From Powerline blog dot com and produced by Ricochet dot com. This is the
Powerline Show with your host Steve Hayward. Well, hi everybody, and welcome
to a special episode of the Powerline Podcast. It's not quite a classic format
one on one conversation, and it's not quite a three whiskey happy hour either.
Think of it maybe as a two whiskey happy hour and you'll see why
in a moment. So this week the Supreme Court heard oral arguments in the
case of Groff versus the Joy, involving a Post Office mail carrier named Gerald
Groff, who, for religious reasons, wished not to work on Sundays.
Previously, the Postal Service had granted this accommodation, and that was easy back
when the Post Office didn't do any mail delivery on Sundays. But then,
just a few years ago, the Post Office started contracting with Amazon and other
delivery services to do Sunday deliveries. Though the Post Office still granted Graff his
religious accommodation. But then the Post Office changed its mind and compelled Graf to
work on Sundays. Hence this case raising again an aspect of the first Amendments
Free Exercise Clause now, you would think, after all these decades of both
religious liberty cases and employment law cases, that such a situation would be well
settled, but you would be wrong. In fact, the First Amendments clauses
related to the establishment and free exercise of religion remained highly contested and unsettled.
One person who has a deep grasp of the broader issues involved is Vincent Philip
Muno's, who is the Toqueville Associate Professor of Political Science and Law at the
University of Notre Dame. His most recent book, highly recommended and out from
the University of Chicago Press, is entitled Religious Liberty and the American Founding,
Natural Rights and the Original Meanings of the First Amendments Religion clauses. Phil's work,
i should add, has been cited in several Supreme Court opinions on this
issue. Phil sat down recently with me and John You to discuss the issue
and some wider questions about constitutional originalism and natural rights that very much are alive
today. And that's why I called us a two whiskey happy hour. We
did want to have Lucretia's zoom in, but she wasn't able to, so
Phil got off the hook. But in any case, let's turn to Phil.
Now. All right, Phil, here you are in the hot seat
with me and John You. I don't know if Lucretia will call it or
not, but if she does, will break out the whiskey. She's too
busy shoving around poor Mitch McConnell. Probably right. So Phil, first of
all, we want to have a wide ranging conversation. But the proximate cause
for sitting down and having you out here at Berkeley is your new book,
Religious Liberty and the American Founding, Natural Rights and the original meanings plural of
the First Amendment religion clauses. And I have to say, I thought I
kept up with this subject, or I guess I did thirty years ago or
more back when I studied with Leonard Levy. When I got into your book,
I realized how I had not kept up at all with both the case
law and some of the deeper background. It's a whole new world, so
I'm not quite sure. Hard to summarize. I don't want to say,
tell me about your book, because that's a ridiculous question you get on taught
radio. But maybe start a little bit about why it's important to go back
to the natural rights basis before you get into all the case law and the
particular controversies about the First Amendment that always tie us up in knots. Sure,
sure, good, that's a great where you start. And let me
just say thanks for having me. I can't believe I'm on this podcast with
the two of you and not with Cretia. I can't believe it. She
would make so much mincemeat of you. You're crying by the end of this.
We're saving you, We're saving you from humiliation. I'm a huge fan
of the podcast. I listened to it all the time, so it's a
real pleasure for me to be on. Okay, so why natural rights?
Why why should we be concerned about natural rights? Well? Two reasons.
The first is that natural rights our claims of justice. I mean, we
might actually have them, and if we do have a natural right to religious
liberty, the subject of my book, then it's a matter of justice that
that right be protected. So we're because we're interested in the injustice. We're
interested in the truth of our natural freedoms and our rights and responsibilities to one
another. So because we're concerned with justice, we should think about natural rights
and the arguments for them. The second reason, at least this is part
of the argument of my book, is because the First Amendment protects the free
exercise of religion, and we need to interpret that to what is the protection
that the First Amendment offers, And the argument of the book is that that
text is underdetermined. There's not a clear original meaning. When the Founders talked
about religious liberty, they talked about it as a natural right. So if
we want to understand the founder's conception of religious liberty, the philosophical conception that
animated the First Amendment, we need to so to actually do constitutional law,
we need to understand the founder's philosophy of natural rights, or at least a
natural right of religious liberty. Yeah, okay, yeah, I know it's
in your book that you you go, you go very carefully through the language
that's used that actually so you know, we had a one of our favorite
more liberal learning professor's comment on you today here at Berkeley, and one things
he said was he understands the argument that we deduce from nature the idea of
rights, and he says that I think the way put it was that mode
of thinking is now a minority for you today. I thought, I think
that's accurate, and that's part of the problem, right, I mean,
is it possible to anchor a coherent doctor and religious liberty in the absence of
deducing the nature of human beings and the rights from nature. Yeah? Yeah,
So I give a lecture earlier today at the law school here in Berkeley,
and the commentator, Professor ferber who suggested that, you know, we
don't really think in terms of natural rights anymore, and he's right about that.
