that would lead to a civil war, and it kind of did, and then afterwards people said, Okay, let's be really cautious about this. Even though no one thinks we're on the brink of civil war. The other party never wants to allow it in and usually uses what he can to block it. But sure the people who call for statehood in DC, and there are lots of people like that are thinking in those terms. Puerto Rico is another really good example. A lot of Puerto Ricans want Puerto Rico to become a state, but they just need to get the politics of it right. Either. They need to make it look like it'll be half democratic and half republican, or alternatively, they need to if it's going to be mostly democratic, they need to get a republican state to come in at the same time. Following all along, these two ideas in combination might work. What if the trade was in the short term, creating new states out of the existing Texas sounds like it's a pro republican idea. I mean, the augument about Texas is in the long term, Texas is drifting democratic. But in the short term would if a deal was created which said we will if you let us create a side state out of DC, will let you add another state to Texas. I think in principle you could get this. But here's the circularity. I think you know, the minute that you're having a democratic state added and then a republican state added, effectively, nobody is winning, right, So the deal would then become pointless. I mean, I think this goes to my second not pointless, because you're increasing the democratic structure of the Senate by you're solving two problems. When is you're making Senate more representative by breaking out Texas, and two you are long last giving some formal representation to the citizens of DC's that strikes me as being that initial step strikes me as being very easy to justify. Well that I agree with. I mean, I think you wouldn't be solving the unrepresentative in this problem, because you'd still have New York and California and lots and lots of other states, and you still have this huge disparity. But I agree you'd be moving it slowly in the right direction. I think the question is, you know, it takes so much power, so much force to overcome the inertia of something like the arrangement of the States, that probably you're only going to see it happening if both parties think they're going to benefit from it in the long run, And since everybody involved is pretty sophisticated, it's hard to get them to think that the other side is going to con them. You know, I always think of this as similar the problem in Israel, where they don't have a constitution at all, and every so often I get a call saying, will you join this commission. We're gonna have a Blue ribon commission. We're gonna talk about creating a constitution for Israel. And I always say the same thing. The right wing doesn't want to do it because they think that it will impose individual rights that they won't like. The left doesn't really necessarily want to do it because they think the right wing will use it to push a more right wing vision of what the country should be like. So the only way it can happen is if each side is convinced that the other side is making a mistake. If each side thinks the other side or suckers, then the deal will happen. And so I, you know, I worry a little bit about that in this political context. And that actually brings me to this. Why do you think it's so fascinating for everybody to imagine magical technical fixes to deep structural problems in something like the Constitution? Well, I just to think, Aha, we figured it out. One professor figured it out. It's in his notes there. It is, we can fix this problem. Well, I would actually state this somewhat differently, which is the reason, as an object of such fascination among Americans, is there's something weird about the American political system as opposed to other democracies, which is in other democracies. This is my impression as a Canadian, for example, and as someone who knows a lot about the English system as well, that there's way more flexibility in those systems. So you want to dump your prime minister, you dump your prime minister. If Canada decided I didn't want tudo tomorrow both of no confidence, he's gone call an election. You want an election, We're gon an election next week. You know, you call election. It happens within whatever it is, a month or whatever. It's consistent with the notion of democracy in many Western countries is the idea that you can start over, you can rewrite the rules. Canada, in my lifetime gave itself a constitution and did all kinds of you know, only in America is this notion, Like you literally have people in Supreme Court who are wedded to the interpretations of the constitution network in place in the middle of the eighteenth century. I mean, it's bananas. So no wonder, yeah, yeah, well, no wonder where Americas are in love with these ideas of technical fixes because we are alone among sophisticated democracies in having this weird resistance to any kind of innovation, even at the fringches. Does that make sense? It does? I mostly agree with that. I mean, on your first point. It's true that any presidential system, not just the American but any presidential system doesn't have the vote of no confidence remove the person function. So that's parliamentary democracies do have that, but lots of other constitutional democracies that our presidential systems don't. You can't get rid of the president of France quite that easily, can get rid of the president of Brazil