We're back with another edition of the Federalist Radio Hour. I'm Emily Jasinski,
culture editor here at the Federalist. As always, you can email the show
at radio at the Federalist dot com, follow us on Twitter at fdr LST.
Make sure to subscribe wherever you download your podcasts, and subscribe to the
premium version of the Federalist dot com as well. I'm joined today once again
and very pleased to be joined once again by the one and only Hadley Arcist
has a book out called Mere Natural Law, Originalism and the Anchoring Truths of
the Constitution. Doctor Arcis, Thank you so much for joining us. Well,
I'm gladed being back with the accomparable Emily. Okay, okay, no
one quite like her. Well yeah, Hadley also is obviously a professor at
Amherst College, and the found director was professor. My sentence was commuted.
I was congratulations on that. He is the founding director of the James Wilson
Institute on Natural Rights in the American founding and does all kinds of work seminars
promoting originalism and the likes of what I'm sure you've written about in this book.
I know you've written about it. In this book Mere Natural Law.
And let's start with that, because originalism is in the title of this book.
What is the definition of originalism? Well, I think I represent the
original originalism before the people who call themselves originalists, because we want to go
back to the moral ground of the law that the Founders understood. That is,
we understand part of the pitch of the book Mere Natural Law is it's
my dear friend Da Robinson, late fan said he wanted as his epitheph on
his tombstone. He died without a theory, and he was appealing to the
teachings of Thomas Read the Great Philosopher read by James Wilson and John Adams,
about those precepts of common sense that the ordinary people people have to know before
they begin trafficking and theories. So before the ordinary man would begin bantering with
David Yume about the meeting of causation, he knew his own act of powers
to cause his own acts to happen. So what we're arguing here is that
the precepts of common sense are there before. These are the priest principles of
common sense and the principles of right that the Founders drew upon as he said
about framing the Constitution, and those principles of right they understood would be there
even if there were no Constitution, much the way that John Quincy Adams that
that right to petition the government that would be there even if it hadn't been
mentioned in the First Amendment would be there even if there were no First Amendment.
It would be there even if there were no Constitution. So what my
hoop is representing in this argument within the conservative community, it's for an originalism
that does not attach the text of the Constitution from those underlying moral truths.
And at a certain point you must be able to move beyond the text of
the Constitution or to understand the purpose behind it all. So that it's strange
that some kind of the conservatives think conservative judges think that there's something in their
theory or code that prevents them from dealing with a case like transgenderism and not
going outside the text of the Civil Rights Act of nineteen sixty four. What
do we make sex and appealing to the object active truth of what is the
fact is sex? The objective truth of the tailors of sex? This has
to matter. We have this odd situation which just feel constrained some time to
appeal to the objective truth of the matter. I mean, fifty years ago,
the lawyers from Texas on roversus way to an exquisite brief with the most
updated findings of everylogy to extract these points for the court that that aspin in
the woomb have been nothing less than humans from its first moments, and it
has never been really a part of the body of the mother. But do
we have the dops case thiss tune and six conservative judges cannot bring themselves to
recognize that point that we're dealing in abortion with a real human think. So
we have Red Cavina saying it's interesting, there's some whole lifers that the fetus
is a human life. Interesting a point that's been well established embryology. What
is there about conservative jurisprus that moves justice to think that these truths and these
moral judgments that are there before the text are things they can't appeal to and
explaining what the what the case is before? Then what is this about?
Right? You quote Justice Kavanaugh's concurrence in the book where he says many pro
life advocates forcefully argue that a feeling is that interesting we argue it we so
conservative juice Prus has to begin with the proposition that we know nothing about the
nature of the child. We have to adopt a radical falsehood as part of
this theory of what conservative juris pruns is supposed to do. And that's another
interesting question because the Founders were obviously students of natural law and it's baked into
our system of government. It Um, how did they approach this question?
Do we have evidence of how they approached this question about on the foundations of
natural law? Well, the things that they know. Somebody as Johnathan Genie
right out that the Founders didn't put in the Constitution everything they knew and so
many things you know, Um, James Wilson, Albrey elsewor didn't want to
put anything about expost factor laws. God, everybody understood that there's something hung
with all the people punishable for something that was that was not wrong when it
was not illegal and it was done. My God, if you put that
in and people think that's the only first principle you know now on the matter
on this gradual abortion. James Wilson put it as clearly as can be.
