Pushkin. Not long ago, I had a dinner party at my house. My friend Michael Ryan came. He's a lawyer, and I was talking to him about my love of law review articles, which is genuine. By the way. Here's a profession trained to find meaning in the particular, in the arcane, to make the implausible plausible, to defend the indefensible. I mean, how are those not the perfect ingredients for a good read. Plus, law review articles have epic footnotes, scores are settled, subtle loyally, jokes are made, and the really outrageous arguments are slipped in just for the benefit of the reader who wants to wait. In Denote one thirty six on page eighty seven. 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 three 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 star. It's not. This dog is not shaggy. You wrote this paper how many years ago? Fifteen years ago? Yeah? What is it? Published? Two thousand and four thousand four? 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 an 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 semi Collins, but obscure. This is something with the potential to turn American politics upside down. 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 an interview about this? Yes, I'm trying to remember if anybody did back in two thousand and four, two thousand and five. No, people are inclined to view it as a wacky idea. Right, You're taking a legal concept of something that's one hundred and seventy years old, and you're saying it's still operative if you think about it, logically, it is still operative. But people's intuitions or that that can't be right and so, or that it can't be taken seriously. So, Malcolm, you've got to get people to take it seriously. If an answer is that I don't think this is whacky, is at all? I read this and I'm thinking this is dead serious. Paulson, his fair haired glasses composed an intellectual author of serious books on the US Constitution. When we met, he was a visiting scholar at Princeton University hold 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 one, six hundred and eighteen 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 one. Let's sleeping dogs, lie, I'm running a podcast here, not starting a revolution. You're not Jewish, are you? Because I say we could do a h none of us are Jewish. What we can do what they call a midrash? Is that what they call a middle Yeah right, yeah, let's do a little bit of a midrash on Let's start with it with article four, Section three and go so I guess we're trying to answer the question of of why it is the case that that this article on its face, section sweet on its face does not prohibit subdivision. That's right, that's the issue at hand, right right, So let's I'll have you if you read it, and let's break it down grammatically. Let's do the I'll do in dramatic reading. New states may be admitted by the Congress into this Union semia. Colman Paulson carries a small copy of the US Constitution in his jacket pocket. This is what he's reading from. Let's first clause, new states maybe admitted. You know, some power dimit new states. But no new state shall be formed or erected within the jurisdiction of any other state semi colon. The second semi colon, 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. Were you left at some commas? I left out? I didn't read all the commas. Yeah, okay, let me let me do it again. Outrageous for you. I've read so much about the grammar Okay, new states may be admitted by the Congress into this Union semi colon, but no new states shall be formed or erected within the jurisdiction of any other state second Semichael, nor any state be formed by the junction of two or more states COMMA or parts of states COMMA, without the consent of the legislatures of the state's concerned, as well as of the Congress period. So that's the whole partestion. So question one, as I understand it from reading you, is what is the sense of the second semicon? 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. 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. It's way with five a's. It's the early two thousands. 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 ten 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 two thousand and three, the Texas Republicans introduce 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 willing in a democracy, are you. The organizer of the revolt was Jim Dunham. He's now a lawyer in Waco. Back in two thousand and three, 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 gonna do? So I will can bust a quorum. There are one hundred and fifty legislators in the Texas Assembly. Quorum is a hundred. If Dunham can get fifty one Democrats not to show up, the vote can't happen. Well, the bill was coming up on a Monday, and I think it was the preceding Wednesday that I had the first meeting. And I'll tell you, I thought I was totally wasting my time. I told everybody, this is foolish. Nobody's going to do this. It's because you had to go across state lines because the Speaker of the House has the authority to issue arrest warrants and if you're in Texas, they can grab you. Now, if you're outside of Texas, then you know it doesn't have jurisdiction. Ohays, see, that's why you had to go to Oklahoma. Yeah. Actually, you have arrestaurrant on my walls. It's pretty cool. It says, go you're directed to go arrest and detain Jim Dunham and bring him to the Texas House. So when did you guys leave? We left on Mother's Day Sunday, and