In this second part of Jenny Beth Martin’s interview with constitutional scholar John Eastman, the conversation shifts from lawfare and political persecution to the deeper constitutional battles shaping America’s future. Eastman — former Supreme Court clerk to Justice Clarence Thomas and veteran of over 200 constitutional cases — explains the legal and moral issues behind birthright citizenship, flag burning, federal spending limits, and election integrity. He breaks down how misinterpretations of the Fourteenth Amendment, misuse of federal spending power, and failures in election law enforcement have eroded the Founders’ vision of limited government and consent of the governed. Eastman also discusses the importance of courage, faith, and fortitude in defending freedom as the Constitution itself faces unprecedented attacks. This episode is essential listening for every American who wants to understand the constitutional crisis facing our republic — and how we can restore the rule of law before it’s too late.
In this second part of Jenny Beth Martin’s interview with constitutional scholar John Eastman, the conversation shifts from lawfare and political persecution to the deeper constitutional battles shaping America’s future. Eastman — former Supreme Court clerk to Justice Clarence Thomas and veteran of over 200 constitutional cases — explains the legal and moral issues behind birthright citizenship, flag burning, federal spending limits, and election integrity.
He breaks down how misinterpretations of the Fourteenth Amendment, misuse of federal spending power, and failures in election law enforcement have eroded the Founders’ vision of limited government and consent of the governed. Eastman also discusses the importance of courage, faith, and fortitude in defending freedom as the Constitution itself faces unprecedented attacks.
This episode is essential listening for every American who wants to understand the constitutional crisis facing our republic — and how we can restore the rule of law before it’s too late.
X/Twitter: @DrJohnEastman | @jennybethm
The Eastman Dilemma Film: https://www.madisonmediafund.org/eastman-dilemma/
Givesendgo: https://www.givesendgo.com/Eastman
Narrator (00:00):
Keeping our republic is on the line and it requires Patriots with great passion, dedication, and eternal vigilance to preserve our freedoms. Jenny Beth Martin is the co-founder of Tea Party Patriots. She's an author, a filmmaker, and one of time magazine's most influential people in the world. But the title she's most proud of is Mom To Her Boy, girl Twins. She has been at the forefront fighting to protect America's core principles for more than a decade. Welcome to the Jenny Beth Show.
Jenny Beth Martin (00:32):
Last week you heard the first part of our conversation with John Eastman attorney, constitutional law professor, and a person who has experienced weaponized government from the federal, state and local levels. If you miss that conversation, be sure to go back and listen to last week's episode so you can hear about what John has experienced from weaponized government. Today we're going to finish the conversation here, the second part of the conversation, and in this part of the conversation, we're getting more of his opinion and thoughts on some of the current issues that we are hearing about today, like birthright, citizenship, flag burning, and other issues. One related to Doge that may well be wind up being before the Supreme Court and get his take as an attorney and a constitutional law professor. So let's jump right into the conversation. Okay. Let's shift gears completely from weaponization and I want to just have you elaborate on a few different constitutional and legal issues that are going on right now since you are such an expert on the Constitution and while they took that bar license from you and you've got all of that stuff going on in California, you're still able to argue before the Supreme Court, and I know you're tracking a lot of issues that are before the Supreme Court.
Jenny Beth Martin (01:53):
President Trump has talked a lot about birthright citizenship, and I believe there's a case in front of the Supreme Court related to that. Could you explain what is involved in that and how it is constitutional?
John Eastman (02:10):
And this is an issue I've been working on since nine 11 when in the wake of nine 11, a guy named Yasser Isam Hamdi captured in Afghanistan with Al-Qaeda was at Guantanamo Bay and they realized he'd been born in Baton Rouge, Louisiana while his dad, Saudi parents were here visiting. He was on a work permit and we said, he's not a citizen. His dad was temporarily visiting here. That's not what the Constitution requires. Now most people think it just says, if you're born here then you're a citizen. But it says if you're born here and subject to the jurisdiction, you're a citizen. And the question is, did it mean only a partial jurisdiction such as everybody that's here, has to comply with our laws? They called that territorial jurisdiction or did it mean something more? Did you owe allegiance? Were you're part of political community?