that easily. That's why they actually have impeached the president of Brazil recently. That feature is not as unique to the United States. But I think you're right that the idea that we would still use a constitution that's, you know, two hundred and thirty years old, and that also have totally failed once. I mean most countries after your constitution fails. Our Civil War was a failure of our constitution. I mean, that's what it is for a constitution to fail. But after it failed, we didn't admit that it failed. We just said, well, we're going to add these amendments that provide for the end of slavery and equal protection and due process of the law, and allow African Americans to vote, and we're not going to change anything else, which is totally Absurdain and that also led to the situation right now, and I think where you say that's bananas, you're right. Nobody else does it our way, and I guess that leads to this idea that maybe, just maybe there's some tricky technical way to repair our problems. And that's where you know, the concerts lawyer in me wants to say, well, that would be great, but that's up to the politicians and they have to have the will to do it, And if they really had the will to do it, they wouldn't need something tricky. We could actually have a constitutional convention or we could start again or something like that. Yeah, let me ask you something else, a related line of questioning, and it's this, So, if the academics of America had any money, which they don't, or we're organized, which they aren't, and they wanted to put together an award for person in the country, maybe a person in the world, who's done the most for them, the most to popularize their ideas, make them seem relevant. You would be the first recipient of that award. In fact that you're probably name it for you because again and again in your career you found fascinating, quirky opinions by scholars, and you've put them into public debate, and then people argue about them, and then if you change your mind, you quote the scholars from the other side. You're scrupulously fair. Yet, and here's the Yet, when it comes to the institutions that a lot of these professors teaching, the ones that pay their salaries, like Fancy Ivy League universities, you seem to really hate the universities. You criticize them. You talked about their unfairness, their injustice. To tell me about that, first of all, am I getting you right? Yes, you're getting me correct. I don't hate all of them, I hate the elite ones. So yes to my allegiances are very clear. My allegiances are. I am a faculty brat myself, and so identify very strongly with faculty and identify with the students. But I remember come from Canada, where the goals of the educations were very clear. Access to higher education was in Canada is what the entire system is supposed to be oriented around. Sound, And you're willing to make all kinds of sacrifices in order to maximize the affordability and access to right. So there's two things I'm interested in systems that serve the faculty and systems that serve students in form of access. To my mind, the American higher ed system has betrayed both those things. I think academics are grossly undervalued and underpaid, which is weird because the cost of a university education has skyrocketed, which is one of those strange puzzles. Whatever I hear, like, what's someone teaching like eight classes at a state university? What they're making I'm appalled. This is one of the central functions of a civilized society is the education of its intellectual class. And you know, we're paying these people embarrassing wages A but B. And at the same time, we're escalating the cost of education to the point where people are spending their first ten years is post college or more paying off their loans. That's also crazy, and I think, what's it? You know, there are many things to blame of this, but one of them is the example. There's a handful of institutions that are at the very top of the food chain that are setting an extraordinarily bad example, and they are the schools of the Ivy League. My favorite whipping hearts at the moment is Princeton. You know, Princeton, Princeton and Harvard both should be ten times the size. I mean ten times maybe too much, but I don't know. When you when you realize that the University of Toronto is seventy five thousand students, it becomes really, really really hard to justify Princeton, which has resources that are probably ten x University of Toronto. Why Princeton is a tenth a size that's sentent a size. Everything you're saying is true, and I but I want to let me just raise a couple of possible count arguments and just hear your thoughts about them. So first I hear you. You know, some of this is you're seeing it from a Canadian perspective, and like a good Canadian, you look at the United States. We have a crazy constitution and we have a crazy higher educational system. That's fair enough, and I think it's true. It does raise, first off, the question of whether the putting a lot of resources into a handful of institutions actually produces better conditions for the faculty there. So you mentioned the terrible under payment of professors who teach at state universities, and that's absolutely right. But that's not the elite institutions. The elite institutions do much better in terms of compensation, and especially when you measure it in terms of how much teaching they're doing. So if you teach at Princeton, you actually have the chance to write and read, or if you're in a lab, do lab