you know about Thursday, when I figured out we're gonna actually get enough people to pull this off, I was like, good Lord, where we're gonna go, you know? And I will tell you. I had some members say, well, let's go to like Charles Louisiana or Shreeport, Louisiana. And I said, well, we're not going to go there because the casinos there, And I no way we'll keep the Democrats out of the casinos if we're in a Shreeport. And and I'm serious, you know. And so my wife's family is Mardmore, Oklahoma, and God love Ardmore, but there is nothing to do in Hardmore. Dunham hires buses, gets everyone to meet at a hotel in Austin, does a head count fifty 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. They comes and when the Republicans are ready for their triumphant vote, they suddenly realize that 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 tale number was missing, and in an effort to figure out where that plane had gone, and it was I don't know what to say, but Homeland Security couldn't find us. But the Dallas Morning News good to recap. The Texas Republicans want to increase their numbers and influence in Washington, so they try a jerrymander, then when it fails, do a read jerrymander in violation of every state norm, leading to a full scale state constitutional crisis, causing the States Democratic Caucus to flee in busses to a holiday and 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 witnessed to a courageous scene of defiance. Texas Democratic legislators hunkered down, trying to conduct the people's business while subsisting only on the contents of their mini bars. Homeland Security officials attempting to find some missing state legislators who hung out at the Holiday Inn for a couple of days. You know, we got a lot of deserters down there, the guys that are afraid to stand and fight like our armed services due 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 left. I'll tell you, probably most of the time was dealing with the General eleven satellite news trucks that showed up after a day or two. And who's watching all of this? Michael Paulson and Vasan Casavan, authors of the Law Review article that found its way to my inbox. They're working on their article as the drama unfolds in Ardmore, and they look at everything that's happening, norm violation, constitutional crisis, Ardmore, Holiday, in 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 US Constitution, so much so that immediately after I visited Paulson at Princeton. I realized that I needed an emergency session with Mary Norris, author of the brilliant book Between You and Me, Confessions of a Comic Queen. I wonder, lookye i am a fresher racer. 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 of the editors, they coddle, courage, soothe, let you go on and on, the bad cops of the copy department. For most of my time there, the copy department was a murderer's row of three women. First was Anne, who was a national caliber marathoner who gave the impression that in any disagreement she would simply outlast you. The second Carol, who reminded me of the proper West Indian ladies I grew up, who could silence you with a disapproving glance. The third was married. If mister and Missus Santa Claus had an irrepressible youngest daughter, it would be married. I have written down here three sentences from the Constitution. I just want to induce 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 semi colons 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 the sentence that has driven Grammarian's crazy for two hundred and fifty 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 in bear arms comma shall not be infringed. Well, first of all, that comma is wrong before shall So, yeah, there should be that's the that's the that's the third comma, right, Yes, the other two commas are you're fine with? Well, no, they don't make sense either, because with the two commas, the sentence in its essence would read well regulated militia, the right of the people to keep in bear arms shall not be infringed, which doesn't make any sense. It's like they loaded a shotgun with commas and fired it at the Second Amendment. It's a mess. So a well regulated militia being necessary to the security of a free state, comma comma, the right of the people to keep and bear arms shall not be infringe that I would lose two of those comments. 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 eighteen 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. Twenty sixth Amendment, United States Constitution. It's a terrible sentence. Oh terrible. Yeah, so what if you rewrite that sentence from 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 who are eighteen years of age or older to vote. That's it. You should just say they're right of United States citizens who are eighteen years of age to vote because by having no commas, which you what it turns into is a defining clause. By putting commas around it, it becomes a descriptive clause. That's right. A defining clause in grammatical terms is a clause necessary for the meaning of a sentence. The house where I live is on fire. You don't put commas around the phrase where I live because the fact that it's my house is essential for understanding what I'm trying to say. The house where I live is on fire. But in the sentence the house comma built in nineteen seventy eight, comma is on fire. We put commas around the phrase built in nineteen seventy eight to market as descriptive. It's