1 00:00:16,960 --> 00:00:21,079 We're back with another edition of the Federalist Radio Hour. I'm Emily Jasinski, 2 00:00:21,120 --> 00:00:24,000 culture editor here at the Federalist. As always, you can email the show 3 00:00:24,079 --> 00:00:28,480 at radio at the Federalist dot com, follow us on Twitter at fdr LST. 4 00:00:28,760 --> 00:00:32,359 Make sure to subscribe wherever you download your podcasts, and subscribe to the 5 00:00:32,359 --> 00:00:37,560 premium version of the Federalist dot com as well. I'm joined today once again 6 00:00:37,640 --> 00:00:41,439 and very pleased to be joined once again by the one and only Hadley Arcist 7 00:00:41,719 --> 00:00:47,520 has a book out called Mere Natural Law, Originalism and the Anchoring Truths of 8 00:00:47,560 --> 00:00:51,799 the Constitution. Doctor Arcis, Thank you so much for joining us. Well, 9 00:00:51,880 --> 00:00:57,520 I'm gladed being back with the accomparable Emily. Okay, okay, no 10 00:00:57,560 --> 00:01:03,319 one quite like her. Well yeah, Hadley also is obviously a professor at 11 00:01:03,319 --> 00:01:08,959 Amherst College, and the found director was professor. My sentence was commuted. 12 00:01:10,120 --> 00:01:15,480 I was congratulations on that. He is the founding director of the James Wilson 13 00:01:15,560 --> 00:01:19,920 Institute on Natural Rights in the American founding and does all kinds of work seminars 14 00:01:19,920 --> 00:01:25,760 promoting originalism and the likes of what I'm sure you've written about in this book. 15 00:01:25,799 --> 00:01:27,599 I know you've written about it. In this book Mere Natural Law. 16 00:01:27,879 --> 00:01:33,120 And let's start with that, because originalism is in the title of this book. 17 00:01:33,840 --> 00:01:41,560 What is the definition of originalism? Well, I think I represent the 18 00:01:41,560 --> 00:01:49,040 original originalism before the people who call themselves originalists, because we want to go 19 00:01:49,079 --> 00:01:53,959 back to the moral ground of the law that the Founders understood. That is, 20 00:01:53,040 --> 00:01:57,560 we understand part of the pitch of the book Mere Natural Law is it's 21 00:01:59,000 --> 00:02:05,120 my dear friend Da Robinson, late fan said he wanted as his epitheph on 22 00:02:05,200 --> 00:02:10,919 his tombstone. He died without a theory, and he was appealing to the 23 00:02:10,960 --> 00:02:15,520 teachings of Thomas Read the Great Philosopher read by James Wilson and John Adams, 24 00:02:15,560 --> 00:02:22,039 about those precepts of common sense that the ordinary people people have to know before 25 00:02:22,080 --> 00:02:28,360 they begin trafficking and theories. So before the ordinary man would begin bantering with 26 00:02:28,639 --> 00:02:32,919 David Yume about the meeting of causation, he knew his own act of powers 27 00:02:34,080 --> 00:02:38,439 to cause his own acts to happen. So what we're arguing here is that 28 00:02:38,479 --> 00:02:44,199 the precepts of common sense are there before. These are the priest principles of 29 00:02:44,199 --> 00:02:49,280 common sense and the principles of right that the Founders drew upon as he said 30 00:02:49,280 --> 00:02:53,840 about framing the Constitution, and those principles of right they understood would be there 31 00:02:54,000 --> 00:03:00,199 even if there were no Constitution, much the way that John Quincy Adams that 32 00:03:00,280 --> 00:03:04,960 that right to petition the government that would be there even if it hadn't been 33 00:03:05,080 --> 00:03:08,280 mentioned in the First Amendment would be there even if there were no First Amendment. 34 00:03:08,560 --> 00:03:13,960 It would be there even if there were no Constitution. So what my 35 00:03:14,120 --> 00:03:20,319 hoop is representing in this argument within the conservative community, it's for an originalism 36 00:03:20,360 --> 00:03:27,560 that does not attach the text of the Constitution from those underlying moral truths. 37 00:03:27,599 --> 00:03:31,439 And at a certain point you must be able to move beyond the text of 38 00:03:31,439 --> 00:03:37,879 the Constitution or to understand the purpose behind it all. So that it's strange 39 00:03:37,919 --> 00:03:44,520 that some kind of the conservatives think conservative judges think that there's something in their 40 00:03:44,599 --> 00:03:52,400 theory or code that prevents them from dealing with a case like transgenderism and not 41 00:03:52,439 --> 00:03:55,360 going outside the text of the Civil Rights Act of nineteen sixty four. What 42 00:03:57,000 --> 00:04:00,520 do we make sex and appealing to the object active truth of what is the 43 00:04:00,639 --> 00:04:08,639 fact is sex? The objective truth of the tailors of sex? This has 44 00:04:08,680 --> 00:04:14,000 to matter. We have this odd situation which just feel constrained some time to 45 00:04:14,039 --> 00:04:18,120 appeal to the objective truth of the matter. I mean, fifty years ago, 46 00:04:18,199 --> 00:04:25,560 the lawyers from Texas on roversus way to an exquisite brief with the most 47 00:04:25,759 --> 00:04:30,920 updated findings of everylogy to extract these points for the court that that aspin in 48 00:04:30,959 --> 00:04:34,879 the woomb have been nothing less than humans from its first moments, and it 49 00:04:34,920 --> 00:04:39,959 has never been really a part of the body of the mother. But do 50 00:04:40,040 --> 00:04:46,040 we have the dops case thiss tune and six conservative judges cannot bring themselves to 51 00:04:46,160 --> 00:04:53,519 recognize that point that we're dealing in abortion with a real human think. So 52 00:04:53,600 --> 00:05:00,079 we have Red Cavina saying it's interesting, there's some whole lifers that the fetus 53 00:05:00,120 --> 00:05:05,560 is a human life. Interesting a point that's been well established embryology. What 54 00:05:05,839 --> 00:05:13,399 is there about conservative jurisprus that moves justice to think that these truths and these 55 00:05:13,480 --> 00:05:17,480 moral judgments that are there before the text are things they can't appeal to and 56 00:05:17,600 --> 00:05:21,879 explaining what the what the case is before? Then what is this about? 57 00:05:24,040 --> 00:05:29,079 Right? You quote Justice Kavanaugh's concurrence in the book where he says many pro 58 00:05:29,199 --> 00:05:35,800 life advocates forcefully argue that a feeling is that interesting we argue it we so 59 00:05:35,959 --> 00:05:40,959 conservative juice Prus has to begin with the proposition that we know nothing about the 60 00:05:41,040 --> 00:05:46,759 nature of the child. We have to adopt a radical falsehood as part of 61 00:05:46,800 --> 00:05:51,839 this theory of what conservative juris pruns is supposed to do. And that's another 62 00:05:51,839 --> 00:05:58,680 interesting question because the Founders were obviously students of natural law and it's baked into 63 00:05:58,920 --> 00:06:01,439 our system of government. It Um, how did they approach this question? 