We don't think in terms about natur ights. People talk about human rights,
and i'm natural rights of these we can tell what a human is,
but never mind. Yeah, yeah, but again, natural rights is just
the way the Founders talked about justice. We still talk about justice, right,
So if we're interested in justice, this is a way to approach that
question. The Founders believe that there are inherent qualities about human nature, specifically
about the way we ought to worship God, that is, with in freedom,
in conviction and conscience. That is the warship that is properly given the
way we have been constituted, the way we as free and rational beings.
Any warship deserving of the term warship must be freely given right, and they
got that from thinking about human nature, and therefore the state ought not coerce
people. So you could say, yeah, well, we don't think in
those terms anymore. Well, actually I think we still do. You know,
I actually don't think Professor Furbs right, We do think, well,
what is a human being? And what's owed to a human being on account
of their human nature? We think of those terms all the time. We
just don't use the founder's language of natural rights. To me, broaden out
the scope a little bit before John drags us down to the rabbit holes at
various cases and stupid doctrines and balancing tests and or, as I like to
say, the lemon test is certainly a lemon, But how do you reward
it is? Now? You mentioned we talk a lot about justice these days,
But of course my observation is it's now always, as I call it,
hyphenated justice, social justice, racial, environmental justice. I've even heard
spatial justice. I'm not quite sure exactly what the heck that means, but
I've seen the term used by ostensibly serious people. So there's two things to
sort out here. One is this is the justice of certain willfulness or client
group claims. On the other hand, and here's where I want to ask
you to make a distinction and think you're talking to undergraduates now as opposed to
necessarily law students. On the other hand, we did have different categories of
justice and Aristotle there's distributive justice, which is different from redistributive justice today.
But that's a distinction that or and then it was what there's community of justice,
corrective justice. By the way, I have found what I have told
students that Aristotle had these four definitions. They write it down the rise again.
They they've never heard this before. How do we bring back those?
First of all, how do we bring back fundamental thinking about justice without hyphens
and contrasting it with the grounding of Aristotle's qualifications of the idea? Yeah,
well that's that's a big question. But let me You asked me to talk
about how I would talk about these things with my undergraduates. UM, start
from simple things. Um, is it wrong to punish someone for the way
they pray? Right? Yeah? You know, should we find someone or
imprison them because they pray incorrectly or to the wrong god, or in a
way that we think is improper. Would you actually imprison someone for praying wrong.
And I think most most of my students, not all, since a
few of them have been influenced by the integrals, but most of my students
would say, yeah, I know, we shouldn't fine or imprison people for
praying. Well, that's a claim of justice. Yeah. So, I
mean, I don't know where that fits in Aristotle's categories exactly. Um,
but we think in these terms all that all the time today, and there's
some things that government should do right, And this is in contradistinction maybe from
Aristotle. We actually believe in limited government. Conservatives confuse limited government with small
government. Small government is just lower taxes and things like a government doing less.
Limited government is the idea. No, there are certain things that it's
not legitimate for government to do. And if you ask what is the root
of limited government, why can't government do certain things? And the historical answer
and the philosophical answer, it's because of religion. Government can't. Government has
no jurisdiction. It's not proper for government to tell us how to pray.
We the people never gave government that authority. We the people never gave government
that authority because we have higher duties than to the state. We have pre
existing duties that pre exist the state to worship according to conscience. These are
matters of justice. And then when we go back, well, why are't
we worship that way? Because of human nature? So, even though we're
not used to the the categories of natural rights or natural law anymore, we
think in these terms actually all the time. Yeah, I want to ask
you about conscience, but just a brief digression question. So I'm just thinking
about the contrast between students as a general matter here at Berkeley and at Notre
Dame. Now, so, I mean, there are lots of jokes about
gosh, Notre Dame. Nice of someone put a nice little Catholic college here,
But I mean I do get the essence from Afar that students there,
even the ones who are not Catholics, at least recognize the legacy of the
place have some respect for it. So I'm asking about the character of your
students. Do they tell me about your students? Yeah? No, No,
Notre Dame. Actually there's more intellectual diversity at Notre Dame than any other
institution I've been part of. I mean this is in terms of religion.