research, and that's where a huge amount of the scholarship is getting produced. I don't think anyone could say with a straight face the Princeton professors or underresourced or underpaid. To the contrary, they're well resourced, they're fairly paid, and they produce a ton of interesting ideas because that takes up a lot of time. Whereas the same exact people with the same degree of training and skill and creativity were put in a state institution where they had to teach four courses a semester, they would produce less in the way of creative and original ideas, a lot less. And I would just add, you know, we can talk about Inversity of Toronto in a second. That's an incredible institution. But you know, I have a one of my best students ever as a professor at University of Toronto in the law school, and that's a great great law school. It has some private funding for it, but her work requirements are substantially greater than they would be at a comparably ranked US law school. She just does a lot more work because, as you said, there are just so many students, and the law school as she isn't that huge. Yeah, No, I mean, the thing about under payment is a critique of the the ninetieth percentile on down. It's obviously not a critique. And my critique about the second critique, though, is a critique of the top. So one is Ones a mass critique and Ones an elite critique, but they're linked in a sense that one of the one of the things that makes it difficult for universities who are not elite to pay their fact properly and to preserve access is that they are trapped in an arms race as being driven by the leading institutions. The problem is that the whole system is in the middle of this amenity's arms race, which is all being fueled by the actions of you know, fifteen schools top which have access to disproportionate resources. If I'm a Hio state, i am on some level, i am competing for students with private elite colleges, and I have to play that game to attractive, I got to have a nicer dining hall. I gotta have better food. I got to have And what does that leave me? Less money left over to pay my faculty properly, and less money left over to subsidize the cost of providing an education, and more money going into things that have no real educational function. There's something a little bit screwy about the incentive structure of higher education. So I'm not I mean, I'm not saying anything that has not been said a found sometimes before. I I am just beginning to lose patience with the fetishization of private education in this country, right. I mean, look, the amenities arms race is completely insane. It's a product not just of competition, although that's a big part of it, but also of the commercialization of education, where the universities and the colleges think of the students as customers, and if they're customers, well, then the customer is always right, and you have to cultivate the customer, and you you're in the business of providing education services for the customer. Ironically, the elite institutions worry less about that than the middle level institutions, because at the elite institutions, we know that the students will come. And although we try to be nice about the amenities, because after all, we have the resources, why shouldn't we be we're not really doing amenities in order to get students to come here who might go somewhere else. What's difficult is if you're a middle ranked institution. You know, my brother teaches at Connecticut College, which is a fantastic liberal arts college in Connecticut, and they have to be very aware that they're competing with other small liberal arts colleges for the best students, and that if they fall behind, they could fall off the cliff. You know, if they go on to the second page of the US News and World Report, they've seen it happen to other colleges. So they have to compete on every ground that eighteen year olds care about. And I don't think that amenity's race is actually coming from the very top. I think it's coming from other colleges in their same you know, in their same range. They're competing with similar colleges. Yeah, yeah, you know, there's a if I might bring this conversation, try and bring it full circle. The reason why to go back to Michael Paulson for a moment. The thing that is so beautiful, if I might use that word about that article he wrote, was he uses a provocative, mischievous idea as a vessel for almost tricking you into thinking about some pretty weighty, serious subjects. Right. In other words, he's doing what a great teacher is supposed to do. I am not someone who would normally ever read something about constitutional law. He tricked me in the most beautiful, lovely way into like spending a month of my life thinking about constitutional law because he had this clever way in And to my mind, that thing that he did in that article is what a university is supposed to do. Is lure you into thinking about things that you would never have thought about, and at the end of the day leave you with a feeling of not just satisfaction but joy, like that the whole experience was fun. And when I look at what universities are doing now, I feel like they are doing everything but that they're trying to convince you that they're here. Are nine reasons to go to our university, But the idea that you might get some kind of intellectual pleasure out of toying with a radical idea seems to be not just way down the list, but also when they do in counter radical ideas, they run for the tall grass screening. It's not gutting