64 00:06:01,480 --> 00:06:06,040 Do we have evidence of how they approached this question about on the foundations of 65 00:06:06,160 --> 00:06:12,439 natural law? Well, the things that they know. Somebody as Johnathan Genie 66 00:06:12,959 --> 00:06:16,199 right out that the Founders didn't put in the Constitution everything they knew and so 67 00:06:16,240 --> 00:06:21,079 many things you know, Um, James Wilson, Albrey elsewor didn't want to 68 00:06:21,079 --> 00:06:28,199 put anything about expost factor laws. God, everybody understood that there's something hung 69 00:06:28,319 --> 00:06:31,680 with all the people punishable for something that was that was not wrong when it 70 00:06:31,759 --> 00:06:34,759 was not illegal and it was done. My God, if you put that 71 00:06:34,839 --> 00:06:41,240 in and people think that's the only first principle you know now on the matter 72 00:06:41,759 --> 00:06:46,879 on this gradual abortion. James Wilson put it as clearly as can be. 73 00:06:46,040 --> 00:06:53,439 If we have natural rights, when do those rights begin, and the answer 74 00:06:53,639 --> 00:06:59,800 was as soon as we begin to be which is why he said, then 75 00:07:00,040 --> 00:07:04,399 true law, that the common law so cast its protection over the child in 76 00:07:04,439 --> 00:07:09,519 the womb from the first stirrings in the womb, as soon as we know 77 00:07:09,839 --> 00:07:15,319 it is there. So yeah, the fathers were able to reason about these 78 00:07:15,319 --> 00:07:18,800 things, and of course what they understood is that the natural law is a 79 00:07:18,879 --> 00:07:25,519 law that tells you why you have laws, and what is the law you 80 00:07:25,560 --> 00:07:29,120 know before you know it. Cont with point out that before you have any 81 00:07:29,240 --> 00:07:31,879 positively, you've got to have positive law. You have to make a transition 82 00:07:31,920 --> 00:07:41,040 between the principles of natural law and the regulations that pay they are under circumstances 83 00:07:41,040 --> 00:07:46,639 before you. So Macie science saying sixty five mph thirty five mph on the 84 00:07:46,800 --> 00:07:53,240 highway, that's the positive law behind the four The positive law was a deeper 85 00:07:53,279 --> 00:07:59,680 principle that tells you why you'll be justified in restraining the freedom of people to 86 00:08:00,079 --> 00:08:07,439 drive space to put innocent life at hazard. So you see, behind any 87 00:08:07,439 --> 00:08:11,240 of these positive laws, it must be a principle that tells you why inde 88 00:08:11,360 --> 00:08:16,879 justified in having a law there in the first place. And in fact, 89 00:08:16,000 --> 00:08:20,600 there was a lot of the rat the left was rankled by Justice Alito's decision 90 00:08:20,639 --> 00:08:26,120 to build his decision in the Dobb's case from natural law and the stirrings and 91 00:08:26,120 --> 00:08:31,399 the quickenings and go ahead? Did he didn't build? Well, I was 92 00:08:31,399 --> 00:08:35,679 going to ask you about that because I remember and we talked with a podcast 93 00:08:35,720 --> 00:08:41,000 after the decision was um. The decision came out about what would have been 94 00:08:41,279 --> 00:08:45,120 a better decision in that case and what he right, what Justice Thomas could 95 00:08:45,120 --> 00:08:48,840 have done differently in his concurrence. So looking at you know, Justice Alito 96 00:08:48,919 --> 00:08:52,080 talks about those things, Where do you think the dots should have been connected 97 00:08:52,080 --> 00:08:56,639 in that opinion? Well, let's go back to what I told you about. 98 00:08:56,679 --> 00:09:01,799 See those lawyers in the over way, they point out that we're dealing 99 00:09:01,840 --> 00:09:05,360 with a human being, will Uman being in that case in nineteen seventy two, 100 00:09:05,120 --> 00:09:09,759 the seventy three, the CORTI have said, well, look, the 101 00:09:11,720 --> 00:09:20,960 legislature of Texas has found ample reason to hold that that that is a small 102 00:09:20,039 --> 00:09:24,000 human life resident for a while as mother, as woman. But the laws 103 00:09:24,039 --> 00:09:28,759 on homicide have ever been indifferent to the size and age and the weight of 104 00:09:28,840 --> 00:09:31,919 the victim. Once you understand it's a human being, then it should be 105 00:09:33,080 --> 00:09:37,639 covered by the laws on homicide. But we have we leave to the legislature 106 00:09:37,720 --> 00:09:43,080 the Delga task of seventy Just how how early are the protections? What kinds 107 00:09:43,120 --> 00:09:48,360 of protections as appracticable for you to offer? Well, they could have been 108 00:09:48,440 --> 00:09:52,679 pointed. This case is simply making that move. I mean, just as 109 00:09:52,720 --> 00:09:58,720 Alito. But now all the materials show that there's no principal ground for the 110 00:10:00,000 --> 00:10:05,480 I'm at that standing of that child rule as a potential as a human being. 111 00:10:05,840 --> 00:10:09,600 He just wouldn't draw the conclusion. He was leaving the people in the 112 00:10:09,600 --> 00:10:13,919 political sphere to draw that. He handled it off to the political sphere. 113 00:10:15,159 --> 00:10:18,720 But the political class we know is always too different and befuddled and timbered about 114 00:10:18,720 --> 00:10:22,559 talking about these things. But it's the same. Look at how he left 115 00:10:22,600 --> 00:10:30,879 it. Even even a lado Is would speak about the unborn child as a 116 00:10:31,159 --> 00:10:35,240 potential human being. A potential human being, My god, you look at 117 00:10:35,240 --> 00:10:41,159 the brief and Texas again an embryology. It may be a potential outfield, 118 00:10:41,600 --> 00:10:46,720 It is not a potential human being. Has never been merely a potential human 119 00:10:46,799 --> 00:10:50,559 being. Well, let's say you just got that once straight. So what 120 00:10:50,679 --> 00:10:54,360 do you put in place? You put in place the ground on which the 121 00:10:54,440 --> 00:11:01,799 Congress or a federal judge could argue that these Blue states are withdrawing the protections 122 00:11:01,840 --> 00:11:05,879 of law from a whole class of human things. They are these small human 123 00:11:05,919 --> 00:11:09,519 beings that have to be restud for a while, and their mother's wounds, 124 00:11:09,240 --> 00:11:15,440 and therefore, you know, we have to overturn or check these laws in 125 00:11:15,480 --> 00:11:18,559 the Blue states that are withholding the production of law from a whole class of 126 00:11:18,639 --> 00:11:22,480 human beings in the way that the courts are intervening in the fifties and sixties, 127 00:11:22,519 --> 00:11:30,240 finally making way to the recognition that they could indeed challenge the laws of 128 00:11:30,360 --> 00:11:33,679 those Southern states that worth holding the protection of the law from a whole class 129 00:11:33,720 --> 00:11:39,039 of black people. So there's there's nothing, just nothing arcane about this, 130 00:11:39,279 --> 00:11:43,440 is that there's no novelty. It's not like we haven't done anything like this 131 00:11:43,559 --> 00:11:50,000 before. The court is always making judgments by how closely can you you know, 132 00:11:50,080 --> 00:11:56,000 how closely can you be justified in searching somebody body? Cavities have to 133 00:11:56,000 --> 00:12:03,879 be justified looking into somebody's the driveways. Are always making decisions about this, 134 00:12:03,039 --> 00:12:07,639 Well, what is a justified extension of the law. There's nothing here that's 135 00:12:07,720 --> 00:12:16,000 really um, bizarre or or arcane. And so do you know when do 136 00:12:16,039 --> 00:12:20,600 you think this starts to change? Um? You know in jurisprudence, where 137 00:12:20,639 --> 00:12:24,080 is there a hinge moment? Is there a place we can point to where 138 00:12:24,399 --> 00:12:28,080 the shift really started to take hold? Absolutely absolutely with the dissenters and roll 139 00:12:28,159 --> 00:12:37,120 versus way with Justice Ranks and Justice White. The lawyers have presented a powerful 140 00:12:37,200 --> 00:12:45,679 case drawing on the findings of embryology. Nothing in that rich grief. What's 141 00:12:45,720 --> 00:12:48,960 put in place by those those those dissenters, and that's and it's been put 142 00:12:50,000 --> 00:12:52,559 in place by the majority of dobs. Now what do they do? They 143 00:12:52,600 --> 00:12:58,480 retreated the notion that the real wrong here was the wrong done by judges. 