If we have natural rights, when do those rights begin, and the answer
was as soon as we begin to be which is why he said, then
true law, that the common law so cast its protection over the child in
the womb from the first stirrings in the womb, as soon as we know
it is there. So yeah, the fathers were able to reason about these
things, and of course what they understood is that the natural law is a
law that tells you why you have laws, and what is the law you
know before you know it. Cont with point out that before you have any
positively, you've got to have positive law. You have to make a transition
between the principles of natural law and the regulations that pay they are under circumstances
before you. So Macie science saying sixty five mph thirty five mph on the
highway, that's the positive law behind the four The positive law was a deeper
principle that tells you why you'll be justified in restraining the freedom of people to
drive space to put innocent life at hazard. So you see, behind any
of these positive laws, it must be a principle that tells you why inde
justified in having a law there in the first place. And in fact,
there was a lot of the rat the left was rankled by Justice Alito's decision
to build his decision in the Dobb's case from natural law and the stirrings and
the quickenings and go ahead? Did he didn't build? Well, I was
going to ask you about that because I remember and we talked with a podcast
after the decision was um. The decision came out about what would have been
a better decision in that case and what he right, what Justice Thomas could
have done differently in his concurrence. So looking at you know, Justice Alito
talks about those things, Where do you think the dots should have been connected
in that opinion? Well, let's go back to what I told you about.
See those lawyers in the over way, they point out that we're dealing
with a human being, will Uman being in that case in nineteen seventy two,
the seventy three, the CORTI have said, well, look, the
legislature of Texas has found ample reason to hold that that that is a small
human life resident for a while as mother, as woman. But the laws
on homicide have ever been indifferent to the size and age and the weight of
the victim. Once you understand it's a human being, then it should be
covered by the laws on homicide. But we have we leave to the legislature
the Delga task of seventy Just how how early are the protections? What kinds
of protections as appracticable for you to offer? Well, they could have been
pointed. This case is simply making that move. I mean, just as
Alito. But now all the materials show that there's no principal ground for the
I'm at that standing of that child rule as a potential as a human being.
He just wouldn't draw the conclusion. He was leaving the people in the
political sphere to draw that. He handled it off to the political sphere.
But the political class we know is always too different and befuddled and timbered about
talking about these things. But it's the same. Look at how he left
it. Even even a lado Is would speak about the unborn child as a
potential human being. A potential human being, My god, you look at
the brief and Texas again an embryology. It may be a potential outfield,
It is not a potential human being. Has never been merely a potential human
being. Well, let's say you just got that once straight. So what
do you put in place? You put in place the ground on which the
Congress or a federal judge could argue that these Blue states are withdrawing the protections
of law from a whole class of human things. They are these small human
beings that have to be restud for a while, and their mother's wounds,
and therefore, you know, we have to overturn or check these laws in
the Blue states that are withholding the production of law from a whole class of
human beings in the way that the courts are intervening in the fifties and sixties,
finally making way to the recognition that they could indeed challenge the laws of
those Southern states that worth holding the protection of the law from a whole class
of black people. So there's there's nothing, just nothing arcane about this,
is that there's no novelty. It's not like we haven't done anything like this
before. The court is always making judgments by how closely can you you know,
how closely can you be justified in searching somebody body? Cavities have to
be justified looking into somebody's the driveways. Are always making decisions about this,
Well, what is a justified extension of the law. There's nothing here that's
really um, bizarre or or arcane. And so do you know when do
you think this starts to change? Um? You know in jurisprudence, where
is there a hinge moment? Is there a place we can point to where
the shift really started to take hold? Absolutely absolutely with the dissenters and roll
versus way with Justice Ranks and Justice White. The lawyers have presented a powerful
case drawing on the findings of embryology. Nothing in that rich grief. What's
put in place by those those those dissenters, and that's and it's been put
in place by the majority of dobs. Now what do they do? They
retreated the notion that the real wrong here was the wrong done by judges.