I mean, look, many of the students not certainly not all our Catholic
but you have the full spectrum of Catholicism there. You still have pro life
democrats who think, you know, and you have Catholic Marxists, you know,
only at Notre Dame. These people don't exist on the on the coasts
anymore. You know, very conservative Catholics. You actually now have a handful
of Intergralists, so right, but also political diversity. This is broad about
in part because there's a lot of conservatives at Notre Dame. But it's by
no means a conservative place. Most of the faculty are liberal. But there's
actually real intellectual diversity, and that's quite good. There's believers, there's nonbelievers.
There's people who are very serious about their faith. There are people who
are not serious about the faith. And that makes actually for a better university.
Yeah. The reason that the reason I brought that up is get back
to the conscience thing more specifically, is now, let's take the First Amendment
in the round and not just the religion clause. Well, I sometimes hear
from especially progressive undergraduates at Berkeley is well, the first and men men,
I mean it was written two hundred and forty years ago, or whatever by
you know, white men who owned slaves, and and and but today we
have hate speech today, and and you know, and any speech is literal
violence, never mind any of the sense or nonsense of that. What I
was trying to bring up with students, and they've never heard this argument before,
is what's the core of the First Amendments. Remember, it's not one
thing, it's at least three, three or four things. Ones we're done,
but it's freedom of religion, second, freedom of speech, and the
third is freedom of assembly. And then right the petition is sort of fits
some other ones. But the point is, what is the principle that unites
those three, And it's freedom of conscience, freedom of think for yourself.
Freedom of conscious isn't worth very much if you can't say what you think,
if you can't worship God as your conscience directs you to, if you can't
meet and get together with other people who have the same view as you do,
and that slows up students. And so that's the logic of it,
and the principle it doesn't matter when that was written. The shaga is that
it was only written two hundred and forty years ago. It should have been
written two thousand years ago, and certain ways it is that. Never mind
that, But the point is is that this is a very recent thing,
and you know, don't give up on it just because you're mad at hate
speech or something like that. And anyway, and not to mention, you
can't have a thriving democracy right, right without freedom of speech and assembly and
conscience. Right. I mean that these are necessary prerequisites to actually have a
democracy that works. But now here is a I'm not sure if this is
a difficult. I haven't mastered your book because it's quite overpowering, I have
to say, for someone who has been out of the field for such a
long time, if I was ever in it in the first place. You
talk about how the rights of conscience for religious purposes is an inailable right.
It's not one unlike your right to property that can be qualified by government regulation
and so forth. And I think anyone with half a brain would say government
can never regulate your conscience. Getting back to the point we were just talking
about, even though lots of people are now kind of you know, the
thought police, we talk about, right, and so where am I going
with all this? The difficulty would be and Professor Farber brought up. We
have a problem with actual cases about whether something represents a genuinely sincere religious belief,
or whether it is a pretext for avoiding the draft, for wanting to
smoke pot, for all kinds of other things that you can claim I'm a
minister of the First Life Universalist Church or one of these kinds of things,
and that seems correct to me. But at the same time, you have
a narrow I think there's actor to say, a narrow reading of the what's
become the exceptions. Yeah, so talk a little about that and then John
can sort both of us out. Okay, So you're pointing us to the
free exercise clause, and as the free exercise clause afford a constitutional right or
grant a constitutional right to religious believers and religious institutions to exemptions from otherwise valid
laws, a Quaker being an exempt from the draft law because they're a religious
pacifist. I talked about the example of Amish of parents who would draw the
kids from school in violation of mandatory school attendance laws. Because I just interrupt
you right there, because as I recalled, I think you say in your
book the exemptions we give to Quakers is what's the right way of putting this.
