Examining the U.S. Constitution and the Future of Reproductive Rights
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You're listening to Comedy Central. Hey there, this is Desi Lydic. While The Daily Show is off this week, we put together some special highlights just for you. We'll be back next week, but in the meantime, enjoy this episode. Welcome to The Daily Show. My guest tonight, a journalist and an author. His latest book is called The Year of Living Constitutionally, One Man's Humble Quest to Follow the Constitution's Original Meaning. Please welcome to the program, A.J. Jacobs.

You don't have to run. Thank you, thank you. The year of living constitutionally. AJ, so how did the year of living constitutionally, a humble quest to follow the constitutionalism, how did this come about? Why would you consider this? Well, first of all, thank you and good morrow, of course. Is that a constitutional greeting? Yes, absolutely. All right, fair enough. And...

This came about because I wanted to figure out what is in the Constitution. What does it actually say? And I thought it was a timely question because, as you know, our current Supreme Court thinks we should follow the original meaning from 1789. Now, I haven't been watching the news. Is anything going on? I recommend it. What a terrible thing. Yeah. So I thought I'm going to try to figure out.

what that was by getting in the mindset of our founding father as you go back and you revisit sort of the mindset of the founders are you struck by how human they were you know we've deified them to a to a large extent, but when you you learn about him do you think like oh couple these guys might be idiots.

Well, yes, the Constitution is amazing because parts of it are so inspiring. The preamble, 52 of the greatest words ever written about the general welfare and blessings of liberty. But then there are, it is a flawed document. There are actual misspellings in the Constitution. The word Pennsylvania is spelled two different ways, P-E-N-N and P-E-N. So it is not perfect.

And I ran the Constitution through Grammarly, and Grammarly found 600 mistakes. 600 mistakes. So it is not perfect. With the Grammarly mistakes, did you correct it, or did you think, oh, that one, no, let's pass that one through? How did you...

Did you dismiss the Grammarly questions? Well, I couldn't go in and change it on the... The actual document spells Pennsylvania two different ways. That's right. And the I-T-S actually should be an I-T apostrophe S. So if Ben Franklin had invented social media, they would have gotten a lot of flack for that. Right. But...

So it is. And they knew it was flawed. That's what's amazing. The founding fathers knew this is a flawed document. And they said, would they be surprised at how we've deified? I think so. I think many of them would be in their discussions. Did you as you looked back and saw the discussions that they were having? My understanding is they never really thought that partisan politics would work.

you know, be the thing we were fighting over. They thought the branches of government would fight each other, that the executive would fight the judicial, would fight the legislative. I don't think they thought parties would try and weaponize each department against the other party. No, they did not see this rigid two-party system coming. And James Madison, he knew there were going to be factions, but he thought there were going to be lots of factions, like, you know, and maybe six or eight, more like a European parliament.

And they would have been shocked by so much of what we have now, including the president. I bring that up because it's kind of timely. And they... They were very understated in the 1700s. It is somewhat timely. Well, they... When the idea of a single presidency came up in the convention...

A lot of the delegates said, are you jesting? That is a terrible idea. Wait, they said, are you jesting? I'm paraphrasing. I'm paraphrasing. Are you jesting? But they said, we just fought a war to get rid of a king. Why do we want another? One of them said, this is the fetus of monarchy if we do this. We should have three presidents, 12 presidents, and a lot of them said,

Almost like the court. The presidency and the court would be similar. Not a unitary executive, not a single person. Right. And in the end, it was fought for weeks. In the end, the unitary executive won. But I have to say, that fetus of monarchy comment, I mean, it's not a fetus anymore. It's like a teenager. Right. It is. We are...

200 and some years later. Right. It took a while, but it's here. What do we mistake about them? You know, now, do you watch the arguments that you see about the founders' intent to

Do you... Does it make you a little crazier knowing what the actual arguments were? Oh, absolutely. I mean, it was... Their mindset was so different in so many ways. It was like a foreign country. And just to give you one example, their idea of rights were very different. Rights were not Trump cards. Sorry about that. But they were...

