WEBVTT 1 00:00:15.519 --> 00:00:20.960 From Powerline blog dot com and produced by Ricochet dot com. This is the 2 00:00:21.039 --> 00:00:35.200 Powerline Show with your host Steve Hayward. Well, hi everybody, and welcome 3 00:00:35.240 --> 00:00:40.479 to a special episode of the Powerline Podcast. It's not quite a classic format 4 00:00:40.479 --> 00:00:44.640 one on one conversation, and it's not quite a three whiskey happy hour either. 5 00:00:45.159 --> 00:00:48.719 Think of it maybe as a two whiskey happy hour and you'll see why 6 00:00:48.799 --> 00:00:52.799 in a moment. So this week the Supreme Court heard oral arguments in the 7 00:00:52.840 --> 00:00:57.759 case of Groff versus the Joy, involving a Post Office mail carrier named Gerald 8 00:00:57.799 --> 00:01:02.359 Groff, who, for religious reasons, wished not to work on Sundays. 9 00:01:03.079 --> 00:01:07.519 Previously, the Postal Service had granted this accommodation, and that was easy back 10 00:01:07.519 --> 00:01:11.680 when the Post Office didn't do any mail delivery on Sundays. But then, 11 00:01:11.840 --> 00:01:15.920 just a few years ago, the Post Office started contracting with Amazon and other 12 00:01:15.959 --> 00:01:21.239 delivery services to do Sunday deliveries. Though the Post Office still granted Graff his 13 00:01:21.319 --> 00:01:26.719 religious accommodation. But then the Post Office changed its mind and compelled Graf to 14 00:01:26.719 --> 00:01:30.760 work on Sundays. Hence this case raising again an aspect of the first Amendments 15 00:01:30.799 --> 00:01:36.680 Free Exercise Clause now, you would think, after all these decades of both 16 00:01:36.760 --> 00:01:41.280 religious liberty cases and employment law cases, that such a situation would be well 17 00:01:41.319 --> 00:01:45.879 settled, but you would be wrong. In fact, the First Amendments clauses 18 00:01:46.000 --> 00:01:51.439 related to the establishment and free exercise of religion remained highly contested and unsettled. 19 00:01:52.760 --> 00:01:57.400 One person who has a deep grasp of the broader issues involved is Vincent Philip 20 00:01:57.439 --> 00:02:01.400 Muno's, who is the Toqueville Associate Professor of Political Science and Law at the 21 00:02:01.480 --> 00:02:07.040 University of Notre Dame. His most recent book, highly recommended and out from 22 00:02:07.040 --> 00:02:12.400 the University of Chicago Press, is entitled Religious Liberty and the American Founding, 23 00:02:12.960 --> 00:02:17.439 Natural Rights and the Original Meanings of the First Amendments Religion clauses. Phil's work, 24 00:02:17.560 --> 00:02:22.159 i should add, has been cited in several Supreme Court opinions on this 25 00:02:22.240 --> 00:02:25.560 issue. Phil sat down recently with me and John You to discuss the issue 26 00:02:25.680 --> 00:02:31.360 and some wider questions about constitutional originalism and natural rights that very much are alive 27 00:02:31.400 --> 00:02:36.400 today. And that's why I called us a two whiskey happy hour. We 28 00:02:36.400 --> 00:02:38.759 did want to have Lucretia's zoom in, but she wasn't able to, so 29 00:02:38.960 --> 00:02:43.400 Phil got off the hook. But in any case, let's turn to Phil. 30 00:02:43.479 --> 00:02:47.199 Now. All right, Phil, here you are in the hot seat 31 00:02:47.240 --> 00:02:51.000 with me and John You. I don't know if Lucretia will call it or 32 00:02:51.080 --> 00:02:53.520 not, but if she does, will break out the whiskey. She's too 33 00:02:53.680 --> 00:03:01.319 busy shoving around poor Mitch McConnell. Probably right. So Phil, first of 34 00:03:01.319 --> 00:03:05.520 all, we want to have a wide ranging conversation. But the proximate cause 35 00:03:05.680 --> 00:03:07.680 for sitting down and having you out here at Berkeley is your new book, 36 00:03:07.759 --> 00:03:15.039 Religious Liberty and the American Founding, Natural Rights and the original meanings plural of 37 00:03:15.080 --> 00:03:19.159 the First Amendment religion clauses. And I have to say, I thought I 38 00:03:19.280 --> 00:03:22.199 kept up with this subject, or I guess I did thirty years ago or 39 00:03:22.199 --> 00:03:24.080 more back when I studied with Leonard Levy. When I got into your book, 40 00:03:24.080 --> 00:03:28.599 I realized how I had not kept up at all with both the case 41 00:03:28.680 --> 00:03:30.599 law and some of the deeper background. It's a whole new world, so 42 00:03:30.680 --> 00:03:34.520 I'm not quite sure. Hard to summarize. I don't want to say, 43 00:03:34.560 --> 00:03:37.919 tell me about your book, because that's a ridiculous question you get on taught 44 00:03:38.039 --> 00:03:44.039 radio. But maybe start a little bit about why it's important to go back 45 00:03:44.080 --> 00:03:46.560 to the natural rights basis before you get into all the case law and the 46 00:03:46.560 --> 00:03:51.439 particular controversies about the First Amendment that always tie us up in knots. Sure, 47 00:03:51.520 --> 00:03:53.599 sure, good, that's a great where you start. And let me 48 00:03:53.639 --> 00:03:58.759 just say thanks for having me. I can't believe I'm on this podcast with 49 00:03:58.800 --> 00:04:01.800 the two of you and not with Cretia. I can't believe it. She 50 00:04:01.840 --> 00:04:06.000 would make so much mincemeat of you. You're crying by the end of this. 51 00:04:08.039 --> 00:04:13.280 We're saving you, We're saving you from humiliation. I'm a huge fan 52 00:04:13.319 --> 00:04:15.560 of the podcast. I listened to it all the time, so it's a 53 00:04:15.560 --> 00:04:18.480 real pleasure for me to be on. Okay, so why natural rights? 54 00:04:18.480 --> 00:04:21.399 Why why should we be concerned about natural rights? Well? Two reasons. 55 00:04:23.480 --> 00:04:26.959 The first is that natural rights our claims of justice. I mean, we 56 00:04:27.079 --> 00:04:30.000 might actually have them, and if we do have a natural right to religious 57 00:04:30.000 --> 00:04:33.240 liberty, the subject of my book, then it's a matter of justice that 58 00:04:33.240 --> 00:04:38.319 that right be protected. So we're because we're interested in the injustice. We're 59 00:04:38.360 --> 00:04:43.480 interested in the truth of our natural freedoms and our rights and responsibilities to one 60 00:04:43.480 --> 00:04:47.399 another. So because we're concerned with justice, we should think about natural rights 61 00:04:47.399 --> 00:04:53.000 and the arguments for them. The second reason, at least this is part 62 00:04:53.000 --> 00:04:57.680 of the argument of my book, is because the First Amendment protects the free 63 00:04:57.720 --> 00:05:00.720 exercise of religion, and we need to interpret that to what is the protection 64 00:05:00.759 --> 00:05:05.399 that the First Amendment offers, And the argument of the book is that that 65 00:05:05.480 --> 00:05:12.040 text is underdetermined. There's not a clear original meaning. When the Founders talked 66 00:05:12.040 --> 00:05:15.319 about religious liberty, they talked about it as a natural right. So if 67 00:05:15.319 --> 00:05:19.160 we want to understand the founder's conception of religious liberty, the philosophical conception that 68 00:05:19.240 --> 00:05:24.360 animated the First Amendment, we need to so to actually do constitutional law, 69 00:05:24.439 --> 00:05:28.120 we need to understand the founder's philosophy of natural rights, or at least a 70 00:05:28.279 --> 00:05:31.920 natural right of religious liberty. Yeah, okay, yeah, I know it's 71 00:05:31.959 --> 00:05:35.199 in your book that you you go, you go very carefully through the language 72 00:05:35.240 --> 00:05:44.360 that's used that actually so you know, we had a one of our favorite 73 00:05:44.759 --> 00:05:47.399 more liberal learning professor's comment on you today here at Berkeley, and one things 74 00:05:47.439 --> 00:05:55.040 he said was he understands the argument that we deduce from nature the idea of 75 00:05:55.120 --> 00:05:58.560 rights, and he says that I think the way put it was that mode 76 00:05:58.600 --> 00:06:00.160 of thinking is now a minority for you today. I thought, I think 77 00:06:00.160 --> 00:06:03.480 that's accurate, and