John Eastman (03:00):
And when the drafters of that language were asked that question point blank, they said it means complete jurisdiction such as exists for every citizen now. And so you've got to have that deeper commitment be part of their political community. You can't just have birth tourism, you can't have children of illegals, you can't have children of temporary visitors here on a student visa or a work visa. It still owing allegiance to their home country. And President Trump's executive order just says, we've gotten this wrong for about a half a century, but for the first century after the law was the 14th amendment was passed, we got it right. If you wanted to apply for a passport and you were born here, you still had to show what the status of your parents was in order to be treated as a citizen. So President Trump's executive order is correcting the misunderstanding of the 14th Amendment that's taken root over the last 50 years.
John Eastman (03:59):
And the Department of Justice initially got an order last May hearing may an order in June eliminating nationwide injunctions blocking that executive order. But they now have a request to the Supreme Court to take up the merits of the case and we'll know probably in November or early December whether the court's going to take it. I think they will. And we'll have a resolution of that by June. And whether we're going to look, I mean this notion that if you're born here no matter what you're a citizen is an old feudal doctrine. It used to be the king. If you were born on the king soil, you were always the king's subject and you could never renounce it. Well, we renounced it in the Declaration of Independence. The last paragraph says these united colonies are in of right ought to be free and independent states, and we hereby renounce any allegiance to the crown.
John Eastman (04:52):
I mean, there's no more elaborate, eloquent renunciation of that old futile doctrine ever written. And so we're trying to get back on that. Our country is based on mutual consent of the people in the government. And the example I like to give is Congress could pass a law making everybody in Mexico City, American citizens, and if they don't consent to it, they're not citizens. It has to be a mutual consent. Well, the flip side of that also works if half of Mexico City crosses our border illegally and demand citizenship here in the country, they've got to get our consent to that before they become citizens. And it's just basically we don't have a youth solely futile doctrine. We have a consent of the governed doctrine. And it's been that way ever since July 4th, 1776.
Jenny Beth Martin (05:43):
Okay, that's very good. And I like that example a lot. I think it is extremely helpful and it's one that people should make a note of if they're getting into debates with people about this particular issue. Okay. Now he also has issued an executive order about flag burning. Have you been tracking that one?
John Eastman (06:04):
I haven't. Julie Kelly published an article of mine on that issue I had of his entire brilliant career of jurisprudence. I had three disagreements with Justice Scalia. One of them was his notion that people don't have standing to challenge illegality in elections or otherwise. The other is that parents don't have a right to direct their upbringing of their children, nowhere mentioned in the Bill of Rights. And the third was this flag burning decision, which I think gave short shrift a long established precedent about fighting words and incitement to violence. And look, let's be very clear, the people that are burning and trampling on the American flag are trying to incite a physical reaction by people they're trying to target. And the president's executive order doesn't require an overruling of justice scalia's flag burning opinion, but it does recognize that in most of the instances of flag burning, now they've crossed the threshold beyond free speech to incitement of violence. And you're not allowed to do that. That's the limitation on the free speech rights. So I think President Trump's executive order is very carefully written. And it goes back to one of the things I said earlier, the team around him that came in loaded for bear, ready to do these kind of things, had really done their homework in the four years he was out of office to know what could be done via executive order and whatnot. And I think this is a good example of that.
Jenny Beth Martin (07:42):
Okay. And that's really good. And we just saw in Portland this past week, although this episode will probably air in another a week from now, but we saw that there was a citizen journalist who was arrested for putting out a fire on a flag that was burning and picking up the flag and holding it, and they said he was somehow interfering. Portland has turned everything upside down and on its head,
John Eastman (08:16):
I'm reminded of a event that occurred when I was in graduate school. Somebody had put up a pretty hideous barbed wire colored barbed wire art display. You couldn't tell what it was and somebody else came and knocked it over and then was suspended from school. And yet it was unclear whether the art was in the laid down version or the upended version and who speech, I mean he have as much right to have his free speech manifested in art by knocking it down as those that had stood up this monstrosity. So that's a nihilist answer to your question. If burning the flag is treated equally or more favorably than trying to put out the burning of the flag, we no longer have any standards which to measure appropriate conduct against. And you're right, it is completely turned upside down. It's like the protestors who are physically attacking and assaulting police. And then when the police react in New York or Portland or wherever those protestors say excessive force and they get compensated because the police did their job and responded to assaults on the police, it's entirely upside down. And it's this crazy notion that this society is the worst that human history has ever seen. And anybody attacking it deserves a medal rather than that this place has been the greatest force for good in all of human history. And if you're attacking it, then you need to be held accountable for
Jenny Beth Martin (09:51):
That. That is exactly right. Okay. The next one, there's a Doge case, right? A case related to Doge that is moving through from the state of Massachusetts and it deals with cuts to government spending.