It's not a matter of fundamental right, it's more of it comes closer
to the old understanding of an indulgence legislative grace. So okay, no,
no, that's work carrying on. Okay no no, So so we have
good I'm glad you added that. So we have. Is there a constitutional
right to an exemptions? The short answer of my book is no, there's
not a constitutional right to exemptions. Can we give legislative exemptions? So the
Quakers might have a constitutional right to not fight, but we can say,
look, you can wash dishes or prepare food. You'll be lousy soldiers anyway
we will. You know, we're not gonna make you fight for whatever reason
we the community to determine. So my argument is that you could have legislative
exemptions. In fact, you see examples of legislative exemptions at the Founding Air,
but not a constitutional right to exemptions, because there's no natural right to
be exempt from otherwise valid laws. I mean. And that's maybe the radical
aspect of the book or the counterintuitive part as argument in my book, The
count intuitive argument is that the free exercise clause is deep but narrow, when
it protects you, It protects you categorically. But you don't have a general
right to be religious. People don't have a general right to not comply with
laws that they feel are burdensome. It turns out the First Amendment is much
more republican than we understand. Republican and small art meaning the founders set up
a republican government govern the people, determine the laws, and the people have
to follow the laws. There are a few things that the people can do.
We can't legislate how you pray. We can't punish you for the ways
you pray. But the people can make all sorts of laws and everyone is
supposed to follow them. Yeah, the First Amendment is far less libertarian than
we think, and the founders were far natural rights theories, far more republican
than we think. Okay, that means it's far more democratic. We can
do all sorts that we can aid religion, we can restrain religion in all
sorts of ways. That it's up to the people, through their elective representatives,
to decide what fosters the common good. Yeah. Well, so you
describe in your book that a lot of the recent cases have said, you
know, Smith versus employment division. The famous parody Smoky case is that how
does the phrase go when the government has a compelling state interest in a narrowly
tailored This is the common language with so many court cases. I hate that
language. I've always want to invoke my Second Amendment rights whenever I hear a
compelling state interest because modern progressive government, as you know, has no shortage
of things they find compelling state interests. Right, And so that that language
just gives me the hebe gebs? Can I can I pause you here because
there's and I'm gonna try to tell you why it does give here the hebe
gbs a word I've never used before, and it's a technical legal trade.
Yeah, yeah, And why you're Claremont instincts are exactly right. They're attuned
to this. So the whole idea of compelling state interests least restrict of me
a script strict scrutiny, is a product of progressive constitutionalism, right, And
it's the idea that no, we don't have natural rights, we only have
evolving rights. So how do rights evolve? What's the mechanism? Well,
rights evolved from the judiciary, right, and so rights are no longer categorical
so judges may make new rights and they may take rights away, and the
way they implement in evolving constitutionalism, one of the mechanisms is the mechanism of
strict scrutiny. Right, So your categorical right Congress shall making a law prohibiting
the free exercise of religion, becomes a conditional right actually to toleration. You
may prohibit you may practice your religion. You have a right to practice your
religion unless we the government, have a good reason to not let you practice
your religions. And then what is a compelling state interest is the mechanism of
evolution. So there's a whole philosophical shift in the nature of rights that's captured
in strict scrutiny. Conservatives use strict scrutiny all the time, but it's a
product really of the sixties, and it's a product of progressive constitutionalism, and
it's opposed to natural rights constitutionals. Yeah, so we're actually heed agreement here
because I wish our guys, to the extent we can call them our guys,
would use different language. It would be helpful even if you're getting the
same result. I think I can say more about that, but John here
looks like you're done texting your book. I actually don't read the compelling state
interests tests the same or strict scrutiny the same way, because I think it's
not really a product of progressivism. I think actually today's progressives hate it because
you know, as you know, one of laws fail the strict scrutiny test,
and this term it may come to a one hundred percent because the Supreme
Court may well stripe down racial diversity and college emissions, which is really the
only major exception to strict scrutiny except wartime and when we let the government do
all kinds of things. So that's one thing is to me, when I
hear something is covered by strict scrutiny tests, that means it gets the highest
protection that the courts give to any kind of right. And that's what religious
liberty. You know, that cludes religious liberty. But that that brings me
to my question, and Phil, we've are you about it before, which
is to me, what seems odd about your argument non terms of the original
understanding of whether religious liberty is a constitutional right, but how people should today
should protect it. So the Bill of Rights has a long list of rights,
right and according to your argument, it's okay if judges protect all those
other rights, which they do, but they should provide protection to religious liberty
rights by granting exceptions, which is a very common thing for them to do
for all the other rights like free speech and all these So the weird to
me these perverse outcome is that the most important rights in your system get the
least protection from our legal system. That makes that I would think it would
be the reverse. Yeah, yeah, no, I understand what you're saying.
But the dispute between us is actually not if they get a lot of
protection or a little protection, It is what is the what is protected right?