that's part of the problem, right, I mean, 78 00:06:03.600 --> 00:06:08.920 is it possible to anchor a coherent doctor and religious liberty in the absence of 79 00:06:08.959 --> 00:06:13.240 deducing the nature of human beings and the rights from nature. Yeah? Yeah, 80 00:06:13.279 --> 00:06:15.879 So I give a lecture earlier today at the law school here in Berkeley, 81 00:06:16.000 --> 00:06:20.240 and the commentator, Professor ferber who suggested that, you know, we 82 00:06:20.279 --> 00:06:25.160 don't really think in terms of natural rights anymore, and he's right about that. 83 00:06:25.199 --> 00:06:27.879 We don't think in terms about natur ights. People talk about human rights, 84 00:06:28.079 --> 00:06:30.759 and i'm natural rights of these we can tell what a human is, 85 00:06:30.800 --> 00:06:35.759 but never mind. Yeah, yeah, but again, natural rights is just 86 00:06:35.839 --> 00:06:42.399 the way the Founders talked about justice. We still talk about justice, right, 87 00:06:42.439 --> 00:06:46.519 So if we're interested in justice, this is a way to approach that 88 00:06:46.639 --> 00:06:54.519 question. The Founders believe that there are inherent qualities about human nature, specifically 89 00:06:54.519 --> 00:07:00.240 about the way we ought to worship God, that is, with in freedom, 90 00:07:00.319 --> 00:07:03.720 in conviction and conscience. That is the warship that is properly given the 91 00:07:03.759 --> 00:07:09.680 way we have been constituted, the way we as free and rational beings. 92 00:07:10.519 --> 00:07:15.040 Any warship deserving of the term warship must be freely given right, and they 93 00:07:15.160 --> 00:07:19.600 got that from thinking about human nature, and therefore the state ought not coerce 94 00:07:19.720 --> 00:07:24.879 people. So you could say, yeah, well, we don't think in 95 00:07:24.920 --> 00:07:29.240 those terms anymore. Well, actually I think we still do. You know, 96 00:07:29.319 --> 00:07:31.600 I actually don't think Professor Furbs right, We do think, well, 97 00:07:31.639 --> 00:07:34.279 what is a human being? And what's owed to a human being on account 98 00:07:34.279 --> 00:07:38.720 of their human nature? We think of those terms all the time. We 99 00:07:38.800 --> 00:07:42.519 just don't use the founder's language of natural rights. To me, broaden out 100 00:07:42.519 --> 00:07:46.360 the scope a little bit before John drags us down to the rabbit holes at 101 00:07:46.399 --> 00:07:49.360 various cases and stupid doctrines and balancing tests and or, as I like to 102 00:07:49.399 --> 00:07:53.279 say, the lemon test is certainly a lemon, But how do you reward 103 00:07:53.279 --> 00:07:57.160 it is? Now? You mentioned we talk a lot about justice these days, 104 00:07:57.959 --> 00:08:00.680 But of course my observation is it's now always, as I call it, 105 00:08:00.759 --> 00:08:05.839 hyphenated justice, social justice, racial, environmental justice. I've even heard 106 00:08:05.399 --> 00:08:09.000 spatial justice. I'm not quite sure exactly what the heck that means, but 107 00:08:09.199 --> 00:08:15.120 I've seen the term used by ostensibly serious people. So there's two things to 108 00:08:15.160 --> 00:08:18.480 sort out here. One is this is the justice of certain willfulness or client 109 00:08:18.600 --> 00:08:22.560 group claims. On the other hand, and here's where I want to ask 110 00:08:22.600 --> 00:08:26.720 you to make a distinction and think you're talking to undergraduates now as opposed to 111 00:08:26.759 --> 00:08:31.600 necessarily law students. On the other hand, we did have different categories of 112 00:08:31.639 --> 00:08:35.799 justice and Aristotle there's distributive justice, which is different from redistributive justice today. 113 00:08:35.840 --> 00:08:41.000 But that's a distinction that or and then it was what there's community of justice, 114 00:08:41.120 --> 00:08:45.159 corrective justice. By the way, I have found what I have told 115 00:08:45.200 --> 00:08:48.720 students that Aristotle had these four definitions. They write it down the rise again. 116 00:08:48.759 --> 00:08:52.279 They they've never heard this before. How do we bring back those? 117 00:08:54.240 --> 00:08:58.480 First of all, how do we bring back fundamental thinking about justice without hyphens 118 00:08:58.559 --> 00:09:03.080 and contrasting it with the grounding of Aristotle's qualifications of the idea? Yeah, 119 00:09:05.559 --> 00:09:09.120 well that's that's a big question. But let me You asked me to talk 120 00:09:09.120 --> 00:09:13.519 about how I would talk about these things with my undergraduates. UM, start 121 00:09:13.559 --> 00:09:18.240 from simple things. Um, is it wrong to punish someone for the way 122 00:09:18.279 --> 00:09:24.679 they pray? Right? Yeah? You know, should we find someone or 123 00:09:24.679 --> 00:09:28.279 imprison them because they pray incorrectly or to the wrong god, or in a 124 00:09:28.320 --> 00:09:33.720 way that we think is improper. Would you actually imprison someone for praying wrong. 125 00:09:33.159 --> 00:09:37.000 And I think most most of my students, not all, since a 126 00:09:37.000 --> 00:09:41.000 few of them have been influenced by the integrals, but most of my students 127 00:09:41.600 --> 00:09:43.639 would say, yeah, I know, we shouldn't fine or imprison people for 128 00:09:43.759 --> 00:09:48.639 praying. Well, that's a claim of justice. Yeah. So, I 129 00:09:48.639 --> 00:09:54.840 mean, I don't know where that fits in Aristotle's categories exactly. Um, 130 00:09:54.159 --> 00:09:58.639 but we think in these terms all that all the time today, and there's 131 00:09:58.679 --> 00:10:03.840 some things that government should do right, And this is in contradistinction maybe from 132 00:10:03.840 --> 00:10:07.440 Aristotle. We actually believe in limited government. Conservatives confuse limited government with small 133 00:10:07.480 --> 00:10:11.360 government. Small government is just lower taxes and things like a government doing less. 134 00:10:13.120 --> 00:10:15.840 Limited government is the idea. No, there are certain things that it's 135 00:10:15.879 --> 00:10:20.360 not legitimate for government to do. And if you ask what is the root 136 00:10:20.440 --> 00:10:26.080 of limited government, why can't government do certain things? And the historical answer 137 00:10:26.200 --> 00:10:33.240 and the philosophical answer, it's because of religion. Government can't. Government has 138 00:10:33.240 --> 00:10:35.639 no jurisdiction. It's not proper for government to tell us how to pray. 139 00:10:37.240 --> 00:10:41.320 We the people never gave government that authority. We the people never gave government 140 00:10:41.360 --> 00:10:46.519 that authority because we have higher duties than to the state. We have pre 141 00:10:46.639 --> 00:10:52.159 existing duties that pre exist the state to worship according to conscience. These are 142 00:10:52.240 --> 00:10:54.759 matters of justice. And then when we go back, well, why are't 143 00:10:54.759 --> 00:10:58.039 we worship that way? Because of human nature? So, even though we're 144 00:10:58.039 --> 00:11:01.559 not used to the the categories of natural rights or natural law anymore, we 145 00:11:01.600 --> 00:11:05.840 think in these terms actually all the time. Yeah, I want to ask 146 00:11:05.840 --> 00:11:11.000 you about conscience, but just a brief digression question. So I'm just thinking 147 00:11:11.000 --> 00:11:16.200 about the contrast between students as a general matter here at Berkeley and at Notre 148 00:11:16.279 --> 00:11:18.159 Dame. Now, so, I mean, there are lots of jokes about 149 00:11:18.360 --> 00:11:22.919 gosh, Notre Dame. Nice of someone put a nice little Catholic college here, 150 00:11:22.639 --> 00:11:26.480 But I mean I do get the essence from Afar that students there, 151 00:11:26.559 --> 00:11:30.679 even the ones who are not Catholics, at least recognize the legacy of the 152 00:11:30.720 --> 00:11:33.799 place have some respect for it. So I'm asking about the character of your 153 00:11:33.840 --> 00:11:37.639 students. Do they tell me about your students? Yeah? No, No, 154 00:11:37.679 --> 00:11:43.480 Notre Dame. Actually there's more intellectual diversity at Notre Dame than any other 155 00:11:43.519 --> 00:11:48.159 institution I've been part of. I mean this is in terms of religion. 