John Eastman (10:09):
Yeah. When I founded my Constitutional Jurisprudence center 25 years ago now, we put together a dozen or so cases of the Supreme Court that we thought were erroneously decided and wanted to get them overturned to get us back on proper constitutional track. And one of them is the notion that Congress can spend for whatever it wants. If you look at the constitution's language, the power to tax and to raise money has to be deployed only for a couple of purposes to pay the debts of the United States and to provide for the common defense and the general welfare. And they were very clear about that. That meant things of national concern, not local concern. And you don't have authority to spend solely for local money. If you want to widen the Boulevard in your hometown, then the people in your hometown should tax themselves to be able to pay for it, not folks in Rhode Island or whatever.
John Eastman (11:10):
And so that limitation has not been paid attention to. And as a result we're now 37 trillion in debt. Well, one of the spending bills signed under the Biden administration was the Inaptly named Inflation Reduction Act. And one of the big grant programs in that law requires that the project being funded be exclusively for local purposes, which there's no constitutional authority for that. And so that case is now pending up in the First Circuit Court of appeals based out of Boston. And I think we'll eventually head to the Supreme Court of the United States on whether the president can refuse to spend money for purely local projects that exceed the power of Congress to spend money for the common defense and the general welfare. And if we had been faithfully following that limitation on federal spending power for the last century, we wouldn't be 37 trillion in debt right now and we wouldn't be handing to our grandkids a hundred thousand dollars tab the moment they born. And this is an abuse of the constitutional system. It's a destruction of federalism. It makes members of Congress most successful in bringing pork home to their home district to be the ones get reelected and ignoring the things that are truly of national interest. And so I think this is a very important issue that we haven't seen teed up in a long time. And I think President Trump's budget cuts through Doge are going to force the issue finally.
Jenny Beth Martin (12:46):
Wow, that sounds really interesting. And I wasn't quite aware of this one. I knew there were a few other cases related to Doge and to the Office of Management and Budget, but I wasn't aware of this one, so I'm going to make sure that I'm following it. I am very interested to see how that plays out because it would have long, long-term ramifications, wouldn't it? It would reset what Congress was allowed to spend money on.
John Eastman (13:12):
It would. And there's that famous exchange that Nancy Pelosi had with one of her voters said, you really think that this is legally, I think it was Obamacare talking about you're kidding, right? We can spend on whatever we want. I mean, that mentality is so infected. Our elected representatives in Congress, they don't even know this limitation exists anymore. And it's partly because in 1986, the Supreme Court basically punted it said, we don't know how to define general welfare. So we'll defer to Congress to establish that we're not going to challenge it. And that may be true on whether something's welfare, whether it's good or bad for us. But the notion whether it's general, national or local, that's an easily enforceable line. And hopefully this litigation will get the courts back into the business of enforcing that rather strong and important limitation on federal power.
Jenny Beth Martin (14:05):
John, what if the court or the people who are trying to uphold and maintain the spending say, well, a president signed it, so therefore it has to be okay to do because it passed Congress and it passed the executive branch through the signature from the President. How would you argue around that? And would that be an argument that would be brought
John Eastman (14:28):
Up? Well, they'll certainly bring it up, but we've known since Marbury v Madison that Congress by statute can't do things that exceed authority given to them by the constitution. The Constitution is the supreme law of the land and only laws passed pursuant to it are part of the supreme law of the land. So when they exceed their constitutional power, they're no longer acting as supreme law of the land the Constitution is, and every branch of government has an obligation to enforce and uphold. They all take the oath to uphold the Constitution. I'm reminded a few years ago when they were trying to pass campaign finance restrictions, the McCain Feingold Law and both McCain and Feingold from the floor of the Senate said, we think there are probably parts of this bill that are unconstitutional, but we're going to pass it anyway and let the courts settle it out, which is a complete abdication of their oath.