144 00:12:58,200 --> 00:13:05,559 They always their laying that abortion is not contained in the Constitution and therefore a 145 00:13:05,639 --> 00:13:13,600 federal judge doesn't have the authority to proclaim anything about rights of abortion arising from 146 00:13:13,720 --> 00:13:18,840 the text of the Constitution. So but of course, the Constitution said nothing 147 00:13:18,879 --> 00:13:24,519 about marriage when the court struck down the laws about interracial marriage in nineteen sixty 148 00:13:24,519 --> 00:13:28,559 seven, And as my friend Jerry Bradley pointed out, the federal government had 149 00:13:28,679 --> 00:13:33,960 always had ample reason to be dealing with the business of abortion to dealing with 150 00:13:33,000 --> 00:13:39,120 abortion in medical hospital in the federal hospitals, and military hospitals, and diplomatic 151 00:13:39,919 --> 00:13:46,200 outposts abroad in the territories in the district of Columbia. There's nothing about this 152 00:13:46,440 --> 00:13:52,679 subject that moved it outside the reach of a lawmaking power, when where the 153 00:13:52,759 --> 00:13:58,080 Congress did have the authority and responsibility to make laws. So so what the 154 00:13:58,279 --> 00:14:03,320 cabinet moment was that Byron White just as White said, well, this is 155 00:14:03,360 --> 00:14:09,159 really could be appalling. He's saying that people could order up an abortion simply 156 00:14:09,159 --> 00:14:16,279 when it suits their convenience. But then he turned and he transmuted the subject 157 00:14:16,080 --> 00:14:24,840 and the all he shifted the victim from the child in the womb being killed. 158 00:14:24,200 --> 00:14:31,600 The victim was now the people in the states were deprived of their freedom 159 00:14:31,840 --> 00:14:37,360 to deliberate in the political arena about their laws an abortion. So as it 160 00:14:37,440 --> 00:14:41,360 went forward, we found then people in the conservative rooms, if that was 161 00:14:41,399 --> 00:14:46,399 the real wrong of abortion, they should not be addressing these moral questions. 162 00:14:46,440 --> 00:14:52,879 And so it became an article faith curiously among among conservatives that these moral judgments 163 00:14:52,120 --> 00:14:56,320 are not part of the law. It's it's And the problem here is that 164 00:14:56,519 --> 00:15:01,799 judges really reached beyond themselves in reaching to these more conclusions, those small conclusions 165 00:15:01,840 --> 00:15:05,799 should be only the political arena, and making those moral judgments should never be 166 00:15:05,840 --> 00:15:09,679 the work of judges. Of course, in escapably it is the work of 167 00:15:09,759 --> 00:15:16,320 judges. As I used to say that to ask whether the judge can get 168 00:15:16,360 --> 00:15:18,200 to the day without natural laws, asking whether you can get to the day 169 00:15:18,240 --> 00:15:22,919 without more reasoning on matters of right and long, and you might as well 170 00:15:22,960 --> 00:15:28,759 ask the questions. It's like asking can I order the coffee without using syntax? 171 00:15:30,960 --> 00:15:35,919 You know, it's not out there, it's moment into everything you do. 172 00:15:35,240 --> 00:15:39,159 But curiously, people go so reactive. Look, I went to lots 173 00:15:39,320 --> 00:15:43,600 of I began going to put a life marches since nineteen seventy four. The 174 00:15:43,679 --> 00:15:48,600 first time they hill people out there, out there, young and old, 175 00:15:48,919 --> 00:15:56,360 were concerned about babies being dismembered or poisoned. I saw no signs about the 176 00:15:56,360 --> 00:16:00,200 real lack of judges overstepping the bounds. That was not the wrong. And 177 00:16:00,279 --> 00:16:04,960 so what we had here is people that my dear friend Annie Culture saying, 178 00:16:06,519 --> 00:16:11,120 what's the argument about the issue is that there's no conclusial right to an abortion. 179 00:16:11,240 --> 00:16:15,320 The cart settled that one. So what are we argue about. Now, 180 00:16:15,679 --> 00:16:21,320 that's all that the wrong of the case was adduced to the fact that 181 00:16:21,799 --> 00:16:27,200 judges reached the problem instead of saying the wrong effect that the judges created a 182 00:16:27,360 --> 00:16:34,080 license, a virtually unrestricted license to take innocent life in the womb for virtually 183 00:16:34,240 --> 00:16:40,679 any reason, not only to the throughout the length of pregnancy, but as 184 00:16:40,720 --> 00:16:48,519 we discovered, even when the child came out and survived the abortion. The 185 00:16:48,639 --> 00:16:52,679 Washed Auto Wall Street podcast with Chris Markowski. Every day Chris helps unpack the 186 00:16:52,679 --> 00:16:56,600 connection between politics and the economy and how it affects your wallet. Well Republicans 187 00:16:56,600 --> 00:17:00,720 miss another layup. New poll show forty Republicans don't want Trump to run, 188 00:17:00,799 --> 00:17:04,519 but he's still leading in the polls. Has the new Republican strategy become leading 189 00:17:04,559 --> 00:17:08,440 to the left on certain issues? How should Republicans approach this primary strategy with 190 00:17:08,480 --> 00:17:11,240 an easy path to the White House. Whether it's happening in DC or down 191 00:17:11,279 --> 00:17:14,880 on Wall Street, it's affecting you financially. Be informed. Check out the 192 00:17:14,920 --> 00:17:18,440 Watchdoter on Wall Street podcast with Chris Markowski on Apples, Spotify, or wherever 193 00:17:18,519 --> 00:17:26,599 you get your podcast. There's a there's a chapter in the book entirely on 194 00:17:26,759 --> 00:17:30,079 a quintas and the sort of that other you put it this way, that 195 00:17:30,119 --> 00:17:33,720 other first principle of moral judgment, that's also what you mean by that. 196 00:17:34,480 --> 00:17:42,039 It was the one um QUI say, that's the goodest stat which we desire, 197 00:17:42,160 --> 00:17:48,480 the goodest stat which we approve, and um the batter that those things 198 00:17:48,559 --> 00:17:52,960 we should refrain from doing and we should discourage from doing. And John Cartney 199 00:17:52,000 --> 00:17:56,799 Murray thought that that's that's that's so evident. It's almost like something we know 200 00:17:56,960 --> 00:18:02,160 our priori. You know, the rest ares come home from winning the World 201 00:18:02,240 --> 00:18:06,559 Series. People are cheering and applauding. They're not throwing stones. You know, 202 00:18:07,240 --> 00:18:12,599 there's a natural reaction to approving what you think is good and disapproving what 203 00:18:12,640 --> 00:18:15,799 you're punishing what you think is wrong. Okay, that's right, But of 204 00:18:15,799 --> 00:18:21,799 course cast on those terms, the same thing would apply to the mafia. 205 00:18:22,200 --> 00:18:26,680 Mafia has a clear sign of what makes a good citizen within the mafia. 206 00:18:26,799 --> 00:18:30,200 It doesn't run on other people. And that's why we need the witness protection 207 00:18:30,279 --> 00:18:34,480 program because there's those are the wrong doers, the people who would run on 208 00:18:34,519 --> 00:18:42,039 their friends. So but it's a critical point that keeps getting in on us 209 00:18:42,039 --> 00:18:51,279 because people don't don't quite understand that. I use the example of their friend 210 00:18:51,319 --> 00:19:00,319 Dan Robinson in a famous hearing on field pain in nineteen eighty five in the 211 00:19:00,400 --> 00:19:04,920 Judiciary Committee. And this doctor Burke Woods from Yale a complaint about doctor Nathanson, 212 00:19:04,960 --> 00:19:10,960 who had been a leader in the abortion rights movement, who then flipped 213 00:19:10,960 --> 00:19:15,039 and became leader in pro life movement. He said, well, doctor Nathan 214 00:19:15,079 --> 00:19:19,480 said, it is not disinterested or neutral this question. And larn Head says, 215 00:19:19,519 --> 00:19:23,440 but doctor, he said, what doctor Burke Woods are no? Back 216 00:19:23,599 --> 00:19:27,200 said no, I have no opin I have no opinion. And Head says, 217 00:19:27,400 --> 00:19:33,279 but doctor, you performed them. You performed them if you understand. 218 00:19:33,319 --> 00:19:36,880 And then Dan Robinson the point, I said, what's this waltz about? 