156 00:11:48.200 --> 00:11:52.480 I mean, look, many of the students not certainly not all our Catholic 157 00:11:52.480 --> 00:11:56.039 but you have the full spectrum of Catholicism there. You still have pro life 158 00:11:56.039 --> 00:12:00.759 democrats who think, you know, and you have Catholic Marxists, you know, 159 00:12:00.799 --> 00:12:03.000 only at Notre Dame. These people don't exist on the on the coasts 160 00:12:03.120 --> 00:12:07.320 anymore. You know, very conservative Catholics. You actually now have a handful 161 00:12:07.320 --> 00:12:13.519 of Intergralists, so right, but also political diversity. This is broad about 162 00:12:13.519 --> 00:12:16.600 in part because there's a lot of conservatives at Notre Dame. But it's by 163 00:12:16.600 --> 00:12:22.120 no means a conservative place. Most of the faculty are liberal. But there's 164 00:12:22.120 --> 00:12:26.840 actually real intellectual diversity, and that's quite good. There's believers, there's nonbelievers. 165 00:12:26.879 --> 00:12:28.159 There's people who are very serious about their faith. There are people who 166 00:12:28.159 --> 00:12:31.519 are not serious about the faith. And that makes actually for a better university. 167 00:12:31.639 --> 00:12:35.039 Yeah. The reason that the reason I brought that up is get back 168 00:12:35.080 --> 00:12:39.799 to the conscience thing more specifically, is now, let's take the First Amendment 169 00:12:39.159 --> 00:12:43.320 in the round and not just the religion clause. Well, I sometimes hear 170 00:12:43.480 --> 00:12:50.039 from especially progressive undergraduates at Berkeley is well, the first and men men, 171 00:12:50.120 --> 00:12:52.759 I mean it was written two hundred and forty years ago, or whatever by 172 00:12:52.919 --> 00:12:58.240 you know, white men who owned slaves, and and and but today we 173 00:12:58.279 --> 00:13:01.840 have hate speech today, and and you know, and any speech is literal 174 00:13:01.919 --> 00:13:07.759 violence, never mind any of the sense or nonsense of that. What I 175 00:13:07.799 --> 00:13:09.440 was trying to bring up with students, and they've never heard this argument before, 176 00:13:11.600 --> 00:13:15.799 is what's the core of the First Amendments. Remember, it's not one 177 00:13:15.840 --> 00:13:18.440 thing, it's at least three, three or four things. Ones we're done, 178 00:13:18.519 --> 00:13:24.480 but it's freedom of religion, second, freedom of speech, and the 179 00:13:24.480 --> 00:13:28.639 third is freedom of assembly. And then right the petition is sort of fits 180 00:13:28.639 --> 00:13:31.600 some other ones. But the point is, what is the principle that unites 181 00:13:31.639 --> 00:13:35.919 those three, And it's freedom of conscience, freedom of think for yourself. 182 00:13:35.519 --> 00:13:39.360 Freedom of conscious isn't worth very much if you can't say what you think, 183 00:13:39.840 --> 00:13:43.840 if you can't worship God as your conscience directs you to, if you can't 184 00:13:45.039 --> 00:13:48.960 meet and get together with other people who have the same view as you do, 185 00:13:48.720 --> 00:13:52.039 and that slows up students. And so that's the logic of it, 186 00:13:52.080 --> 00:13:56.080 and the principle it doesn't matter when that was written. The shaga is that 187 00:13:56.120 --> 00:13:58.519 it was only written two hundred and forty years ago. It should have been 188 00:13:58.519 --> 00:14:01.080 written two thousand years ago, and certain ways it is that. Never mind 189 00:14:01.120 --> 00:14:03.679 that, But the point is is that this is a very recent thing, 190 00:14:03.679 --> 00:14:07.879 and you know, don't give up on it just because you're mad at hate 191 00:14:07.879 --> 00:14:09.960 speech or something like that. And anyway, and not to mention, you 192 00:14:11.000 --> 00:14:16.720 can't have a thriving democracy right, right without freedom of speech and assembly and 193 00:14:16.799 --> 00:14:20.480 conscience. Right. I mean that these are necessary prerequisites to actually have a 194 00:14:20.720 --> 00:14:24.320 democracy that works. But now here is a I'm not sure if this is 195 00:14:24.320 --> 00:14:28.279 a difficult. I haven't mastered your book because it's quite overpowering, I have 196 00:14:28.320 --> 00:14:31.840 to say, for someone who has been out of the field for such a 197 00:14:31.840 --> 00:14:35.399 long time, if I was ever in it in the first place. You 198 00:14:35.480 --> 00:14:39.879 talk about how the rights of conscience for religious purposes is an inailable right. 199 00:14:39.960 --> 00:14:45.519 It's not one unlike your right to property that can be qualified by government regulation 200 00:14:45.519 --> 00:14:50.720 and so forth. And I think anyone with half a brain would say government 201 00:14:50.720 --> 00:14:54.039 can never regulate your conscience. Getting back to the point we were just talking 202 00:14:54.080 --> 00:14:56.759 about, even though lots of people are now kind of you know, the 203 00:14:56.759 --> 00:15:01.559 thought police, we talk about, right, and so where am I going 204 00:15:01.600 --> 00:15:07.759 with all this? The difficulty would be and Professor Farber brought up. We 205 00:15:07.840 --> 00:15:15.080 have a problem with actual cases about whether something represents a genuinely sincere religious belief, 206 00:15:15.159 --> 00:15:18.480 or whether it is a pretext for avoiding the draft, for wanting to 207 00:15:18.519 --> 00:15:22.240 smoke pot, for all kinds of other things that you can claim I'm a 208 00:15:22.240 --> 00:15:24.720 minister of the First Life Universalist Church or one of these kinds of things, 209 00:15:24.799 --> 00:15:28.639 and that seems correct to me. But at the same time, you have 210 00:15:28.720 --> 00:15:33.320 a narrow I think there's actor to say, a narrow reading of the what's 211 00:15:33.320 --> 00:15:39.120 become the exceptions. Yeah, so talk a little about that and then John 212 00:15:39.200 --> 00:15:43.720 can sort both of us out. Okay, So you're pointing us to the 213 00:15:43.759 --> 00:15:48.519 free exercise clause, and as the free exercise clause afford a constitutional right or 214 00:15:48.559 --> 00:15:56.320 grant a constitutional right to religious believers and religious institutions to exemptions from otherwise valid 215 00:15:56.399 --> 00:16:00.200 laws, a Quaker being an exempt from the draft law because they're a religious 216 00:16:00.240 --> 00:16:07.039 pacifist. I talked about the example of Amish of parents who would draw the 217 00:16:07.120 --> 00:16:10.879 kids from school in violation of mandatory school attendance laws. Because I just interrupt 218 00:16:10.919 --> 00:16:14.120 you right there, because as I recalled, I think you say in your 219 00:16:14.120 --> 00:16:21.279 book the exemptions we give to Quakers is what's the right way of putting this. 220 00:16:22.000 --> 00:16:25.440 It's not a matter of fundamental right, it's more of it comes closer 221 00:16:25.399 --> 00:16:29.559 to the old understanding of an indulgence legislative grace. So okay, no, 222 00:16:29.559 --> 00:16:32.440 no, that's work carrying on. Okay no no, So so we have 223 00:16:33.120 --> 00:16:34.919 good I'm glad you added that. So we have. Is there a constitutional 224 00:16:36.000 --> 00:16:38.399 right to an exemptions? The short answer of my book is no, there's 225 00:16:38.440 --> 00:16:45.200 not a constitutional right to exemptions. Can we give legislative exemptions? So the 226 00:16:45.279 --> 00:16:49.240 Quakers might have a constitutional right to not fight, but we can say, 227 00:16:49.279 --> 00:16:55.440 look, you can wash dishes or prepare food. You'll be lousy soldiers anyway 228 00:16:55.840 --> 00:16:59.919 we will. You know, we're not gonna make you fight for whatever reason 229 00:17:00.120 --> 00:17:04.039 we the community to determine. So my argument is that you could have legislative 230 00:17:04.039 --> 00:17:08.880 exemptions. In fact, you see examples of legislative exemptions at the Founding Air, 231 00:17:10.759 --> 00:17:15.079 but not a constitutional right to exemptions, because there's no natural right to 232 00:17:15.240 --> 00:17:21.720 be exempt from otherwise valid laws. I mean. And that's maybe the radical 233 00:17:21.759 --> 00:17:26.359 aspect of the book or the counterintuitive part as argument in my book, The 234 00:17:26.400 --> 00:17:30.839 count intuitive argument is that the free exercise clause is deep but narrow, when 235 00:17:30.880 --> 00:17:37.680 it protects you, It protects you categorically. But you don't have a general 236 00:17:37.759 --> 00:17:41.200 right to be religious. People don't have a general right to not comply with 237 00:17:41.279 --> 00:17:45.559 laws that they feel are burdensome. It turns out the First Amendment is much 238 00:17:45.599 --> 00:17:52.200 more republican than we understand. Republican and small art meaning the founders set up 239 00:17:52.359 --> 00:17:56.319 a republican government govern the people, determine the laws, and the people have 240 00:17:56.359 --> 00:18:00.160 to follow the laws. There are a few things that the people can do. 241 00:18:00.359 --> 00:18:04.839 We can't legislate how you pray. We can't punish you for the ways 242 00:18:04.880 --> 00:18:08.960 you pray. But the people can make all sorts of laws and everyone is 243 00:18:10.079 --> 00:18:14.200 supposed to follow them. Yeah, the First Amendment is far less libertarian than 244 00:18:14.240 --> 00:18:18.279 we think, and the founders were far natural rights theories, far more republican 245 00:18:18.680 --> 00:18:26.079 than we think. Okay, that means it's far more democratic. We can 246 00:18:26.119 --> 00:18:30.400 do all sorts that we can aid religion, we can restrain religion in all 247 00:18:30.440 --> 00:18:34.680 sorts of ways. That it's up to the people, through their elective representatives, 248 00:18:34.720 --> 00:18:40.599 to decide what fosters the common good. Yeah. Well, so you 249 00:18:40.680 --> 00:18:47.039 describe in your book that a lot of the recent cases have said, you 250 00:18:47.119 --> 00:18:52.680 know, Smith versus employment division. The famous parody Smoky case is that how 251 00:18:52.680 --> 00:18:56.319 does the phrase go when the government has a compelling state interest in a narrowly 252 00:18:56.359 --> 00:19:02.000 tailored This is the common language with so many court cases. I hate that 253 00:19:02.079 --> 00:19:04.880 language. I've always want to invoke my Second Amendment rights whenever I hear a 254 00:19:04.880 --> 00:19:10.079 compelling state interest because modern progressive government, as you know, has no shortage 255 00:19:10.079 --> 00:19:15.000 of things they find compelling state interests. Right, And so that that language 256 00:19:15.000 --> 00:19:18.279 just gives me the hebe gebs? Can I can I pause you here because 257 00:19:18.279 --> 00:19:21.680 there's and I'm gonna try to tell you why it does give here the hebe 258 00:19:21.720 --> 00:19:25.799 gbs a word I've never used before, and it's a technical legal trade. 259 00:19:26.000 --> 00:19:30.240 Yeah, yeah, And why you're Claremont instincts are exactly right. They're attuned 260 00:19:30.279 --> 00:19:34.240 to this. So the whole idea of compelling state interests least restrict of me 261 00:19:34.240 --> 00:19:41.519 a script strict scrutiny, is a product of progressive constitutionalism, right, And 262 00:19:41.599 --> 00:19:45.480 it's the idea that no, we don't have natural rights, we only have 263 00:19:45.599 --> 00:19:53.240 evolving rights. So how do rights evolve? What's the mechanism? Well, 264 00:19:53.440 --> 00:19:59.680 rights evolved from the judiciary, right, and so rights are no longer categorical 265 00:19:59.759 --> 00:20:03.440 so judges may make new rights and they may take rights away, and the 266 00:20:03.519 --> 00:20:10.680 way they implement in evolving constitutionalism, one of the mechanisms is the mechanism of 267 00:20:10.799 --> 00:20:15.720 strict scrutiny. Right, So your categorical right Congress shall making a law prohibiting 268 00:20:15.720 --> 00:20:21.599 the free exercise of religion, becomes a conditional right actually to toleration. You 269 00:20:21.640 --> 00:20:25.720 may prohibit you may practice your religion. You have a right to practice your 270 00:20:25.759 --> 00:20:30.680 religion unless we the government, have a good reason to not let you practice 271 00:20:30.720 --> 00:20:36.039 your religions. And then what is a compelling state interest is the mechanism of 272 00:20:36.079 --> 00:20:41.960 evolution. So there's a whole philosophical shift in the nature of rights that's captured 273 00:20:41.960 --> 00:20:45.039 in strict scrutiny. Conservatives use strict scrutiny all the time, but it's a 274 00:20:45.039 --> 00:20:49.519 product really of the sixties, and it's a product of progressive constitutionalism, and 275 00:20:49.559 --> 00:20:52.839 it's opposed to natural rights constitutionals. Yeah, so we're actually heed agreement here 276 00:20:52.880 --> 00:20:56.240 because I wish our guys, to the extent we can call them our guys, 277 00:20:56.240 --> 00:21:00.880 would use different language. It would be helpful even if you're getting the 278 00:21:00.920 --> 00:21:03.079 same result. I think I can say more about that, but John here 279 00:21:03.160 --> 00:21:11.359 looks like you're done texting your book. I actually don't read the compelling state 280 00:21:11.359 --> 00:21:15.880 interests tests the same or strict scrutiny the same way, because I think it's 281 00:21:15.640 --> 00:21:21.880 not really a product of progressivism. I think actually today's progressives hate it because 282 00:21:22.279 --> 00:21:26.119 you know, as you know, one of laws fail the strict scrutiny test, 283 00:21:26.640 --> 00:21:30.920 and this term it may come to a one hundred percent because the Supreme 284 00:21:30.960 --> 00:21:36.079 Court may well stripe down racial diversity and college emissions, which is really the 285 00:21:36.160 --> 00:21:41.200 only major exception to strict scrutiny except wartime and when we let the government do 286 00:21:41.240 --> 00:21:45.480 all kinds of things. So that's one thing is to me, when I 287 00:21:45.519 --> 00:21:48.319 hear something is covered by strict scrutiny tests, that means it gets the highest 288 00:21:48.319 --> 00:21:52.640 protection that the courts give to any kind of right. And that's what religious 289 00:21:52.680 --> 00:21:56.880 liberty. You know, that cludes religious liberty. But that that brings me 290 00:21:56.920 --> 00:22:00.559 to my question, and Phil, we've are you about it before, which 291 00:22:00.640 --> 00:22:04.640 is to me, what seems odd about your argument non terms of the original 292 00:22:04.720 --> 00:22:11.079 understanding of whether religious liberty is a constitutional right, but how people should today 293 00:22:11.160 --> 00:22:15.920 should protect it. So the Bill of Rights has a long list of rights, 294 00:22:15.440 --> 00:22:22.039 right and according to your argument, it's okay if judges protect all those 295 00:22:22.079 --> 00:22:26.720 other rights, which they do, but they should provide protection to religious liberty 296 00:22:26.799 --> 00:22:30.640 rights by granting exceptions, which is a very common thing for them to do 297 00:22:30.680 --> 00:22:34.640 for all the other rights like free speech and all these So the weird to 298 00:22:34.680 --> 00:22:41.160 me these perverse outcome is that the most important rights in your system get the 299 00:22:41.279 --> 00:22:45.759 least protection from our legal system. That makes that I would think it would 300 00:22:45.759 --> 00:22:48.319 be the reverse. Yeah, yeah, no, I understand what you're saying. 301 00:22:48.319 --> 00:22:52.640 But the dispute between us is actually not if they get a lot of 302 00:22:52.640 --> 00:22:59.319 protection or a little protection, It is what is the what is protected right? 