John Eastman (15:21):
And then it gets over to President Bush who says There are parts of this that are quite clearly unconstitutional, but he signed it and said, well let the courts sort it out. And then it gets over to the court and said, far be us from to question the consider judgment of the two political branches on their constitutionality. And they upheld it. They finally revisited that a few years later and struck it down. But every branch of government has an oath to defend and uphold the constitution. That means you can't pass statutes that exceed your authority. You can't take executive actions that exceed your authority. And the courts also have that obligation. They can't issue injunctions that intrude on the authority given to the President by the Constitution as we're seeing way too many of them do now. So this revival of constitutionalism, I think that is underway right now is probably that and peace on the world stage if we end up succeeding, president Trump ends up succeeding on that front, will be the two longest lasting parts of his legacy, get us back on the constitutional rails and a lot of the problems we're witnessing will go by the wayside.
Jenny Beth Martin (16:31):
Wow. This case, I'm such a geek. I'm really excited to follow it and figure out more about it. Okay, the last one I want to ask you about and then if there are any others we can do that afterwards that you think we should be tracking. And that is there is talk about doing another census count mid decade and also about apportionment for congressional districts being tied to citizens and not just to the number of people who are in the country. Can you talk about that in constitutional terms?
John Eastman (17:08):
Sure. So interesting provoked by Texas Reese, drawing the lines mid decade. I mean the standard the Constitution requires, we take a census every 10 years and most people let that census ride for the whole 10 years and don't reapportion in the interim, but there's nothing that prohibits them from doing that California now filing suit or trying to reapportion its own. But they actually have a state constitutional provision that doesn't allow that. And so California's effort includes an amendment to their state constitution to allow for this. And I think that's got to be a couple of interesting things though. Supreme Court has said you got to have one person, one vote, and his populations have shifted in the five or six years since the last census and you're using the old data rather than the new data or you're going to violate one person, one vote and drawing the new district.
John Eastman (18:06):
So that's an interesting aspect of all of that that's going to play out particularly in California where whole districts have been decimated in population by, say for example, the Pacific Palisades fire to use the numbers from 2020 when those numbers are no longer even close to accurate is a serious equal protection problem that California's going to confront. The broader question though is do we count among the census non-citizens, people here illegally or even just temporarily the language of the constitution didn't envision this issue. And it says you count all persons and three fifths of other persons trying to deal with the slavery question that's no longer part of it. You count all persons excluding Indians not taxed. And obviously since illegal immigrants are not Indians, not taxed or temporary visitors are not Indians not taxed, they say, well, you got to count them as well.
John Eastman (19:03):
But I think that's a misunderstanding of the clause and the reason we have that clause excluding Indian, not tax meant people that are within our borders that are not part of our political community. And the particular example of that at the time was Indians not taxed. The example moderately, the comparable example is by people who are here illegally or people who are only temporarily visiting and to count them and what's the reason for the census? It's so that the people are getting represented in rough proportion to their numbers as part of the political community. And the example I like to give is let's suppose the 1984 Olympics in Los Angeles was actually held in 1980 while the 1980 census was going on and there were 5 million people visiting Los Angeles from other states, but also from overseas to participate in the Olympics. Would you give Congress California 10 additional congressional seats because at the moment the census is occurring, they had an extra 5 million people. I mean it's absurd even to describe it. And yet by
Jenny Beth Martin (20:13):
Gavin Newsom would try to do that.
John Eastman (20:14):
He would try and do that, but it's absurd. And so the notion that we have to count non-citizens for reapportionment people who are not part of our political community is to weaken the connection between citizen and representation. And the Supreme Court has said the states are not compelled to do that, but it hasn't said they're forbidden from doing that. I hope we get this correct because it ties the basic consent of the governed theory that's at the core of the Declaration of Independence. It's the consent of the governed, the people here who formed the political community. It's not the consent of the governed of people in Ireland who happened to be visiting or in Mexico City who have come here illegally or El Salvador or China. It's the people that formed the political community here that get to have representation.