They always their laying that abortion is not contained in the Constitution and therefore a
federal judge doesn't have the authority to proclaim anything about rights of abortion arising from
the text of the Constitution. So but of course, the Constitution said nothing
about marriage when the court struck down the laws about interracial marriage in nineteen sixty
seven, And as my friend Jerry Bradley pointed out, the federal government had
always had ample reason to be dealing with the business of abortion to dealing with
abortion in medical hospital in the federal hospitals, and military hospitals, and diplomatic
outposts abroad in the territories in the district of Columbia. There's nothing about this
subject that moved it outside the reach of a lawmaking power, when where the
Congress did have the authority and responsibility to make laws. So so what the
cabinet moment was that Byron White just as White said, well, this is
really could be appalling. He's saying that people could order up an abortion simply
when it suits their convenience. But then he turned and he transmuted the subject
and the all he shifted the victim from the child in the womb being killed.
The victim was now the people in the states were deprived of their freedom
to deliberate in the political arena about their laws an abortion. So as it
went forward, we found then people in the conservative rooms, if that was
the real wrong of abortion, they should not be addressing these moral questions.
And so it became an article faith curiously among among conservatives that these moral judgments
are not part of the law. It's it's And the problem here is that
judges really reached beyond themselves in reaching to these more conclusions, those small conclusions
should be only the political arena, and making those moral judgments should never be
the work of judges. Of course, in escapably it is the work of
judges. As I used to say that to ask whether the judge can get
to the day without natural laws, asking whether you can get to the day
without more reasoning on matters of right and long, and you might as well
ask the questions. It's like asking can I order the coffee without using syntax?
You know, it's not out there, it's moment into everything you do.
But curiously, people go so reactive. Look, I went to lots
of I began going to put a life marches since nineteen seventy four. The
first time they hill people out there, out there, young and old,
were concerned about babies being dismembered or poisoned. I saw no signs about the
real lack of judges overstepping the bounds. That was not the wrong. And
so what we had here is people that my dear friend Annie Culture saying,
what's the argument about the issue is that there's no conclusial right to an abortion.
The cart settled that one. So what are we argue about. Now,
that's all that the wrong of the case was adduced to the fact that
judges reached the problem instead of saying the wrong effect that the judges created a
license, a virtually unrestricted license to take innocent life in the womb for virtually
any reason, not only to the throughout the length of pregnancy, but as
we discovered, even when the child came out and survived the abortion. The
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you get your podcast. There's a there's a chapter in the book entirely on
a quintas and the sort of that other you put it this way, that
other first principle of moral judgment, that's also what you mean by that.
It was the one um QUI say, that's the goodest stat which we desire,
the goodest stat which we approve, and um the batter that those things
we should refrain from doing and we should discourage from doing. And John Cartney
Murray thought that that's that's that's so evident. It's almost like something we know
our priori. You know, the rest ares come home from winning the World
Series. People are cheering and applauding. They're not throwing stones. You know,
there's a natural reaction to approving what you think is good and disapproving what
you're punishing what you think is wrong. Okay, that's right, But of
course cast on those terms, the same thing would apply to the mafia.
Mafia has a clear sign of what makes a good citizen within the mafia.
It doesn't run on other people. And that's why we need the witness protection
program because there's those are the wrong doers, the people who would run on
their friends. So but it's a critical point that keeps getting in on us
because people don't don't quite understand that. I use the example of their friend
Dan Robinson in a famous hearing on field pain in nineteen eighty five in the
Judiciary Committee. And this doctor Burke Woods from Yale a complaint about doctor Nathanson,
who had been a leader in the abortion rights movement, who then flipped
and became leader in pro life movement. He said, well, doctor Nathan
said, it is not disinterested or neutral this question. And larn Head says,
but doctor, he said, what doctor Burke Woods are no? Back
said no, I have no opin I have no opinion. And Head says,
but doctor, you performed them. You performed them if you understand.
And then Dan Robinson the point, I said, what's this waltz about?