303 00:23:00.400 --> 00:23:06.799 In your question presumes that the right of free exercise is protects any religiously 304 00:23:06.839 --> 00:23:14.680 motivated behavior. But that's what I'm denying that there is just because something is 305 00:23:14.720 --> 00:23:23.319 religiously motivated doesn't qualify it for free exercise clause protection that the founders had a 306 00:23:23.519 --> 00:23:27.319 notion of. There's some things that are by their nature religious exercises, and 307 00:23:27.480 --> 00:23:33.720 government can't prohibit those, And then that's categorical. It's not the government can't 308 00:23:33.720 --> 00:23:37.599 prohibit it unless they have a compelling state interest. Right, it's a categorical 309 00:23:37.640 --> 00:23:42.240 protection. That's what I mean by deep but narrow. So the First Amendment 310 00:23:42.319 --> 00:23:48.440 wasn't designed to protect religious people to live in any way they want it. 311 00:23:48.720 --> 00:23:51.680 The First Amendment. The purpose of the First Amendment was to say to government, 312 00:23:51.960 --> 00:23:56.960 you can't proscribe or prescribe forms of worship. There's actually much narrow or 313 00:23:56.960 --> 00:23:59.559 purpose free speech. By the way, it's the same thing. A proper 314 00:23:59.680 --> 00:24:03.400 inter nation of free speech would be relatively narrow. The certain things government can't 315 00:24:03.400 --> 00:24:07.279 do, it can do all sorts of things. Um, so it's not 316 00:24:07.359 --> 00:24:14.519 just religious free exercise that'd be narrow. I think more generally, what's constitutionally 317 00:24:14.559 --> 00:24:19.680 prescribed from the Founder's natural rights perspective would be much narrower. Right, There'd 318 00:24:19.680 --> 00:24:22.799 be much less work to do. Judiciary would do much less work. This 319 00:24:22.839 --> 00:24:26.799 is what I mean by they're much more republican. Well, this is this 320 00:24:26.880 --> 00:24:29.680 is good this comparison to the free speech clause, because I was trying to 321 00:24:29.680 --> 00:24:33.680 figure out because I would I think you would assume the Founders think free freedom 322 00:24:33.720 --> 00:24:38.440 of speeches on an equal par with freedom of religion. You know, Steve 323 00:24:38.519 --> 00:24:42.079 just said, you know they're all linked together as a freedom of conscience. 324 00:24:44.799 --> 00:24:48.519 So would we be able to live in a world where we applied your approach 325 00:24:48.559 --> 00:24:52.279 to the religion clauses to the speech clause. You know, yeah, sure, 326 00:24:52.319 --> 00:24:55.880 sure, that would mean it would just be much more republican, much 327 00:24:55.920 --> 00:24:57.880 more democratic. So but it would also mean like so you would say the 328 00:24:57.920 --> 00:25:02.200 court, the court should say, okay, there's a certain kind of very 329 00:25:02.240 --> 00:25:07.319 clear thing which is speech. Like crazy person in front of Sprout Plaza here 330 00:25:07.359 --> 00:25:11.920 at Berkeley Campus getting up and denouncing whatever he wants, or well, the 331 00:25:11.920 --> 00:25:15.680 person we were talking about a lunch crazy man from Minneapolis who got confused was 332 00:25:15.720 --> 00:25:19.200 going to the Vikings game, got way laid on January six, ended up 333 00:25:19.200 --> 00:25:23.359 at the capitol instead by mistake. Because you know, you have a right 334 00:25:23.400 --> 00:25:30.400 to demonstrate protests, speak right, so you think that's then you would say, 335 00:25:30.599 --> 00:25:33.519 then judges should say, there's other kinds of things which today we might 336 00:25:33.519 --> 00:25:37.960 think of speech aren't which aren't really speech. We've made a mistake to include 337 00:25:38.000 --> 00:25:41.559 in a free speech and that stuff gets no protection. Right, that's your 338 00:25:41.640 --> 00:25:45.279 view about religion, that takes I meant so the thing I would ask you 339 00:25:45.400 --> 00:25:51.319 is how do you know what the line is between what speech and what really 340 00:25:51.359 --> 00:25:53.359 isn't speech? Because that's key for you. Right, it's either you get 341 00:25:53.519 --> 00:25:56.400 your it's very black and white. You get full protection or you get zero 342 00:25:56.480 --> 00:26:03.039 protection. So everything that's criticals, what is speech or what is religious exercise? 343 00:26:03.160 --> 00:26:04.839 Yeah, that's right, that's a helpfulay to look at it. So 344 00:26:07.160 --> 00:26:11.240 I think it's helpful this reason from easier cases and than go to art cases. 345 00:26:11.279 --> 00:26:15.359 So is new dancing speech. So the speech court thinks yes, yeah, 346 00:26:18.440 --> 00:26:22.039 you say, now do you how do you know that? Because they 347 00:26:22.079 --> 00:26:27.319 change they change speech into expression. Yeah, conduct, which you would say 348 00:26:29.440 --> 00:26:36.960 speech speeches speech. Right. Um, let me get one other distinction. 349 00:26:37.319 --> 00:26:41.000 Um, I think it is informing all this I will be helpful. And 350 00:26:41.119 --> 00:26:44.720 this is about the nature of natural rights, including speech, including religious free 351 00:26:44.720 --> 00:26:48.640 exercise. And let me use the example of Libel when we talk when lawyers 352 00:26:48.640 --> 00:26:52.440 talk about libel, when the Supreme Court talks about Libel, they say, 353 00:26:52.680 --> 00:26:57.319 well, libel is an exception to the free speech protections. Right, But 354 00:26:57.440 --> 00:27:03.359 that's a misunderstanding. Libel makes no part of the understanding of the natural right 355 00:27:04.119 --> 00:27:11.960 of free speech. All natural rights have natural limits. Right in religion, 356 00:27:11.079 --> 00:27:15.400 your right or religious free exercise. The limits of that are the natural law. 357 00:27:18.039 --> 00:27:21.079 The limits of the natural right of free speech are the natural law. 358 00:27:22.119 --> 00:27:26.519 You don't have a right to harm someone else. Libel is saying false things 359 00:27:26.519 --> 00:27:30.519 about someone that damages the reputation. You don't have a free speech right to 360 00:27:30.680 --> 00:27:34.440 libel someone. So the right of free speech and the right of religious free 361 00:27:34.480 --> 00:27:40.200 exercise are in their nature bounded. They're limited. See I agree with But 362 00:27:40.440 --> 00:27:41.960 this is how it is a progressive I can see now why you say, 363 00:27:42.079 --> 00:27:47.920 oh, all this legal stuff is progressive, because you know, the lawyer 364 00:27:47.960 --> 00:27:52.960 would say, the reason why we give protection to these expressive conduct and we 365 00:27:52.000 --> 00:27:57.440 give protection to religiously motivated behavior is because we are not confident we can draw 366 00:27:57.480 --> 00:28:02.160 the line and say this is real religion and no more, or this is 367 00:28:02.279 --> 00:28:06.400 this is speech and extends no farther. So you know, the strict scrutiny 368 00:28:06.400 --> 00:28:11.039 testings like that, they actually give more protection to a broader class of conduct 369 00:28:11.559 --> 00:28:15.240 because that way, judges and lawyers don't have to draw these boxes about what's 370 00:28:15.279 --> 00:28:18.480 really speech, what's not really spencerul, what's religion, what's not really religion? 