there, you know. It's like it's such a kind of weird inversion, Like it should be enough. If I'm seventeen and I read an article, I should say, oh my god, I want to go and be taught a course by that guy. That should be the reason I go to college. Right. Yeah, in a world where seventeen years where already reading large few articles, though we'd have no other problems, that would be a magic world where everything would already have been solved. Everyone would be a little Malcolm Godwell in the making. You know, no, no, but but Noah. Think about this. Imagine if I said, if I asked you to teach a course in an honors class of a public high school and senior honors pass in a public high school in the Boston area, and your text was that Michael Paulson article. Do you think you could hold their interest for a semester totally? For sure? Yeah, for sure. I don't know about a whole semester, but you could definitely get students engaged and interested, no doubt about it. The students. And again that's against the backdrop of having, as you say, an honors class at a public high school kids. But that's the feeding ground for what we're talking about. Yeah, those are the kids who are going to go to the schools and we're talking about there's a lot there are hundreds and hundreds of thousands of kids and honors classes in America who potentially could find that article really really fun and hilarious and exciting, you know, And that's what I that's just a little piece of it that seems to me to be absent. That's a super nice way of thinking about it. And I agree that in the long run, our objectives should be to get those teachers who are teaching those kids and who are for the most part, are doing a great job to you know, to have the opportunity to teach them stuff like that. I think that's a very Malcolm perspective and I think it's super helpful. Can I ask you just one one last question, and it's this, and it's relevant to also to you know, to your finding paulse and you're being able to get that interview with him, how do you find getting the interviews to work so well in a podcast? I mean, you're you're spectacular at it. Here, I am trying to have my own podcast, trying to and how to do it properly. Well, what's what's the secret sauce? I'm not talking now about the secret sauce of coming up with their ideas. That's unique, and you know there's no way to share that. You're you're Malcolm. But when it comes to doing the interviews, maybe there you've got some secret sauce you can share. Well. The lovely thing about if I'm interviewing you for a newspaper article. Having been a newspaper reporter for ten years of my life, people would often be nervous to talk to you because they're aware of how difficult. Not bias necessarily, though biases sometimes a problem, just inherently difficult the task is. So, I'm writing an article on Deadline that's going to be eight hundred words in which I'm tackling a very difficult topic. I'm going to talk to you for twenty minutes when the conversation should really be an hour and a half, and I'm going to extract two sentences that bear on the thing I'm writing about that it is almost certainly the case that those two sentences that I extract do a far less in adequate job of presenting your true position. It's just structurally, institutionally, that form is really hard for all parties. It's like fracking. You know, you're extracting something and that you don't really care what the costs are, and you're going to do it and you're going to leave them behind afterwards. Yes, under great pressure. Yes, the analogy is beautiful, and that's so that's like, that's the world I started in, and I was aware of its shortcomings. Then I go to the New Yorker, and now you have much more space and much more time, but you still have the problem that you are extracting the interview from its context. In a podcast interview, both parties are aware that it's about as safe an interview space as is possible, because now the person gets to say it in their own words, and so you all of the kind of tone of voice, irony, even things like you know, the constant thing in print journalism, if that quote was taken out a context, why because you left off the you know, the clause at the end of the sentence or the sentence that came immediately before, which clarified it much harder to do in an audio interview. So what happens in an audio interview is that people that you're interviewing are aware that they're getting a much more accurate representation of their ideas, and as a result, they relax. And if you can communicate that fact that, oh, I'm just going to let this run, you know, you wanted to just tell you what's on your mind. And you know, they're funnier because they have more time to be funny, and they're not as anxious about being misrepresented, and they'll say more interesting things because they have this time and space to qualify them appropriately. And you know, so that's just a it's just a safe space, a safer space for this kind of conversation. And I think that's why I like this format so much. Thank you for joining the safe space of deep background of Malcolm's the first time anyone has ever used the word safe space and the same sentence with me. But I'll take it, and I'm very happy to hear it. Thanks for coming. Okay, wonderful, take care. Thanks Now, the name of the Revisionist History episode again that Malcolm and I were discussing is Divide and Conquer. It's definitely worth a listen. And now it's time for our playback segment, where I choose a moment in the news and