If you thought something was wrong, the logic of the first princil comes into
place. You should not do what is wrong. You would obliged to do
what is right in a frame from what is wrong. So, doctor Burke,
if you're performing those abortions, we gather you must think there's nothing wrong
about it, In which case, why are you so different about reporting the
number of times you've done it? If you think it is wrong, why
are you sending you're defending it. Other words, it's as I try to
show in the book, that was the key point that Lincoln use in his
classic debate with Douglas, just to to destroy Douglas's arguments there that it is
so basic and it's serviceable. And suddenly you see the play in that those
hearings on fetal pain where Robinson just just you know, refuted doctor Berklin's he
saying suddenly that that first principle always there, suddenly comes in. It kicks
on an interness with an effect that we have anticipated, but it has always
been there. But my point has been that it's it could be used.
That principle could be used on Philo Mafia as well as other people. That
you have to get the closer first principle, the one that that Count as
well as Thomas Read considered the real first principle of all moral legal judgment,
is that it makes absolutely no sense to cast judgments of praise or blame on
people the things they were powerless to do. So that we so we hold
as the first principle that we don't hold people blame worthy are responsible for acts
they were powerless to affect. That becomes one of those deep principles in our
law. And I think it has something to do finally with what did the
wrong principles of racial discrimination? Anyway, at my point, my point,
Emily, is that is a principle from which many other substitutive things come.
You say, okay, you begin with an understanding of what the law may
reach. That you don't help people blame worthy that when we were faced with
John Stuart Mill says, we stop using the language of life and this life
and start using the language that right or wrong. As we think people may
right, they be honest what they're doing, but if we respect their difference
between innocence and guilt, that appliges us to take it seriously by using the
most demanding canons of reason and testing evidence, run and having people run over
hot colds or out run a mob in the street. And as you take
the thing, bring out further, just draw out the implication the rise that
first principle, Emily, you arrive at a judgment of this kind that people
accused of crimes should have access to those witnesses and evidence arrayed against them,
so they have a chance to rebut them, and rebutting them. Arriving in
a verdict, it is more substantly accurate in discriminating between innocence and guilt.
So if you by that logic, as I argue, you know, but
that moral logic, we would of course have the right to confront witnesses against
us. We have that right. But even if it weren't sit down in
the sixth Amendment. But my point is you begin with something like you may
not be held responsible for texts were powerless to affect, and from that you
called drop out moral judgments of real, practical force and significance. And actually
that's a great transition to the next chapter in which you write about natural rights.
And Christopher Caldwell in his excellent folk Age of Entitlement, talks a lot
about rights and the expansion of our definition of rights and how this question of
human rights became a really slippery slope into basically all of the problems that we
see with you know, what folks call wokeness right now, and the capturing
of all of our institutions. But I wanted to ask you, because you're
writing about natural rights here, what that if you were explaining to for instance,
a student, what the distinction is between natural rights and human rights any
or if perhaps those should all be the same umbrella, the same umbrella definition.
Most people are very familiar with the shorthand human rights. Whether they know
what that actually means and feel confident in its grounding in philosophy is a different
question. So can you talk a little bit about that distinction? If you
think there is one, well not interesting natural, Well, this, this
example might help Emily. Now that example I use of the visitor who comes
from London and lands in New York, and we don't think we have to
look at his passport before we protect him from a lawless assault on the street.
We don't think that his claim to that protection depends on his citizenship.
That the same man can't take himself over to the city clouds of New York
and expect to be enrolled and enrolled at that subsidized rate of tuition that people
in New York make available to citizens. That is, certain rights arise only
certain enclips, like the right to use the squash courts of Amor's college.
Now, none of the questions, Well, if you're saying that this man
has a right not to be assaulted does not depend on its citizenship, what
are you saying that what do you call it is some kind of a right
that flows to any human being by nature. Now we know the natural right
to life does not mean a light right to life everlasting, or that that
you cannot be put in harm's way by the government in defense of the country,
are subjected to capital punishment. But the right to life meant is that
one has a right to be protected from a laws unjustified taking with the life.
What theft is is a taxation can remove people's property. What theft is
the taking of property without justification. You know this is so what the problem
is? Naturalize it. What you can say is that human beings have a
natural claim to be treated justly with justifications when their freedoms are being restricted.
In an ordinary people have a natural sense of these things. You know.
I have a couple of years ago, people my spiffy apartment building were put
all put out on the grounds for two hours because the firefighters. Firefighters were
fighting a fire in the building. No one believed me like being out there
for those two or three hours, and our liberty was being restricted, our
liberty to run go back to compartments. And you have nobody thought that their
rights were being violated why is that. I think, in a common sense
understanding, my liberty is being restricted with the purpose of protecting my life.