They thought-- There were responsibilities with them. Exactly. They should have had a bill of responsibilities in addition to a bill of rights. But they just assumed that we were all going to be part of and contribute to the betterment of our community.

And you saw this all over in the First Amendment, the Second Amendment. And they would be shocked by how focused we are on individual rights, which I love. I love them, but we need the balance. Right. And that we've in some ways exploited those conversations to just--

get what we want or do what we want. Right, exactly. And they talked about virtue. They loved that word. And this was before it had sort of a negative tinge. How many of them do you think banged porn stars? How many of them do you... When they talk about virtue... Well, I talked to many constitutional scholars and I never... None of them have ever said that. But...

What about the level of discourse? Because I'm always struck by, you know, even in this situation that we face now with the debate and all that, the way the gaslighting that occurs, the lack of trust in Americans' instincts or ability to take complex issues and hear about them honestly. But I imagine their conversations were very frank.

very direct but also sophisticated. Absolutely. I think it was a genuine difference. I wrote this book, a lot of it, with a quill pen and I'm not saying everyone needs to go back to a quill pen. You wrote the book with a quill pen? Yeah, because I was trying to live the Constitution. I had my musket. I carried it around New York. I wrote a quill with a quill pen. There's a curiosity.

Do you consider yourself a method writer? Is that what this is? That's exactly it. I love that phrase. Thank you. So you did. So it was a quill pen. And is there something about using the quill that is more deliberate and allows you to think differently? I really believe that. There were no dings and chimes from the Internet. I could actually focus.

and maybe come up with some subtle thoughts. And I can... If the Constitution were written on an iPhone with emojis, that would not be good. Can you imagine with the...

You know, all men are created equal, LOL. Like, it would have been... It would have been a nightmare. Nightmare. They loved cold takes, not hot takes. They were all about, let's take a look at the pros and cons. And one of my favorite founding father, Ben Franklin, said at the Constitutional Convention, he said...

"The older I get, the less certain I am of my own opinions." Which I love. I mean, exactly. And they even-- they baked it into the cake as far as they-- they really thought amendments will be necessary. This has to be a document that can change with the consent of the governed, yes? Exactly. They knew it was imperfect. They said, "Let's figure out ways to change it." But as you say, they didn't see this rigid two-party system. Now, the last amendment we had was 1992, and...

I mean, you had to get two-thirds of Congress to agree. You can't get two-thirds of Congress to agree on the color of a green pepper. You know, you just can't. It's impossible. Because they are reddish. That's a good point. Thank you very much for being here. The Year of Living Constitutionally is available now.

Welcome back to The Daily Show. Our guests tonight are reporters at The New York Times and co-authors of the best-selling book The Fall of Roe, The Rise of a New America. Please welcome Elizabeth Dias and Lisa Laird. Thank you.

My goodness, thank you so much for being on the show and for all of your incredible work on this. We enjoyed your book very much and also were thoroughly horrified by all of it, obviously. But so many Americans felt kind of blindsided when Roe v. Wade was overturned.

And yet you walk us through every step of the way. This was not an overnight shocking decision. This was decades in the making. Walk us through some of that. You mean the secret plan to overturn Roe v. Wade? Yes. Yes. There was one.

For 50 years, the anti-abortion movement tried so hard, right? They made it their life's work, generational commitment, to try to overturn Roe. This was a moral commitment for them, for them the greatest moral calling of their lives.

And they were not successful until about 10 years ago. Something changed, and we've taken to calling it the— this was the last decade, the final decade of the Roe era in American life. They had new tactics, new strategies, and they really radicalized along with the Republican Party and did what many Americans thought was unimaginable, which was overturning Roe v. Wade. Now, in telling this story,

How much of this did you find was based in sort of a moral argument? And how much of this felt like it was groups who had political motives who were trying to utilize Roe as a piece in which to gain more political power? Well, certainly there's a really deep moral and spiritual element. These are conservative Christians, largely evangelicals and Catholics, and they see this as a story that's rooted in, you know, biblical kind of terms.