not necessary for the meaning of the sentence, but it helps us understand more about the house. So the twenty sixth Amendment has commas around the clause who are eighteen years of age or older? Big mistake? When was this one written? Well, it was past in modern times, Yeah, that's what I thought, but reads as if all the citizens of the United States are eighteen years of age or older. American citizens are people either born here or who had been granted citizenship, and what the twenty sixth Amendment means to say, is it a subset of that group. Those who are over the age of eighteen have the right to vote, But the authors of the twenty sixth Amendment used commas interpreted grammatically. The twenty sixth Amendment says that a citizen of the United States is anyone over eighteen. Anyone. Canadians who cross the border into Detroit to by gas our citizens, so long as they're over eighteen. Russians who go apartment shopping in Miami with Duffel bags full of cash are citizens so long as they're over eighteen. Good Lord, clarity is of the utmost importance in a legal document, right, 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 US grammarian to take care of these things. You should not volunteering. Why you would be the perfect person to be the gramarian in chief, only if I could wear one of those whigs. 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 semi colon, 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 four, Section three of the US 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 eighteen sixty three. The question Paulson had for his students was that constitutional can a new state be formed from a piece of an existing state, not a trivial question. An Article four, section three is the part of the Constitution that addresses this issue. It was written in seventeen eighty seven. As with the Second Amendment and the twenty sixth 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 Pulsor he gets together with the San Casavan. They happily disappeared down the Article four section three rabbit hole for god knows how long, and they emerge with an exhaustive analysis of the question published in Volume ninety, issue two of the California Law Review, pages two ninety one to four hundred. This is not the Law Review article that landed in my inbox and blew my mind. It's the precursor the compulsory figures, if you will, before the free skate. Now there is this language, but no new state shall be formed or erected within the jurisdiction of any other state. Semichel. 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 after, we have no arguments here. No new state shall be formed or erected within the jurisdiction of any other state. No ambiguity there. Right, it would say you can't do it. You can't, so it would not be right legitimate. But then it goes on after the semi colon. And this real question is is that semi colon more like a period that ends one prohibition and then another prohibition picks up, or is it more like a pause, Is it a more like a comma. After that semi colon, it goes on to talk about well, let me read it again. Nor any state be formed by the junction of two or more states or parts of states without the consent of the legislatures of the states concerned, as well as of the Congress. Article four, Section three, 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 semicone 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 semi colon is read as a full stop separate prohibition or is just one in a series of things to which consents 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 Caseavon spend ninety pages on this question in their California Law Review article ninety pages and it's riveting reading because the whole time you're thinking, good Lord, West Virginia is hanging in the balance. If that semi colon from seventeen eighty seven is meant as a full stop. Then someone has to go down to the State House in Charleston and break the news to everyone there that the party's over. Paulson and Caseavon 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 in sign offices, that's their concern, right. So once you so, in other words, that makes it quite clear that the last clause modifies everything. Yes, But once it's clear that the last clause modifies everything, then the semi colon cannot be functioning as a period. It cannot be. Forgive me if I'm going on and on about this, but everything depends on this interpretation of Article four, Section three. 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 comic Queen, agrees, Okay, well, I think that hinges on this nor in spite of the semicolon, the nor connects this to the butt to the butt the Constitution says, But no, new state shall be formed or erected within the jurisdiction of any other state semi colon, nor any state be formed dot dot dot. I've read many, many, many commentaries on this. You're the first person to talk about this butt nor being significant. Well, you don't have a nor unless you're referring to something before it. You know, neither nor nor. One of the things that copy editors look for is a nor standing alone. It doesn't make any sense. We try not to let sentences begin with nor. We try not to have a nor where there's not a neither. So that nor has ton neck to something, and I think it connects to the butt, so I think they're related. There in Mary's apartment, I had a flashback to the final round of editing at The New Yorker, something I've done many