371 00:28:18.880 --> 00:28:22.720 So let me ask you, would you rather have judges doing that? 372 00:28:22.759 --> 00:28:27.880 Would you be confident in a judiciary of the twenty first century saying this is 373 00:28:27.960 --> 00:28:32.200 religion, and this is not this is speech. And this for example, 374 00:28:32.759 --> 00:28:37.240 can't big contributions not speech. Government can regulate them, which has the effect 375 00:28:37.319 --> 00:28:41.359 of screwing over conservatives, left or you. Usually when you let the judges 376 00:28:41.400 --> 00:28:47.880 have this kind of power, I think conservatives get screwed. Well, yes, 377 00:28:48.079 --> 00:28:52.200 I mean that's true. But you know, look, if if what's 378 00:28:52.240 --> 00:28:56.400 the role of the judiciary. The role of the judiciary, right at least 379 00:28:56.400 --> 00:29:00.960 originalists would say, would be to uncover the original meaning. So you uncover 380 00:29:00.000 --> 00:29:06.119 the original meaning of speech. Congress can make no law prohibiting the free ex 381 00:29:06.599 --> 00:29:10.839 sides of religion or prohibiting the right of free speech. You've got to determine 382 00:29:10.880 --> 00:29:14.599 what's in that and Congress can make no law. And if it's in that 383 00:29:14.640 --> 00:29:17.960 box, Congress can't make a law. Not Congress can't make law unless there's 384 00:29:17.960 --> 00:29:22.440 a good reason compelling state interests. Congress can't make a law. And if 385 00:29:22.440 --> 00:29:26.119 something's not protected, then it's turned over to the people through the ordinary channels 386 00:29:26.119 --> 00:29:30.279 of democratic representation, separation powers, et cetera, et cetera. It's it's 387 00:29:30.279 --> 00:29:37.039 a it's I actually think you have you have your larger point is, but 388 00:29:37.119 --> 00:29:41.720 judges will mess us up in their definitions and their jurists as judges will either 389 00:29:41.920 --> 00:29:45.200 not be good judges or they'll misinterpret things. And won't that be bad? 390 00:29:45.319 --> 00:29:47.799 Well, yes, it will be bad. I mean judges have been screwing 391 00:29:47.880 --> 00:29:56.440 up the Constitution for one hundred and fifty years. Um it's maybe yeah, 392 00:29:56.559 --> 00:30:02.680 yeah, yeah, yeah, um okay yeah. Judges make mistakes all the 393 00:30:02.720 --> 00:30:04.799 time. I mean, the doctrine of originalism is supposed to give us a 394 00:30:04.799 --> 00:30:11.599 framework by which to evaluate those decisions. This is why I think this appeal. 395 00:30:11.799 --> 00:30:15.240 I understand why this appeals to you and my Claremont friends, you and 396 00:30:15.319 --> 00:30:22.160 Lucretia, and there are many many followers in the world. But this is 397 00:30:22.200 --> 00:30:26.000 why I think it may not work for most other people, which is you 398 00:30:26.160 --> 00:30:33.440 have that confidence that judges, professors, government leaders, Ronda Santis can make 399 00:30:33.519 --> 00:30:38.119 these decisions because you believe there's a philosophy natural law which provides the answers. 400 00:30:40.000 --> 00:30:45.480 So the issue with that is, what if most Americans today don't believe in 401 00:30:45.559 --> 00:30:49.039 natural rights at all? Do you have to actually think natural rights are true 402 00:30:49.200 --> 00:30:56.799 today to be able to agree with you or is it just sufficient to say 403 00:30:56.160 --> 00:31:00.559 I think the guys who wrote the Constitution believed in natural rights, and so 404 00:31:02.240 --> 00:31:04.519 it's just a matter of us right going back and trying to give force to 405 00:31:04.559 --> 00:31:08.440 their choice, because I think if it's the former, then I'm not sure 406 00:31:08.480 --> 00:31:14.039 whether you have a ground to say that you must follow the natural right definition 407 00:31:14.200 --> 00:31:18.240 of religion or speech. Now, because I would bet the majority or great 408 00:31:18.240 --> 00:31:22.359 majority of Americans, if you gave them the different philosophical schools, they're probably 409 00:31:22.440 --> 00:31:27.160 Rawsians. Now well maybe, I mean I think the majority of Americans would 410 00:31:27.200 --> 00:31:32.759 have no idea what you're talking about. So and if they did understand it, 411 00:31:32.799 --> 00:31:34.319 I don't think they'd be it. Actually, maybe the majority of French 412 00:31:34.319 --> 00:31:40.359 are Rawlesians, but not Americans. Um, let me turn it around on 413 00:31:40.440 --> 00:31:44.599 you first. I'll answer your question Majoria, but your argument, if I'm 414 00:31:44.680 --> 00:31:48.119 understanding right as well, you're you require a lot of judges. They have 415 00:31:48.160 --> 00:31:52.519 to determine what everybody. Yeah, but as opposed to what, um, 416 00:31:52.559 --> 00:32:00.000 what's a compelling state interest? Well, we trust judges toories for those nationals. 417 00:32:00.160 --> 00:32:01.799 Yeah, we have category. We have categories there. I mean, 418 00:32:01.839 --> 00:32:07.640 that's stuffs all make believe. What we would say is judges deciding the least 419 00:32:07.680 --> 00:32:14.160 restrictive means. This is a philosophers like you two and lawyers. Is you 420 00:32:14.200 --> 00:32:19.119 would say it's made up because it does not proceed from a logically created a 421 00:32:19.200 --> 00:32:22.079 system of moral belief, where we would say that's just experience. We've had 422 00:32:22.160 --> 00:32:25.799 so many cases. These are the only things we have as human being, 423 00:32:25.839 --> 00:32:30.359 seeing tens of thousands of repeated cases, are willing to allow to override religion 424 00:32:30.759 --> 00:32:36.079 or speech. So you're telling me that's how Justice Powell determined diversity was a 425 00:32:36.119 --> 00:32:39.359 compelling state of interesting history of He's just making stuff up. No, No, 426 00:32:39.359 --> 00:32:45.519 it's just like it's it's their experience. That's the lawyer you're saying. 427 00:32:45.519 --> 00:32:50.160 They're making stuff angle American common law, just seeing lots and lots of cases, 428 00:32:50.240 --> 00:32:53.680 and that's what they feel. The lot of the smarter judges and the 429 00:32:53.680 --> 00:33:01.480 bulk of the lawyers feel believe. I'm gonna put my my my I'm put 430 00:33:01.480 --> 00:33:05.839 my bet on natural rights compared to that, Yeah, yeah, yeah yeah. 431 00:33:06.160 --> 00:33:07.839 I WASNA. What he said is we do. But what you're saying, 432 00:33:08.319 --> 00:33:12.240 I want to rely on natural rights being true. I wanted to up 433 00:33:12.279 --> 00:33:15.319 and say yes, let's go home. Yeah, look, but does this 434 00:33:15.480 --> 00:33:21.000 require for you to be right that people today? Okay, No, that's 435 00:33:21.000 --> 00:33:23.359 a that's a good question, and the question that's they're the ones who set 436 00:33:23.400 --> 00:33:28.480 what are moral, what's permissible morally, or you're just saying no, no 437 00:33:28.559 --> 00:33:31.279 matter, It doesn't matter what they think, because natural rights is just correct. 438 00:33:31.519 --> 00:33:36.480 Yeah, it's a better system. I'm more true than any other system 439 00:33:36.519 --> 00:33:39.359 of philosophy, And doesn't matter what the Democrats, you know, the majority 440 00:33:39.359 --> 00:33:42.839 of people to Yeah. So I address this in my book, and I 441 00:33:42.880 --> 00:33:45.079 do it in this way. So if I understand your question, do we 442 00:33:45.119 --> 00:33:47.640 actually have to believe in natural rights? Are sufficient to say, well, 443 00:33:47.680 --> 00:33:51.839 the Founders believed in natural rights, and we're applying the Founders Constitution, I'd 444 00:33:51.839 --> 00:33:53.279 say for purposes of law, you could say, well, this is the 445 00:33:53.279 --> 00:34:00.000 original Constitution, the natural rights framework, and therefore we adjudge apply it because 446 00:34:00.079 --> 00:34:02.440 that's the original meaning, and we have a judicial duty to apply the original 447 00:34:02.440 --> 00:34:06.279 meaning. I think that would be sufficient. But in a larger sense, 448 00:34:06.319 --> 00:34:09.800 I don't think that's sufficient at some point in time, and maybe this is 449 00:34:09.840 --> 00:34:14.760 not the role of the judge, but it's the role of the citizen to 450 00:34:14.840 --> 00:34:19.320 evaluate do we have a good constitution? Is it worth is it worth preserving 451 00:34:19.360 --> 00:34:23.639 the original meaning? Right? I actually think we have to address that question 452 00:34:23.719 --> 00:34:28.000 that originalists, at some point in time have to say, no, the 453 00:34:28.000 --> 00:34:34.000 original meaning of the Constitution is good and just and therefore is worth preserving only 454 00:34:34.039 --> 00:34:38.199 because the original Constitution is good and just and ultimately it's gonna So ultimately, 455 00:34:38.199 --> 00:34:44.400 the originalism requires a philosophical defense. And so in the book, I try 456 00:34:44.440 --> 