But I think there's also this broader effort, and what they effectively want to do is overturn elements of the sexual revolution and return the family, the American family, to a more traditional time.

I think one of the most interesting things we found in our book was the role that abortion plays. Of course, abortion is about the right to terminate a pregnancy and when a woman can legally do that. But it also has this great symbolism in American life. It sort of symbolizes for people morality and religion and medicine and, of course, politics and gender roles and all these really big things. And so if you want to understand where this election might be going, and really if you want to understand where the country might be going,

The story of the fall of Roe is one way to understand that. I guess you articulate that, that Roe has taken on such a larger... Yeah. It's not just one thing anymore. Was that always the case? Or is there... Can you pinpoint when that really started to pick up steam? Well, look, our book starts in 2013, which is right when Obama won re-election. And it's also when conservative Christians became a slight minority in America.

So this is a group that felt that they were losing their hold on American life, losing their sort of traditional power in American life. And I think abortion rights were one way that they thought they could sort of return the country to where it was before. So it is this larger fight. And we're seeing that play out now in sort of efforts around IVF, around some forms of contraception. This is, of course, about abortion, but it's about so much more than just abortion.

One of the things that I really appreciated about this book is you go through the backstories of all of these characters. You don't paint them as heroes and villains. You talk about Leonard Leo from the Federalist Society and talk about how he personally was affected, what formed his fate. Leonard Leo, devout Catholic, obviously legal mastermind, but the story that motivated him the most

is the death of his daughter when she was 14. Their firstborn daughter had a very difficult prenatal diagnosis. They decided to give birth and raise her. And when we talked with him, he talked a lot about suffering and his views motivated by Catholic theology about suffering and salvation in the human experience. And so for him, that

really shaped not only how he wanted to run his own family, but how he sees how the entire country and world should be structured. You know, for a lot of these anti-abortion activists, those two worlds are intertwined. This isn't a story that you can understand just through politics or just through religion. These are intertwined stories. And I think that's part of

what we really tried to get out at the book was tell those intertwined stories in a way that reflected sort of the intimate. This is such an intimate issue, you know, that reflected that intimacy and how personal it is for these people. Look, it's something that everyone understands. If you've had a baby, if you were with someone who had a baby, if you were a baby at some level, you inherit

understand how this works and what this is about. And I think it's not the kind of issue that even for the most committed activists that can be disconnected or rooted just in politics. I mean, this book talks about the successes of the activists. A lot of them are the grassroots activists on the right. What were the failings of the left in this fight?

Well, you know, look, I think it was there was this profound sense of denial across the left. And in some ways that's reasonable, right? It's really hard to believe that this right that people had for generations could suddenly just vanish. And because of that, Democrats, you know, they would always go out, Democratic candidates and warn about threats to Roe or Roe could fall. And people just didn't believe them. Like we have in the book tons of polling and focus groups where the issue just didn't resonate with people because they didn't believe it would happen.

And so it's hard to see and prevent something that you don't think is happening, right? And then, of course, they got very, very unlucky. Trump won, and he got three appointments to the Supreme Court, unheard of since Ronald Reagan. And there becomes a point, a turning point, where the march to end Roe effectively becomes unstoppable for Democrats and the abortion rights activists. There's the, you know, part of the civil rights movement

activists were rooted in the Christian community. Where's the disconnect? Why have liberals not been able to connect with the Christian community since then? Well, conservative Christians figured out that this wasn't really about cultural opinion. A majority of Americans supported abortion rights for decades.

But for them, this was about finding ways to pull the levers of power. You can do all the moral conversation education that you want on either side of this, but if you don't have power, you can't do anything.