times. You're sitting in a room you're good cop editor and Carol Anne or Mary going through your piece line by line, peeling away everything superfluous and confusing, truly formidable intellect devoted to making words mean what they're supposed to mean. If you've never had someone do that for your words, you haven't written. But you're saying, if I have a 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 there because they smell modifying horses and dogs? I think so? Yes, I think the North Conexa. Yes, that's crucial. Mary, you are you have entered into a hugely significant constitutional debate, which brings us to the second case of on pulse and paper. That's the one my friends sent me Texas Law Review Volume eighty two, the necessary and far more consequential companion to their constitutional exoneration of West Virginia. The articles called Let's mess with Texas. It begins with a quotation from the congressional resolution under which Texas was admitted to the Union in eighteen forty five. 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 eighteen forty five about the balance between slave states and free states. It's a whole other story. What matters is that, according to Caseavon and Paulson's exhaustive constitutional analysis, the offer still stands. New states of convenience size may be formed. That's why their interpretation of Article four, Section three, with its confusing semi colon 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 statue 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 is only two Texans in control of American politics for the next century. You don't usually raw states, but you've made me zar, I will I will do that. If you ask around about who knows the most about the political demographics of Texas, one name comes up a lot. Michael Lee, studious guy, somber suit glasses, ployally haircut, grew up in Houston, went to the University of Texas, now works at the Brennan Center for Justice at New York University. It occurred to me that I'm potentially complicit in all of this. I'm the one publicizing the pulse in Casesvon 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 stretch that included Houston and the stretch to the border with Louisiana. Michael Lee and I met in a big conference room near Wall Street. He brought with him a map of Texas so large it covered the entire end of the table. Lee started by drawing the borders of the new state of Houston five million people, and then on the western side, I would probably cut it off somewhere in between Houston and Austin, which is in Central Texas. The 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, set it around booming Austin, already the eleventh largest city United States. The fourth state would be West Texas, Lubbock, Midland, Odessa, Flat and Dusty Country. The fifth state would run along the Mexican border, beginning with San Antonio in the east and running all the way to El Paso. When Paulson and Casavan published their law review paper back in two thousand and four, the assumption was that if Texas subdivided, this would be a natwin for Republicans. Texas hasn't sent a Democrat to the US Senate since the early nineteen nineties. It's the Republican heartland. That's why they wrote that Texas Republicans were thinking way too small, why not quintupple their influence in Washington. But in the years since then, the states 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 in 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 Latiner of than Ago, 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 ten 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 says like four are a lock for the Democrats and three are up for grabs. That would that be a fair I think, so yeah, yeah, yeah, which is a pretty big shift from the way things are now. Right, all 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 fifty fifty. But long term, if I said to you ten years from now, you would not be surprise 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 Alimo of the United States. Right, It's meaning like it's 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. I've always thought that was sort of a funny analogy because everyone guided the alamos, you know, but you know that's the one that they use, um so inadvertently telling analogy. Texas Democrats have been thinking way too small. Imagine a governor of Texas reads your law review article and said, that's a funny enough premises it is, and says, okay, I want to well, 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, 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. Let's say that as Texas is putting together this plan. Congress is getting really alarmed and they don't want it to happen. Can they revoke the permission that was granted before Texas acts? I don't see why not. I think they can. Oh, I see it. So if Texas wants to do this, they need to do it. They got to get there, they get 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 Meila Belle, with Jacob Smith and Camille Baptista. Our editor is Julia Barton. Flawn Williams is our engineer. Fact checking by Beth Johnson. Original music but Luis Guerra. Special thanks to Andy Bowers and Jacob Weisberg. I'm Malcolm glad you don't have any any any bad memories of copy editing a peace of mind. You No, no, not at all. In fact, I use you as the example of somebody who the pencil kind of bounces off you. You do a very nice job. My mother will be very pleased to hear that.