That is to say, there's a justification for it. That is the natural
understanding that always affected the question of rights. You may have a you may
have presumptive claim, and this is one of the arguments that we have old
argument about about the Bill of Rights. We could say, we could add
to the Bill of rights my right to be not have my trunk searched in
the car by right, not without good reason, by right not to have
my luggage service at the airport without good reason. My right not to have
blood withdrawn from my arm after an accident to test whether I had been drinking
driving under the influence of out. We could go out elaborating all these instances
without getting to the car to the problems. Whatever we what are we dealing
with, whatever aspect the freedom of dealing. What the question is is that
as a search, the search being conducted with or without justification. People are
going into subways in the York there's a fear of a that's interesting. People
going into subways in New there's a fear of a bombing, and so the
authorities are checking the bags of people going into the into the subway. Not
interesting questions right now, we're the constitutional rights engaged here. Well, yeah,
it could be the right doctor be directly searched. No, it could
also be that the deep constitutional right that the authorities in the York representing when
they're acting to protect ordinary people from having their lives taken an unjustified way with
the bombing in the subways. It's not only the cards that protect natural rights
and so. But all these things will keep pivoting on the question of Look.
Look, at the time of the Value, everybody understood the difference between
liberty and license, liberty being directed to a rightful or innocent and as being
misused and directed to wrongful. Then, so harvering over the question of liberty
at all times was the question of are you using this liberty to do innocent
unlawful things? Are using it to do things that may be rightly restrict it?
Look, I saw you in thethetical venue company US. I ran into
young a young fellow with a bicycle about to take the bicycle to the subpoint,
and I said, can you do that? He said, yes,
but not doing Russia hard And he understood that his liberty was being restricted,
but they're peably good reasons for doing it, and therefore we didn't think his
rights are being violent unless you memorily. My point is is that ordinary people
make these decisions every day. There's nothing nothing arcane about it. There's nothing
inscrutable about these things. These are matters of common sense people. They framed
the problem in these more's natural inclination to frame the problem in this moral frame.
So interesting, and I love the way that you put this. Uh,
this is actually a chapter title, The Conservatives and the Lore of Defensive
Relativism. I love the phrase defensive relativism, and I wanted to see if
you could kind of you talked about it a little bit earlier actually, but
if you could sort of tell us what you mean by that term and what
you mean by it sort of the lore that it's had over conservatives, that
would be great. Oh yeah, it's like, we're afraid that people are
going to be so restrict conservatives. The best one you do is say there
is no ground for the thaying the difference between offensive and offensive and rightful speech.
We see there was no ground for this. The Nazis parading and Skokie
now there's no grounds are saying there's something wrong about the Nazis parading and Skokie.
Well, the problem is if there are no grounds right and wrong,
there's no ground in which to hold to the rightness of freedom of speech and
the Remember years ago when I was invited by the when I was finding myself
on the other side of the you on a matter of the Nazis and Skokie.
They've hamlet of the and the uh the she was saying, how did
it go? Uh? We protect speech even when it's um, oh,
what's the ship, even even when it was popular or offensive. But the
honest the sense of was was offensive mean? It's means it's unpopular people things
you don't like. It's unpopular. What seems to be ruled out. And
that's what's what the court is saying these when when there's a leader, when
that rock of our of our first amendment is we protect speech even when it's
offensive. Now that seems to roll out the notion that offensive does not mean
really, it's some popular, but there's some there's some speech that isn't the
offensive wrongful? In point of prints, it's the it's the writing up hatred
to racial, religious minorities, the libels, the tax on people's reputation,
stirring up hatred for people. Um. What the founders understood was that speech
can be a vehicle for inflicting injury along with every other medium of our freedom.