play it back to try to make some sense out of it. That was a soil Carday have a clipboard with a card on it and number has written down the right side of that clipboard. That sound of confusion is from the Iowa caucuses about ten days ago, and it was recorded by one of our producers, Eloise Linton. What's really crazy, of course, is that that was ten days ago and we still don't really know who won the Iowa caucuses, and it's looking like we never will. With all of the votes counted quote unquote counted. Pete Buddha Judge was announced by point one percent the victor, and the Bernie Sanders campaign has not at all conceded that, and they also point out that if you count not ultimate allocation of delicates, but rather who walked into the room in the first instance and said they were going to vote for someone, that Bernie Sanders is actually clearly ahead in that number. All this makes me want to turn to a question that we're going to have to keep on asking about Iowa for a long time, and that question is what went wrong? Now, let may be clear, there are many ways that you could answer this question, and many of them would start with the app that failed and the failure of the Democratic Committee of Iowa to produce a process that worked. I'm not disputing those things. Instead, I want to focus on a specific innovation that the Democratic Party made this time and how it may have contributed to what went wrong. Specifically, for the first time ever, in the Democratic caucuses. Instead of just having each person who's running each caucus report one number, namely, what were the final allocation of delegates at the end of this night, instead the party asked to have three numbers reported, which began with the initial process of how people wanted to vote when they came in, then moved on to include the process of change, and then ended up with a final result at the end. Now, in principle, introducing this information was a really good idea. In fact, it was pushed forward by the Bernie Sanders campaign and the aftermath of the twenty sixteen Iowa caucuses because they felt that they had been robbed insofar as they had more votes from the people who walked in the first place than they did ultimately in the process, and that information had not been reported. In principle, it's always good that we know more information about an election. In theory, we always want to know more data. The reality is, however, that when you have a complex and ramshackle process that relies on individual humans who are not professionals recording information, asking them to submit three data points instead of one, open the door to a disaster that was in fact highly probable in retrospect. Namely, it created the distinct probability that some people would not do the math right and would report numbers that were internally inconsistent with each other. That's just why we only ask most of the time for a single number when it comes to counting votes, because the deeper you go into the details of data, the more possibility for contradiction and error inevitably arises. Remember the two thousand Bush v. Gore controversy. When Florida officials began a detailed recount of the entirety of what had happened there, they immediately discovered hanging chads, dimple chads, divergences in counting it turned out it was almost impossible to replicate the same outcome more than once on the same body of ballots. That's the way things actually are in the reality of elections. There's complexity, there's contradiction, and boy is there a lot of human error. Requiring the reporting of three pieces of data was almost certain to reveal the depth and extremity of that human error. Now you might say, well, if that's the way it was, then the results were never meaningful, and in that case it was good that we got that information. I would respond to that by saying that, in fact, the problem is that all elections, no matter where you will hold them, and no matter how you run them, have a significant amount of human error in them. Asking for more data is a guarantee that you will reveal that human error. And here's the punchline, that will also under the legitimacy of elections themselves. We tend to forget that elections because they're human are messy. Because humans are messy. We aspire to perfection, We aspire to cleanliness. We aspire to yes an app that has the capacity to do everything we think without trouble or mistakes. The reality proves to be otherwise, apps break down. Humans break down, math breaks down, the elections break down. That's why the simplest is always the best when it comes to the democratic process. By only announcing one number, the number of votes of who won and the number of votes of who lost, we mask the ugliness, and that masking turns out to in fact be necessary to producing democratic legitimacy. So you think the data is always good. You think information is always good. It isn't always good if it reveals the ugly human messiness and frailty at the base of our democratic system. We're better off with elections that just tell you who voted and for whom, and that may mean we're better off having elections and not having caucuses at all. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Gene Coott, with studio recording by Joseph Fridman and mastering by Jason Gambrell and Jason Roskowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis Gara. Special thanks to the Pushkin Brass Malcolm Gladwell, Jacob Weisberg and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R. Feldman. This is deep background