Pushkin. Not long ago, I had a dinner party at my house. My friend Michael Ryan came. He's a lawyer, and I was talking to him about my love of law review articles, which is genuine. By the way. Here's a profession trained to find meaning in the particular, in the arcane, to make the implausible plausible, to defend the indefensible. I mean, how are those not the perfect ingredients for a good read. Plus, law review articles have epic footnotes, scores are settled, subtle loyally, jokes are made, and the really outrageous arguments are slipped in just for the benefit of the reader who wants to wait. In Denote one thirty six on page eighty seven. 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 three 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 star. It's not. This dog is not shaggy. You wrote this paper how many years ago? Fifteen years ago? Yeah? What is it? Published? Two thousand and four thousand four? 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 an 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 semi Collins, but obscure. This is something with the potential to turn American politics upside down. 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 an interview about this? Yes, I'm trying to remember if anybody did back in two thousand and four, two thousand and five. No, people are inclined to view it as a wacky idea. Right, You're taking a legal concept of something that's one hundred and seventy years old, and you're saying it's still operative if you think about it, logically, it is still operative. But people's intuitions or that that can't be right and so, or that it can't be taken seriously. So, Malcolm, you've got to get people to take it seriously. If an answer is that I don't think this is whacky, is at all? I read this and I'm thinking this is dead serious. Paulson, his fair haired glasses composed an intellectual author of serious books on the US Constitution. When we met, he was a visiting scholar at Princeton University hold 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 one, six hundred and eighteen 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 one. Let's sleeping dogs, lie, I'm running a podcast here, not starting a revolution. You're not Jewish, are you? Because I say we could do a h none of us are Jewish. What we can do what they call a midrash? Is that what they call a middle Yeah right, yeah, let's do a little bit of a midrash on Let's start with it with article four, Section three and go so I guess we're trying to answer the question of of why it is the case that that this article on its face, section sweet on its face does not prohibit subdivision. That's right, that's the issue at hand, right right, So let's I'll have you if you read it, and let's break it down grammatically. Let's do the I'll do in dramatic reading. New states may be admitted by the Congress into this Union semia. Colman Paulson carries a small copy of the US Constitution in his jacket pocket. This is what he's reading from. Let's first clause, new states maybe admitted. You know, some power dimit new states. But no new state shall be formed or erected within the jurisdiction of any other state semi colon. The second semi colon, 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. Were you left at some commas? I left out? I didn't read all the commas. Yeah, okay, let me let me do it again. Outrageous for you. I've read so much about the grammar Okay, new states may be admitted by the Congress into this Union semi colon, but no new states shall be formed or erected within the jurisdiction of any other state second Semichael, nor any state be formed by the junction of two or more states COMMA or parts of states COMMA, without the consent of the legislatures of the state's concerned, as well as of the Congress period. So that's the whole partestion. So question one, as I understand it from reading you, is what is the sense of the second semicon? 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. 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. It's way with five a's. It's the early two thousands. 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 ten 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 two thousand and three, the Texas Republicans introduce 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 willing in a democracy, are you. The organizer of the revolt was Jim Dunham. He's now a lawyer in Waco. Back in two thousand and three, 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 gonna do? So I will can bust a quorum. There are one hundred and fifty legislators in the Texas Assembly. Quorum is a hundred. If Dunham can get fifty one Democrats not to show up, the vote can't happen. Well, the bill was coming up on a Monday, and I think it was the preceding Wednesday that I had the first meeting. And I'll tell you, I thought I was totally wasting my time. I told everybody, this is foolish. Nobody's going to do this. It's because you had to go across state lines because the Speaker of the House has the authority to issue arrest warrants and if you're in Texas, they can grab you. Now, if you're outside of Texas, then you know it doesn't have jurisdiction. Ohays, see, that's why you had to go to Oklahoma. Yeah. Actually, you have arrestaurrant on my walls. It's pretty cool. It says, go you're directed to go arrest and detain Jim Dunham and bring him to the Texas House. So when did you guys leave? We left on Mother's Day Sunday, and