219 00:19:37,359 --> 00:19:41,960 If you thought something was wrong, the logic of the first princil comes into 220 00:19:41,000 --> 00:19:45,319 place. You should not do what is wrong. You would obliged to do 221 00:19:45,359 --> 00:19:48,680 what is right in a frame from what is wrong. So, doctor Burke, 222 00:19:48,039 --> 00:19:52,640 if you're performing those abortions, we gather you must think there's nothing wrong 223 00:19:52,680 --> 00:19:56,680 about it, In which case, why are you so different about reporting the 224 00:19:56,759 --> 00:20:00,440 number of times you've done it? If you think it is wrong, why 225 00:20:00,480 --> 00:20:04,880 are you sending you're defending it. Other words, it's as I try to 226 00:20:04,920 --> 00:20:08,960 show in the book, that was the key point that Lincoln use in his 227 00:20:10,119 --> 00:20:18,559 classic debate with Douglas, just to to destroy Douglas's arguments there that it is 228 00:20:18,559 --> 00:20:22,519 so basic and it's serviceable. And suddenly you see the play in that those 229 00:20:22,599 --> 00:20:30,839 hearings on fetal pain where Robinson just just you know, refuted doctor Berklin's he 230 00:20:30,920 --> 00:20:40,200 saying suddenly that that first principle always there, suddenly comes in. It kicks 231 00:20:40,240 --> 00:20:44,599 on an interness with an effect that we have anticipated, but it has always 232 00:20:44,599 --> 00:20:48,839 been there. But my point has been that it's it could be used. 233 00:20:48,880 --> 00:20:52,559 That principle could be used on Philo Mafia as well as other people. That 234 00:20:52,680 --> 00:20:56,039 you have to get the closer first principle, the one that that Count as 235 00:20:56,039 --> 00:21:00,680 well as Thomas Read considered the real first principle of all moral legal judgment, 236 00:21:00,880 --> 00:21:07,359 is that it makes absolutely no sense to cast judgments of praise or blame on 237 00:21:07,519 --> 00:21:14,000 people the things they were powerless to do. So that we so we hold 238 00:21:14,000 --> 00:21:18,799 as the first principle that we don't hold people blame worthy are responsible for acts 239 00:21:18,839 --> 00:21:23,720 they were powerless to affect. That becomes one of those deep principles in our 240 00:21:23,759 --> 00:21:26,519 law. And I think it has something to do finally with what did the 241 00:21:26,799 --> 00:21:33,240 wrong principles of racial discrimination? Anyway, at my point, my point, 242 00:21:33,240 --> 00:21:38,839 Emily, is that is a principle from which many other substitutive things come. 243 00:21:40,240 --> 00:21:44,119 You say, okay, you begin with an understanding of what the law may 244 00:21:44,160 --> 00:21:48,039 reach. That you don't help people blame worthy that when we were faced with 245 00:21:49,720 --> 00:21:53,799 John Stuart Mill says, we stop using the language of life and this life 246 00:21:53,839 --> 00:21:57,480 and start using the language that right or wrong. As we think people may 247 00:21:57,559 --> 00:22:02,640 right, they be honest what they're doing, but if we respect their difference 248 00:22:03,079 --> 00:22:07,000 between innocence and guilt, that appliges us to take it seriously by using the 249 00:22:07,039 --> 00:22:12,319 most demanding canons of reason and testing evidence, run and having people run over 250 00:22:12,359 --> 00:22:17,079 hot colds or out run a mob in the street. And as you take 251 00:22:17,119 --> 00:22:21,000 the thing, bring out further, just draw out the implication the rise that 252 00:22:21,440 --> 00:22:26,640 first principle, Emily, you arrive at a judgment of this kind that people 253 00:22:26,680 --> 00:22:33,839 accused of crimes should have access to those witnesses and evidence arrayed against them, 254 00:22:34,119 --> 00:22:37,880 so they have a chance to rebut them, and rebutting them. Arriving in 255 00:22:38,000 --> 00:22:45,160 a verdict, it is more substantly accurate in discriminating between innocence and guilt. 256 00:22:45,640 --> 00:22:49,279 So if you by that logic, as I argue, you know, but 257 00:22:49,440 --> 00:22:56,200 that moral logic, we would of course have the right to confront witnesses against 258 00:22:56,319 --> 00:23:00,640 us. We have that right. But even if it weren't sit down in 259 00:23:00,720 --> 00:23:07,119 the sixth Amendment. But my point is you begin with something like you may 260 00:23:07,160 --> 00:23:12,720 not be held responsible for texts were powerless to affect, and from that you 261 00:23:12,839 --> 00:23:22,039 called drop out moral judgments of real, practical force and significance. And actually 262 00:23:22,039 --> 00:23:26,119 that's a great transition to the next chapter in which you write about natural rights. 263 00:23:26,119 --> 00:23:30,160 And Christopher Caldwell in his excellent folk Age of Entitlement, talks a lot 264 00:23:30,200 --> 00:23:36,079 about rights and the expansion of our definition of rights and how this question of 265 00:23:36,200 --> 00:23:41,240 human rights became a really slippery slope into basically all of the problems that we 266 00:23:41,519 --> 00:23:45,279 see with you know, what folks call wokeness right now, and the capturing 267 00:23:45,279 --> 00:23:49,880 of all of our institutions. But I wanted to ask you, because you're 268 00:23:49,880 --> 00:23:55,880 writing about natural rights here, what that if you were explaining to for instance, 269 00:23:55,880 --> 00:24:00,400 a student, what the distinction is between natural rights and human rights any 270 00:24:00,759 --> 00:24:04,160 or if perhaps those should all be the same umbrella, the same umbrella definition. 271 00:24:04,680 --> 00:24:10,480 Most people are very familiar with the shorthand human rights. Whether they know 272 00:24:10,519 --> 00:24:15,319 what that actually means and feel confident in its grounding in philosophy is a different 273 00:24:15,400 --> 00:24:18,839 question. So can you talk a little bit about that distinction? If you 274 00:24:18,880 --> 00:24:22,720 think there is one, well not interesting natural, Well, this, this 275 00:24:22,799 --> 00:24:27,359 example might help Emily. Now that example I use of the visitor who comes 276 00:24:27,400 --> 00:24:32,920 from London and lands in New York, and we don't think we have to 277 00:24:32,960 --> 00:24:37,440 look at his passport before we protect him from a lawless assault on the street. 278 00:24:37,000 --> 00:24:41,920 We don't think that his claim to that protection depends on his citizenship. 279 00:24:41,640 --> 00:24:45,079 That the same man can't take himself over to the city clouds of New York 280 00:24:45,359 --> 00:24:51,519 and expect to be enrolled and enrolled at that subsidized rate of tuition that people 281 00:24:51,519 --> 00:24:55,759 in New York make available to citizens. That is, certain rights arise only 282 00:24:55,839 --> 00:25:00,000 certain enclips, like the right to use the squash courts of Amor's college. 283 00:25:00,599 --> 00:25:03,480 Now, none of the questions, Well, if you're saying that this man 284 00:25:03,519 --> 00:25:08,880 has a right not to be assaulted does not depend on its citizenship, what 285 00:25:10,039 --> 00:25:15,759 are you saying that what do you call it is some kind of a right 286 00:25:15,799 --> 00:25:21,920 that flows to any human being by nature. Now we know the natural right 287 00:25:21,960 --> 00:25:26,480 to life does not mean a light right to life everlasting, or that that 288 00:25:26,960 --> 00:25:32,400 you cannot be put in harm's way by the government in defense of the country, 289 00:25:32,519 --> 00:25:36,039 are subjected to capital punishment. But the right to life meant is that 290 00:25:36,079 --> 00:25:41,240 one has a right to be protected from a laws unjustified taking with the life. 291 00:25:41,440 --> 00:25:48,400 What theft is is a taxation can remove people's property. What theft is 292 00:25:48,440 --> 00:25:53,519 the taking of property without justification. You know this is so what the problem 293 00:25:53,519 --> 00:25:57,759 is? Naturalize it. What you can say is that human beings have a 294 00:25:57,880 --> 00:26:06,440 natural claim to be treated justly with justifications when their freedoms are being restricted. 