00:34:47.239 to present the history saying this is the original meaning. Natural rights is the 457 00:34:47.239 --> 00:34:52.480 original meaning. But I have a chapter on why the Founders believed religious liberty 458 00:34:52.599 --> 00:34:58.119 was an inalienable natural right, and I try to present their philosophical and theological 459 00:34:58.360 --> 00:35:02.199 reasoning. And I include that chapter because at the end of the day, 460 00:35:02.280 --> 00:35:06.000 we have to make an argument. Originals have to make an argument that the 461 00:35:06.039 --> 00:35:12.119 Constitution is actually good. I actually so. I do think that's a necessary 462 00:35:12.239 --> 00:35:15.480 argument that has to be made to citizens. Now, the original Constitution, 463 00:35:15.039 --> 00:35:17.800 I would say, it was not perfect, but in many ways it's good. 464 00:35:19.199 --> 00:35:22.559 Here are the reasons why that doesn't It's not just philosophy, talked about 465 00:35:22.599 --> 00:35:25.960 experience as well. I think we have to make that argument. And if 466 00:35:27.000 --> 00:35:30.639 we can't make that argument, you can't really defend the original Constitution. Parchment 467 00:35:30.639 --> 00:35:36.360 barriers are insufficient. Yeah, all right, I just have to double down 468 00:35:36.360 --> 00:35:38.320 on compelling state interest for a moment, because it's just bugging me. The 469 00:35:38.519 --> 00:35:44.840 single most compelling state interests is what national defense? National security your favorite domain. 470 00:35:45.280 --> 00:35:47.119 But the thing is, how many thousands of years have we talked about 471 00:35:47.199 --> 00:35:52.320 the priority of national defense and self preservation without ever using the phrase compelling state 472 00:35:52.360 --> 00:35:54.679 interest? Just get rid of that. Okay, that was just a rant. 473 00:35:55.400 --> 00:35:59.800 I have two last questions are both pretty broad, but you just teed 474 00:35:59.840 --> 00:36:02.559 up the first one, which is constitution is a lot perfect. I like 475 00:36:02.599 --> 00:36:07.159 a joke. That's better than the government we've got. But but but in 476 00:36:07.159 --> 00:36:10.880 your book, well seriously, your book, you do go into debates about 477 00:36:10.880 --> 00:36:15.039 the language of religious liberty and very state constitutions as well as the First Amendment. 478 00:36:15.400 --> 00:36:21.280 You talk in interesting ways about the debates in the first Congress about what 479 00:36:21.320 --> 00:36:23.679 they can legislate, especially in respect of the Quakers. I think that came 480 00:36:23.760 --> 00:36:30.880 up in Congress and so that that peculiar language of the establishment clauses Congress will 481 00:36:30.880 --> 00:36:37.320 make no law respecting an establishment of religion and people. Often what is respecting 482 00:36:37.599 --> 00:36:40.119 is that what does that mean? And some of the debate is does that 483 00:36:40.159 --> 00:36:46.039 mean Congress can't pass the law affecting or you're regulating a religious Okay, here's 484 00:36:46.079 --> 00:36:52.000 the question of that background. If you had plenty potentiary power, how would 485 00:36:52.039 --> 00:36:53.760 you rewrite the First Amendment, or at least the first clause of the First 486 00:36:53.760 --> 00:37:00.280 Amendment? Oh yeah, well that's chapter seven of the book. Yeah, 487 00:37:00.360 --> 00:37:02.480 yeah, I can see, we can see how fire stay where I got 488 00:37:02.519 --> 00:37:08.920 it in that book? Yeah? Chapter six? Yeah? Um, then 489 00:37:09.039 --> 00:37:12.480 so I give what I call it? Now? Can I can I see? 490 00:37:12.559 --> 00:37:15.000 Please steve a little bit? Which is I fire call that chapter your 491 00:37:15.000 --> 00:37:19.639 book is? What would you do to make it clearer? But this is 492 00:37:19.679 --> 00:37:22.599 a different question. It's just like what do you think you could say? 493 00:37:22.599 --> 00:37:24.880 Oh, I actually think religious rights should be broader? Then what's in the 494 00:37:24.920 --> 00:37:29.159 First Amomment? Oh yeah, yeah, yeah, no, no, yes, 495 00:37:29.320 --> 00:37:36.079 yeah, So the positive question chapters are banned words word anyway. Sorry, 496 00:37:36.119 --> 00:37:38.679 So whatever you keep saying clean air at clean air, that's worse. 497 00:37:39.599 --> 00:37:45.760 Let the let the listeners email in. Let's worse positivism or a clean act. 498 00:37:46.400 --> 00:37:50.559 All right? So three three thoughts here. The verse thought is in 499 00:37:50.639 --> 00:37:54.960 chapter seven, I try to present a natural rights construction of the First Amendment 500 00:37:55.280 --> 00:38:01.039 the religion closets. So if we take the founders natural rights m philosophy seriously 501 00:38:01.199 --> 00:38:05.719 and apply it to the first moment of religion clauses. This is what we 502 00:38:05.800 --> 00:38:10.199 get, and it's a jurisdictional approach. It's very limited. This is somewhat 503 00:38:10.239 --> 00:38:15.199 surprising to me. I didn't set out to. I followed the evidence where 504 00:38:15.199 --> 00:38:16.440 it led, I think, I mean, and it's that there are a 505 00:38:16.440 --> 00:38:22.440 few things that Congress and withincorporation the states couldn't do. UM. But really, 506 00:38:22.519 --> 00:38:25.960 as I said before, the natural rights approach is far more republican, 507 00:38:27.039 --> 00:38:31.079 far less libertarian than than we think. I means, are really republican. 508 00:38:31.159 --> 00:38:37.320 Different which is, do you personally think, yeah, should have protected religious 509 00:38:37.400 --> 00:38:40.199 motivated behavior. Yeah, yeah, so that's written a broader protection, yeah, 510 00:38:40.239 --> 00:38:45.239 I think so. In chapter eight I try to give an account of 511 00:38:45.519 --> 00:38:49.559 what I think are the strengths and weaknesses of the natural rights approach. So 512 00:38:49.599 --> 00:38:52.239 the book is not simply a defense of the natural rights approach. It really 513 00:38:52.239 --> 00:38:53.880 is the presentation of the natural rights approach. And then at the end I 514 00:38:53.880 --> 00:38:55.559 try to say, well, here are what I think are some of the 515 00:38:55.599 --> 00:39:00.519 strengths and weaknesses. Um. One of the weaknesses, and this is an 516 00:39:00.519 --> 00:39:05.760 indirect way to get to John's question is does it make sense to have a 517 00:39:05.880 --> 00:39:10.559 natural rights interpretation of the free exercise clause if we don't have a natural rights 518 00:39:10.599 --> 00:39:17.679 interpretation of all the other provisions of the Constitution. And that's a serious criticism 519 00:39:17.840 --> 00:39:22.559 of not only a natural rights approach, but you know, does originalism make 520 00:39:22.639 --> 00:39:28.079 sense for only the First Amendment but not for the commerce clause or separation of 521 00:39:28.079 --> 00:39:31.000 powers more generally? I mean the constitution was a coherent whole. I think 522 00:39:31.039 --> 00:39:36.920 there's a coherent whole natural rights constitution. But when you chip away at the 523 00:39:37.000 --> 00:39:40.440 natural rights approach in all sorts of places, is it then coherent? Only 524 00:39:40.480 --> 00:39:45.519 do natural rights in some provisions and not others? And I think that's a 525 00:39:45.599 --> 00:39:51.320 real difficulty and a real challenge, right, it's not just natural rights. 526 00:39:51.440 --> 00:39:55.119 People say same thing about originalism. Yeah, just apply originalism to separation of 527 00:39:55.159 --> 00:40:00.719 powers, but they don't apply to the right. So many of the problems 528 00:40:01.280 --> 00:40:07.400 we have today that that religious people feel that, wait, we're not being 529 00:40:07.400 --> 00:40:13.880 treated fairly and we need a vehicle by which to protect what we know are 530 00:40:14.000 --> 00:40:17.960 our rights, and they use the free exercise clause. A lot of those 531 00:40:19.199 --> 00:40:25.960 interests would have been protected under more more robust protection of property rights or narrower 532 00:40:27.000 --> 00:40:31.239 federal government, narrower federal government, more robust separation powers. Exactly right. 