you know about Thursday, when I figured out we're gonna actually get enough people to pull this off, I was like, good Lord, where we're gonna go, you know? And I will tell you. I had some members say, well, let's go to like Charles Louisiana or Shreeport, Louisiana. And I said, well, we're not going to go there because the casinos there, And I no way we'll keep the Democrats out of the casinos if we're in a Shreeport. And and I'm serious, you know. And so my wife's family is Mardmore, Oklahoma, and God love Ardmore, but there is nothing to do in Hardmore. Dunham hires buses, gets everyone to meet at a hotel in Austin, does a head count fifty 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. They comes and when the Republicans are ready for their triumphant vote, they suddenly realize that 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 tale number was missing, and in an effort to figure out where that plane had gone, and it was I don't know what to say, but Homeland Security couldn't find us. But the Dallas Morning News good to recap. The Texas Republicans want to increase their numbers and influence in Washington, so they try a jerrymander, then when it fails, do a read jerrymander in violation of every state norm, leading to a full scale state constitutional crisis, causing the States Democratic Caucus to flee in busses to a holiday and 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 witnessed to a courageous scene of defiance. Texas Democratic legislators hunkered down, trying to conduct the people's business while subsisting only on the contents of their mini bars. Homeland Security officials attempting to find some missing state legislators who hung out at the Holiday Inn for a couple of days. You know, we got a lot of deserters down there, the guys that are afraid to stand and fight like our armed services due 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 left. I'll tell you, probably most of the time was dealing with the General eleven satellite news trucks that showed up after a day or two. And who's watching all of this? Michael Paulson and Vasan Casavan, authors of the Law Review article that found its way to my inbox. They're working on their article as the drama unfolds in Ardmore, and they look at everything that's happening, norm violation, constitutional crisis, Ardmore, Holiday, in 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 US Constitution, so much so that immediately after I visited Paulson at Princeton. I realized that I needed an emergency session with Mary Norris, author of the brilliant book Between You and Me, Confessions of a Comic Queen. I wonder, lookye i am a fresher racer. 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 of the editors, they coddle, courage, soothe, let you go on and on, the bad cops of the copy department. For most of my time there, the copy department was a murderer's row of three women. First was Anne, who was a national caliber marathoner who gave the impression that in any disagreement she would simply outlast you. The second Carol, who reminded me of the proper West Indian ladies I grew up, who could silence you with a disapproving glance. The third was married. If mister and Missus Santa Claus had an irrepressible youngest daughter, it would be married. I have written down here three sentences from the Constitution. I just want to induce 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 semi colons 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 the sentence that has driven Grammarian's crazy for two hundred and fifty 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 in bear arms comma shall not be infringed. Well, first of all, that comma is wrong before shall So, yeah, there should be that's the that's the that's the third comma, right, Yes, the other two commas are you're fine with? Well, no, they don't make sense either, because with the two commas, the sentence in its essence would read well regulated militia, the right of the people to keep in bear arms shall not be infringed, which doesn't make any sense. It's like they loaded a shotgun with commas and fired it at the Second Amendment. It's a mess. So a well regulated militia being necessary to the security of a free state, comma comma, the right of the people to keep and bear arms shall not be infringe that I would lose two of those comments. 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 eighteen 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. Twenty sixth Amendment, United States Constitution. It's a terrible sentence. Oh terrible. Yeah, so what if you rewrite that sentence from 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 who are eighteen years of age or older to vote. That's it. You should just say they're right of United States citizens who are eighteen years of age to vote because by having no commas, which you what it turns into is a defining clause. By putting commas around it, it becomes a descriptive clause. That's right. A defining clause in grammatical terms is a clause necessary for the meaning of a sentence. The house where I live is on fire. You don't put commas around the phrase where I live because the fact that it's my house is essential for understanding what I'm trying to say. The house where I live is on fire. But in the sentence the house comma built in nineteen seventy eight, comma is on fire. We put commas around the phrase built in nineteen seventy eight to market as descriptive. It's