And when they saw it, and the question was, well, are
you committing a libel or John Marshall's line, you could be you're stirring up
hatred, stirring up a mob against religious minorities. They can understand when speech
is being used to inflict harms and at times, atimes it does seem need
to be even meet a material hert. There's a case years ago with Maryland
where a black family had moved in. Someone had burned across outside the home
of the family. By the time the family got home, the cross was
already cleaned up. They were not affected by it, but people in the
community had a sense that something wrong had been done. It's kind of this
kind of an expressive attack. So the you know, it's like stand stand
evidences whole life. The problem with pragmatism is that it doesn't work. You're
trying to um. You see, we're getting this problem. We don't want
to give people the authority to make these hard decisions to talk about the speech
that is a legitimate or illegitimate, and the problem there there's been no safety
in that. That kind of stands of relativism has not protected conservatives on the
campuses, made it easier for conservative speakers to go to the law to the
law school at Stanford. None of that has given us any The classic doctrine
here was with the Chaplinsky case. They all classicate it. We can tell
the difference between arguments and assaults. The famous case of oh name, it
was giving giving at a PTA meeting, getting up at a PTA meeting,
and he had every other word was the adjective mother effing. And the point
is you by asking him to refrain from using that word and destroying the climate
of stability, you're not barring him from giving the most seering critique of the
school board. This was Justice Murphy's opinion in the ultra Plinsky case. It's
a kind of speech that it's not necessary to the exposition of any ideas.
You can bar people from calling names and stirring, stirring violence, stirring people
conflict, or just just golfing the names that it's salt and denigrate um,
you can do that without borrowing their freedom to make the most substantive arguments.
And the accident I argument is that these things should be is no, we
can tell. We can tell the language and adjust the burning of crosses,
the language that is understood as language of denigration, and so we know them.
The end word and I hate to say it, ordinary people understand these
things. Truck drivers understand. You don't need lawyers to understand what kinds of
words and gestures are taken as as as denigrating terms. And it's easy to
spot in the fact that we work with convention that restricted when it's evident to
everybody in ordinary language, this is one of those terms to men to assault
and denigrate if in doubt do not do anything right. But we can work
that scheme, and that at meantimes say we are free. You can avoid
those kinds of assaults, but free to make even the most strongest we can
buy the Nazis from from marching through the streets with banners and swastikas. It's
Skoki Illinois and a community containing people who survive the hocans. We can do
that at the same time allowing mind comp to be published. It's a different
kind of thing. There's an argument, and my point is that the conservatives
are making a profound mistake when they think that you can deal with the repression
of conservatives by simply staying as planting the point that we have no grounds of
principle at all for making any distinctions between speech that is assaulting and speech that
is innocent. Podcast the form of arguments, and you know, this question
of as as you put it, UM, the defensive relativism makes me think
of I'm actually really curious as to how what response you've gotten so far.
I mean, the book's spun out for about a day. You've been talking
to a lot of folks obviously, UM, you know, for a long
time about these issues that you articulate here. Conservative the conservative legal movement is
is pretty tightly knit and pretty robust, UM. And I guess I just
wonder what the response is because I imagine there's a note of defensiveness in some
of those conversations. Can you can you tell us a little bit about that
experience, about your experience, you know, making these arguments to folks in
the conservative legal movement who are probably very defensive of um. Some of the
defensive relativism. For instance, when people hear it, they think agree,
I know, it's amazing, like I have this debate natural law of the
acts, and ask Kazinski nine twenty twelve as making one point, some friends
grow around the audience hearing me that hearing people say I believe that, I
believe that once they hear it, they suddenly it may give with common sense
and they recognize that they've all they've always noted the problems. People get locked
in. You know, we will say that the conservatives complain to get for
years, that these liberal judges we're using as moral reasoning, growing outside of
text and crab, these creating rights built upon the agenda of the left.
Will show them we won't use moral reasoning and will shame them. Great device,
great great strategic group. It said, we wi show it never it
never barred the Steve Reinhardt's of the world and going on with what they're doing.
And if you think there's something wrong with what these people are doing while
they're affecting moral postures, the sort of show them where they're wrong, show
them where it's specious, you know. But you know, people do get
locked in, and people will say book and you may be right, but
look, we've got to it's potentially you've got to deal with this thing.