In your question presumes that the right of free exercise is protects any religiously
motivated behavior. But that's what I'm denying that there is just because something is
religiously motivated doesn't qualify it for free exercise clause protection that the founders had a
notion of. There's some things that are by their nature religious exercises, and
government can't prohibit those, And then that's categorical. It's not the government can't
prohibit it unless they have a compelling state interest. Right, it's a categorical
protection. That's what I mean by deep but narrow. So the First Amendment
wasn't designed to protect religious people to live in any way they want it.
The First Amendment. The purpose of the First Amendment was to say to government,
you can't proscribe or prescribe forms of worship. There's actually much narrow or
purpose free speech. By the way, it's the same thing. A proper
inter nation of free speech would be relatively narrow. The certain things government can't
do, it can do all sorts of things. Um, so it's not
just religious free exercise that'd be narrow. I think more generally, what's constitutionally
prescribed from the Founder's natural rights perspective would be much narrower. Right, There'd
be much less work to do. Judiciary would do much less work. This
is what I mean by they're much more republican. Well, this is this
is good this comparison to the free speech clause, because I was trying to
figure out because I would I think you would assume the Founders think free freedom
of speeches on an equal par with freedom of religion. You know, Steve
just said, you know they're all linked together as a freedom of conscience.
So would we be able to live in a world where we applied your approach
to the religion clauses to the speech clause. You know, yeah, sure,
sure, that would mean it would just be much more republican, much
more democratic. So but it would also mean like so you would say the
court, the court should say, okay, there's a certain kind of very
clear thing which is speech. Like crazy person in front of Sprout Plaza here
at Berkeley Campus getting up and denouncing whatever he wants, or well, the
person we were talking about a lunch crazy man from Minneapolis who got confused was
going to the Vikings game, got way laid on January six, ended up
at the capitol instead by mistake. Because you know, you have a right
to demonstrate protests, speak right, so you think that's then you would say,
then judges should say, there's other kinds of things which today we might
think of speech aren't which aren't really speech. We've made a mistake to include
in a free speech and that stuff gets no protection. Right, that's your
view about religion, that takes I meant so the thing I would ask you
is how do you know what the line is between what speech and what really
isn't speech? Because that's key for you. Right, it's either you get
your it's very black and white. You get full protection or you get zero
protection. So everything that's criticals, what is speech or what is religious exercise?
Yeah, that's right, that's a helpfulay to look at it. So
I think it's helpful this reason from easier cases and than go to art cases.
So is new dancing speech. So the speech court thinks yes, yeah,
you say, now do you how do you know that? Because they
change they change speech into expression. Yeah, conduct, which you would say
speech speeches speech. Right. Um, let me get one other distinction.
Um, I think it is informing all this I will be helpful. And
this is about the nature of natural rights, including speech, including religious free
exercise. And let me use the example of Libel when we talk when lawyers
talk about libel, when the Supreme Court talks about Libel, they say,
well, libel is an exception to the free speech protections. Right, But
that's a misunderstanding. Libel makes no part of the understanding of the natural right
of free speech. All natural rights have natural limits. Right in religion,
your right or religious free exercise. The limits of that are the natural law.
The limits of the natural right of free speech are the natural law.
You don't have a right to harm someone else. Libel is saying false things
about someone that damages the reputation. You don't have a free speech right to
libel someone. So the right of free speech and the right of religious free
exercise are in their nature bounded. They're limited. See I agree with But
this is how it is a progressive I can see now why you say,
oh, all this legal stuff is progressive, because you know, the lawyer
would say, the reason why we give protection to these expressive conduct and we
give protection to religiously motivated behavior is because we are not confident we can draw
the line and say this is real religion and no more, or this is
this is speech and extends no farther. So you know, the strict scrutiny
testings like that, they actually give more protection to a broader class of conduct
because that way, judges and lawyers don't have to draw these boxes about what's
really speech, what's not really spencerul, what's religion, what's not really religion?
So let me ask you, would you rather have judges doing that?
Would you be confident in a judiciary of the twenty first century saying this is
religion, and this is not this is speech. And this for example,
can't big contributions not speech. Government can regulate them, which has the effect
of screwing over conservatives, left or you. Usually when you let the judges
have this kind of power, I think conservatives get screwed. Well, yes,
I mean that's true. But you know, look, if if what's
the role of the judiciary. The role of the judiciary, right at least
originalists would say, would be to uncover the original meaning. So you uncover
the original meaning of speech. Congress can make no law prohibiting the free ex
sides of religion or prohibiting the right of free speech. You've got to determine
what's in that and Congress can make no law. And if it's in that
box, Congress can't make a law. Not Congress can't make law unless there's
a good reason compelling state interests. Congress can't make a law. And if
something's not protected, then it's turned over to the people through the ordinary channels
of democratic representation, separation powers, et cetera, et cetera. It's it's
a it's I actually think you have you have your larger point is, but
judges will mess us up in their definitions and their jurists as judges will either
not be good judges or they'll misinterpret things. And won't that be bad?