not necessary for the meaning of the sentence, but it helps us understand more about the house. So the twenty sixth Amendment has commas around the clause who are eighteen years of age or older? Big mistake? When was this one written? Well, it was past in modern times, Yeah, that's what I thought, but reads as if all the citizens of the United States are eighteen years of age or older. American citizens are people either born here or who had been granted citizenship, and what the twenty sixth Amendment means to say, is it a subset of that group. Those who are over the age of eighteen have the right to vote, But the authors of the twenty sixth Amendment used commas interpreted grammatically. The twenty sixth Amendment says that a citizen of the United States is anyone over eighteen. Anyone. Canadians who cross the border into Detroit to by gas our citizens, so long as they're over eighteen. Russians who go apartment shopping in Miami with Duffel bags full of cash are citizens so long as they're over eighteen. Good Lord, clarity is of the utmost importance in a legal document, right, 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 US grammarian to take care of these things. You should not volunteering. Why you would be the perfect person to be the gramarian in chief, only if I could wear one of those whigs. 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 semi colon, 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 four, Section three of the US 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 eighteen sixty three. The question Paulson had for his students was that constitutional can a new state be formed from a piece of an existing state, not a trivial question. An Article four, section three is the part of the Constitution that addresses this issue. It was written in seventeen eighty seven. As with the Second Amendment and the twenty sixth 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 Pulsor he gets together with the San Casavan. They happily disappeared down the Article four section three rabbit hole for god knows how long, and they emerge with an exhaustive analysis of the question published in Volume ninety, issue two of the California Law Review, pages two ninety one to four hundred. This is not the Law Review article that landed in my inbox and blew my mind. It's the precursor the compulsory figures, if you will, before the free skate. Now there is this language, but no new state shall be formed or erected within the jurisdiction of any other state. Semichel. 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 after, we have no arguments here. No new state shall be formed or erected within the jurisdiction of any other state. No ambiguity there. Right, it would say you can't do it. You can't, so it would not be right legitimate. But then it goes on after the semi colon. And this real question is is that semi colon more like a period that ends one prohibition and then another prohibition picks up, or is it more like a pause, Is it a more like a comma. After that semi colon, it goes on to talk about well, let me read it again. Nor any state be formed by the junction of two or more states or parts of states without the consent of the legislatures of the states concerned, as well as of the Congress. Article four, Section three, 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 semicone 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 semi colon is read as a full stop separate prohibition or is just one in a series of things to which consents 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 Caseavon spend ninety pages on this question in their California Law Review article ninety pages and it's riveting reading because the whole time you're thinking, good Lord, West Virginia is hanging in the balance. If that semi colon from seventeen eighty seven is meant as a full stop. Then someone has to go down to the State House in Charleston and break the news to everyone there that the party's over. Paulson and Caseavon 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 in sign offices, that's their concern, right. So once you so, in other words, that makes it quite clear that the last clause modifies everything. Yes, But once it's clear that the last clause modifies everything, then the semi colon cannot be functioning as a period. It cannot be. Forgive me if I'm going on and on about this, but everything depends on this interpretation of Article four, Section three. 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 comic Queen, agrees, Okay, well, I think that hinges on this nor in spite of the semicolon, the nor connects this to the butt to the butt the Constitution says, But no, new state shall be formed or erected within the jurisdiction of any other state semi colon, nor any state be formed dot dot dot. I've read many, many, many commentaries on this. You're the first person to talk about this butt nor being significant. Well, you don't have a nor unless you're referring to something before it. You know, neither nor nor. One of the things that copy editors look for is a nor standing alone. It doesn't make any sense. We try not to let sentences begin with nor. We try not to have a nor where there's not a neither. So that nor has ton neck to something, and I think it connects to the butt, so I think they're related. There in Mary's apartment, I had a flashback to the final round of editing at The New Yorker, something I've done many