So they figured out exactly what levers, where in the country, at what levels of government, from the smallest state house lobbyists all the way up to the presidency, the Supreme Court. And they identified them, they polled them, and then they're able to change the culture

that way, right, instead of having culture change the law. Yeah, look, I think we think of politics as working one way, right? People protest, public opinion changes, politicians respond, the culture changes. This is a really different kind of story. This is-- a majority of America supported Roe for decades. But these activists on the right, these conservative Christian activists, were able to seize controls of these levers of power and change the culture effectively through force.

Take a step back into what's happening now. Yeah. We see the Republican platform seems to be softening on abortion, at least not articulating that they want a federal ban. We see what happened with Mipha Fristone at the Supreme Court. Do you see a recalculation happening?

Two different things are happening at once here, right? Like, obviously, Trump and a lot of Republican leaders see that this is now a losing issue for them. I mean, Roe was a foundation for so long. Republicans were able to use it in a certain way to motivate key parts of their base, and that's obviously really changed. But, you know, now...

we think of as maybe losses for the anti-abortion movement, they're able to reframe and see them as wins, right? I mean, even the platform can be doing whatever it's doing, right? In their minds. In their minds. But they're on the ground thinking in these generational long terms of how they can change the groundwork similarly to how they overturned Roe, right? They're thinking long term about what does this mean for how we can restrict IVF?

What does this mean for access to some forms of birth control? That is such a different long game than Democrats are playing. So in a way, it is definitely a power struggle right now. The two movements, the anti-abortion activists and the Republican Party needed each other to gain power and to accomplish their mutual goals.

So that we're seeing that as a tension, but this is a movement that cannot be undercounted. I mean, they accomplished one of the biggest political resurgences this country has ever seen, and under the noses of people, many of whom just weren't paying attention. Where do you feel, where do we go from here? I mean, are women going to have to just run for president and have presidential immunity in order to legally have an election? That's where we're at. That's where we're at. Exactly.

I mean, it is worth pointing out that many of the most prominent figures in the anti-abortion movement are women, that there was a strategy to put women at the front of that movement.

I think, you know, I've asked a lot of abortion rights activists like that very question. What happens now? It took 50 years for Roe to fall. How many years does it take for it to return? And nobody knows. It's an unanswerable question. But nobody's saying one year. Nobody's saying five years. This is 10 years. This is 20 years. There's no magic wand. You know, President Biden talks about restoring Roe.

There's no way to do that without a margin in the Senate that feels almost impossible unless they overturn the filibuster and then all agree on what that looks like, which, as we know about the Senate, that's an extremely high bar. So there's no easy answer here. There's not some like thing that can just snap back in place and grow returns. I think the country is in for many more decades of wrangling over this issue. For the disheartened folks who see this story, what can they take away? What positive change can they make?

Look, I think one of the things that has been that was most powerful for the anti-abortion was this sense of denial. They did something because nobody believed they could do it. And that's been really shattered now. So I think there's a lot more awareness of what's going on. I think people are paying a lot more attention to what's happening, not only with abortion rights, but with things like IVF and some forms of contraception. So like all political issues, I think this is one of engagement and awareness. And I do wonder if we're I do think we're seeing more of that.

And there's this question of can Democrats respond with any kind of generational plan in the way that Republicans had? I mean, it was just a...

Do you need an answer? Tell me. Oh, yeah. Now we know. Now we know. We've answered that. I mean, this is asymmetrical warfare. It has been for a very long time. And there's a real question. I mean, even people like Hillary Clinton told us that the Democrats just don't have the same kind of infrastructure on their side. So there's an open question as to, you know, are they thinking just in election cycles or are they thinking about one generation, two generations from now?

Well, we so appreciate all of the work that you're doing and you being on here tonight. We're still hopeful that there will be your next book, The Re-Rise of Roe, putting out a... Get the sequel going. Get the sequel going. Thanks for being here. The Fall of Roe is available now. Elizabeth Dias and Lisa Lehrer

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