295 00:26:06,759 --> 00:26:08,759 In an ordinary people have a natural sense of these things. You know. 296 00:26:10,359 --> 00:26:15,200 I have a couple of years ago, people my spiffy apartment building were put 297 00:26:15,240 --> 00:26:19,880 all put out on the grounds for two hours because the firefighters. Firefighters were 298 00:26:19,920 --> 00:26:23,680 fighting a fire in the building. No one believed me like being out there 299 00:26:25,480 --> 00:26:30,559 for those two or three hours, and our liberty was being restricted, our 300 00:26:30,559 --> 00:26:33,480 liberty to run go back to compartments. And you have nobody thought that their 301 00:26:33,559 --> 00:26:37,839 rights were being violated why is that. I think, in a common sense 302 00:26:37,960 --> 00:26:45,000 understanding, my liberty is being restricted with the purpose of protecting my life. 303 00:26:45,160 --> 00:26:49,200 That is to say, there's a justification for it. That is the natural 304 00:26:49,279 --> 00:26:55,720 understanding that always affected the question of rights. You may have a you may 305 00:26:55,759 --> 00:27:00,720 have presumptive claim, and this is one of the arguments that we have old 306 00:27:00,799 --> 00:27:03,759 argument about about the Bill of Rights. We could say, we could add 307 00:27:03,759 --> 00:27:11,559 to the Bill of rights my right to be not have my trunk searched in 308 00:27:11,559 --> 00:27:15,079 the car by right, not without good reason, by right not to have 309 00:27:15,240 --> 00:27:19,920 my luggage service at the airport without good reason. My right not to have 310 00:27:21,279 --> 00:27:26,160 blood withdrawn from my arm after an accident to test whether I had been drinking 311 00:27:26,440 --> 00:27:32,079 driving under the influence of out. We could go out elaborating all these instances 312 00:27:32,240 --> 00:27:34,559 without getting to the car to the problems. Whatever we what are we dealing 313 00:27:34,640 --> 00:27:40,240 with, whatever aspect the freedom of dealing. What the question is is that 314 00:27:41,000 --> 00:27:48,400 as a search, the search being conducted with or without justification. People are 315 00:27:48,440 --> 00:27:53,880 going into subways in the York there's a fear of a that's interesting. People 316 00:27:53,920 --> 00:27:57,440 going into subways in New there's a fear of a bombing, and so the 317 00:27:57,480 --> 00:28:03,400 authorities are checking the bags of people going into the into the subway. Not 318 00:28:03,599 --> 00:28:07,640 interesting questions right now, we're the constitutional rights engaged here. Well, yeah, 319 00:28:07,680 --> 00:28:11,279 it could be the right doctor be directly searched. No, it could 320 00:28:11,319 --> 00:28:18,599 also be that the deep constitutional right that the authorities in the York representing when 321 00:28:18,599 --> 00:28:26,000 they're acting to protect ordinary people from having their lives taken an unjustified way with 322 00:28:26,160 --> 00:28:30,400 the bombing in the subways. It's not only the cards that protect natural rights 323 00:28:30,319 --> 00:28:34,680 and so. But all these things will keep pivoting on the question of Look. 324 00:28:34,720 --> 00:28:38,720 Look, at the time of the Value, everybody understood the difference between 325 00:28:38,839 --> 00:28:45,559 liberty and license, liberty being directed to a rightful or innocent and as being 326 00:28:45,559 --> 00:28:49,640 misused and directed to wrongful. Then, so harvering over the question of liberty 327 00:28:49,680 --> 00:28:55,599 at all times was the question of are you using this liberty to do innocent 328 00:28:55,759 --> 00:29:00,279 unlawful things? Are using it to do things that may be rightly restrict it? 329 00:29:00,599 --> 00:29:06,640 Look, I saw you in thethetical venue company US. I ran into 330 00:29:06,799 --> 00:29:10,599 young a young fellow with a bicycle about to take the bicycle to the subpoint, 331 00:29:10,599 --> 00:29:12,880 and I said, can you do that? He said, yes, 332 00:29:12,920 --> 00:29:19,920 but not doing Russia hard And he understood that his liberty was being restricted, 333 00:29:21,279 --> 00:29:26,039 but they're peably good reasons for doing it, and therefore we didn't think his 334 00:29:26,279 --> 00:29:30,480 rights are being violent unless you memorily. My point is is that ordinary people 335 00:29:30,319 --> 00:29:37,960 make these decisions every day. There's nothing nothing arcane about it. There's nothing 336 00:29:38,000 --> 00:29:45,119 inscrutable about these things. These are matters of common sense people. They framed 337 00:29:45,160 --> 00:29:51,480 the problem in these more's natural inclination to frame the problem in this moral frame. 338 00:29:52,359 --> 00:29:56,920 So interesting, and I love the way that you put this. Uh, 339 00:29:56,920 --> 00:30:00,000 this is actually a chapter title, The Conservatives and the Lore of Defensive 340 00:30:00,039 --> 00:30:07,680 Relativism. I love the phrase defensive relativism, and I wanted to see if 341 00:30:07,680 --> 00:30:10,319 you could kind of you talked about it a little bit earlier actually, but 342 00:30:10,359 --> 00:30:12,680 if you could sort of tell us what you mean by that term and what 343 00:30:12,720 --> 00:30:17,160 you mean by it sort of the lore that it's had over conservatives, that 344 00:30:17,160 --> 00:30:23,440 would be great. Oh yeah, it's like, we're afraid that people are 345 00:30:23,480 --> 00:30:30,000 going to be so restrict conservatives. The best one you do is say there 346 00:30:30,119 --> 00:30:34,440 is no ground for the thaying the difference between offensive and offensive and rightful speech. 347 00:30:36,680 --> 00:30:40,240 We see there was no ground for this. The Nazis parading and Skokie 348 00:30:40,279 --> 00:30:42,839 now there's no grounds are saying there's something wrong about the Nazis parading and Skokie. 349 00:30:44,359 --> 00:30:48,960 Well, the problem is if there are no grounds right and wrong, 350 00:30:48,359 --> 00:30:52,759 there's no ground in which to hold to the rightness of freedom of speech and 351 00:30:53,200 --> 00:30:57,640 the Remember years ago when I was invited by the when I was finding myself 352 00:30:57,640 --> 00:31:03,279 on the other side of the you on a matter of the Nazis and Skokie. 353 00:31:03,680 --> 00:31:07,920 They've hamlet of the and the uh the she was saying, how did 354 00:31:07,920 --> 00:31:15,799 it go? Uh? We protect speech even when it's um, oh, 355 00:31:15,839 --> 00:31:25,200 what's the ship, even even when it was popular or offensive. But the 356 00:31:25,240 --> 00:31:32,920 honest the sense of was was offensive mean? It's means it's unpopular people things 357 00:31:32,960 --> 00:31:36,799 you don't like. It's unpopular. What seems to be ruled out. And 358 00:31:36,799 --> 00:31:41,400 that's what's what the court is saying these when when there's a leader, when 359 00:31:41,720 --> 00:31:47,000 that rock of our of our first amendment is we protect speech even when it's 360 00:31:47,039 --> 00:31:52,720 offensive. Now that seems to roll out the notion that offensive does not mean 361 00:31:52,720 --> 00:31:56,319 really, it's some popular, but there's some there's some speech that isn't the 362 00:31:56,640 --> 00:32:05,480 offensive wrongful? In point of prints, it's the it's the writing up hatred 363 00:32:05,519 --> 00:32:12,559 to racial, religious minorities, the libels, the tax on people's reputation, 364 00:32:12,640 --> 00:32:19,920 stirring up hatred for people. Um. What the founders understood was that speech 365 00:32:20,400 --> 00:32:24,599 can be a vehicle for inflicting injury along with every other medium of our freedom. 