times. You're sitting in a room you're good cop editor and Carol Anne or Mary going through your piece line by line, peeling away everything superfluous and confusing, truly formidable intellect devoted to making words mean what they're supposed to mean. If you've never had someone do that for your words, you haven't written. But you're saying, if I have a 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 there because they smell modifying horses and dogs? I think so? Yes, I think the North Conexa. Yes, that's crucial. Mary, you are you have entered into a hugely significant constitutional debate, which brings us to the second case of on pulse and paper. That's the one my friends sent me Texas Law Review Volume eighty two, the necessary and far more consequential companion to their constitutional exoneration of West Virginia. The articles called Let's mess with Texas. It begins with a quotation from the congressional resolution under which Texas was admitted to the Union in eighteen forty five. 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 eighteen forty five about the balance between slave states and free states. It's a whole other story. What matters is that, according to Caseavon and Paulson's exhaustive constitutional analysis, the offer still stands. New states of convenience size may be formed. That's why their interpretation of Article four, Section three, with its confusing semi colon 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 statue 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 is only two Texans in control of American politics for the next century. You don't usually raw states, but you've made me zar, I will I will do that. If you ask around about who knows the most about the political demographics of Texas, one name comes up a lot. Michael Lee, studious guy, somber suit glasses, ployally haircut, grew up in Houston, went to the University of Texas, now works at the Brennan Center for Justice at New York University. It occurred to me that I'm potentially complicit in all of this. I'm the one publicizing the pulse in Casesvon 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 stretch that included Houston and the stretch to the border with Louisiana. Michael Lee and I met in a big conference room near Wall Street. He brought with him a map of Texas so large it covered the entire end of the table. Lee started by drawing the borders of the new state of Houston five million people, and then on the western side, I would probably cut it off somewhere in between Houston and Austin, which is in Central Texas. The 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, set it around booming Austin, already the eleventh largest city United States. The fourth state would be West Texas, Lubbock, Midland, Odessa, Flat and Dusty Country. The fifth state would run along the Mexican border, beginning with San Antonio in the east and running all the way to El Paso. When Paulson and Casavan published their law review paper back in two thousand and four, the assumption was that if Texas subdivided, this would be a natwin for Republicans. Texas hasn't sent a Democrat to the US Senate since the early nineteen nineties. It's the Republican heartland. That's why they wrote that Texas Republicans were thinking way too small, why not quintupple their influence in Washington. But in the years since then, the states 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 in 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 Latiner of than Ago, 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 ten 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 says like four are a lock for the Democrats and three are up for grabs. That would that be a fair I think, so yeah, yeah, yeah, which is a pretty big shift from the way things are now. Right, all 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 fifty fifty. But long term, if I said to you ten years from now, you would not be surprise 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 Alimo of the United States. Right, It's meaning like it's 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. I've always thought that was sort of a funny analogy because everyone guided the alamos, you know, but you know that's the one that they use, um so inadvertently telling analogy. Texas Democrats have been thinking way too small. Imagine a governor of Texas reads your law review article and said, that's a funny enough premises it is, and says, okay, I want to well, 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, 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. Let's say that as Texas is putting together this plan. Congress is getting really alarmed and they don't want it to happen. Can they revoke the permission that was granted before Texas acts? I don't see why not. I think they can. Oh, I see it. So if Texas wants to do this, they need to do it. They got to get there, they get 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 Meila Belle, with Jacob Smith and Camille Baptista. Our editor is Julia Barton. Flawn Williams is our engineer. Fact checking by Beth Johnson. Original music but Luis Guerra. Special thanks to Andy Bowers and Jacob Weisberg. I'm Malcolm glad you don't have any any any bad memories of copy editing a peace of mind. You No, no, not at all. In fact, I use you as the example of somebody who the pencil kind of bounces off you. You do a very nice job. My mother will be very pleased to hear that.