Jenny Beth Martin (21:05):
I think that that one is going to be very interesting to watch and to see the long-term ramifications of it. And I hope that it upholds consent of the govern and protects the rights of the citizens and their right to have representation that is representative of the citizenry. So I am very, very interested in that case in particular. John, what about, are there any election integrity cases that you think we should be tracking other than the weaponization cases we've already talked about?
John Eastman (21:40):
Well, there are a lot of challenges that have been brought to President Trump's election integrity executive order. Those are still working their way through the courts, but those are going to be very important for two reasons. One, restoring election integrity, but also, look, our election system is by design federalized federalism, right? I mean members of Congress are chosen by rules set down by the state legislatures. Congress gets to override those, but it doesn't get to override election rules that the state legislature set down for presidential elections. That was by design as well. They didn't want Congress having a say in how the president was chosen because it would destroy separation of powers, make the president subservient to Congress. So those things are very complicated and nuanced, but the need that the President's executive order is tapped into, I mean basic things like you got to have voter ID in order to be able to vote.
John Eastman (22:43):
Many in your audience won't remember the old VCR tape. Was it Blockbuster? You had to show your ID in order to check a tape out. If we can do that for a videotape, and we can certainly do that for the most fundamental duty and obligation and right of American citizens, which is the right to vote and direct our government making sure we have security on whatever election system we implement. I'm in favor of going back to paper ballots because they're much harder to hack into and change outcomes of election or call into question elections, do what we required of Iraq one day. You go vote, you get ink on your thumb indelible for a couple of days, so you can't go vote a second time. And we do that when we oversee elections abroad. Why don't we do that here? So I think those things are going to be coming, but also who has standing to challenge? Ordinary citizens are surprised to learn that they don't have standing to challenge illegality in elections, but certainly the candidates should be able to challenge it. And in Pennsylvania in 2020, the court held that the candidate didn't have standing to challenge illegality in the election. Preposterous. Those things need to be fixed and I think eventually when these cases get to the Supreme Court, we're going to get some real serious election integrity improvements in clarity.
Jenny Beth Martin (24:12):
Yeah, I think that that's exactly right. And one of the other things that we saw in 2020 and some of the elections that have happened since then is someone will try to sue because they're worried, say about absentee ballots floating around and a court will come back and say, you can't sue because nothing bad has happened yet you're suing because something bad might happen. And I'm not an attorney, so this is my layman understanding of it. Then indeed something bad seems to have happened and the election day happens and you go to challenge it, the outcome of the election because of that. And they're like, no, your opportunity to challenge it has passed.
John Eastman (24:50):
Now
Jenny Beth Martin (24:50):
There's a catch 22, there's nowhere to challenge
John Eastman (24:53):
It. Yeah, the initial challenge, I think it was Wisconsin, it might've been Michigan Secretary of State issued an illegal guidance. The court said, it's just a guidance we don't know they're going to follow it on election day. Case dismissed, not ripe. And then when they follow the guidance on election day and violated the law case dismissed on a doctrine called latches. You can't sit on your hands and bring a suit that should have been brought earlier and wait until your guy loses to bring it preposterous. But when people say, well, Trump lost 65 cases, most of it was on that kind of nonsense without the courts ever looking at the merits of the legal challenges that were being brought. So yeah, we need to clean this up. Even if there had been no illegality that affected the outcome of the election in 2020 or 2022 in Arizona or 2024 in various places, even if there hadn't been, there was enough of this kind of nonsense that the American people have a very serious question about the legitimate the election. And you cannot run a system like ours that requires us to have faith in the government if we don't have faith in the legitimacy of the elections.
Jenny Beth Martin (25:59):
Absolutely. And you can't have consent of the govern without having solid, secure elections. And if we allow the faith in those elections to erode away, I think you're allowing the foundational elements of our government to erode away. And we talked about broken windows before. Well, this is broken foundation and once that happens, it's very hard to reset everything and rebuild that foundation.