And the best thing we could do is tell people they have no grounds for,
no grounds for at these judgments. And so you have, say cal
Duncan, going over to the law school at the stand you tell me you
walk through a hall on the way to meet and you have people out spitting
out contempt for you and insults, and you say, that's a welcome,
that's a welcome to the that's a support for your freedom to speak. That's
an insult. It's clearly a sign of hostility, meant to intimidate you and
to show that you have no standing to even to give the speech. Why
do you assume it's legitimate? As long as people are not picking up stones
that we ordered. People able to tell the difference between know words the acts
that are detegrating and dismissive. Um. People know when they're being treated casually.
And as I say, this is something that truck drivers can do this
as well as lawyers. They know when they're being disrespected. They know when
when an ethnic term is used to disparage them. Um so so, so
what this understand is contained an ordinary language and the moral sense that people naturally
have. Human beings are moral creatures. They're given to argue over things that
are right or make judgments. And of course the words and work. There
are words that work in our language that are meant to convey that judgment.
So I don't know words I can say. There was that that classic case
of Converse to California with a guy in the courthouse in Los Angeles with I
don't know if we can say this, so I'll say he said the word
on his back was f the draft. How do I speak f asteris asters
the draft? And uh? And just as Hal was saying, um,
what does he happen, he was all words are a motive. We don't
know what he's saying. You can't pass the judgment. You don't know why
this word is worse than anything else. Well, you know the words are
mean, So f the draft could have mean make love to the wind.
You know, we know that's not what it meant. We know what's what
it minute. If the draft, as a mark of it was a it
was a it was a it was a condemnatory term. He was condemning the
draft. How do we because that's the function that these moral terms have in
the language. These are just these are the words you use when you're denigrating
and attack assaulting people. So there's something mysterious about that. We couldn't get
along in our lives without knowing having a sense of how those words are used.
So they're curiously about conservatives. They have to dashed away from all of
this. You know, something you want to be reminding me of the Mussolini
writting a tract that's saying the great thing about cultural relativism. It shows there's
no world of wrong in pursuing our policies. Great and that's why why they
students fall into this, because there's the natural appeal of it is, say,
if there're no cons wral judgment class, for people to cast any judgments
on me. You know, I called the question what I'm doing to adopt
this as a principle governing around it? What is a religion camp to just
be kind of what's offensive? So so religion can include satanism, the affirmation
of radical evil, and so we can't can't we have to be morally relative
on all that stuff. You know, was the God of the Declaration of
Dependence, the one who the anchor the author of the laws of nature,
including the moral law, could not have been indifferent on the question of affirming
radical evil. There's nothing. There's nothing about that. I understanding religion makes
no sense unless it contains the first Principle or God. And if it does,
we always understand that that that God is a God directed to upstanding,
upright, rightful things, not a God who's teaching evil. I mentioned this
is some of the other day. Imagine Moses came down from Sinai, and
he told the Hebrews gathered round the Lord God told us don't worry overly much
about uying out with somebody else's wife and taking what is that used. If
he came down saying things like that, I think the people Runton would have
been scratching their heads and saying, are you sure you got that? Ryan?
How are you listening right? That's it's it's all very helpful, um.
And it leads me to the question. I know you've been talking about
this a lot and thinking about it a lot. Um. There's just been
a flurry of recent attacks on conservative justices on the Court from Justice Thomas now
Justice of course, The New York Times has published an investigation of the antonin
Scalia Law School over at George Mason University. Oh yeah, oh yeah,
it's a long ways of course. Of course, if Clarence Thomas had books
overdue with the library, it would be a major issue for South the Senator
White House. And it's obviously contrived. It's simply a campaign of denigration and
smearing. And it's so it's curious, I know some uh one of my
sons was Tom, oh, this is about Jenny's Thomas me. People picked
this up and they're open to it, and then they start taking it seriously.
They don't know that that liberal judges have been been given the same terms
with the freedom to accept gifts from Justice Brandon I Galla was given a gift,
said and this us a fellow the charge of the dealers at NYU does
specialize in and loyally ethics, saying, well, it's it's not a problem.
You know, he's a friend, and it wasn't before the court when
it Clarence to Clarence Thomas said, oh no, this is a serious matter.