366 00:32:25,359 --> 00:32:30,400 And when they saw it, and the question was, well, are 367 00:32:30,400 --> 00:32:35,680 you committing a libel or John Marshall's line, you could be you're stirring up 368 00:32:35,759 --> 00:32:42,559 hatred, stirring up a mob against religious minorities. They can understand when speech 369 00:32:42,759 --> 00:32:45,960 is being used to inflict harms and at times, atimes it does seem need 370 00:32:46,000 --> 00:32:52,160 to be even meet a material hert. There's a case years ago with Maryland 371 00:32:52,160 --> 00:32:59,359 where a black family had moved in. Someone had burned across outside the home 372 00:32:59,359 --> 00:33:01,640 of the family. By the time the family got home, the cross was 373 00:33:01,640 --> 00:33:06,160 already cleaned up. They were not affected by it, but people in the 374 00:33:06,240 --> 00:33:10,400 community had a sense that something wrong had been done. It's kind of this 375 00:33:10,599 --> 00:33:17,160 kind of an expressive attack. So the you know, it's like stand stand 376 00:33:17,200 --> 00:33:22,039 evidences whole life. The problem with pragmatism is that it doesn't work. You're 377 00:33:22,119 --> 00:33:25,599 trying to um. You see, we're getting this problem. We don't want 378 00:33:25,599 --> 00:33:30,400 to give people the authority to make these hard decisions to talk about the speech 379 00:33:30,440 --> 00:33:35,240 that is a legitimate or illegitimate, and the problem there there's been no safety 380 00:33:35,240 --> 00:33:39,759 in that. That kind of stands of relativism has not protected conservatives on the 381 00:33:39,799 --> 00:33:45,359 campuses, made it easier for conservative speakers to go to the law to the 382 00:33:45,440 --> 00:33:52,000 law school at Stanford. None of that has given us any The classic doctrine 383 00:33:52,000 --> 00:33:57,039 here was with the Chaplinsky case. They all classicate it. We can tell 384 00:33:57,079 --> 00:34:08,440 the difference between arguments and assaults. The famous case of oh name, it 385 00:34:08,519 --> 00:34:14,320 was giving giving at a PTA meeting, getting up at a PTA meeting, 386 00:34:14,960 --> 00:34:21,320 and he had every other word was the adjective mother effing. And the point 387 00:34:21,519 --> 00:34:28,320 is you by asking him to refrain from using that word and destroying the climate 388 00:34:28,360 --> 00:34:34,480 of stability, you're not barring him from giving the most seering critique of the 389 00:34:34,599 --> 00:34:39,119 school board. This was Justice Murphy's opinion in the ultra Plinsky case. It's 390 00:34:39,159 --> 00:34:44,440 a kind of speech that it's not necessary to the exposition of any ideas. 391 00:34:44,840 --> 00:34:51,519 You can bar people from calling names and stirring, stirring violence, stirring people 392 00:34:51,639 --> 00:34:58,320 conflict, or just just golfing the names that it's salt and denigrate um, 393 00:34:59,360 --> 00:35:04,760 you can do that without borrowing their freedom to make the most substantive arguments. 394 00:35:05,360 --> 00:35:08,239 And the accident I argument is that these things should be is no, we 395 00:35:08,360 --> 00:35:13,960 can tell. We can tell the language and adjust the burning of crosses, 396 00:35:15,360 --> 00:35:21,639 the language that is understood as language of denigration, and so we know them. 397 00:35:21,960 --> 00:35:27,400 The end word and I hate to say it, ordinary people understand these 398 00:35:27,400 --> 00:35:31,679 things. Truck drivers understand. You don't need lawyers to understand what kinds of 399 00:35:31,679 --> 00:35:38,880 words and gestures are taken as as as denigrating terms. And it's easy to 400 00:35:38,920 --> 00:35:45,719 spot in the fact that we work with convention that restricted when it's evident to 401 00:35:45,760 --> 00:35:52,280 everybody in ordinary language, this is one of those terms to men to assault 402 00:35:52,280 --> 00:35:59,679 and denigrate if in doubt do not do anything right. But we can work 403 00:36:00,039 --> 00:36:07,960 that scheme, and that at meantimes say we are free. You can avoid 404 00:36:07,960 --> 00:36:13,639 those kinds of assaults, but free to make even the most strongest we can 405 00:36:13,679 --> 00:36:19,400 buy the Nazis from from marching through the streets with banners and swastikas. It's 406 00:36:19,400 --> 00:36:23,440 Skoki Illinois and a community containing people who survive the hocans. We can do 407 00:36:23,599 --> 00:36:29,320 that at the same time allowing mind comp to be published. It's a different 408 00:36:29,400 --> 00:36:36,239 kind of thing. There's an argument, and my point is that the conservatives 409 00:36:36,239 --> 00:36:42,280 are making a profound mistake when they think that you can deal with the repression 410 00:36:42,320 --> 00:36:46,559 of conservatives by simply staying as planting the point that we have no grounds of 411 00:36:46,639 --> 00:36:53,039 principle at all for making any distinctions between speech that is assaulting and speech that 412 00:36:53,239 --> 00:36:59,559 is innocent. Podcast the form of arguments, and you know, this question 413 00:36:59,599 --> 00:37:04,840 of as as you put it, UM, the defensive relativism makes me think 414 00:37:04,880 --> 00:37:09,320 of I'm actually really curious as to how what response you've gotten so far. 415 00:37:09,360 --> 00:37:12,599 I mean, the book's spun out for about a day. You've been talking 416 00:37:12,599 --> 00:37:15,800 to a lot of folks obviously, UM, you know, for a long 417 00:37:15,840 --> 00:37:20,679 time about these issues that you articulate here. Conservative the conservative legal movement is 418 00:37:20,760 --> 00:37:24,960 is pretty tightly knit and pretty robust, UM. And I guess I just 419 00:37:25,159 --> 00:37:32,400 wonder what the response is because I imagine there's a note of defensiveness in some 420 00:37:32,519 --> 00:37:36,599 of those conversations. Can you can you tell us a little bit about that 421 00:37:36,679 --> 00:37:40,599 experience, about your experience, you know, making these arguments to folks in 422 00:37:40,639 --> 00:37:45,519 the conservative legal movement who are probably very defensive of um. Some of the 423 00:37:45,559 --> 00:37:54,199 defensive relativism. For instance, when people hear it, they think agree, 424 00:37:54,840 --> 00:38:00,719 I know, it's amazing, like I have this debate natural law of the 425 00:38:00,719 --> 00:38:05,960 acts, and ask Kazinski nine twenty twelve as making one point, some friends 426 00:38:06,000 --> 00:38:09,800 grow around the audience hearing me that hearing people say I believe that, I 427 00:38:09,920 --> 00:38:16,440 believe that once they hear it, they suddenly it may give with common sense 428 00:38:16,480 --> 00:38:22,880 and they recognize that they've all they've always noted the problems. People get locked 429 00:38:22,920 --> 00:38:25,360 in. You know, we will say that the conservatives complain to get for 430 00:38:25,480 --> 00:38:31,760 years, that these liberal judges we're using as moral reasoning, growing outside of 431 00:38:31,840 --> 00:38:37,519 text and crab, these creating rights built upon the agenda of the left. 432 00:38:37,719 --> 00:38:44,159 Will show them we won't use moral reasoning and will shame them. Great device, 433 00:38:44,480 --> 00:38:47,400 great great strategic group. It said, we wi show it never it 434 00:38:47,519 --> 00:38:52,360 never barred the Steve Reinhardt's of the world and going on with what they're doing. 435 00:38:52,719 --> 00:38:57,280 And if you think there's something wrong with what these people are doing while 436 00:38:57,280 --> 00:39:01,199 they're affecting moral postures, the sort of show them where they're wrong, show 437 00:39:01,199 --> 00:39:05,760 them where it's specious, you know. But you know, people do get 438 00:39:05,840 --> 00:39:09,280 locked in, and people will say book and you may be right, but 439 00:39:09,400 --> 00:39:13,599 look, we've got to it's potentially you've got to deal with this thing. 