Well, yes, it will be bad. I mean judges have been screwing
up the Constitution for one hundred and fifty years. Um it's maybe yeah,
yeah, yeah, yeah, um okay yeah. Judges make mistakes all the
time. I mean, the doctrine of originalism is supposed to give us a
framework by which to evaluate those decisions. This is why I think this appeal.
I understand why this appeals to you and my Claremont friends, you and
Lucretia, and there are many many followers in the world. But this is
why I think it may not work for most other people, which is you
have that confidence that judges, professors, government leaders, Ronda Santis can make
these decisions because you believe there's a philosophy natural law which provides the answers.
So the issue with that is, what if most Americans today don't believe in
natural rights at all? Do you have to actually think natural rights are true
today to be able to agree with you or is it just sufficient to say
I think the guys who wrote the Constitution believed in natural rights, and so
it's just a matter of us right going back and trying to give force to
their choice, because I think if it's the former, then I'm not sure
whether you have a ground to say that you must follow the natural right definition
of religion or speech. Now, because I would bet the majority or great
majority of Americans, if you gave them the different philosophical schools, they're probably
Rawsians. Now well maybe, I mean I think the majority of Americans would
have no idea what you're talking about. So and if they did understand it,
I don't think they'd be it. Actually, maybe the majority of French
are Rawlesians, but not Americans. Um, let me turn it around on
you first. I'll answer your question Majoria, but your argument, if I'm
understanding right as well, you're you require a lot of judges. They have
to determine what everybody. Yeah, but as opposed to what, um,
what's a compelling state interest? Well, we trust judges toories for those nationals.
Yeah, we have category. We have categories there. I mean,
that's stuffs all make believe. What we would say is judges deciding the least
restrictive means. This is a philosophers like you two and lawyers. Is you
would say it's made up because it does not proceed from a logically created a
system of moral belief, where we would say that's just experience. We've had
so many cases. These are the only things we have as human being,
seeing tens of thousands of repeated cases, are willing to allow to override religion
or speech. So you're telling me that's how Justice Powell determined diversity was a
compelling state of interesting history of He's just making stuff up. No, No,
it's just like it's it's their experience. That's the lawyer you're saying.
They're making stuff angle American common law, just seeing lots and lots of cases,
and that's what they feel. The lot of the smarter judges and the
bulk of the lawyers feel believe. I'm gonna put my my my I'm put
my bet on natural rights compared to that, Yeah, yeah, yeah yeah.
I WASNA. What he said is we do. But what you're saying,
I want to rely on natural rights being true. I wanted to up
and say yes, let's go home. Yeah, look, but does this
require for you to be right that people today? Okay, No, that's
a that's a good question, and the question that's they're the ones who set
what are moral, what's permissible morally, or you're just saying no, no
matter, It doesn't matter what they think, because natural rights is just correct.
Yeah, it's a better system. I'm more true than any other system
of philosophy, And doesn't matter what the Democrats, you know, the majority
of people to Yeah. So I address this in my book, and I
do it in this way. So if I understand your question, do we
actually have to believe in natural rights? Are sufficient to say, well,
the Founders believed in natural rights, and we're applying the Founders Constitution, I'd
say for purposes of law, you could say, well, this is the
original Constitution, the natural rights framework, and therefore we adjudge apply it because
that's the original meaning, and we have a judicial duty to apply the original
meaning. I think that would be sufficient. But in a larger sense,
I don't think that's sufficient at some point in time, and maybe this is
not the role of the judge, but it's the role of the citizen to
evaluate do we have a good constitution? Is it worth is it worth preserving
the original meaning? Right? I actually think we have to address that question
that originalists, at some point in time have to say, no, the
original meaning of the Constitution is good and just and therefore is worth preserving only
because the original Constitution is good and just and ultimately it's gonna So ultimately,
the originalism requires a philosophical defense. And so in the book, I try
to present the history saying this is the original meaning. Natural rights is the
original meaning. But I have a chapter on why the Founders believed religious liberty
was an inalienable natural right, and I try to present their philosophical and theological
reasoning. And I include that chapter because at the end of the day,
we have to make an argument. Originals have to make an argument that the
Constitution is actually good. I actually so. I do think that's a necessary
argument that has to be made to citizens. Now, the original Constitution,
I would say, it was not perfect, but in many ways it's good.