John Eastman (26:30):
It is indeed. And look, we've got the best system ever designed by human hands in all of human history. And people ask me why I fight so hard instead of just throwing in the towel and being done with all this lawfare against me is precisely because of that. We were on the precipice and in many ways still are, but we're at least starting to recognize that there is a precipice that we're about to go over and starting to fight back against it. But because if we lose this fight, what we'll hand to our kids and grandkids will be slavery, I mean will be slavery to a despotic government. But more broadly, this is the last best hope in the world for freedom. And if we lose it here, I mean where are you going to find it flourishing that people can repair to as the example, we are the shiny city on the hill, as Reagan famously said, for a reason because our institutions were crafted in such a way that freedom could flourish. But it's up to us every single generation. It's up to us to protect those institutions so that freedom continues to flourish. And it's just too important in enterprise not to leave it alone and watch it pass by as if it's something we can read about in the history books instead of continuing to live free for ourselves and our kids and grandkids.
Jenny Beth Martin (27:54):
Well, I think that that right there is part of the reason why you continue to exhibit such courage in the face of just inconceivable opposition towards your stances, and I appreciate that so much about you.
John Eastman (28:10):
Thank you. I will say American Freedom Alliance gave me an award last month called the Heini Award, which is Hebrew for here I am Lord, I seem to have been equipped to handle this battle. I said at my speech, God doesn't typically call us to do things that he hasn't equipped us with the arms and armor to handle. But then I compared it to an award that David Horrowitz group gave me a year earlier called the Annie Taylor Courage Award, and I had to look up who Annie Taylor was. It turns out she's the first person to go over Niagara Falls in a barrel and live. And so I said, there may be a fine line between courage and crazy. I hope you're not saying I'm on the wrong side of that line by giving me this award. Sometimes I feel like that, but I can't imagine a more important battle to be engaged in right now, and the fact that I've been thrust into a frontline role in it, I can't imagine a place more important to be than defending freedom in our institutions so that my kids and grandkids don't have to. And I know Jenny Beth, the organizations you run have played a monumentally important role in that battle. And my hat's off to you for all that you've done on that front as well.
Jenny Beth Martin (29:27):
Well, thank you very much, John. The last question, if there is one in one sentence, what you want people to remember about your fight, what would that be?
John Eastman (29:38):
I've not been subjected to the kind of physical assault that President Trump was subjected to in Butler, Pennsylvania, but the assassination of my character and my finances and my family requires a certain fortitude. And I remind people that at some point in all of our lives, we're going to come to a crossroads, a fork in the road, and we'll be asked either to throw in the towel on freedom or to stand in the breach and exhibit that kind of fortitude. And I just ask my fellow citizens to give some deep thought to that question before they reach that fork in the road so they are more steel to make the right choice.
Jenny Beth Martin (30:26):
Thank you so much, John. John, I'm going to make sure that we include the links to your donation, to your donation and to the documentary, but would you give them one more time just for people who are listening and may not be looking at a screen?
John Eastman (30:40):
Sure. Give Send go.com/eastman is the Legal Defense fund site and go look up update 43, read my children's article, and then Madison Media fund.org/eastman dilemma is where they can watch the movie streaming right now for free until one of the platforms puts it up on paid. Then we'll have to take it down, but it's available right now and probably will be for several months yet.
Jenny Beth Martin (31:08):
Very good. John, thank you so much for everything you're doing for our country, for standing, for your rights, for the rights of all attorneys, for our constitution, and thank you for your courage. And I am just thankful to God that you have been able to withstand what has been thrown at you and that you continue to stand up. So thank you very much.
Narrator (31:27):
Thank you very much. Jenny Beth, been a pleasure of visiting with you. The Jenny Beth Show is hosted by Jenny Beth Martin, produced by Kevin Mohan and directed by Luke Livingston. The Jenny Beth Show is a production of Tea Party Patriots action. For more information, visit tea party patriots.org.
Jenny Beth Martin (31:50):
If you like this episode, let me know by hitting the light button or leaving a comment or a five star review. And if you want to be the first to know every time we drop a new episode, be sure to subscribe and turn on notifications for whichever platform you're listening on. If you do these simple things, it will help the podcast grow and I'd really appreciate it. Thank you so much.