440 00:39:14,039 --> 00:39:19,039 And the best thing we could do is tell people they have no grounds for, 441 00:39:21,239 --> 00:39:25,599 no grounds for at these judgments. And so you have, say cal 442 00:39:25,760 --> 00:39:30,480 Duncan, going over to the law school at the stand you tell me you 443 00:39:30,559 --> 00:39:34,599 walk through a hall on the way to meet and you have people out spitting 444 00:39:34,599 --> 00:39:40,800 out contempt for you and insults, and you say, that's a welcome, 445 00:39:42,159 --> 00:39:46,199 that's a welcome to the that's a support for your freedom to speak. That's 446 00:39:46,199 --> 00:39:52,000 an insult. It's clearly a sign of hostility, meant to intimidate you and 447 00:39:52,119 --> 00:39:57,440 to show that you have no standing to even to give the speech. Why 448 00:39:57,440 --> 00:40:00,800 do you assume it's legitimate? As long as people are not picking up stones 449 00:40:01,519 --> 00:40:07,760 that we ordered. People able to tell the difference between know words the acts 450 00:40:07,840 --> 00:40:19,400 that are detegrating and dismissive. Um. People know when they're being treated casually. 451 00:40:21,920 --> 00:40:23,760 And as I say, this is something that truck drivers can do this 452 00:40:23,920 --> 00:40:29,400 as well as lawyers. They know when they're being disrespected. They know when 453 00:40:29,519 --> 00:40:36,000 when an ethnic term is used to disparage them. Um so so, so 454 00:40:36,400 --> 00:40:43,880 what this understand is contained an ordinary language and the moral sense that people naturally 455 00:40:43,920 --> 00:40:51,320 have. Human beings are moral creatures. They're given to argue over things that 456 00:40:51,320 --> 00:40:57,320 are right or make judgments. And of course the words and work. There 457 00:40:57,320 --> 00:41:00,519 are words that work in our language that are meant to convey that judgment. 458 00:41:01,039 --> 00:41:05,679 So I don't know words I can say. There was that that classic case 459 00:41:06,480 --> 00:41:12,400 of Converse to California with a guy in the courthouse in Los Angeles with I 460 00:41:12,400 --> 00:41:15,760 don't know if we can say this, so I'll say he said the word 461 00:41:15,800 --> 00:41:22,079 on his back was f the draft. How do I speak f asteris asters 462 00:41:22,079 --> 00:41:28,960 the draft? And uh? And just as Hal was saying, um, 463 00:41:30,280 --> 00:41:37,239 what does he happen, he was all words are a motive. We don't 464 00:41:37,280 --> 00:41:38,840 know what he's saying. You can't pass the judgment. You don't know why 465 00:41:38,840 --> 00:41:44,119 this word is worse than anything else. Well, you know the words are 466 00:41:44,159 --> 00:41:46,239 mean, So f the draft could have mean make love to the wind. 467 00:41:46,840 --> 00:41:52,239 You know, we know that's not what it meant. We know what's what 468 00:41:52,320 --> 00:41:55,039 it minute. If the draft, as a mark of it was a it 469 00:41:55,159 --> 00:41:59,679 was a it was a it was a condemnatory term. He was condemning the 470 00:41:59,719 --> 00:42:04,480 draft. How do we because that's the function that these moral terms have in 471 00:42:04,559 --> 00:42:07,920 the language. These are just these are the words you use when you're denigrating 472 00:42:07,920 --> 00:42:13,760 and attack assaulting people. So there's something mysterious about that. We couldn't get 473 00:42:13,760 --> 00:42:17,280 along in our lives without knowing having a sense of how those words are used. 474 00:42:17,960 --> 00:42:22,159 So they're curiously about conservatives. They have to dashed away from all of 475 00:42:22,199 --> 00:42:25,880 this. You know, something you want to be reminding me of the Mussolini 476 00:42:25,960 --> 00:42:31,039 writting a tract that's saying the great thing about cultural relativism. It shows there's 477 00:42:31,159 --> 00:42:37,880 no world of wrong in pursuing our policies. Great and that's why why they 478 00:42:38,360 --> 00:42:43,480 students fall into this, because there's the natural appeal of it is, say, 479 00:42:43,679 --> 00:42:47,079 if there're no cons wral judgment class, for people to cast any judgments 480 00:42:47,119 --> 00:42:52,360 on me. You know, I called the question what I'm doing to adopt 481 00:42:52,480 --> 00:43:00,320 this as a principle governing around it? What is a religion camp to just 482 00:43:00,360 --> 00:43:07,159 be kind of what's offensive? So so religion can include satanism, the affirmation 483 00:43:07,199 --> 00:43:10,559 of radical evil, and so we can't can't we have to be morally relative 484 00:43:10,679 --> 00:43:15,880 on all that stuff. You know, was the God of the Declaration of 485 00:43:16,000 --> 00:43:21,400 Dependence, the one who the anchor the author of the laws of nature, 486 00:43:21,719 --> 00:43:27,360 including the moral law, could not have been indifferent on the question of affirming 487 00:43:27,480 --> 00:43:34,199 radical evil. There's nothing. There's nothing about that. I understanding religion makes 488 00:43:34,280 --> 00:43:40,760 no sense unless it contains the first Principle or God. And if it does, 489 00:43:42,000 --> 00:43:45,559 we always understand that that that God is a God directed to upstanding, 490 00:43:46,000 --> 00:43:51,760 upright, rightful things, not a God who's teaching evil. I mentioned this 491 00:43:51,880 --> 00:43:57,480 is some of the other day. Imagine Moses came down from Sinai, and 492 00:43:57,559 --> 00:44:02,159 he told the Hebrews gathered round the Lord God told us don't worry overly much 493 00:44:02,280 --> 00:44:08,199 about uying out with somebody else's wife and taking what is that used. If 494 00:44:08,239 --> 00:44:12,039 he came down saying things like that, I think the people Runton would have 495 00:44:12,039 --> 00:44:14,880 been scratching their heads and saying, are you sure you got that? Ryan? 496 00:44:15,800 --> 00:44:24,519 How are you listening right? That's it's it's all very helpful, um. 497 00:44:24,719 --> 00:44:29,639 And it leads me to the question. I know you've been talking about 498 00:44:29,679 --> 00:44:31,239 this a lot and thinking about it a lot. Um. There's just been 499 00:44:31,280 --> 00:44:38,039 a flurry of recent attacks on conservative justices on the Court from Justice Thomas now 500 00:44:38,159 --> 00:44:44,760 Justice of course, The New York Times has published an investigation of the antonin 501 00:44:44,840 --> 00:44:50,599 Scalia Law School over at George Mason University. Oh yeah, oh yeah, 502 00:44:50,639 --> 00:44:55,440 it's a long ways of course. Of course, if Clarence Thomas had books 503 00:44:55,440 --> 00:45:00,920 overdue with the library, it would be a major issue for South the Senator 504 00:45:00,960 --> 00:45:07,679 White House. And it's obviously contrived. It's simply a campaign of denigration and 505 00:45:07,920 --> 00:45:14,599 smearing. And it's so it's curious, I know some uh one of my 506 00:45:14,639 --> 00:45:17,760 sons was Tom, oh, this is about Jenny's Thomas me. People picked 507 00:45:17,800 --> 00:45:22,000 this up and they're open to it, and then they start taking it seriously. 508 00:45:22,039 --> 00:45:29,480 They don't know that that liberal judges have been been given the same terms 509 00:45:29,559 --> 00:45:36,599 with the freedom to accept gifts from Justice Brandon I Galla was given a gift, 510 00:45:37,360 --> 00:45:43,239 said and this us a fellow the charge of the dealers at NYU does 511 00:45:43,639 --> 00:45:51,440 specialize in and loyally ethics, saying, well, it's it's not a problem. 512 00:45:51,519 --> 00:45:53,519 You know, he's a friend, and it wasn't before the court when 513 00:45:53,519 --> 00:45:57,280 it Clarence to Clarence Thomas said, oh no, this is a serious matter. 