Here are the reasons why that doesn't It's not just philosophy, talked about
experience as well. I think we have to make that argument. And if
we can't make that argument, you can't really defend the original Constitution. Parchment
barriers are insufficient. Yeah, all right, I just have to double down
on compelling state interest for a moment, because it's just bugging me. The
single most compelling state interests is what national defense? National security your favorite domain.
But the thing is, how many thousands of years have we talked about
the priority of national defense and self preservation without ever using the phrase compelling state
interest? Just get rid of that. Okay, that was just a rant.
I have two last questions are both pretty broad, but you just teed
up the first one, which is constitution is a lot perfect. I like
a joke. That's better than the government we've got. But but but in
your book, well seriously, your book, you do go into debates about
the language of religious liberty and very state constitutions as well as the First Amendment.
You talk in interesting ways about the debates in the first Congress about what
they can legislate, especially in respect of the Quakers. I think that came
up in Congress and so that that peculiar language of the establishment clauses Congress will
make no law respecting an establishment of religion and people. Often what is respecting
is that what does that mean? And some of the debate is does that
mean Congress can't pass the law affecting or you're regulating a religious Okay, here's
the question of that background. If you had plenty potentiary power, how would
you rewrite the First Amendment, or at least the first clause of the First
Amendment? Oh yeah, well that's chapter seven of the book. Yeah,
yeah, I can see, we can see how fire stay where I got
it in that book? Yeah? Chapter six? Yeah? Um, then
so I give what I call it? Now? Can I can I see?
Please steve a little bit? Which is I fire call that chapter your
book is? What would you do to make it clearer? But this is
a different question. It's just like what do you think you could say?
Oh, I actually think religious rights should be broader? Then what's in the
First Amomment? Oh yeah, yeah, yeah, no, no, yes,
yeah, So the positive question chapters are banned words word anyway. Sorry,
So whatever you keep saying clean air at clean air, that's worse.
Let the let the listeners email in. Let's worse positivism or a clean act.
All right? So three three thoughts here. The verse thought is in
chapter seven, I try to present a natural rights construction of the First Amendment
the religion closets. So if we take the founders natural rights m philosophy seriously
and apply it to the first moment of religion clauses. This is what we
get, and it's a jurisdictional approach. It's very limited. This is somewhat
surprising to me. I didn't set out to. I followed the evidence where
it led, I think, I mean, and it's that there are a
few things that Congress and withincorporation the states couldn't do. UM. But really,
as I said before, the natural rights approach is far more republican,
far less libertarian than than we think. I means, are really republican.
Different which is, do you personally think, yeah, should have protected religious
motivated behavior. Yeah, yeah, so that's written a broader protection, yeah,
I think so. In chapter eight I try to give an account of
what I think are the strengths and weaknesses of the natural rights approach. So
the book is not simply a defense of the natural rights approach. It really
is the presentation of the natural rights approach. And then at the end I
try to say, well, here are what I think are some of the
strengths and weaknesses. Um. One of the weaknesses, and this is an
indirect way to get to John's question is does it make sense to have a
natural rights interpretation of the free exercise clause if we don't have a natural rights
interpretation of all the other provisions of the Constitution. And that's a serious criticism
of not only a natural rights approach, but you know, does originalism make
sense for only the First Amendment but not for the commerce clause or separation of
powers more generally? I mean the constitution was a coherent whole. I think
there's a coherent whole natural rights constitution. But when you chip away at the
natural rights approach in all sorts of places, is it then coherent? Only
do natural rights in some provisions and not others? And I think that's a
real difficulty and a real challenge, right, it's not just natural rights.
People say same thing about originalism. Yeah, just apply originalism to separation of
powers, but they don't apply to the right. So many of the problems
we have today that that religious people feel that, wait, we're not being
treated fairly and we need a vehicle by which to protect what we know are
our rights, and they use the free exercise clause. A lot of those
interests would have been protected under more more robust protection of property rights or narrower
federal government, narrower federal government, more robust separation powers. Exactly right.