We can't presume in favorite of Justice Thomas. The whole thing is politically
tilted, motivated animated um animated by a wrongful purpose. It's um and I'm
afraid it cords with this current thing. That's that I think that's really novel
in my in my life. And it's the scariest part of this willingness to
carry out attacks in private to private houses, outside the homes of judges,
to attack people in restaurants. It's it's and just keep dunning a big charges
even though they may not be true, and a campaign of denigration. And
if it's it sounded or not long, it'll be either it'll be accepted or
believed, or if it's not believed, accepted as the party line of the
day. And so we hold to it. And it's all it all vound
it again. It's this remarkable detachments from true truth that people no longer are
embarrassed to do something that just cannot be tested with any claims of truth,
the inconsistencies and treatment of the conservative and they will justice. They're no longer
embarrassed. You know, I don't know much about Carl Schmidt. Many of
my friends have been much into that. How Kyl Schmidt is Nazi writer who
thoughtful man, even taken seriously by my former professor Leo Strauss by their professor.
But here's Kyl Schmidt taught a very clear doctrine of friends and enemies.
That becomes a decisive point. So if you're Merrick Garland, you've been given
to people around you guiding you. It's clear that whatever you say, Alito,
Barrett Kavanaugh, m Thomas, they're the enemies. No, you don't
overdo it in protecting them. You don't know that they're they're the enemies.
They are open And this is so, this is what's so novel to me
about what's settled in over the last several years. That's the scariest It is
the scariest phase I remember in my own life as what our politics has look
like. Well, is there is there anything else we haven't touched on from
the book you think is important for listeners to take away? Um, well
yeah, just maybe reiterate a certain kind of theme that the founders began we
ordinary people. Well, well, then that a line about between jealousy,
Yeah you saw me, quartad. You can give the same more problem to
a professor and the plowman, And the plowman is apt to get it right
because he is not deflected by artificial rules or theories. I mean conservative judges
have to talk themselves into a theory of why the judges could not reason about
this matter of abortion, Whether the evidence was compelling enough to point out that
these were human beings destroy these things. We have ample grounds for declaring that
those holding that those laws in Texas and other places were justified. I want
to just go back to the point that the American founders did not draw their
moral understanding or the legal understanding from the constitutions, not the source of their
understanding. They began with those principles outside. They were there in the first
place. Those princils right and wrong were there often matters of common sense reason
like you don't how people blame worthy for acts their powers to the fact and
that carried them into the Constitution, and those things are still there. They
realized they would be there, those princils there even if they were not mentioned
the constitutions. Of my point about John Quincy Adams and the right to petition
in the government of At the same time, what they're doing to create a
structure. Um, people said, well, if there are these principles outside
the text, are you saying you don't need the car Yes, I do
need the Constitution. I need a structure. I need to know whether a
state may make its territory available as a naval and military base for a foreign
power. I want to know who the army would be expected to obey when
when the president dies in office. Those are structural matters. Obamacare was given
a real bump of the road when in two ten the Constitution for the fifty
sixth time in warrant peace served up a mid term election. Nobody noticed because
these are parts of the constitutions that were not litigating over. Okay, we
need those. The tasks of the constitutions is to begin with those anchoring first
principles. As we said, you know, the nation began, as Lincoln
said, not with the drafting of the constitution, with the Declaration of Independence
that gave us the first principle that any rightful governments over human beings must be
depend on the consent of the government. Then we have to figure out what
is the kind of constitution that can give us a pattern of practice that's consistent
with that principle. So again that question arises, what is the difference between
the positive law of America the positive law of Stuns Russia. It has something
to do the bad that people were authorized to make positive law by the others
because of this primary principle that we have to contrive an arrangement consistent with the
consent of the government, and just necessary to sort of recall that those old
things and so often, Emily, it's a matter of just recalling for a
new generation or even some people around us now were and things as a people
that we once used to know. The book is called mere natural Law,
Originalism, and the Anchoring Truths of the Constitution. Hadley Arcus, thank you
so much for joining us here in Federalist Radio Hour. Oh Emily, you
read that book, and he was so dear too, And thanks for this,
this this fine interview. Oh, of course, any time is fast
any book, and I'm excited for folks to check it out. It was
released on May second, so it is available now, go out and get
your copy. I'm am a logicians the culture editor here at the Federalist.
We'll be back soon with more. Until then, be lovers of freedom and
anxious for the fray. Heard the fame by the reason, and then it
faded away.