514 00:45:57,559 --> 00:46:02,559 We can't presume in favorite of Justice Thomas. The whole thing is politically 515 00:46:04,079 --> 00:46:12,440 tilted, motivated animated um animated by a wrongful purpose. It's um and I'm 516 00:46:12,440 --> 00:46:20,360 afraid it cords with this current thing. That's that I think that's really novel 517 00:46:20,440 --> 00:46:23,960 in my in my life. And it's the scariest part of this willingness to 518 00:46:24,320 --> 00:46:29,840 carry out attacks in private to private houses, outside the homes of judges, 519 00:46:30,280 --> 00:46:36,360 to attack people in restaurants. It's it's and just keep dunning a big charges 520 00:46:36,400 --> 00:46:42,039 even though they may not be true, and a campaign of denigration. And 521 00:46:42,039 --> 00:46:45,679 if it's it sounded or not long, it'll be either it'll be accepted or 522 00:46:45,760 --> 00:46:51,800 believed, or if it's not believed, accepted as the party line of the 523 00:46:52,039 --> 00:46:55,320 day. And so we hold to it. And it's all it all vound 524 00:46:55,360 --> 00:47:01,920 it again. It's this remarkable detachments from true truth that people no longer are 525 00:47:02,000 --> 00:47:07,519 embarrassed to do something that just cannot be tested with any claims of truth, 526 00:47:08,239 --> 00:47:13,320 the inconsistencies and treatment of the conservative and they will justice. They're no longer 527 00:47:13,360 --> 00:47:17,119 embarrassed. You know, I don't know much about Carl Schmidt. Many of 528 00:47:17,159 --> 00:47:24,679 my friends have been much into that. How Kyl Schmidt is Nazi writer who 529 00:47:24,880 --> 00:47:32,119 thoughtful man, even taken seriously by my former professor Leo Strauss by their professor. 530 00:47:32,840 --> 00:47:37,880 But here's Kyl Schmidt taught a very clear doctrine of friends and enemies. 531 00:47:38,960 --> 00:47:45,679 That becomes a decisive point. So if you're Merrick Garland, you've been given 532 00:47:45,679 --> 00:47:50,239 to people around you guiding you. It's clear that whatever you say, Alito, 533 00:47:52,400 --> 00:48:00,679 Barrett Kavanaugh, m Thomas, they're the enemies. No, you don't 534 00:48:00,719 --> 00:48:04,960 overdo it in protecting them. You don't know that they're they're the enemies. 535 00:48:05,280 --> 00:48:09,239 They are open And this is so, this is what's so novel to me 536 00:48:09,360 --> 00:48:14,639 about what's settled in over the last several years. That's the scariest It is 537 00:48:15,639 --> 00:48:20,519 the scariest phase I remember in my own life as what our politics has look 538 00:48:20,559 --> 00:48:24,239 like. Well, is there is there anything else we haven't touched on from 539 00:48:24,239 --> 00:48:31,039 the book you think is important for listeners to take away? Um, well 540 00:48:31,199 --> 00:48:37,920 yeah, just maybe reiterate a certain kind of theme that the founders began we 541 00:48:37,079 --> 00:48:40,000 ordinary people. Well, well, then that a line about between jealousy, 542 00:48:40,079 --> 00:48:44,800 Yeah you saw me, quartad. You can give the same more problem to 543 00:48:45,719 --> 00:48:49,519 a professor and the plowman, And the plowman is apt to get it right 544 00:48:50,599 --> 00:48:58,639 because he is not deflected by artificial rules or theories. I mean conservative judges 545 00:48:58,679 --> 00:49:04,360 have to talk themselves into a theory of why the judges could not reason about 546 00:49:04,360 --> 00:49:08,039 this matter of abortion, Whether the evidence was compelling enough to point out that 547 00:49:08,039 --> 00:49:14,320 these were human beings destroy these things. We have ample grounds for declaring that 548 00:49:14,400 --> 00:49:19,800 those holding that those laws in Texas and other places were justified. I want 549 00:49:19,800 --> 00:49:24,519 to just go back to the point that the American founders did not draw their 550 00:49:24,559 --> 00:49:30,360 moral understanding or the legal understanding from the constitutions, not the source of their 551 00:49:30,440 --> 00:49:35,920 understanding. They began with those principles outside. They were there in the first 552 00:49:35,960 --> 00:49:38,760 place. Those princils right and wrong were there often matters of common sense reason 553 00:49:38,880 --> 00:49:44,480 like you don't how people blame worthy for acts their powers to the fact and 554 00:49:44,559 --> 00:49:46,880 that carried them into the Constitution, and those things are still there. They 555 00:49:46,920 --> 00:49:52,639 realized they would be there, those princils there even if they were not mentioned 556 00:49:52,679 --> 00:49:55,639 the constitutions. Of my point about John Quincy Adams and the right to petition 557 00:49:55,679 --> 00:50:00,480 in the government of At the same time, what they're doing to create a 558 00:50:00,559 --> 00:50:06,000 structure. Um, people said, well, if there are these principles outside 559 00:50:06,599 --> 00:50:08,360 the text, are you saying you don't need the car Yes, I do 560 00:50:08,480 --> 00:50:13,960 need the Constitution. I need a structure. I need to know whether a 561 00:50:14,079 --> 00:50:19,559 state may make its territory available as a naval and military base for a foreign 562 00:50:19,599 --> 00:50:23,840 power. I want to know who the army would be expected to obey when 563 00:50:24,519 --> 00:50:31,519 when the president dies in office. Those are structural matters. Obamacare was given 564 00:50:31,559 --> 00:50:37,639 a real bump of the road when in two ten the Constitution for the fifty 565 00:50:37,639 --> 00:50:44,840 sixth time in warrant peace served up a mid term election. Nobody noticed because 566 00:50:44,840 --> 00:50:49,079 these are parts of the constitutions that were not litigating over. Okay, we 567 00:50:49,119 --> 00:50:55,519 need those. The tasks of the constitutions is to begin with those anchoring first 568 00:50:55,559 --> 00:51:00,199 principles. As we said, you know, the nation began, as Lincoln 569 00:51:00,239 --> 00:51:05,039 said, not with the drafting of the constitution, with the Declaration of Independence 570 00:51:05,280 --> 00:51:08,920 that gave us the first principle that any rightful governments over human beings must be 571 00:51:09,679 --> 00:51:14,679 depend on the consent of the government. Then we have to figure out what 572 00:51:14,920 --> 00:51:20,840 is the kind of constitution that can give us a pattern of practice that's consistent 573 00:51:21,559 --> 00:51:24,679 with that principle. So again that question arises, what is the difference between 574 00:51:24,760 --> 00:51:30,599 the positive law of America the positive law of Stuns Russia. It has something 575 00:51:30,639 --> 00:51:37,639 to do the bad that people were authorized to make positive law by the others 576 00:51:38,320 --> 00:51:44,920 because of this primary principle that we have to contrive an arrangement consistent with the 577 00:51:45,039 --> 00:51:49,440 consent of the government, and just necessary to sort of recall that those old 578 00:51:49,519 --> 00:51:57,320 things and so often, Emily, it's a matter of just recalling for a 579 00:51:57,320 --> 00:52:01,000 new generation or even some people around us now were and things as a people 580 00:52:01,559 --> 00:52:08,400 that we once used to know. The book is called mere natural Law, 581 00:52:08,519 --> 00:52:14,239 Originalism, and the Anchoring Truths of the Constitution. Hadley Arcus, thank you 582 00:52:14,320 --> 00:52:17,440 so much for joining us here in Federalist Radio Hour. Oh Emily, you 583 00:52:17,639 --> 00:52:23,079 read that book, and he was so dear too, And thanks for this, 584 00:52:23,079 --> 00:52:28,320 this this fine interview. Oh, of course, any time is fast 585 00:52:28,400 --> 00:52:30,199 any book, and I'm excited for folks to check it out. It was 586 00:52:30,239 --> 00:52:34,119 released on May second, so it is available now, go out and get 587 00:52:34,159 --> 00:52:37,599 your copy. I'm am a logicians the culture editor here at the Federalist. 588 00:52:37,719 --> 00:52:40,119 We'll be back soon with more. Until then, be lovers of freedom and 589 00:52:40,280 --> 00:52:53,840 anxious for the fray. Heard the fame by the reason, and then it 590 00:52:54,039 --> 00:52:59,800 faded away.