And so one of the criticisms I would make of my own book is this
might be right. You might have I would say to myself, you are
right about the original meaning at the free exercise clause. But doesn't make sense
for a judge today only to apply the original meaning to the free exercise clause
without applying the original meaning to everything else. Well, that teas up my
sorry, were you no? No? No, go ahead? That tea's
at my last question, Although I have to say, uh, we would
if you kid Richard Epstein that his version of the Bill of Rights would simply
begin an end. Congress shall make no law, period and yours it sounds
like to produce it. The one one article or one amendment would be actually
we really mean this? Okay. Yeah, So that brings an the big
question, and that is I'd like to say, these days we now live
in an age of what I'm calling Baskin and Robbin's originalism. They're at least
thirty one flavors of it. So you can answer whatever version of this you'd
like. When a sort of an interested citizen, interest intelligent, curious citizen
comes to you and says, what's all this originalism about? I'm confused,
I'm lost. How do you explain it to them? And part being if
you want to do this one instead of or an addition to where do you
come down in various camps, if if you actually think you find one that
you like, or if you're like me right now, I'm like, I'm
like, I'm kind of dizzy. Yeah, yeah, yeah. So there's
original intent, there's original public meaning, originalism, there's textualism. I mean,
I try to coin a term. I don't think it's going anywhere of
design originalism, which I kind of like, Uh, let me plug one
of my colleagues for the lawyers listening, Uh, Sam Bray has a wonderful
article on the mischief rule. And this is an old you know, this
is Burke and others and Blackstone talk about, um, if you want to
try to understand the law, including the constitutional provision, you know, what
is the mischief that the lawmakers were trying to solve remedy? And I think
that's a actually a really common sensical way about doing originalism or doing jurisprudence.
You know, what was the original problem that was trying to be remedied,
and that would lead us to the reason of the law or the purpose of
the law. Usually, I think we should be able to find that in
the text public meaning, the original public meaning. Um, sometimes that meaning
is unclear and the meaning is actually revealed by the original intentions of the law
givers. Not always, but often so. I'd actually i'd like the term
design originalism because I want us to ask what was this law designed to do?
And that that gets to the I think that all that purpose. We
have a word for that. Yeah. Purpose, Yeah, that's right,
Yeah, what is the purpose of the law? Yeah? That is one
of the most outrageously expansive doctrines for liberals. They love purposes. It can
be abused. But all these doctrines can be abused. I mean, I
think I agree that these doctrines can be abused. Um, it turns out
the administration of the law is actually really important. You know, that judicial
character is really important. No method is going to prohibit the mischiefs that are
willing, Um, someone who wants to change the meaning of the Constitution.
There's no method that's full proof against that. Yeah, or or as the
absolutely. Lucretia likes to say the vigilance of the people is the final and
most essential remedy, and the people have to understand their rights, including their
natural rights, and that's part of what I'm trying to do. So okay,
just make observation as Actually, even though Phil is a conservative and he's
hold up in Notre Dame, which is almost like exiling yourself from all the
ills of the world, he has great faith in the political process and ultimately
in the good judgment of the average American. He's very anti elitist in a
way. I did not realize this until we had this conversation. He doesn't
want judges and lawyers and politicians to be responsible for this. He thinks that
the American people, acting through the normal democratic process, will make sure that
the right lines are observed. I don't know how any reasonable person who has
it, who's spent a lot of time with faculty members, would come to
any other judgment that. Yeah, I was gonna say earlier when you were
say in this John props to again this Gosh in the background, I'm hearing
the ghost of Wilmore Kimball. I don't know about that. That's that's one
step too far. All right, all right, we won't take that step
today. But thanks Bill. This has been fun. Graduate. You know,
I had one I said I had three thoughts and three were but that
podcast is over only million minies criticizing professors, and then the podcast over says
no way to have three more points down, No, no, no,
I said earlier, I said I had three thoughts. I only got out
too. The third thought was and this will be obvious to all the listeners.
Um, I'm such a poor substitute for lacretia. Like I'm sorry,
I feel I want to apologize to the listeners. You know, I'm sorry
she's not here. Sorry that you had to listen to me. This is
the first podcast in months, if not years, where no one cursed it.
Steve could be true. Yeah, yeah, that's the last was always
Well, that's a good place to add. That will make her happy,
and she'll just have to comment in the in the comment threat. Okay,
Thanks Phil, Thanks Washing and Washing, Advil, the Pressure, King of
the People, and Ricochet joined the conversation.