533 00:40:31.280 --> 00:40:38.480 And so one of the criticisms I would make of my own book is this 534 00:40:38.599 --> 00:40:42.880 might be right. You might have I would say to myself, you are 535 00:40:42.960 --> 00:40:46.280 right about the original meaning at the free exercise clause. But doesn't make sense 536 00:40:46.320 --> 00:40:51.599 for a judge today only to apply the original meaning to the free exercise clause 537 00:40:51.800 --> 00:40:54.519 without applying the original meaning to everything else. Well, that teas up my 538 00:40:54.760 --> 00:40:57.880 sorry, were you no? No? No, go ahead? That tea's 539 00:40:57.880 --> 00:41:00.719 at my last question, Although I have to say, uh, we would 540 00:41:00.719 --> 00:41:04.920 if you kid Richard Epstein that his version of the Bill of Rights would simply 541 00:41:05.039 --> 00:41:09.639 begin an end. Congress shall make no law, period and yours it sounds 542 00:41:09.679 --> 00:41:14.360 like to produce it. The one one article or one amendment would be actually 543 00:41:14.360 --> 00:41:16.960 we really mean this? Okay. Yeah, So that brings an the big 544 00:41:17.039 --> 00:41:21.800 question, and that is I'd like to say, these days we now live 545 00:41:21.880 --> 00:41:25.039 in an age of what I'm calling Baskin and Robbin's originalism. They're at least 546 00:41:25.159 --> 00:41:30.760 thirty one flavors of it. So you can answer whatever version of this you'd 547 00:41:30.800 --> 00:41:36.159 like. When a sort of an interested citizen, interest intelligent, curious citizen 548 00:41:36.199 --> 00:41:38.480 comes to you and says, what's all this originalism about? I'm confused, 549 00:41:38.519 --> 00:41:43.599 I'm lost. How do you explain it to them? And part being if 550 00:41:43.599 --> 00:41:47.320 you want to do this one instead of or an addition to where do you 551 00:41:47.360 --> 00:41:52.639 come down in various camps, if if you actually think you find one that 552 00:41:52.679 --> 00:41:54.599 you like, or if you're like me right now, I'm like, I'm 553 00:41:54.599 --> 00:41:58.880 like, I'm kind of dizzy. Yeah, yeah, yeah. So there's 554 00:41:58.920 --> 00:42:05.559 original intent, there's original public meaning, originalism, there's textualism. I mean, 555 00:42:05.599 --> 00:42:07.000 I try to coin a term. I don't think it's going anywhere of 556 00:42:07.039 --> 00:42:13.960 design originalism, which I kind of like, Uh, let me plug one 557 00:42:14.000 --> 00:42:16.599 of my colleagues for the lawyers listening, Uh, Sam Bray has a wonderful 558 00:42:16.719 --> 00:42:21.360 article on the mischief rule. And this is an old you know, this 559 00:42:21.480 --> 00:42:28.280 is Burke and others and Blackstone talk about, um, if you want to 560 00:42:28.280 --> 00:42:30.159 try to understand the law, including the constitutional provision, you know, what 561 00:42:30.320 --> 00:42:37.280 is the mischief that the lawmakers were trying to solve remedy? And I think 562 00:42:37.320 --> 00:42:43.119 that's a actually a really common sensical way about doing originalism or doing jurisprudence. 563 00:42:43.400 --> 00:42:46.280 You know, what was the original problem that was trying to be remedied, 564 00:42:46.760 --> 00:42:51.679 and that would lead us to the reason of the law or the purpose of 565 00:42:51.719 --> 00:42:55.400 the law. Usually, I think we should be able to find that in 566 00:42:55.440 --> 00:43:00.320 the text public meaning, the original public meaning. Um, sometimes that meaning 567 00:43:00.360 --> 00:43:05.960 is unclear and the meaning is actually revealed by the original intentions of the law 568 00:43:06.119 --> 00:43:10.440 givers. Not always, but often so. I'd actually i'd like the term 569 00:43:10.519 --> 00:43:15.119 design originalism because I want us to ask what was this law designed to do? 570 00:43:16.159 --> 00:43:20.239 And that that gets to the I think that all that purpose. We 571 00:43:20.360 --> 00:43:22.719 have a word for that. Yeah. Purpose, Yeah, that's right, 572 00:43:22.800 --> 00:43:25.400 Yeah, what is the purpose of the law? Yeah? That is one 573 00:43:25.400 --> 00:43:31.519 of the most outrageously expansive doctrines for liberals. They love purposes. It can 574 00:43:31.559 --> 00:43:35.840 be abused. But all these doctrines can be abused. I mean, I 575 00:43:35.920 --> 00:43:39.480 think I agree that these doctrines can be abused. Um, it turns out 576 00:43:39.519 --> 00:43:45.400 the administration of the law is actually really important. You know, that judicial 577 00:43:45.519 --> 00:43:52.280 character is really important. No method is going to prohibit the mischiefs that are 578 00:43:52.320 --> 00:43:55.760 willing, Um, someone who wants to change the meaning of the Constitution. 579 00:43:55.800 --> 00:44:00.320 There's no method that's full proof against that. Yeah, or or as the 580 00:44:00.320 --> 00:44:05.800 absolutely. Lucretia likes to say the vigilance of the people is the final and 581 00:44:05.920 --> 00:44:08.599 most essential remedy, and the people have to understand their rights, including their 582 00:44:08.679 --> 00:44:12.920 natural rights, and that's part of what I'm trying to do. So okay, 583 00:44:13.559 --> 00:44:19.639 just make observation as Actually, even though Phil is a conservative and he's 584 00:44:19.719 --> 00:44:22.679 hold up in Notre Dame, which is almost like exiling yourself from all the 585 00:44:22.719 --> 00:44:29.320 ills of the world, he has great faith in the political process and ultimately 586 00:44:29.360 --> 00:44:34.199 in the good judgment of the average American. He's very anti elitist in a 587 00:44:34.239 --> 00:44:37.079 way. I did not realize this until we had this conversation. He doesn't 588 00:44:37.079 --> 00:44:40.119 want judges and lawyers and politicians to be responsible for this. He thinks that 589 00:44:40.480 --> 00:44:45.920 the American people, acting through the normal democratic process, will make sure that 590 00:44:45.000 --> 00:44:50.920 the right lines are observed. I don't know how any reasonable person who has 591 00:44:50.960 --> 00:44:54.159 it, who's spent a lot of time with faculty members, would come to 592 00:44:54.199 --> 00:44:59.840 any other judgment that. Yeah, I was gonna say earlier when you were 593 00:44:59.840 --> 00:45:02.280 say in this John props to again this Gosh in the background, I'm hearing 594 00:45:02.280 --> 00:45:08.679 the ghost of Wilmore Kimball. I don't know about that. That's that's one 595 00:45:08.800 --> 00:45:13.599 step too far. All right, all right, we won't take that step 596 00:45:13.639 --> 00:45:15.400 today. But thanks Bill. This has been fun. Graduate. You know, 597 00:45:15.400 --> 00:45:20.920 I had one I said I had three thoughts and three were but that 598 00:45:21.119 --> 00:45:27.519 podcast is over only million minies criticizing professors, and then the podcast over says 599 00:45:27.559 --> 00:45:29.400 no way to have three more points down, No, no, no, 600 00:45:29.480 --> 00:45:30.719 I said earlier, I said I had three thoughts. I only got out 601 00:45:30.719 --> 00:45:35.599 too. The third thought was and this will be obvious to all the listeners. 602 00:45:36.280 --> 00:45:39.480 Um, I'm such a poor substitute for lacretia. Like I'm sorry, 603 00:45:39.559 --> 00:45:43.920 I feel I want to apologize to the listeners. You know, I'm sorry 604 00:45:43.960 --> 00:45:46.079 she's not here. Sorry that you had to listen to me. This is 605 00:45:46.119 --> 00:45:50.480 the first podcast in months, if not years, where no one cursed it. 606 00:45:50.599 --> 00:46:00.320 Steve could be true. Yeah, yeah, that's the last was always 607 00:46:00.840 --> 00:46:01.679 Well, that's a good place to add. That will make her happy, 608 00:46:01.760 --> 00:46:05.800 and she'll just have to comment in the in the comment threat. Okay, 609 00:46:05.840 --> 00:46:42.159 Thanks Phil, Thanks Washing and Washing, Advil, the Pressure, King of 610 00:46:42.519 --> 00:46:59.960 the People, and Ricochet joined the conversation.